Executing the Mentally Retarded: The Night the Lights Went Out in Georgia

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The justices of the U.S. Supreme Court have an opportunity to reinforce their historic ruling banning capital punishment for criminals with low IQs. They should take it.

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The story of Warren Lee Hill, which is poised to reach its apex next week, is really the story of how vast the gulf is sometimes between the lofty pronouncements of the United States Supreme Court and the manner in which lesser functionaries of law and justice implement the letter and the spirit of those pronouncements. For in the case of Warren Lee Hill, we see nothing less than the state-sanctioned defiance of a recent Supreme Court mandate: Thou shalt not execute the mentally retarded.

Hill is a capital inmate in Georgia, long ago convicted of murder, who is scheduled to be executed next Tuesday. This is happening, at least for now, because Georgia officials have come up with a way to satisfy themselves that Hill is not mentally retarded. They have accomplished this psychological miracle by enforcing a restrictive state law which makes it virtually impossible for any capital defendant to ever prove his or her mental retardation. And they say they are entitled to apply this law because the Supreme Court said so.

Georgia is pressing ahead with the execution even though Hill's lawyers have proven beyond a reasonable doubt that, with an IQ of 70, he has "significantly subaverage intellectual functioning." The state is pressing ahead because Hill's lawyers were only able to prove by a preponderance of the evidence that Hill's mental retardation caused "impairments in adaptive behavior which manifested during the developmental period." Not good enough, say Georgia officials. The second part of the test also must be proven beyond a reasonable doubt.

This is in conflict with the Supreme Court's 2002 pronouncement, in a case styled Atkins v. Virginia, that the execution of mentally retarded murderers violated the Eighth Amendment's prohibition against "cruel and unusual punishment." Aware of the growing national consensus against such executions, and mindful of the rule that the Supreme Court must by obeyed, the state has gotten around the problem simply by claiming that Hill is not mentally retarded.

It's one thing to require the state to prove the elements of a crime beyond a reasonable doubt. It's another to require a mentally retarded individual to save his own life by applying such a standard.

Filing their briefs, Hill's lawyers late last week asked the Supreme Court justices to spare their client and, in so doing, to fortify their ruling in Atkins with blunt new language that requires officials in states like Georgia to give meaningful effect to the new constitutional prohibition. The justices should rush to embrace this desperate request. A right without a remedy is no right at all. And what Georgia -- and other states -- have done since Atkins is deny men like Hill (and Marvin Wilson, executed last summer in Texas despite an IQ of 61) the remedy they deserve.

Atkins v. Virginia

The Supreme Court did something in Atkins v. Virginia which it does too often in close cases -- which, in fact, officials throughout the ages have done too often: It came up with a neat compromise that left for a future day the true ramifications of its choice. While it announced a ban against the execution of the mentally retarded, at the very same time, it gave recalcitrant states a map to getting around the ban. The broad stroke was widely hailed as a great victory for human rights, but the details doomed men like Marvin Wilson -- and perhaps Warren Lee Hill as well.

The justices who signed onto the majority ruling in the case were acutely aware in Atkins that, by leaving the key question to the states, they would enable officials in some jurisdictions to continue to execute mentally retarded defendants whom other states would spare. Justice John Paul Stevens wrote:

To the extent there is serious disagreement about the execution of mentally retarded offenders it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, with regard to insanity, "we leave to the State[s] the task of developing ways to enforce the constitutional restriction upon its execution of sentences."

In other words, the court in Atkins was ready to extend full Eighth Amendment protection in "easy" cases of mental retardation, but not in "hard" cases where there might be "serious disagreement" between experts about the level of retardation. This cop-out was part of the ruling, even as the court acknowledged that "some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards." Justice Stevens continued in this vein:

Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.

Despite its grand constitutional claim, Atkins allowed states to continue to manipulate the results of "close" capital cases of mental retardation by trotting out their medical experts and their psychiatrists, in order to conclude that the condemned was not so mentally retarded as to fall within the protections of the Eighth Amendment. This scenario resulted last year in the shocking execution of a Texas man "who could not handle money or navigate a phone book, a man who sucked his thumb and could not always tell the difference between left and right, a man who, as a child, could not match his socks, tie his shoes or button his clothes."

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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