Executing the Mentally Handicapped Is Illegal—Except When It Isn't

In spite of the Supreme Court's 2002 ban on such executions, Warren Hill, a convicted murderer who all experts now agree is mentally retarded, once again faces lethal injection.
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It rarely registers as news anymore when a federal appeals court denies a request for relief made by a death row inmate. It happens all the time, every week, in every jurisdiction that still recognizes capital punishment as a sentencing option. But there is nothing typical about what two federal judges of the 11th U.S. Circuit Court of Appeals did Monday in denying relief to Warren Lee Hill, a mentally ill capital defendant in Georgia who came within hours of being executed earlier this year.

By a vote of 2-1, over a sharp dissent, the 11th Circuit panel refused to allow Hill's attorneys to pursue their claim that Hill is mentally retarded* beyond a reasonable doubt and thus cannot be put to death under both Georgia law and the United States Supreme Court's ruling in Atkins v. Virginia (a 2002 decision which declared such executions to be a form of "cruel and unusual" punishment under the Eighth Amendment). Here is the link to the 11th Circuit ruling. The Atlantic's previous coverage of this case is found in the "More On" box on the right.

What makes this result so extraordinary -- and so unnerving to many who follow capital cases -- is the rationale employed by the court in turning down Hill's request. The 11th Circuit employed an argument that turns on its head the very essence of judicial review. Yes, there was relevant new evidence that Hill is mentally retarded, the judges acknowledged, but that new evidence didn't create a new "claim." And since there was no new "claim," they concluded, Congress precluded them from allowing Hill's evidence to be evaluated on its merits.**

This "new evidence" isn't something on the margins of the case. Instead it goes to the very heart of the question all courts must answer when confronted with instances where a capital defendant alleges mental retardation: what do the experts say? Today, not a single mental health expert, not the ones hired by Hill's attorneys nor the ones employed by the state, believe that Hill is anything but mentally retarded "beyond a reasonable doubt" -- the state's standard of proof. All seven who have reviewed the file now say Hill should not be executed.

What happened? Upon reflection, and another review of the record in the case, the three state experts who once had concluded that Hill was not definitively mentally retarded changed their minds. They admitted that they had breezed through their earlier work decades ago; that they were too busy to give the case file the attention it deserved; that they had employed the wrong standards. In short, they conceded that they had made a grave mistake in diagnosis, and they encouraged the courts to remedy those mistakes before it was too late for Hill.

When confronted with the sudden twist to the case -- when Hill's attorneys came to federal court earlier this year with these new affidavits from the state's medical experts and said, in effect, "look, all the proof in this case now tells us that our client falls within the boundaries of the Supreme Court's ruling in Atkins" -- the 11th Circuit judges ignored those new facts. Instead, they put the principle of finality ahead of the principle of accuracy. In a truly chilling passage, the judges wrote:

If all that was required to reassert years later a previously rejected claim was a change in testimony, every material witness would have the power to upset every notion of finality by simply changing his testimony. And, as this case illustrates, opinion testimony can be changed with great ease (indeed, even without seeing Hill in 13 years, administering any new tests, or reviewing new documents, three witnesses pivoted their positions 180 degrees). Moreover, there is no reason to limit the change in evidence theory to changes in testimony of previous witnesses. New witnesses could be rounded up, and every new witness would transform the same old claim into a brand new one (citations omitted by me).

Such logic is a perversion of justice -- and of the role of the appellate judge -- because it precludes the ability of the reviewing court to remedy material mistakes made during the course of a case. The truth is that "opinion testimony" does not change "with great ease"; and, even if it ever did, the 11th Circuit panel did not evaluate that testimony on its merits, as Hill's attorneys had requested, but rather dismissed it as a procedural matter. The result here, for now anyway, is the looming execution of a mentally retarded man whom no expert now believes is competent enough to be executed under Georgia law and the Atkins' precedent.

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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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