How Georgia Just Spared the Life of a Man It Desperately Wants to Kill

Warren Lee Hill was scheduled to die this evening.
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Ric Feld/AP

You just can't make this stuff up.

Georgia has been trying desperately for decades to execute Warren Hill, a convicted murderer who long ago was sentenced to death for a gruesome crime. But just when it looked like state officials would get their wish, just when it looked like the state and federal courts had rejected all of the substantive and procedural arguments Hill's attorneys could gin up, just when it looked like state sovereignty would prevail over the Eighth Amendment, Georgia blew it.

The state blew it because in its zeal to execute Hill, in its desire to keep the "machinery of death" cranking in the Peachtree State, it enacted this past spring a wholly unnecessary (and patently unconstitutional) "state-secret" law that sought to keep vital information about capital procedures from the public--and the state's judiciary. Georgia thereby failed to abide by the governing principle of legal argument: quit while you are ahead.

It was this brand new law--designed to protect the people and corporations that manufacture the controversial (and not always safe) drugs used in the state's lethal injections--that a state court judge on Thursday found to raise serious constitutional questions under the First Amendment and Eighth Amendment. The judge asked the obvious question: How can the executive branch constitutionally conspire with the legislative branch to block the judiciary from considering all relevant components of a planned execution?

How indeed. Declaring the new law likely unconstitutional, the judge promptly stayed Hill's execution, which was then scheduled for tonight at 7 p.m ET. Georgia was unable to appeal the trial judge's ruling today to the Georgia Supreme Court because state lawyers did not receive on time the court reporter's transcript from Thursday's hearing. And the state's death warrant for Hill expires tomorrow. This means that Hill won't be executed this week or anytime soon.

This is now the second time this year alone that Hill was scheduled for execution only to receive a stay. The last time, in February, Hill earned a reprieve so that the courts could evaluate the merits of his underlying claim that he cannot be lawfully executed anyway because the Eighth Amendment forbids the execution of the "mentally retarded.*" Back then, Georgia officials blamed Hill's attorneys for the delay. Today, those state officials have no one to blame but themselves.

For years now I have been writing about how the death penalty in America is slowly losing popular support because of the arbitrary and capricious manner in which it is carried out. For years now I have been chronicling instances where state officials are so ardent in their zeal to execute people that they lose sight of the larger commands of constitutional law. This case is just the latest, and most potent, example of this lamentable trend.

To prove my point, let me briefly recap what's happened here. First, state officials argued in court that Hill was not "mentally retarded" beyond a reasonable doubt, the standard required under Georgia's uniquely onerous capital laws. Then, when the three government doctors who examined Hill changed their minds, when they conceded that their initial evaluations of Hill had been flawed and that his retardation in fact satisfied the state's standard, Georgia argued that it was too late for Hill to rely upon this changed evidence.

And then, while Hill's lawyers and state attorneys were fighting over that standard, and federal procedural rules, and Hill's mental condition in light of the Supreme Court's recent prohibition against the execution of the "mentally retarded," the state Department of Corrections went to state lawmakers and asked them to enact a "secrecy" law so that the suppliers of lethal drugs (which are getting scarcer and scarcer these days after European manufacturers stopped shipping phenobarbital to the U.S. for fear it would be used in executions) would not be subject to public scrutiny or judicial review. While Georgia was fighting over core constitutional principles, it sought to shield its fight from public view. As a matter of law, as a matter of ethics, as a matter of morality, it's deplorable.

What happens now? Georgia must appeal the trial judge's ruling to the state supreme court, the justices of which are in recess during the month of August. Hill's attorney tells me that the drugs that were to be used on his client this week will expire in early August. The state likely won't be able to issue a new death warrant unless and until it wins its appeal on the new "secrets" law (which it likely won't). And the United States Supreme Court, which was on standby all this past week waiting to see if it would be needed, has placed Hill's case on its conference docket for September.

The bottom line is that Warren Hill is alive tonight because Georgia officials wanted him dead so badly that they disregarded basic constitutional principles. That's this story, at least for now, and in a larger sense it is the story of capital punishment in America in 2013: Those who seek to execute the condemned feel so strongly about their mission that they just can't help themselves. The lesson of this story, the moral of it, is clear. But having covered enough of these cases over the years I've long since given up hope that it will be learned. 



*We are aware that the appropriate modern term to describe Hill's cognitive impairment is "intellectually disabled." But the federal courts in the context of Eighth Amendment jurisprudence still use the outdated phrase "mentally retarded" and so we use it here for ease of reference.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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