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

Warren Lee Hill was scheduled to die this evening.
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.

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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, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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