Will the Supreme Court Make an 11th-Hour Intervention in Georgia?

A mentally retarded man is scheduled to be executed next Monday, and he has an appeal pending to the Supreme Court.

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AP

Unfolding in Atlanta and Washington this week is a compelling story about mental health, the Supreme Court, and capital punishment that illustrates vividly the width of the gulf that exists in America today between the rule of law that people think they have and the rule of law they actually do have. It is yet another story of how recognized rights can be hollowed out over time by judges and politicians and bureaucratic functionaries who extol the virtues of lofty constitutional principles with one breath and then work to undermine those principles with the next. It's a story about the perils of judicial compromise.

At the center of the week's storm is a convicted murderer named Warren Lee Hill. Despite a 2002 ruling by the United States Supreme Court that prohibits the execution of mentally retarded* prisoners, Georgia officials plan to execute Hill next Monday even though all of the government doctors who have examined him now agree that he is mentally retarded beyond a reasonable doubt. Georgia seeks to accomplish the execution by arguing that Hill has not met his burden of proving retardation under an onerous state standard; that the doctors' new diagnoses are flawed; and that, as a matter of law, they come too late anyway to spare Hill.

Because his case directly challenges the Supreme Court's prohibition against executing the mentally retarded, because it's (so far) such a great example of how easy it is for lower courts to ignore the spirit of High Court commands, I have written many times before (here, here and here) about Hill. His execution was 30 minutes away in February when it was halted by the 11th U.S Circuit Court of Appeals in order to evaluate the evolution of his doctors' views on his mental condition. 

What's happening now -- what makes this week crucial -- is that Georgia last week rescheduled Hill's execution after the 11th Circuit rejected his latest arguments. Hill's lawyers have in turn just today filed a Motion to Stay the Execution at the 11th Circuit--unlikely to grant it. For several months Hill's lawyers have had an appeal to the Supreme Court of the United States pending on this case. Even though the Supreme Court is not in session, it must now take some sort of action (either agreeing to hear the appeal or denying it) before July 15, when Hill is scheduled to be executed.

If Hill's attorneys are to spare his life (here is their Supreme Court Petition), they must get the justices in Washington to give clarity and meaning to their 2002 decision in Atkins v. Virginia. In Atkins, by a 6-3 vote, with Justice John Paul Stevens** writing the majority opinion, the Court outlawed the execution of mentally retarded prisoners but allowed state lawmakers and judges to determine the legal standards by which prisoners would be deemed "retarded." The justices assumed, as they must, that state officials would act in good faith to implement the prohibition they announced in the case.

At the time it was issued, the Atkins ruling was widely hailed as a reasonable compromise -- a federal judicial command (thou shalt not execute the mentally retarded) coupled with broad deference to state autonomy (states shall determine who is and who is not retarded). Indeed, the formula is a familiar one to anyone who has followed the jurisprudence of Justice Kennedy -- his opinion last month in the Defense of Marriage Act case tracks that very dichotomy. In Atkins, as in Windsor v. United States, Justice Kennedy's avowed love of federalism meshed with his concerns about individual rights.

But the key to the Atkins compromise was always the conduct of state officials. Would they interpret state laws to shield mentally retarded murderers from execution? Or would they apply state rules in ways that circumvented Atkins' prohibition? So far, in Georgia, the answer has been unequivocal. Alone in the nation, Georgia long ago chose the toughest possible legal standard -- a defendant like Hill would have to prove his mental status beyond a reasonable doubt. And in Hill's case, now that such a finding has been made, state officials have resorted to a series of technical arguments for why the courts should ignore that finding.

Presented by

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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