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.
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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.**