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Jonathan Green | Drug Justice

Don't kill Hill

Published: Monday, February 25, 2013

Updated: Monday, February 25, 2013 12:02

 

Last Tuesday, Warren Lee Hill Jr. ingested Ativan, the oral sedative used to calm a death row inmate moments before they gulp their last breaths, and prepared himself for lethal injection.

In 1986, Hill shot and killed his girlfriend. Then, in 1990, he killed his cellmate, an offense for which he was sentenced to death.

While Hill was serving his first term, the state in which he was imprisoned, Georgia, became the nation’s first to ban executing “mentally retarded” (in their words) convicts. In their new law, the state legislature tried its darndest to ensure that only the most severely mentally disabled convicts would escape death row, writing that defendants would have to prove their “mental retardation” beyond a reasonable doubt.

It wasn’t until 2002 when the U.S. Supreme Court caught up with Georgia. In the case of Atkins v. Virginia, the high Court ruled that the state-sponsored killing of “mentally retarded” criminals is unconstitutional.

In that decision, the Court instructed individual states to establish their own guidelines for deciding who is and is not “mentally retarded.” So Georgia was not required to weaken their qualifications, which stand today, as they did then, as the nation’s heaviest burden of proof for mental retardation.

Hill is mentally disabled. He has an IQ of roughly 70, and he is as mentally developed as your average 6th-grader. This fact is not in question. The Georgia Attorney General’s office, in charge of bringing the case against Hill, has declined to dispute the finding that Hill is mentally disabled. The judges in the case agree that, “by a preponderance of the evidence,” Hill is “mentally retarded.” 

One would assume a “preponderance of evidence” is plenty of evidence. Hill’s lawyers have proven “beyond a reasonable doubt” that Hill’s IQ of 70 indicates that he has “significant subaverage intellectual functioning.” But they’ve only established that Hill has suffered “impairments in adaptive behavior which manifested during the development behavior” by that preponderance, not by a measure that is “beyond a reasonable doubt.” Georgia’s law, though, requires that both components must be proven to be “beyond a reasonable doubt.” Preponderance be damned.

In 2000, two Georgia-appointed forensic psychiatrists and a psychologist evaluated Hill and testified that he did not meet the legal threshold for “mental retardation.” But last week, those three doctors recanted their opinions, describing their previous evaluations as rushed, incomplete and unqualified.

The clemency request that those three doctors submitted indicates that every single doctor who has evaluated Hill since 1991 agrees that he is “mentally retarded.”

With this in mind, Hill’s lawyers filed a pair of emergency petitions the day before their client was to be executed. One was submitted to courts in Georgia and to the state’s clemency board, arguing that Hill is indeed “mentally retarded.”

The second was submitted to the Supreme Court itself. In filing their brief, the lawyers were asking the Court not only to grant a stay for Hill’s execution, but also to strengthen their Atkins ruling. But the Supreme Court denied Hill’s request for a stay. It seems they have no interest in defending their ban on executing mentally disabled convicts.

It was the 11th U.S. Circuit Court of Appeals and a state appellate court that came to Hill’s rescue, mere moments before he was to be slain.

Hill’s lawyers explained that the three doctors recanting their opinions is “the equivalent of an exoneration.” It’s impossible to tell how many innocent people have been executed since the death penalty was reinstated in 1976. Ten have been definitively posthumously exonerated, including, most recently, Troy Davis. The state of Georgia remains determined to execute Hill, but if they do so, that number may as well stand at 11.

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Jonathan Green is a sophomore majoring in American studies and philosophy. He can be reached at Jonathan.Green@tufts.edu.

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