The state of Georgia, which in 1988 became the first state to prohibit executions of mentally disabled convicts, is set this week to execute a death row inmate who has been declared mentally disabled by a state court. Warren Hill, already in prison for the 1986 killing of his girlfriend, Myra Wright, was sentenced to death in 1990 for the brutal beating and murder of fellow inmate Joseph Handspike.

 

In the course of Hill’s appeals, several expert witnesses testified on his behalf that he is mentally disabled and has an IQ of around 70, although experts called by the state disagreed. Superior Court Judge John Allen concluded in 2002 that Hill had proven by a preponderance of the evidence that he was indeed mentally disabled and thus could not be put to death.

 

That finding seemed to spare Hill’s life because the Supreme Court declared in 2002, in the case of Atkins v. Virginia, that imposing a death sentence on someone who is mentally disabled or “mentally retarded” at the time of the crime violates the Eighth Amendment ban on “cruel and unusual punishment.”

 

Unlike recent cases where the Court has held that minors cannot be executed, however, there is no clear bright line separating the mentally disabled from the mentally abled, and the Supreme Court left the issue of defining mental disability to the states. Although the psychological literature defining mental disability references an IQ at or below 70, it also requires the presence of other, more subjective factors, some relating to childhood. To complicate matters further, different intelligence tests will assign different “IQ numbers” to the same individual.

 

The problem for Hill is that the Georgia Supreme Court overturned Judge Allen’s ruling, holding that the 1988 Georgia law requires a death row inmate to prove his mental disability not by a preponderance of the evidence, but by the much more difficult standard of proof of “beyond a reasonable doubt,” which is the same standard prosecutors must meet to get a conviction.

 

According to the Death Penalty Information Center, no other state sets such a heavy burden of proof. The federal appeals court in Atlanta backed up the Georgia Supreme Court, and the U.S. Supreme Court in June declined to hear Hill’s appeal. That exhausted Hill’s appeals, and proving such a subjective and subtle point as mental disability beyond a reasonable doubt will be next to impossible in all but the most obvious cases.

 

Set to be put to death on Wednesday, Hill’s last hope lies in a request for clemency that was heard at a closed door session on Friday by the Georgia Board of Pardons and Paroles, which is expected to rule before Wednesday. Among Hill’s supporters are former President Jimmy Carter and his wife Rosalynn, who wrote a letter to the Board arguing that Hill’s execution “would undermine the state of Georgia’s historic leadership in promoting the rights of the developmentally challenged,” and Richard Handspike, nephew of Hill’s second victim, Joseph Handspike, who on behalf of the family said that Hill should be spared because “persons with any kind of significant mental disabilities should not be put to death.”

-Matt Bewig

 

Georgia Set to Execute Mentally Disabled Inmate Despite Court Ruling (by Ed Pilkington, The Guardian)

Case Draws Attention to State’s Standard for Proving Disability (by Kate Brumback, Associated Press)

Georgia Execution Troubling on Multiple Levels (by Diane Dimond, Albuquerque Journal)

Despite Supreme Court Ruling, Texas Still Executes Mentally Disabled (by Noel Brinkerhoff, AllGov)