In Georgia, death row inmates with MR diagnosis fight to live

From The Atlanta Journal-Constitution:

Warren Hill sits on Georgia's death row, even though a state court judge has found him mentally retarded, which the nation's highest court says bars him from execution.

Hill's problem is that he was found to be mentally retarded under the lowest legal threshold but not the toughest -- beyond a reasonable doubt. Even though Georgia became the first state in the country over 20 years ago to ban executions of mentally retarded people, it is now the only state that sets the highest barrier for defendants raising such claims to escape execution.

On Tuesday, Hill's lawyer told the federal appeals court in Atlanta that instead of protecting the mentally retarded from execution, Georgia has done just the opposite. By erecting such a stringent burden of proof, inmates who are erroneously found not to be mentally retarded are going to be put to death, Mark Olive said.

The U.S. Supreme Court did not give states "carte blanche authority" to impose barriers that are impossible to clear, he said.

During lively arguments in a packed courtroom, a number of judges seemed to agree.

Among states with the death penalty, 22 require defendants raising mental retardation claims to prove it by the lowest threshold, a preponderance of the evidence. Four states have adopted a tougher test, the clear and convincing evidence standard. Three states have not set a burden of proof.

The 11th U.S. Circuit Court of Appeals did not issue an immediate ruling. About 10 Georgia death-row inmates who failed to prove mental retardation beyond a reasonable doubt could receive new hearings if the court finds Georgia's standard unconstitutional.

In 2002, the U.S. Supreme Court ruled that mentally retarded individuals, because of their disabilities in reasoning, judgment and self control, do not act with the same level of moral culpability that characterizes the most serious adult criminal conduct.

State attorney Beth Burton refused to concede the possibility that mentally retarded inmates will be executed in Georgia. She told the court that when the U.S. Supreme Court banned the execution of the mentally retarded, it left it up to the states to decide how to evaluate retardation claims.

This prompted questions from judges who wondered whether it would be acceptable if Georgia made it all but impossible for a defendant to prevail in a mental retardation claim.

What about a law that says only defendants with IQs below 30 can be found to be mentally retarded, asked Judge Stanley Marcus. An IQ of about 70 is generally considered to be the upper limit for a diagnosis of mental retardation.

"I think they could do that," Burton responded.

What if the state required defendants to prove retardation beyond a shadow of a doubt, Judge Charles Wilson asked. Would that make a difference?

"I can't say that it would, as crazy as that sounds," Burton replied, noting the U.S. Supreme Court could ultimately overturn such a law.

So as long as there is no Supreme Court decision that forbids a certain way of evaluating the claims, Georgia could set the burden so high no one could ever prove they were mentally retarded, Wilson said.

This prompted Judge J.L. Edmondson to wonder what the state planned to do with Hill, noting he had been found to be mentally retarded.

"If you get the chance, is Georgia going to execute this man?" he asked.

"Yes," Burton replied.

Hill sits on death row for bludgeoning a fellow inmate to death with a nail-studded board in 1990. At the time, he was serving a life sentence for killing his girlfriend.

On appeal, Hill's lawyers claimed he was mentally retarded, but Superior Court Judge John Allen of Columbus found Hill could not prove it beyond a reasonable doubt. After the U.S. Supreme Court banned the execution of the mentally retarded in 2002, Allen reconsidered his initial decision. Allen subsequently found Hill had proven by a preponderance of the evidence -- more likely than not -- that he was mildly mentally retarded. The judge also found the "beyond a reasonable doubt" standard unconstitutional.

The Georgia Supreme Court subsequently overturned Allen in a ruling that was under close scrutiny during Tuesday's arguments.

Judge Frank Hull, joined by a number of her 11th Circuit colleagues, said that the state Supreme Court ruling should stand. In more than 200 years, she noted, the U.S. Supreme Court has not ruled that a burden-of-proof standard violates the Eighth Amendment's ban on cruel and unusual punishment.