Georgia's Cruel and Unusual Standard for Proving Mental Retardation

JURIST Guest Columnist Terrica Ganzy, Staff Attorney for the Southern Center for Human Rights, argues that Georgia's "beyond a reasonable doubt standard" for finding mental retardation in capital offenses is a nearly insurmountable standard...

The US Supreme Court has held that the Eighth Amendment's prohibition against cruel and unusual punishment bans the execution of persons who suffer from mental retardation in Atkins v. Virginia. Yet, Warren Lee Hill, a Georgia death row inmate who has twice proven to Georgia courts by a preponderance of the evidence that he suffers from mental retardation, was scheduled to be executed on Tuesday, February 19, 2013. However, the execution was stayed pending further review.

Georgia, unlike any other state in the nation, requires proof of mental retardation beyond a reasonable doubt. Beyond a reasonable doubt is an impossible standard to meet in the context of mental retardation. Mental retardation is generally defined as: (1) significant subaverage general intellectual functioning and (2) significant adaptive behavior deficits that (3) manifested before age 18. All three prongs must be met.

A problem arises when one considers that the measurement of IQ is subject to challenge based on "practice effect" (how many times the test has been administered to a particular person), "Flynn effect" (the age of the particular test being administered), the test's "standard error of measurement" (estimate of error used to interpret a test score), the effort put forth by the person taking the test and the qualifications of the person administering the test. All of these factors can obviously lead to doubt in the mind of a trier of fact.

Adaptive behavior assessment, perhaps even more so than IQ determination, also leaves plenty of room for doubt in the mind of an average trier of fact, because communication, social, and practical functioning ability, particularly in the context of mild mental retardation, does not neatly fit into black and white, either/or analysis. Persons who suffer from mild mental retardation (typically IQ scores of 55-70 according to the Diagnostic and Statistical Manual of Mental Disorders) are often capable of some basic, real world functioning. The concept that a person can suffer from mental retardation and still lead a seemingly "normal" life confounds the average lay person, because it cuts against what people think they know about persons who suffer from mental retardation. Many people do not know that there are levels of severity of mental retardation and often have stereotypical views of what persons who suffer from mental retardation can (or cannot) do and even how they look.

A 2008 study of juror decision-making in a capital case by Heather Pruss, Maria Sandys and Adam Trahan involving a defendant who claimed to suffer from mental retardation found that jurors often believe that persons who suffer from mental retardation are easy to detect because they look like they have an intellectual disability and exhibit child-like behavior. Jurors think: "Hill can drive a car, so he must not be mentally retarded," "Hill served in the military, so he must not be mentally retarded," "Hill committed murder, so he must not be mentally retarded," and so on. These stereotypical attitudes are deadly in Georgia, because inherent in them is doubt that a particular defendant suffers from mental retardation, and this doubt is based on a lack of understanding of the disability.

Assuming that a person who suffers from mental retardation would perform every task poorly is dangerous because persons who suffer from mental retardation may have strengths as well as weaknesses. For example, in clinical assessment of adaptive behavior deficits, the standard measurement is whether a person suffers from significant deficits in one of three categories of functioning: conceptual (e.g., language, reading, writing, money concepts, self-direction), social (e.g., interpersonal relationships, responsibility, self-esteem, gullibility, naiveté, following rules, obeying laws, avoiding victimization) and practical (e.g., cooking, cleaning, personal grooming, occupational skills). For example, a person could have deficits in conceptual functioning and exhibit few or no deficits in practical skills and social skills — and be clinically diagnosed as suffering from mental retardation.

Hill fits into this category of persons who suffer from mental retardation but have strengths that would lead the average person to doubt the existence of such disability. Hill has been determined to have an IQ of 70 and deficits in adaptive functioning that manifested before he turned 18 years old. His IQ of 70 is undisputed. School records, standardized test scores and testimony from his teachers indicate that Hill exhibited mental retardation throughout school and was socially promoted because there was no special education program at his school. Hill, however, served honorably in the United States Navy, drove a car, and, unfortunately, committed murder. Because of the things Hill was capable of doing, he was unable to prove his mental retardation by Georgia's "beyond a reasonable doubt" standard of proof. Certainly, evidence presented of his sub-average intellectual functioning and adaptive behavior deficits was repeatedly sufficient to prove his mental retardation by a preponderance of evidence. His abilities, however, created doubt not only in the minds of the triers of fact but also in the minds of testifying experts. That doubt is steadily marching Hill to the execution chamber.

However, in a dramatic turn of events in this case, the three experts who testified in 2000 on behalf of the state that Hill did not suffer from mental retardation — but, rather, borderline intellectual functioning — have now changed their opinions [PDF]. After re-evaluating the evidence in Hill's case, Dr. Thomas Sachy, Dr. Donald Harris and Dr. James Gary Carter now conclude that Hill suffers from mild mental retardation. They now conclude that Hill suffers from mental retardation specifically because they now better understand that strengths can co-occur with weaknesses in persons who suffer from mild mental retardation. In his recent affidavit, Harris attests:

We in the clinical community now better understand that persons with mild mental retardation are capable of such things as holding a job, working under close supervision, buying and driving a car, and so forth. It is precisely because significant deficits in cognition, judgment and impulse control can be masked by superficial functionality in cases of mild mental retardation that such persons may sometimes not be identified in court proceedings as being intellectually disabled. I believe this has happened in Hill's case.
Harris cites Hill's military service as an example of one of the reasons why he misdiagnosed Hill. Harris recalls initially viewing Hill's military service as evidence of high functioning that would be inconsistent with mental retardation. After recently reviewing Hill's record more fully — and in light of what he now knows about mental retardation — he now notes that the structured environment of the military allowed Hill to perform well at lower classifications. Although Hill was recommended for promotion within the military, he was never actually promoted because Hill's performance plummeted as the tasks became more challenging.

Hill's case is a prime example of why Georgia's beyond a reasonable doubt standard is cruel and unusual and must be eliminated. Three experts in the field of mental retardation diagnosis admit to giving too much weight to Hill's perceived abilities in determining that he did not meet the criteria for mental retardation. Based on the doubt of these three experts, who now admit that their doubts were based on a lack of sufficient time to review records in Hill's case and lack of understanding how certain of Hill's abilities were not inconsistent with a diagnosis of mental retardation, a man who clearly meets the definition of mental retardation is scheduled to be executed. In light of this new evidence, there can be no reasonable doubt that Hill is mentally retarded.

If Georgia decision-makers cannot make that finding, however, the Supreme Court of Georgia should uphold the intent of its 2002 decision in Atkins and strike down Georgia's requirement of proof of mental retardation beyond a reasonable doubt. Failing to do so will lead to the execution of Hill and other capital defendants who, in the words of former Georgia Supreme Court Justice Leah Ward Sears dissenting in the 2003 decision of Head v. Hill, are "in all probability mentally retarded ... more than likely mentally retarded ... and almost certainly mentally retarded."

Terrica Ganzy is a Staff Attorney with the Law Firm of the Southern Center for Human Rights and a member of the Board of Directors of Georgians for Alternatives to the Death Penalty (GFADP). She earned her B.A. from Tougaloo University in English and Humanities and graduated from the University of Virgina School of Law. She also holds an LL.M. from Temple University's Beasley School of Law.

Suggested citation: Terrica Ganzy, Georgia's Cruel and Unusual "Beyond a Reasonable Doubt Standard" for Proving Mental Retardation, JURIST - Hotline, Mar. 4, 2013. http://jurist.org/hotline/2013/02/terrica-ganzy-warren-hill.php.

The American Association of Intellectual and Developmental Disabilities (AAIDD) and other organizations now use the term "intellectual disabilities" in place of "mental retardation." The language of the Georgia statute and related case law discussed in this article use the term "mental retardation," as does the US Supreme Court decision of Atkins v. Virginia. For the sole purpose of avoiding confusion, the author has made a conscious decision to use the term "mental retardation" in this article.


This article was prepared for publication by Stephanie Kogut, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org

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