JURIST Guest Columnist Laura Kagel of the University of Georgia School of Law says that the case of Warren Lee Hill, Jr. highlights that when the justice system allows the option of taking a person’s life, as in Georgia, it can end up undermining its own goals…

Activists in the growing movement to abolish capital punishment in Georgia have varying degrees of understanding of the legal issues that drive death penalty appeals. But it does not take a keen awareness of the tortured logic to question the stark disjuncture between the ends of justice, public safety and victims’ rights and the means of state-sanctioned killing. In the case of Warren Lee Hill, Jr., the absurdities of the system — always on display for those who care to look — seem particularly salient.

In 1988, Georgia was the first death penalty state to pass a law protecting the “mentally retarded” from executions. This recognition of the diminished personal responsibility and culpability of offenders with intellectual disabilities was married to a legal standard that boggles the mind. While the “beyond reasonable doubt” standard of proof was introduced into American law to protect criminal defendants, the same standard is applied in Georgia to make it difficult for the mentally disabled to avoid being killed by the state. In Hill’s case, his measurable intelligence level meets generally recognized standards of mental disability, yet he has failed to prove his low intelligence beyond a reasonable doubt in regard to adaptive behaviors. Paradoxically, Warren Hill’s service to his country, because it demonstrates “positive adaptive behavior,” weighs in Georgia as a factor in favor of his execution. Do we really want to embrace this type of thinking?

When the US Supreme Court narrowed application of the death penalty by excluding persons with mental retardation in Atkins v. Virginia, death penalty abolitionists celebrated the chipping away at an abhorrent practice. But limiting the impact of capital punishment is different from limiting other criminal sentences — line-drawing according to intelligence level may be necessary to categorize offenders according to the harshness of the sentence they deserve. Since Atkins, however, IQ tests are wielded in court as means to determine much more: ultimately, who in a certain class of offenders should live and who should die. In pursuing the aim of fairness, the law must draw lines, but allowing a judge to determine whether a man is intelligent enough to be put to death is the abhorrent consequence of permitting this ultimate punishment.

While a legal argument has been made for Hill’s execution, what necessity compels it? Since 1993, jurors in Georgia have been offered the choice in capital trials of voting for life without parole in place of a death sentence. Notably, despite overwhelming evidence of guilt, Georgia jurors chose this option in 2008 in the case of the courtroom murderer Brian Nichols. Despite a subsequent outcry from death penalty supporters, Nichols has posed no further threat to society and his name has disappeared from the headlines. Death penalty trials are notoriously costly and Nichols was reputedly Georgia’s most expensive defendant. Had he not faced a possible death sentence, one imagines that the funds could have been better spent on law enforcement and victims’ services. Hill’s trial preceded the new sentencing law. Despite evidence that the jury would not have voted unanimously for death had life without parole been an option, his life will not be spared. While it is legally apparent that the jury cannot recast its votes, an ordinary person might wonder if it is not possible to stop the machinery of death when the jury’s consensus has fractured.

The Georgia State Board of Pardons and Paroles should be a corrective to the malfunctioning of good intentions in Georgia’s justice system. Its five members are appointed by the governor and are authorized to grant clemency and commute the sentences of the condemned. The Board is not confined in its deliberations to consideration of the legal record and may take into account a broad range of mitigating evidence. One piece of evidence that it must have considered is an affidavit signed by relatives of Hill’s victim opposing his execution. Unfortunately, the Board deliberates in secrecy and so, oddly in a case of such significance, we will never know what factors weighed in its decision not to spare Hill’s life. What we do know is that the board members could have prevented involving the victim’s family in taking a life against their wishes.

Hill’s case is about the ability of the intellectually disabled to meet the legal standard for determining mental disability and about the constitutionality of such a uniquely high standard. If the ordinary observer steps back a few paces from the discussion, however, it is also clearly about the State of Georgia’s adherence to legal technicalities in order to allow the execution of a mentally disabled man, despite the existence of both a state law and a US Supreme Court decision intended to prevent that very outcome. Hill’s case is about the inexorable perversion of justice when legal lines are drawn to determine who is fit to be killed.

On July 23, 2012, as activists prepared to hold vigils throughout the state protesting Hill’s impending execution, the Georgia Supreme Court issued a stay against Hill’s execution to review the legality of the lethal injection protocol used by the Georgia Department of Corrections. This temporary reprieve offers a chance for the US Supreme Court to take up the issue of whether Georgia’s impossibly high standard for proving intellectual disability is unconstitutional. The holding in Atkins was intended to prevent the execution of the mentally disabled. Therefore, the Court should use this opportunity to make that prohibition meaningful.

Laura Kagel is the assistant director of the Dean Rusk Center for International Law and Policy. Before joining the Rusk Center staff, Kagel served as a state death penalty abolition coordinator for Amnesty International and currently serves as Vice-Chair of the nonprofit statewide coalition Georgians for Alternatives to the Death Penalty.

Suggested citation: Laura Kagel, ‘Meaningful’ Prohibition: Mental Disability in Georgia Capital Cases, JURIST – Forum, Aug. 2, 2012, http://jurist.org/forum/2012/08/laura-kagel-hill-execution.php.