On February 19, Georgia is scheduled to execute Warren Hill, a death row inmate who has been diagnosed with mental retardation (intellectual disability). Over a decade ago, in Atkins v. Virginia, the U.S. Supreme Court ruled it unconstitutional to execute the mentally retarded. However, Hill continues to face execution because Georgia requires proof of retardation beyond a reasonable doubt, the strictest such standard in the country and one almost impossible to meet in mental health evaluations. In a recent op-ed in the Huffington Post, Eric Jacobson, the Executive Director of the Georgia Council on Developmental Disabilities, wrote, “State law requires that individuals prove they have intellectual disability ‘beyond a reasonable doubt,’ a powerful legal concept that does not translate into the way individuals are assessed to determine if they have an intellectual disability. So, while Georgia never contested Mr. Hill's intellectual disability or I.Q. of 70, he was not able to meet the burden of proof.” Since the trial, several of the jurors now say the appropriate sentence for Hill is life without parole, which was not an option at the time of his trial. In addition, the family of the victim in the case supports life without parole instead of death for Hill. According to Jacobson, a family member said, “I and my family feel strongly that persons with any kind of significant mental disabilities should not be put to death.”
Texas death row inmate 
The Dallas Morning News used the recent repeal of the death penalty in Maryland as an occasion to advocate for death-penalty reform in Texas. The editors commented on the overall impropriety of capital punishment: “At best, the death penalty is selectively used state-supported retribution, which has no place in a civilized society.” The editorial supported six pending bills aimed at improving the fairness of the death penalty. One bill would bar the use of informant testimony in death penalty cases if the testimony was obtained from a witness or accomplice in exchange for favorable treatment. Another bill would create criteria based on scientific standards for courts deciding whether a defendant has an intellectual disability that would exclude him from execution. A third bill would introduce a Racial Justice Act into law to protect against bias in death sentencing. Read full editorial below.
On December 6, Bobby Tarver, who had spent 30 years on Alabama's death row, finally had his death sentence reduced to life without parole by a state judge because of his intellectual disability. Tarver was Mobile County's longest-serving death row inmate, having been convicted in 1982 of murdering a taxi cab driver. Last September, a federal judge overruled state court opinions and held that Tarver could not be executed because of his mental retardation, thus concluding a years-long legal battle about Tarver’s mental capacity. The final ruling came ten years after the U.S. Supreme Court held in Atkins v. Virginia (2002) that it was unconstitutional to execute defendants with mental retardation.
Despite the U.S. Supreme Court's ban on the death penalty for defendants with mental retardation, Texas is planning to execute Marvin Wilson on August 7. Wilson has an IQ of 61 and adaptive functioning levels even lower; the only board-certified expert to evaluate Mr. Wilson concluded he has mental retardation (now known as intellectual disability). Wilson struggled in school, and dropped out after the 10th grade. According to experts who assessed his mental health, Wilson continues to be unable to perform even the simplest tasks without assistance. This intellectual disability typically manifests itself before the age of 18 and is objectively determined by mental health professionals, independent of the crime that put the defendant on death row. Texas, however, insists that it can layer additional factors onto the test for retardation, factors not used by any other states, not based on scientific criteria, and which do relate to the original crime. This test is based on the “Briseño factors” (named after the Texas court decision that announced them), and allows an execution if (among other factors) the court determines the criminal offense required forethought, planning and complex execution. The American Association on Intellectual and Developmental Disabilities wrote in their recent brief in Chester v. Thaler, another case involving the Briseño factors that is pending before the Supreme Court: “[The Texas] impressionistic ‘test’ directs fact-finders to use ‘factors’ that are based on false stereotypes about mental retardation that effectively exclude all but the most severely incapacitated.” Attorneys for Wilson have filed a petition with the U.S. Supreme Court, asking it to consider whether the Briseño factors represent an unreasonable application of the Supreme Court’s ruling on mental retardation .
Yokamon Hearn (pictured) is facing execution in Texas on July 18 despite clear evidence of brain damage since his early childhood. Hearn’s trial attorneys failed to conduct an adequate investigation into Hearn’s early history, which would have uncovered mitigating evidence that he was neglected by his parents and had a history of mental health problems. His mother's alcoholism was so severe that she drank to the point of passing out during her pregnancy with Mr. Hearn. He has been diagnosed with a disabling condition known as Fetal Alcohol Syndrome. Hearn’s current attorneys said there is a strong likelihood that one or more jurors would have reached a different sentencing conclusion had they been presented this important mitigating evidence. Further interfering with an adequate review of Hearn's case is Texas's resistance to apply a recent Supreme Court decision regarding inadequate representation at both trial and appeal. UPDATE: Hearn was executed on July 18.