Georgia

Georgia

SUPREME COURT: High Court Declines to Review Georgia's Unusual Burden for Proving Mental Retardation

On the opening day of the U.S. Supreme Court's new term, the Justices announced they would not review the case of Warren Hill, a death row inmate in Georgia with multiple findings of intellectual disability. Hill petitioned the Court after three mental health experts, who initially said he was not mentally disabled, changed their assessment. The execution of inmates with mental retardation was ruled unconstitutional in 2002, but Georgia has the strictest standard in the nation for proving this mental disability--proof beyond a reasonable doubt. Brian Kammer, a lawyer for Hill, said, “Mr. Hill has been procedurally barred from proving his exemption from capital punishment, which is why he brought his case to the U.S. Supreme Court, in the hopes that the court would ensure that the evidence of his intellectual disability would be heard. It is tragic that our highest court has failed to enforce its own command that persons with mental retardation are categorically ineligible for the death penalty." Hill maintained he has met Georgia's exacting standard because all mental health experts who have tested him concur in his disability.

LETHAL INJECTION: Many States Are Searching for New Execution Drugs

Many states are seeking alternative ways to carry out executions by lethal injection. Missouri announced it intends to use the anesthetic propofol, though no other state has used this drug and the drug's manufacturer has strongly objected to such use. Officials in Texas and Ohio announced they will be changing their execution protocols in the near future because their current execution drug (pentobarbital) is expiring and is no longer available for this use. In June, officials in California announced it would abandon its three-drug execution method and develop a new process. Georgia apparently obtained drugs outside the state, but has passed a law making all information about executions a "state secret."  Deborah Denno, a professor at Fordham Law School and an expert on methods of execution, noted the problems states face, “The bottom line is no matter what drugs they come up with, despite every avenue these states have pursued, every drug they have investigated has met a dead end. This affects every single execution in the country. It just stalls everything, stalls the process.”

Repeated Execution Dates Called Psychological Torture

According to some experts, the process of repeatedly submitting a person to imminent execution is a form of psychological torture that should be banned. The Center for Constitutional Rights has said that “the intense strain of repeatedly coming within hours or days of execution” is torture. Citing the case of Troy Davis, who was executed in Georgia in 2011 after repeated execution dates and stays, the Center remarked, “Is there any significant difference between mock executions, long recognized as torture by the international community, and Mr. Davis’s last-minute brush with death ...?” Stuart Grassian, a psychiatrist and former Harvard Medical School professor, said that the terror of imminent executions is more difficult for someone like Warren Hill, who is mentally retarded and has had a series of execution dates, also in Georgia. Grassian said, “People with mental retardation struggle with the ability to think abstractly. They have very powerful feelings but because they have fewer cognitive strengths they are less able to manage those feelings than others are.” Hill came within hours of execution four times. At one time, he ate his last meal and said his goodbyes before his execution was stayed, ninety minutes before the scheduled time. More recently, Hill was already sedated and strapped to the gurney when his execution was stopped with just minutes to spare.

Georgia Judge Finds State's Lethal Injection Secrecy Law Interferes With Constitutional Rights

On July 18, a Georgia Superior Court judge ruled that the state’s new law shielding the source of lethal injection drugs interfered with Warren Hill’s right to challenge his method of execution and is therefore probably unconstitutional. According to the law, information pertaining to drugs used in executions is classified as “confidential state secrets” and cannot be disclosed. Judge Gail S. Tusan said the law " "To be executed without being aware of basic information regarding the protocols the State will use to carry out such an execution is surely an irreparable harm." Moreover, she said neither Warren Hill “nor the general public, has sufficient information with which to measure the safety of the drug that would be used to execute [Hill], as there is insufficient information regarding how it was compounded.” Judge Tusan concluded that the law improperly interfered with the court's duty to make a judgment about the planned execution: "[the law] explicitly exempts from judicial review the very information that would be necessary for a court to determine the constitutionality of an inmate’s execution." The court stayed the execution of Hill, who also has a petition before the U.S. Supreme Court regarding his mental retardation.

The Writ of Habeas Corpus and the Warren Hill Case

UPDATE: Warren Hill was granted a stay of execution by a Georgia court just hours before his scheduled execution on July 15. A hearing is scheduled for July 18 to consider challenges to a new state law that shields the identity of the lethal injection drug's manufacturer and the prescribing physician from the public. (Atlanta Journal-Constitution, July 15, 2013).

As a petition on behalf of Georgia death row inmate Warren Hill awaits consideration by the U.S. Supreme Court, the role of habeas corpus in protecting defendants' fundamental rights has assumed greater importance. A recent article by Lincoln Caplan in the American Prospect explores the significance of the "Great Writ." This guarantee of constitutional protections allows federal courts to determine whether an inmate is being held in violation of the Constitution or other laws, and has been used to challenge death sentences that may have been unlawful. In 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) was passed by the U.S. Congress, imposing a time limit on filing such petitions and generally allowing only one such petition. Hill's recent appeal containing clear proof of his mental retardation to the U.S. Court of Appeals for the 11th Circuit was denied because the court said it was a second petition and could only be considered if it related to his innocence, rather than his death sentence. In a dissenting opinion, Judge Rosemary Barkett wrote, “The perverse consequence of such an application of AEDPA is that a federal court must acquiesce to, even condone, a state’s insistence on carrying out the unconstitutional execution of a mentally retarded person.” Hill is scheduled to be executed on July 15 unless the Supreme Court intervenes.

INTELLECTUAL DISABILITY: Georgia Inmate Appeals Intellectual Disability Claim to U.S. Supreme Court

On May 23, lawyers for Georgia death row inmate Warren Hill (pictured) petitioned the U.S. Supreme Court to prevent his execution, citing strong evidence that Hill has an intellectual disability. Three mental health experts who testified in 2000 that Hill did not have an intellectual disability have now changed their mind about the inmate’s mental health. According to the petition, “all seven mental health experts who have ever evaluated Hill, both the State’s and Hill’s, now unanimously agree that he is mentally retarded.” In Georgia, capital defendants are required to prove “mental retardation” beyond a reasonable doubt. It is the only state in the country that sets such a high burden of proof for such claims. Lawyers for Warren Hill claim that Hill’s execution will violate the Court’s ruling in Atkins v. Virginia (2002), which prohibits the execution of individuals with intellectual disabilities. In the petition to the Court, the lawyers urged, “Every court to which Mr. Hill has petitioned in an effort to present this new and compelling evidence has denied him an opportunity to prove the merits of his claim. The Georgia State Board of Pardons and Parole has likewise refused to reopen proceedings in light of this evidence. This Court accordingly is Mr. Hill’s last and only hope to avoid an execution that is flat-out prohibited by the Eighth Amendment.”

INTELLECTUAL DISABILITY: Federal Appeals Court Says Evidence of Mental Retardation Is Too Late

On April 22, a divided U.S. Court of Appeals for the Eleventh Circuit denied Warren Hill’s appeal to halt his execution based on new evidence of his intellectual disability. The Court ruled that Hill’s claim of intellectual disability (mental retardation) was presented in an earlier petition and cannot be presented again, despite the new evidence. The judges also held that, even if Hill's claim is a new one, it only challenges his eligibility for the death penalty, not his underlying guilt, and is therefore improper in a second petition. In a dissenting opinion, Judge Rosemary Barkett said, “There is no question that Georgia will be executing a mentally retarded man because all seven mental health experts who have ever evaluated Hill, both the state’s and Hill’s, now unanimously agree that he is mentally retarded.” She also stated, "The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness.... [The federal habeas statute] should not be construed to require the unconstitutional execution of a mentally retarded offender who, by presenting evidence that virtually guarantees that he can establish his mental retardation, is able to satisfy even the preposterous burden of proof Georgia demands."

Lethal Injection Developments Around the Country

Controversies surrounding lethal injections continue in many parts of the country. In Georgia, the legislature passed a bill to classify the names of those involved in executions as “state secrets.” The bill requires the identity of any entity that “manufactures, supplies, compounds or prescribes” lethal injection drugs to be kept secret. In Arkansas, a state judge ruled that death row inmates cannot use the state's Freedom of Information Act to obtain information about the source, history, or quality of the drugs the state will use during execution. An attorney for the inmates claimed they should have a right to the information because of problems with drugs obtained in the past. On March 25, a federal appeals court heard arguments in a case involving death row inmates from across the country arguing that the Food and Drug Administration acted inappropriately in 2010 when it allowed some states to import lethal injection drugs from foreign sources. Eric Shumsky, an attorney representing the inmates, said, “This case is … about ensuring that illegal drugs are not used in carrying out otherwise legal executions.” Also recently, the Israel-based drug company Teva announced that it would resume manufacturing the sedative propofol, but would not allow its use in executions. Missouri has proposed using propofol for its executions.

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