Georgia Disabilities Expert Calls for Halt to Execution of Inmate with Mental Retardation

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.”

LAW REVIEWS: The Enduring Significance of Studies Showing Racial Bias in the Death Penalty

Professor Samuel R. Gross (pictured) of the University of Michigan Law School has published an article in the Iowa Law Review examining the historical importance of a series of studies showing racial bias in the death penalty. The issue of race was brought to a head by the Supreme Court's consideration of McCleskey v. Kemp in 1987. McCleskey focused on a statistical examination of Georgia death sentences conducted by David Baldus. Though the study found compelling and statistically significant evidence of racial bias in sentencing, the Court held (5-4) this evidence insufficient to overturn Warren McCleskey's death sentence. Prof. Gross argues that, despite the Court's negative holding, the Justices were convinced that racial bias existed in the death penalty. "Even on the Supreme Court that sent Warren McCleskey to his death, even among the Justices who most strongly support the death penalty, nobody has tried to deny that racial 'sympathies and antipathies' decide who lives and who dies. No Justice said otherwise in McCleskey and none have denied it since." Gross concludes that Baldus' legacy was in "forc[ing] reluctant judges to face up to facts they would have preferred to ignore." Prof. Baldus of the University of Iowa died in 2011.

REPRESENTATION: Georgia Death Sentence Upheld Despite Drunk Trial Attorney

A federal appeals court upheld the death sentence of Georgia inmate Robert Holsey (pictured), despite the fact that Holsey's lead lawyer drank a quart of vodka every day during the trial and was about to be sued for stealing client funds.  The attorney himself testified that he “probably shouldn’t have been allowed to represent anybody.” The court assumed the attorney's incompetence, but gave great deference to the Georgia Supreme Court's opinion that his poor performance did not affect the outcome of even the sentencing phase of the trial.  Judge Rosemary Barkett dissented in the 2-1 decision, noting the jury never heard evidence that Holsey was abused so badly as a child that his neighbors referred to his home as "the torture chamber." Had the jury heard evidence of the "horrific child abuse," she wrote, he likely would not have been sentenced to death. Holsey’s appeals lawyer, Brian Kammer, said the jury did not hear that crucial evidence because Holsey’s lead trial attorney “opted to anesthetize himself with vodka rather than prepare adequately to defend against the death penalty. The 11th Circuit majority appears similarly to have anesthetized its sense of justice.”

Lack of Funding for Representation Delays Georgia Death Penalty Cases

A Georgia judge has removed Kelvin Johnson's public defenders from representing him in a death penalty case because his lawyers requested more time to prepare for trial.  Johnson was being represented by attorneys from the Georgia Capital Defender Office, who said a delay was needed because an overwhelming caseload and lack of funding precluded them from going forward at this time. The Georgia Capital Defender program, which was started to provide better representation to indigent capital defendants, began representing those facing the death penalty in 2005, but saw its funding drop from $7 million to $4.5 million in only three years. Insufficient funding has led to problems and delays in several cases, including one instance in 2010 when attorneys asked the Georgia Supreme Court to dismiss the charges against their client or bar the state from seeking the death penalty because they could not pay expert witnesses, attorney fees or investigators. Superior Court Judge David Roper, who dismissed the capital defenders from the Kelvin Johnson case, plans to appoint lawyers of his own choosing, calling the Capital Defender Office "systemically broken."  However, W. Travis Sakrison, executive director of the Defender Office, said the delay needed in the Johnson case arose from special circumstances and was not due to "systemic" problems at the Georgia Capital Defender.

Executions Scheduled for July 18 in Texas and Georgia Present Serious Mental Health Issues

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.

In Georgia, the State Board of Pardons and Parole denied Warren Hill’s request to commute his death sentence on July 16. He, too, is scheduled to die on July 18. UPDATE: Execution date changed to July 23, as state changes to a single-drug execution protocol.  A recent article in The Atlantic noted the common thread in Hearn's and Hill's cases.  While in prison between the age of 28 and 33, Warren Hill tested at a grade level of approximately 6-7, and had an IQ within the range of mental retardation. Mr. Hill’s attorneys described his childhood: “Mr. Hill has suffered from neurological impairment since birth, manifested in a vulnerability to seizures and in mental retardation. During his school years, his teachers and fellow students regarded him as the slowest student in class. Because there were no special education programs available in the segregated schools attended by Mr. Hill, his teachers opted for 'social promotion,' an informal but then-common practice of moving students on to higher grades in spite of their inability to master age-appropriate work.”  Although a state judge agreed that Hill met the criteria for the diagnosis of mental retardation, the Georgia Supreme Court later said Hill failed to prove his intellectual disability “beyond a reasonable doubt.”  See Hill's Motion for a Stay of Execution filed with the U.S. Supreme Court on July 16.

EDITORIALS: "An Urgent Plea for Mercy"

A recent New York Times editorial encouraged the Georgia Board of Pardons and Paroles to reduce the sentence of death row inmate Warren Hill to life. Hill is facing execution on July 18.  The editorial noted that Mr. Hill's intellectual disabilities, including an IQ of 70, led the trial judge to find him mentally retarded. Georgia's Supreme Court, however, overturned the judge's ruling because mental retardation had not been proven "beyond a reasonable doubt." The Times noted that Georgia "is the only state with a statute requiring a defendant to meet [this] unfairly heavy burden," and added, "This unjust procedural requirement effectively denies protection for the mentally impaired, as required by the Eighth Amendment." The Times also said that clemency is appropriate for Hill because some jurors have said they would have sentenced him to life without parole if given the option, and the victim's family has said he should not be executed. See the full editorial below.

Georgia Inmate Scheduled to Die Despite Initial Finding of Intellectual Disabilities

Warren HillWarren Hill (pictured) is scheduled to be executed on July 18 in Georgia despite being previously found intellectually disabled. The U.S. Supreme Court in Atkins v. Virgnia (2002) banned the execution of individuals with intellectual disabilities (mental retardation), but allowed each state to set guidelines for determining whether an inmate has such a condition. 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.  Earlier, a state judge found that Hill was intellectually disabled, but under a lower legal threshhold than is required in the statute. In 2003, the Georgia Supreme Court reversed the judge’s ruling in a 4-3 vote, holding that Hill’s lawyers had failed to clear the threshold of “beyond a reasonable doubt.”  Last year, the U.S. Court of Appeals for the Eleventh Circuit upheld the Georgia Supreme Court. Writing for the majority, Judge Frank Hull said federal law "mandates that this federal court leave the Georgia Supreme Court decision alone — even if we believe it incorrect or unwise." Brian Kammer, one of Hill’s lawyers, said he will ask the Board of Pardons and Paroles to grant Hill clemency. Kammer said, “Executing Warren Hill, a 52-year-old man whom a court has found to be more likely than not mentally retarded, would be a terrible miscarriage of justice.”  UPDATE: On July 16, Georgia's Board of Pardons denied clemency. UPDATE: Georgia's Supreme Court stayed Hill's execution to review the state's lethal injection protocol. UPDATE 1/28/15: Warren Hill was executed on January 27, 2015. 

NEW VOICES: Jimmy Carter, Former President and Nobel Peace Prize Winner, Calls for End to Death Penalty

In a recent op-ed in the Atlanta Journal-Constitution, former U.S. President Jimmy Carter called for the end of the death penalty. President Carter cited the risk of wrongful executions, the lack of evidence of deterrence, and the costs of prosecution as reasons to abolish capital punishment. He wrote, “[T]here has never been any evidence that the death penalty reduces capital crimes or that crimes increased when executions stopped. Tragic mistakes are prevalent. DNA testing and other factors have caused 138 death sentences to be reversed since I left the governor’s office. The cost for prosecuting executed criminals is astronomical. Since 1973, California has spent roughly $4 billion in capital cases leading to only 13 executions, amounting to about $307 million each.” President Carter also cited the unfair application of the death penalty as an especially compelling reason for repeal: “Perhaps the strongest argument against the death penalty is extreme bias against the poor, minorities or those with diminished mental capacity. Although homicide victims are six times more likely to be black rather than white, 77 percent of death penalty cases involve white victims. Also, it is hard to imagine a rich white person going to the death chamber after being defended by expensive lawyers. This demonstrates a higher value placed on the lives of white Americans.” Read full op-ed below.