An editorial in the New York Times criticized a recent ruling by the U.S. Court of Appeals for the Eleventh Circuit, upholding the heavy burden Georgia places on offenders with intellectual disabilities. In order to be exempt from the death penalty, defendants must prove “beyond a reasonable doubt” that they are mentally retarded. The U.S. Supreme Court held in 2002 that such defendants cannot receive the death penalty, but the Court left the procedures for determining this status to the states. According to the editorial, Georgia is the only state requiring this extremely difficult standard of proof. They called on the U.S. Supreme Court to strike down Georgia’s law. The editorial concluded, “[W]hen the court ruled that the Eighth Amendment prohibits execution of the mentally retarded, it made plain that states cannot weaken that protection with an unfair procedural standard. In this and other ways, Georgia’s death penalty subverts the Constitution and is further evidence that capital punishment should be abolished.” Read full editorial below.

An Intolerable Burden of Proof

The Supreme Court ruled in 2002 that it is unconstitutional to execute mentally retarded criminals, finding that the death penalty cannot be justified for these offenders because they are morally less culpable.
The court left it to the states to determine how to apply that constitutional restriction. Georgia has chosen to undermine the court’s principled ruling. It is the only state to require that offenders prove they are mentally retarded beyond a reasonable doubt, a procedural threshold that is extremely difficult to reach. In a 7‑to‑4 ruling last week, the United States Court of Appeals for the 11th Circuit unwisely upheld this Georgia standard. The Supreme Court should review that decision and strike down this intolerable burden of proof.
The Supreme Court’s 2002 ruling applies to people whose intellectual functioning is subaverage (mainly with an I.Q. of 70 or below), who are limited in communicating, caring for themselves and other adaptive skills and who show these traits before they are 18. In the Georgia case of Warren Lee Hill Jr., Mr. Hill’s I.Q. of 77 was found to meet the threshold, but he was unable to prove beyond a reasonable doubt that his adaptive skills were impaired.
Judgments about mental impairment are necessarily based on subjective interpretations of behavior. The Supreme Court has noted how hard it is to prove this kind of mental condition beyond a reasonable doubt. Proof turns on expert testimony, and an effective opposing expert can raise doubt. That is why, of the 33 other states with the death penalty, 28 use a lower standard of proof for mental retardation.
The appellate court contends that the Supreme Court has never “suggested, much less held, that a burden of proof standard on its own can so wholly burden an Eighth Amendment right as to eviscerate or deny that right.” But when the court ruled that the Eighth Amendment prohibits execution of the mentally retarded, it made plain that states cannot weaken that protection with an unfair procedural standard. In this and other ways, Georgia’s death penalty subverts the Constitution and is further evidence that capital punishment should be abolished.
(“An Intolerable Burden of Proof,” New York Times, editorial, Nov. 30, 2011). See Intellectual Disability and U.S. Supreme Court. Read more Editorials on the death penalty.

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