Executing the Mentally Handicapped Is Illegal—Except When It Isn't

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AP

It rarely registers as news anymore when a federal appeals court denies a request for relief made by a death row inmate. It happens all the time, every week, in every jurisdiction that still recognizes capital punishment as a sentencing option. But there is nothing typical about what two federal judges of the 11th U.S. Circuit Court of Appeals did Monday in denying relief to Warren Lee Hill, a mentally ill capital defendant in Georgia who came within hours of being executed earlier this year.

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By a vote of 2-1, over a sharp dissent, the 11th Circuit panel refused to allow Hill's attorneys to pursue their claim that Hill is mentally retarded* beyond a reasonable doubt and thus cannot be put to death under both Georgia law and the United States Supreme Court's ruling in Atkins v. Virginia (a 2002 decision which declared such executions to be a form of "cruel and unusual" punishment under the Eighth Amendment). Here is the link to the 11th Circuit ruling. The Atlantic's previous coverage of this case is found in the "More On" box on the right.

What makes this result so extraordinary -- and so unnerving to many who follow capital cases -- is the rationale employed by the court in turning down Hill's request. The 11th Circuit employed an argument that turns on its head the very essence of judicial review. Yes, there was relevant new evidence that Hill is mentally retarded, the judges acknowledged, but that new evidence didn't create a new "claim." And since there was no new "claim," they concluded, Congress precluded them from allowing Hill's evidence to be evaluated on its merits.**

This "new evidence" isn't something on the margins of the case. Instead it goes to the very heart of the question all courts must answer when confronted with instances where a capital defendant alleges mental retardation: what do the experts say? Today, not a single mental health expert, not the ones hired by Hill's attorneys nor the ones employed by the state, believe that Hill is anything but mentally retarded "beyond a reasonable doubt" -- the state's standard of proof. All seven who have reviewed the file now say Hill should not be executed.

What happened? Upon reflection, and another review of the record in the case, the three state experts who once had concluded that Hill was not definitively mentally retarded changed their minds. They admitted that they had breezed through their earlier work decades ago; that they were too busy to give the case file the attention it deserved; that they had employed the wrong standards. In short, they conceded that they had made a grave mistake in diagnosis, and they encouraged the courts to remedy those mistakes before it was too late for Hill.

When confronted with the sudden twist to the case -- when Hill's attorneys came to federal court earlier this year with these new affidavits from the state's medical experts and said, in effect, "look, all the proof in this case now tells us that our client falls within the boundaries of the Supreme Court's ruling in Atkins" -- the 11th Circuit judges ignored those new facts. Instead, they put the principle of finality ahead of the principle of accuracy. In a truly chilling passage, the judges wrote:

If all that was required to reassert years later a previously rejected claim was a change in testimony, every material witness would have the power to upset every notion of finality by simply changing his testimony. And, as this case illustrates, opinion testimony can be changed with great ease (indeed, even without seeing Hill in 13 years, administering any new tests, or reviewing new documents, three witnesses pivoted their positions 180 degrees). Moreover, there is no reason to limit the change in evidence theory to changes in testimony of previous witnesses. New witnesses could be rounded up, and every new witness would transform the same old claim into a brand new one (citations omitted by me).

Such logic is a perversion of justice -- and of the role of the appellate judge -- because it precludes the ability of the reviewing court to remedy material mistakes made during the course of a case. The truth is that "opinion testimony" does not change "with great ease"; and, even if it ever did, the 11th Circuit panel did not evaluate that testimony on its merits, as Hill's attorneys had requested, but rather dismissed it as a procedural matter. The result here, for now anyway, is the looming execution of a mentally retarded man whom no expert now believes is competent enough to be executed under Georgia law and the Atkins' precedent.

11th Circuit Judge Stanley Marcus, an appointee of Ronald Reagan, and 11th Circuit Judge Frank Hull, an appointee of Bill Clinton, are responsible for this ruling. They are responsible, in other words, for a ruling which could lead to the execution of a man who is indisputably mentally retarded. In dissent, an appalled Judge Rosemary Barkett, another Clinton appointee, called out her colleagues for "the perverse consequences" of a federal statute requiring a federal court to "acquiesce to, even condone, a state's insistence on carrying out the unconstitutional execution of a mentally retarded person." Then, Judge Barkett added:

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. Just as we have recognized that a petitioner who "in fact has a freestanding actual innocence claim ... would be entitled to have all his procedural defaults excused as a matter of course under the fundamental miscarriage of justice exception," I see no reason not to accord the same consideration to one who has a freestanding claim that he is, in fact and in law, categorically exempt from execution. (citations omitted by me).

Rebuffed by the very court which halted Hill's execution in February, Hill's attorneys now will have to seek relief at the Supreme Court, where Justice Anthony Kennedy, the author of the Atkins ruling, sits waiting. He will have a stark choice to make. On the one hand, there is the Antiterrorism and Effective Death Penalty Act of 1996, the federal statute that states like Georgia are able to use as swords against defendants like Hill -- the statute that appellate judges like Marcus and Hill hide behind so that they don't have to aid convicted murderers.

And on the other hand, there is the Eighth Amendment and its prohibition against the execution of the mentally retarded. In Atkins, Justice Kennedy, ever the advocate of state autonomy, craftily permitted states like Georgia to use their own standards to determine which capital defendants are mentally retarded and which are not. Well, here we are. Every expert from Georgia who has evaluated Hill believes today that he is mentally retarded. No expert believes otherwise. What's Justice Kennedy going to do about that? And what's he going to do about this dubious 11th Circuit ruling? It stands for the proposition that, when it comes to new evidence of mental retardation in capital case, the federal courts are going to stand for nothing at all.


* The phrase "mentally retarded" as used here is the legal term of art used by the Supreme Court and lower courts.

** Using this logic, there could never be any appellate relief for inmates like Hill, no matter how strong such new evidence could be, so long as a defendant persisted in making the best argument available to him. In other words, the fact that Hill has continuously asserted that he is mentally retarded has now been used against him by these judges as proof of his failure to make a "new claim."

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.


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