Will the Supreme Court Make an 11th-Hour Intervention in Georgia?

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Unfolding in Atlanta and Washington this week is a compelling story about mental health, the Supreme Court, and capital punishment that illustrates vividly the width of the gulf that exists in America today between the rule of law that people think they have and the rule of law they actually do have. It is yet another story of how recognized rights can be hollowed out over time by judges and politicians and bureaucratic functionaries who extol the virtues of lofty constitutional principles with one breath and then work to undermine those principles with the next. It's a story about the perils of judicial compromise.

At the center of the week's storm is a convicted murderer named Warren Lee Hill. Despite a 2002 ruling by the United States Supreme Court that prohibits the execution of mentally retarded* prisoners, Georgia officials plan to execute Hill next Monday even though all of the government doctors who have examined him now agree that he is mentally retarded beyond a reasonable doubt. Georgia seeks to accomplish the execution by arguing that Hill has not met his burden of proving retardation under an onerous state standard; that the doctors' new diagnoses are flawed; and that, as a matter of law, they come too late anyway to spare Hill.

Because his case directly challenges the Supreme Court's prohibition against executing the mentally retarded, because it's (so far) such a great example of how easy it is for lower courts to ignore the spirit of High Court commands, I have written many times before (here, here and here) about Hill. His execution was 30 minutes away in February when it was halted by the 11th U.S Circuit Court of Appeals in order to evaluate the evolution of his doctors' views on his mental condition. 

What's happening now -- what makes this week crucial -- is that Georgia last week rescheduled Hill's execution after the 11th Circuit rejected his latest arguments. Hill's lawyers have in turn just today filed a Motion to Stay the Execution at the 11th Circuit--unlikely to grant it. For several months Hill's lawyers have had an appeal to the Supreme Court of the United States pending on this case. Even though the Supreme Court is not in session, it must now take some sort of action (either agreeing to hear the appeal or denying it) before July 15, when Hill is scheduled to be executed.

If Hill's attorneys are to spare his life (here is their Supreme Court Petition), they must get the justices in Washington to give clarity and meaning to their 2002 decision in Atkins v. Virginia. In Atkins, by a 6-3 vote, with Justice John Paul Stevens** writing the majority opinion, the Court outlawed the execution of mentally retarded prisoners but allowed state lawmakers and judges to determine the legal standards by which prisoners would be deemed "retarded." The justices assumed, as they must, that state officials would act in good faith to implement the prohibition they announced in the case.

At the time it was issued, the Atkins ruling was widely hailed as a reasonable compromise -- a federal judicial command (thou shalt not execute the mentally retarded) coupled with broad deference to state autonomy (states shall determine who is and who is not retarded). Indeed, the formula is a familiar one to anyone who has followed the jurisprudence of Justice Kennedy -- his opinion last month in the Defense of Marriage Act case tracks that very dichotomy. In Atkins, as in Windsor v. United States, Justice Kennedy's avowed love of federalism meshed with his concerns about individual rights.

But the key to the Atkins compromise was always the conduct of state officials. Would they interpret state laws to shield mentally retarded murderers from execution? Or would they apply state rules in ways that circumvented Atkins' prohibition? So far, in Georgia, the answer has been unequivocal. Alone in the nation, Georgia long ago chose the toughest possible legal standard -- a defendant like Hill would have to prove his mental status beyond a reasonable doubt. And in Hill's case, now that such a finding has been made, state officials have resorted to a series of technical arguments for why the courts should ignore that finding.

Not just technical arguments, mind you. But outright evasion. No expert who has ever evaluated Hill has concluded that he did not meet the IQ standard for retardation. The only contested issue was whether there was proof that his "adaptive skills deficit" qualified for the diagnosis. When the state-appointed mental health experts concluded that Hill had not met that latter standard, Georgia embraced them. When, more recently, those same experts acknowledged that they had been wrong, that they had not properly evaluated Hill to begin with, Georgia turned on these experts. This is not remotely in the spirit of Atkins.

Nor would it be in the spirit of Atkins to have the judiciary ignore the considered view of the mental health community when it comes to defining mental retardation. And that community seems adamant that this case falls squarely within the range contemplated by Justice Kennedy. Last month, for example, six leading scholars on mental disability, and the folks at the American Association on Intellectual and Developmental Disabilities, asked the Supreme Court to intervene on Hill's behalf. Here is the link to their amicus brief. They wrote:

The three government witnesses have acknowledged that their earlier diagnostic conclusions were wrong because of their misunderstanding about the attributes of people with mental retardation and because of subsequent advances in the scientific understanding about intellectual disability. Their revised opinions that Mr. Hill has mental retardation are consistent with the clinical definition and the current scientific understanding in the area of intellectual disability, particularly in the areas of stereotypes about mental retardation and the potential for malingering.

So we have a Supreme Court ruling that says that the mentally retarded cannot be executed. And we have a man whom all experts now agree is mentally retarded beyond a reasonable doubt. And we have the mental health community siding with the defendant. And yet we have an execution scheduled for July 15th. And yet we have state officials (and lower court judges) arguing that the mentally retarded man who is scheduled to be executed cannot find succor in Atkins because of procedural rules that limit his ability to raise new claims (like the facts that his doctors now say they were wrong). This is what I mean when I write that the case shows how hollow the Constitution can be when the justices compromise over core protections.

The main issue the justices confront this week is not complicated. Either Atkins still stands as a prohibition against executing the mentally retarded or it doesn't. If it still stands, if the Court is going to back up its earlier guarantee, the justices cannot countenance the contorted logic that Georgia and the lower courts have employed to proceed with Hill's execution despite his mental status. At minimum, this means ordering the lower courts to conduct a new hearing so that Hill's doctors -- state-appointed experts! -- can explain under oath why they now believe their patient's mental condition satisfies Georgia's "reasonable doubt" standard.

If Atkins still stands the Court should say so, and quickly. Because if the justices allow Hill to be executed in these circumstances they will be saying, implicitly if not expressly, that the rule of Atkins may be subordinated to states' rights and hoary technicalities. I don't believe there are today five votes on the Supreme Court for that position. I don't believe that Justice Kennedy has in the intervening decade since Atkins hardened his view toward the mentally retarded. And I don't believe the family members of Hill's victims, who do not want to see him executed, ought to be ignored. The Court sadly doesn't always say what it means. In the case of Warren Hill, this week, it has a chance to finally show that it means what it says.


* While now outdated in common usage and considered offensive by many, the phrase "mental retardation" is a legal term of art still employed by the courts. I use it here only for ease of reference.

**The initial version of this piece mistakenly identified Justice Kennedy as the author of the Atkins ruling. 

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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