A Georgia inmate with an IQ of 70 is scheduled to be put to death by lethal injection Tuesday night in a case that his defense argues is a “grotesque” miscarriage of justice.
Warren Lee Hill, 54, a former petty officer in the U.S. Navy, is set to be executed at 7 p.m. here, and on Monday his attorney appealed for clemency before the Georgia State Board of Pardons and Paroles, the sole authority in the state that can commute a death sentence to life without parole.
The meeting before the five board members lasted more than two hours and there was robust discussion, said Brian S. Kammer, Hill’s attorney. “The gist of my argument was that the board did not need to convince itself to a 100% certainty that Warren is in fact intellectually disabled, but that there is at least a very strong case for intellectual disability and a very serious risk that we are going to execute an intellectually disabled man.”
But by late Monday, a spokesman for the board said only that a decision would be made prior to the scheduled execution. The board has several options: It can grant clemency and commute a death sentence to life with or without the possibility of parole; it can deny clemency, or it can issue a stay not to exceed 90 days in order to continue reviewing the case.
Hill’s clemency hearing came on the same morning that Oklahoma’s Atty. Gen. Scott Pruitt filed an application before the U.S. Supreme Court to postpone the pending executions of three death row inmates. Pruitt requested the stays after the justices agreed on Friday to review lethal drug protocols in the case of Glossip vs. Gross, and to decide whether a controversial new drug amounts to cruel and unusual punishment.
Hill’s guilt is not in question. In 1986, he was sentenced to life in prison after shooting and killing his 18-year-old girlfriend, Myra Wright. Four years later, he used a nail-studded plank to bludgeon to death his cellmate, Joseph Handspike. A jury then sentenced him to death.
At issue is Hill’s level of mental disability, and the extent to which it absolves him of moral culpability.
Every expert who has examined Hill, including doctors who previously testified for the state, now agree that he has a mild intellectual impairment. Under the Supreme Court's 2002 Atkins vs. Virginia decision, executing someone who is intellectually disabled violates the 8th Amendment's prohibition on cruel and unusual punishment.
Georgia was the first state in the nation to prohibit executing the mentally disabled, but it is the only state to require capital defendants to prove such disability “beyond a reasonable doubt” — a strict burden that Hill’s attorneys claim is a “tragically impossible standard to satisfy.”
While Georgia courts have repeatedly found that Hill is a person with an intellectual disability, lawyers for the state have argued that this cannot be proved beyond a reasonable doubt. They note that Hill took care of his family from an early age, graduated from high school and served in the Navy, where he was promoted.
In 2013, defense lawyers submitted affidavits from the three doctors who examined Hill in 2000 and testified at his trial that he was faking his mental disability. All three wrote that they had subsequently changed their minds and now believed Hill is intellectually disabled.
Their affidavits, however, were rejected on a technicality: The U.S. 11th Circuit Court of Appeals ruled that it could not consider a new challenge in the case, based on the experts’ revised statements, because the court had already rejected a previous appeal over Hill’s intellectual disability.
Inmates with mild — rather than moderate to severe — intellectual disabilities are often difficult for the criminal justice system to identify, which means they are especially at risk of wrongful punishment, said Kammer, who heads the Georgia Resource Center, a nonprofit group that represents indigent death penalty defendants.
“He is a young boy in a man’s body,” Kammer said. “An 11-year-old child can write competently, even speak articulately. But we don’t expect them to have the reasoning capability, the judgment or the understanding of the consequences of action that we expect of a mature adult.”
Hill's attorneys have also filed a motion for stay of execution and a petition for writ of certiorari with the U.S. Supreme Court. They note that a 2014 U.S. Supreme Court case – Hall vs. Florida – held that states cannot use a fixed IQ score as the measure of intellectual incapacity to be put to death.
“Hall supports Mr. Hill’s long-standing argument that Georgia’s strict ‘beyond reasonable doubt’ standard impermissibly ‘conflicts with the logic of Atkins and the 8th Amendment,’” the petition claims, “and effectively renders the Supreme Court’s decision in Atkins ‘a nullity’ by making it virtually impossible to prove intellectual disability.”
Last October, however, Georgia’s Butts County Superior Court Judge Thomas Wilson found that the Supreme Court’s ruling on Hall was “not sufficiently on point” to warrant overturning Georgia’s standard of proof of “beyond reasonable doubt.” But the judge also urged the state Supreme Court to reconsider the law based on the Hall ruling, arguing that Hill’s case offered a chance for a “perfect and definitive decision in this area of the law.”
Hill, who has come within hours of execution three times in as many years, has won the support of a number of intellectual disability groups, including the Georgia Council on Developmental Disabilities and the American Assn. on Intellectual and Developmental Disabilities. In 2012, former President Carter called for a commutation of Hill's death sentence to life without parole. Even Handspike's family does not want to see Hill executed.
The legal emphasis on procedure and rules is obscuring the substantive justice of Hill's claim, Kammer said. “We need to clear away the legal underbrush and get to the heart of the matter,” he said. “People with mental retardation are not so morally culpable as to be deserving of the death penalty. Mercy is warranted here.”