Warren Lee Hill, a Georgia inmate with a mild intellectual disability, was executed Tuesday evening after the U.S. Supreme Court refused to review his case.
Hill, who has a reputed IQ of 70, received a lethal injection of pentobarbital shortly after 7 p.m. local time at the Georgia Diagnostic Prison in Jackson. He was pronounced dead at 7:55 p.m., his attorney confirmed. Hill did not make a final statement.
"Today, the court has unconscionably allowed a grotesque miscarriage of justice to occur in Georgia,” his attorney, Brian S. Kammer, said in a statement after a stay was denied. "Tonight Georgia will unconstitutionally execute Mr. Hill, a man with the emotional and cognitive ability of a young boy. This execution is an abomination.”
It was Hill’s fourth scheduled execution date. His lethal injection has been postponed three times in as many years, each time within hours of execution – a process that his attorney described as "psychological torture."
In the days and hours leading up to Tuesday's execution, Hill’s legal options dwindled: On Monday evening, a federal appeals court denied a request to review the issue of Hill's mental capacity; on Tuesday morning, the Georgia State Board of Pardons and Paroles, the sole authority in the state that can commute a death sentence to life without parole, voted to deny clemency.
Just 30 minutes before Hill was scheduled to be put to death, the U.S. Supreme Court denied a review of his case. The court turned down Hill's appeal for a stay of execution in a 7-2 vote, with Justices Stephen M. Breyer and Sonia Sotomayor dissenting.
Hill's attorneys have long argued that his case spotlighted the "barbaric" nature of the criminal justice system. As Kammer waited for the Supreme Court to rule on his client’s fate, he took to Twitter: "Georgia’s justice system remains a morally retarded backwater," he posted two hours before the scheduled execution.
Hill, 54, was put in a "death watch" cell, a cold room with the lights on at all times, near the execution chamber. He was offered sedatives to calm his nerves.
"I just spoke to him, and I can tell you his voice is shaking bad," Kammer said in an email before the scheduled execution. "He's really scared, and I'm really scared for him."
Hill, a former petty officer in the Navy, was sentenced to life in prison in 1986 after shooting and killing his 18-year-old girlfriend, Myra Wright. Four years later, he used a nail-studded board to batter to death a fellow inmate, Joseph Handspike. A jury sentenced him to death.
During his 1991 trial, Hill did not claim to be intellectually disabled. Yet throughout his last two decades on death row, attorneys have sparred over the issue of his mental impairment, and the extent to which he is morally culpable for his crimes.
Hill's defense said he had the mental capacity of an 11-year-old child, but the state said that had not been proved beyond a reasonable doubt, as required by Georgia law.
Under the Supreme Court's 2002 Atkins vs. Virginia decision, executing someone who is intellectually disabled, or "mentally retarded," violates the 8th Amendment's prohibition on cruel and unusual punishment.
However, the Supreme Court left it up to individual states to formulate and adopt their own standards on intellectual disability. Georgia is the only state in the nation that requires capital defendants to prove such disability "beyond a reasonable doubt" – a burden that Hill's attorney said was a "tragically impossible standard to satisfy."
Kammer said every expert who examined Hill, including doctors who previously testified for the state, eventually agreed that he had a mild intellectual impairment. Two Georgia courts also found Hill had an intellectual disability by a preponderance of evidence.
Yet prosecutors disputed Hill's claims. Georgia's Southwestern Circuit Dist. Atty. Plez Hardin, who spoke to Georgia's parole board Monday afternoon by telephone, noted that Hill provided for his family from an early age, graduated from high school and was consistently promoted in the Navy.
"According to every indication, he was a responsible, goal-orientated person," Hardin said, adding that before Hill's 1991 trial his attorneys had him examined by a clinical psychologist who found he was not intellectually disabled. "It is very clear he was not mentally retarded."
At Monday's meeting with the Georgia State Board of Pardons and Parole, Kammer said its five members seemed preoccupied with the question of whether Hill was intellectually disabled or not.
"I tried to tell them that that was not something they necessarily needed to do," he said. "They only needed to see there is a serious question here, at least, in light of all the evidence."
Over the years, former President Carter, Archbishop Desmond Tutu, the European Union, the National Assn. for the Advancement of Colored People and the American Bar Assn. have all spoken out against Hill’s execution. Leading local and national groups that advocate for people with intellectual disabilities, such as the Arc of Georgia, have also called for mercy in his case.
“We acknowledge that Mr. Hill should be held accountable for his actions and behavior,” Torin Togut, president of the Arc of Georgia, wrote in a letter to Georgia’s parole board. “However, it is our contention that Mr. Hill, who has an intellectual disability, should not be subject to capital punishment."
Hill was the 34th Georgia inmate put to death by lethal injection and the 57th executed in Georgia since the Supreme Court reinstated the death penalty in 1973. Two weeks ago, Andrew Brannan, a Vietnam War veteran suffering from post-traumatic stress disorder, was executed at the same Jackson prison for the shooting death of a Laurens County deputy in 1998. Kammer also represented Brannan.
On Tuesday, another convicted killer, Robert Ladd, who has an IQ of 67, was denied a stay of execution by the Texas Court of Criminal Appeals.
Under Texas law, which was drawn in part on the character Lennie Small in John Steinbeck's "Of Mice and Men," "mental retardation" is a disability characterized by "significantly sub-average general intellectual functioning" and limitations in adaptive functioning, which occurs prior to the age of 18. Ladd is scheduled to be executed Thursday.
Last week, Hill's attorneys filed a motion for a stay of execution and a petition for writ of certiorari with the Supreme Court. Georgia's "beyond a reasonable doubt" standard for proving intellectual disability, they argue, is unconstitutional under Hall vs. Florida, a 2014 Supreme Court case that 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 longstanding 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."
Yet Kammer's attempts to persuade judges that Georgia’s standard of proof is unconstitutional were largely unsuccessful. In October, 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.
The judge, however, urged the state Supreme Court to reconsider the law based on the Hall ruling, arguing Hill's case offered a chance for a "perfect and definitive decision in this area of the law."
On Monday, the U.S. 11th Circuit Court of Appeals denied a request to reconsider Hill's mental capacity, arguing that the Hall ruling "has no bearing" on Hill's case because it involved the "substantive definition of intellectual disability" rather than the "burden of proof." Georgia's reasonable doubt standard has not in any way prevented Hall from presenting any evidence to support his claim of intellectual disability, the court ruled.
One judge, Beverly B. Martin, dissented, writing that she believes Georgia's reasonable doubt standard creates "unacceptable risk" that an intellectually disabled inmate will be put to death.
On Tuesday night, the Supreme Court offered no new information on its decision to deny a stay of execution.
"It's been a very difficult day," said Kammer, after informing Hill by telephone that his petitions had been denied. "He's out of my hands now. They're going to execute him. To be honest, I'm just at a loss for words."