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June 18, 2010

Eleventh Circuit finds Georgia procedure for implementing Atkins unconstitutional

An Eleventh Circuit panel has a fascinating ruling today in Hill v. Schofield, No. 08-15444 (11th Cir. Jun. 18, 2010) (available here), concerning Georgia procedures for implementing the Atkins ruling prohibiting the execution of mentally retarded persons. Here is the start of the ruling:

Warren Lee Hill, Jr. appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas petition in which he challenged his death sentence.  The district court granted a certificate of appealability on Hill’s claim that the Georgia Supreme Court’s decision upholding Georgia’s statutory requirement that in order to be exempt from execution Hill must prove his mental retardation beyond any reasonable doubt is contrary to clearly established federal law as announced in United States v. Atkins, 536 U.S. 304 (2002).  We conclude that because Georgia’s requirement of proof beyond a reasonable doubt necessarily will result in the execution of the mentally retarded, the Georgia Supreme Court’s decision is contrary to the clearly established rule of Atkins.  The execution of the mentally retarded is prohibited by the Eighth Amendment’s ban against cruel and unusual punishment.  We therefore reverse and remand.

June 18, 2010 at 05:59 PM | Permalink


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Not surprised to see Rosemary Barkett, of Dougan v. State fame, on the panel here. The bottom line is that no Supreme Court case holds that states can't have the BRD standard with burden of proof placed on the defendant in an Atkins claim. And yet, the state court decision was tossed. More lawlessness on behalf of capital murderers.

Posted by: federalist | Jun 18, 2010 7:19:33 PM

Doug, very interesting and timely case. Last week I filed a cert petition in SCOTUS asking them to declare unconstitutional the use in NC of the clear and convincing standard, instead of preponderance, to prove mental retardation. As Hill points out, the overwhelming number of states have adopted the preponderance standard. The reasoning in Hill followed the Court's analysis in Cooper v Oklahoma, related to competency to stand trial.


Posted by: bruce cunningham | Jun 18, 2010 8:11:51 PM

I wouldn't say the case is interesting---unless you find fig leafs covering for lawlessness interesting.

The 11th Circuit majority is so obviously wrong--Atkins lets the states figure out for themselves how to adjudicate MR claims, see, e.g., Schriro v. Smith:

"The State’s petition for certiorari is granted,* the judgment of the Court of Appeals vacated, and the case remanded. The Ninth Circuit erred in commanding the Arizona courts to conduct a jury trial to resolve Smith’s mental retardation claim. Atkins stated in clear terms that “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” 536 U.S., at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 416-17 (1986); modifications in original). States, including Arizona, have responded to that challenge by adopting their own measures for adjudicating claims of mental retardation. While those measures might, in their application, be subject to constitutional challenge, Arizona had not even had a chance to apply its chosen procedures when the Ninth Circuit preemptively imposed its jury trial condition."

Posted by: federalist | Jun 18, 2010 10:02:28 PM

Hill comes out of federal habeas. I agree it is a stretch to say that there is clearly established federal constitutional law, as decided by the supreme court, which has been violated by Georgia. But, a conflict among the lower courts is the best way to get to the supreme court and there certainly is one on this issue, I think review should be granted, hopefully in my case. As I argued in my cert petition, the court will have to deal with this issue sooner or later. Might as well do it now in the interest of judicial economy and efficiency. Why wait until a large number of cases are tried under a hodge podge of standards for the supreme court to rule, first , whether the standard of proof is something to be left to the states or something which requires uniformity, and second what the standard is.

NC is probably unique in that it provides for two different standards to prove mental retardation, depending on what stage of the process the question is asked. To get off death row, the def need only show by a preponderance that he is mentally retarded. To keep from going on death row, the def must show MR by clear and convincing evidence he is mentally retarded. I believe that distinction makes no sense.


Posted by: bruce cunningham | Jun 18, 2010 10:45:29 PM

I think the 11th Circuit is wrong also. Barkett is a criminal rights judge anyway. Fortunately, she has been held back by AEDPA since she joined the 11th. Her and Kogan voted together to reverse numerous death sentences on the Florida Supreme Court. What really surprises me is that Stanley Marcus joined her opinion. Very rarely does he side with the prisoner. I predict en banc hearing and a close vote.

Posted by: DaveP | Jun 19, 2010 7:37:16 AM

I think DaveP has this one mostly right. Marcus' vote is surprising, and the strength and tone of Judge Hull's dissent make this case a strong candidate for en banc review. But if that's what happens, I'm not sure the vote will be particularly close. It's hard to see any fewer than 8 of the current 12 active judges (Judge Birch goes senior later this year, http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/FutureJudicialVacancies.aspx) voting with the state.

Posted by: LT | Jun 19, 2010 8:13:44 AM

Leaving aside the AEDPA issue, I believe that on the merits of the question Hill is correct, the standard of beyond a reasonable doubt to prove mental retardation would allow for the execution of defendants who are probably mentally retarded. Georgia is the only state in the country to employ such a stringent standard, adopted at a time when Georgia's MR law was a matter of state statutory law, not federal constitutional law.


Posted by: bruce cunningham | Jun 19, 2010 8:35:15 AM

Well, Bruce, any time the burden of proof is imposed on a defendant, there's the possibility that a "truly" MR defendant is executed (I use quotes because MR isn't subject to exact analysis). And, as defense attorneys like to point out, there's always the possibility that a truly innocent defendant is convicted, even with the BRD standard. So, since the system lives with that possibility, I think it certainly can live with the possibility that a "truly" MR defendant gets offed. And given the possibility is present in any event, can someone really say that the Constitution makes such fine distinctions about the quantum of so-called mistakes? Given the fact that Atkins is garbage in the first place, states should try to make sure that no defendant who IS MR gets off because of Atkins.

Hall isn't MR. The guy functioned in life, and he should, absolutely, be executed.

Posted by: federalist | Jun 19, 2010 8:54:53 AM

I read somewhere that North Carolina has by far the most Atkins claims that have been reduced to life imprisonment. Of course, Texas had the least amount.

Posted by: DaveP | Jun 19, 2010 11:19:24 AM

"Barkett is a criminal rights judge anyway."

A description the judge should wear as a badge of honor.

Posted by: Anon | Jun 20, 2010 6:41:24 PM

Funny how the mouth-breathers can't fathom that "criminal" rights are "constitutional" rights.

Posted by: Mark # 1 | Jun 20, 2010 7:36:18 PM

Guys, bruce agrees that this is a "stretch", "mouth-breather" comment notwithstanding.

Posted by: federalist | Jun 21, 2010 9:03:47 AM

"Barkett is a criminal rights judge anyway". All I meant is she has shown a pattern of leaning toward defendants especially in death cases. Barkett, whom I disagree with most of the time, has a personal history that is quite remarkable. I also think that the numerous panels she has sat on at the 11th would have her dissenting the vast majority of the time without AEDPA. With the Hill case, the fact that Marcus joined her opinion leads me to believe it is a "close" case and will be interesting to see it through.

Posted by: DaveP | Jun 21, 2010 4:07:23 PM

Shouldn't that be Atkins v. Virginia?

Posted by: Michael Drake | Jun 23, 2010 4:45:33 PM

If the SCOTUS grants cert in the Eleventh Circuit case, it may not even resolve the issue about whether a BRD standard is permissible. As it has done several times in the past, it could decide the case simply by saying that none of its prior opinions "clearly establish" that a BRD standard is unconstitutional.

Posted by: opiner | Jun 24, 2010 9:31:31 PM

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