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July 17, 2013

With a new execution date set, must the Supreme Court now take up the Hill case from Georgia?

The question in the title of this post is prompted in part by this local news that "State officials have rescheduled the execution of Georgia death row inmate Warren Lee Hill for Friday," and this interesting commentary up at MSNBC by LawProf Stephen Vladick, which makes these points about the case:

Hill is not an innocent man. His capital sentence arises from his 1990 killing of a fellow prisoner while serving a life sentence for the murder of his girlfriend. In a country in which 32 states (and the federal government) still allow capital punishment, Hill might seem an unlikely candidate to become anything other than a statistic....

But if Hill’s execution is eventually carried out, it will set a very dangerous precedent — even for those who are not generally opposed to capital punishment. Hill is, by all accounts, mentally retarded (the pejorative term still in vogue in legal analysis). The Supreme Court held more than a decade ago that the execution of such defendants is a violation of the Eighth Amendment’s ban on cruel and unusual punishment — because “there is a serious question as to whether either justification that [the Court has] recognized as a basis for the death penalty applies to mentally retarded offenders,” and because “[m]entally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes.”...

The reasons why Hill is nevertheless facing lethal injection have been well-documented. Part of it is because Georgia makes it harder to prove mental retardation than any other state in the country (although Hill even meets Georgia’s “beyond a reasonable doubt” standard). Part of it is because the government mental health professionals who examined Hill changed their mind — and their diagnosis — about Hill’s mental capacity only after initially declaring him eligible for capital punishment. (They now agree that he should not be executed.)

Part of it is also because of the various procedural obstacles that Georgia law, federal law, and the Supreme Court have imposed in cases like Hill’s, where defendants aren’t able to raise a meritorious constitutional claim until after they’ve exhausted their direct appeal and their first round of post-conviction review. (In an amicus brief I co-authored, a group of habeas corpus experts explained why the Supreme Court nevertheless has the power to grant relief in Hill’s case, should it desire to do so.)...

Hill’s case is ultimately a test of a proposition far more fundamental than what is typically at stake in capital cases: Can the Constitution abide the execution of a prisoner, who the state’s own experts agree is categorically ineligible for the death penalty, entirely because of procedural flaws in his claims?  The Supreme Court has never held that the answer is yes, and has hinted rather strongly to the contrary in the context of “actual innocence” cases — including as recently as two months ago.

The time for hinting is running out — for Hill, for the Court, and for the country.

July 17, 2013 at 05:20 PM | Permalink


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So law professor:

To execute an American, who was convicted of deliberately murdering more than one person in completely isolated cases, "will set a very dangerous precedent"?

Posted by: Adamakis | Jul 17, 2013 7:09:40 PM

/ "Hill is, by all accounts, mentally retarded" \ --Vladick

Why lie?

Posted by: Adamakis | Jul 17, 2013 7:13:33 PM

"Can the Constitution abide the execution of a prisoner, who the state’s own experts agree is categorically ineligible for the death penalty, entirely because of procedural flaws in his claims?"


Posted by: Daniel | Jul 18, 2013 12:54:48 AM

"Legal process can prove his mental retardation—even beyond a reasonable doubt..." (This is a part of the op-ed that Doug did not quote.)

What Vldick fails to explain is how it is possible for legal process to /prove/ mental retardation considering that psychologists themselves cannot /prove/ a person is mentally retarded. Mental retardation is not a scientific hypothesis; it is a label. Indeed, the case at hand is an neat illustration of that fact. Vladick notes that the state has changed its mind regarding this person's mental retardation thereby by indicating that the hypothesis that Hill is mentally retarded fails both the test of replication and the test of peer review necessary for the scientific method to operate.

So when Vladick claims that legal process can prove Hill's mental retardation beyond a reasonable doubt he has no scientific basis upon which to make that claim. In fact, he simply makes it up ipse dixit.

Posted by: Daniel | Jul 18, 2013 1:19:15 AM

Hill's lawyers already had a chance to prove retardation beyond a reasonable doubt. What they're really asking is to keep getting a chance to try again and again, ad infinitum.

In other words, their claim is "heads I win, tails flip again."

All in all, for a person who (I) at most is mildly retarded, and (ii) has proven that imprisonment is insufficient to safeguard others (since he was already given imprisonment for murder, and used that opportunity to kill again), DP does not seem radically wrong. Indeed, before Atkins (circa 2002), he would have had no constitutional claim at all. The Warren court would have looked at his petition and said simply "cert denied."

Doesn't Georgia have a duty to safeguard its other prisoners from being killed by Hill? And is this one of those prisoners whom this boog's readers also think should not even have a LWOp sentence?

Posted by: My thoughts | Jul 18, 2013 10:13:33 AM

Is this the new font?

Posted by: Joe | Jul 18, 2013 11:24:19 AM


No, it's just that Doug forgot to place the proper HTML code in the original post and so it is carrying over to the comments. I'll assume he fixes it sooner or later.


Yes, I agree on the policy point. I have said many times that I support the death penalty but only in extraordinary circumstances. This strikes me as one of those situations where the actions of the defendant have left society with no other rational choice. He wouldn't obey the law so he was locked up. When he was locked up, he killed again. So what are we supposed to do? Keep him locked in solitary confinement so that he can't harm anyone ever again? Then people like Doug will bitch about how solitary confinement is cruel and and unusual. So the state is in a lose/lose situation, a lose/lose situation that the defendant himself created. Forgive me, but I have zero sympathy for that.

Posted by: Daniel | Jul 18, 2013 12:29:33 PM

I agree with Daniel. The inmate is indisputably both guilty and extremely dangerous. If he is retarded, it's only borderline. He was sufficiently mentally acute to have been tried and convicted twice. His lawyers have done a good job of collecting, shall we say, revised opinions and new evaluations years after the fact.

If society had any real compassion, it would have had more regard for the lives he's already taken. How many more murders do we propose to allow?

As I said, he's guilty, twice, and dangerous. Get on with it.

Posted by: Bill Otis | Jul 18, 2013 2:13:26 PM

We have justified the death penalty by arguing that LWOP is a license to kill better than that of James Bond, without civil service oversight, nor second guessing by left wing traitor Members of Parliament.

There is no clear line for mental retardation. The modern definition has become even fuzzier, now being based on function. The IQ test was designed to predict school performance. It has thousands of studies validating it for that purpose, and the prediction of future occupational success. I know of no study validating such assessments for culpability.


One wonders if the Justices could fashion a weapon in prison, then dispatch a fellow violent prisoner. The most retarded people in this case have to be the Justices. The re-assessments of politically pressured experts thus violate Daubert. Hill is void for being trash science.

The state should carry out the execution even if the Supreme Court orders its halt. If DOJ thugs come around to harass state officials, arrest them, taser them, and throw them out of the state. The state is the parent, the federal government is the child. Spank the little brat.

Posted by: Supremacy Claus | Jul 18, 2013 6:39:47 PM

He fixed it but my question as to the font was raised since it was not just in this specific entry. It affected the blog as a whole.

Posted by: Joe | Jul 18, 2013 11:04:45 PM

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