Warren Lee Hill Jr., a 54-year-old Georgia man, has killed two people — his girlfriend in 1986, for which he was sentenced to life in prison, and a cellmate in 1990, for which he was sentenced to death. After a convoluted legal odyssey that has included five previous appeals to the Supreme Court and a reprieve from a 2013 execution date, the state of Georgia is now planning to put him to death by lethal injection Tuesday — an unconstitutional act that would once again spotlight the inanity of the nation's capital punishment system.
Why is it unconstitutional? Because he is not eligible for the death penalty. Four defense experts testified in 2000 that based on his IQ of 70 — the statistical threshold for intellectual disability — and his limited adaptive skills, Hill is intellectually disabled. The state of Georgia countered with three experts who worked in a rush; only eight days passed from their first assessment to their testimony. Two of the experts relied heavily on the observations of the third, who in 2013 conceded in an affidavit that he had been ill-prepared to assess Hill and retracted his conclusion. The other state experts have retracted their testimony as well. Now all seven agree that Hill is intellectually disabled.
Under the Supreme Court's 2002 Atkins vs. Virginia decision, executing someone who is mentally retarded, to use the jargon of the time, violates the 8th Amendment's proscription against cruel and unusual punishment.
Nevertheless, Georgia says it will execute him anyway — and it may be able to do so on a technicality. In 2013, the U.S. 11th Circuit Court of Appeals ruled that it could not consider a new challenge based on the experts' revised affidavits because the court had already rejected a previous appeal over Hill's intellectual disability. So in deference to procedural rules, Georgia — and the federal court system — may be about to put to death a man who has a constitutional right to leniency.
The legal system relies on rules to work, but justice requires common sense. The Georgia Board of Pardons and Paroles will consider the case Monday and should, on both legal and humanitarian grounds, commute Hill's sentence to life in prison without parole (a sentence supported by relatives of his victim). If the board doesn't act, the Supreme Court should intervene, as Hill's lawyers have asked, and end this travesty.
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