The question in the title of this post is promoted by this new lengthy AP article about the next scheduled lethal injection in Georgia. The piece is headlined "Case highlights strict Ga. execution standard," and here are the basics:
Georgia was the first state to ban executing mentally disabled death row inmates, but the case of an inmate who is to be put to death next week has highlighted the state's strictest-in-the-nation standard for proving mental disability.
Former President Jimmy Carter is among those who have said the state pardons board should commute Warren Lee Hill's death sentence to life in prison without parole. However, the state argues defense attorneys have failed to meet their burden of proving beyond a reasonable doubt that Hill is mentally disabled. Hill was convicted of the 1991 murder of a fellow inmate.
Most states that impose the death penalty have a lower threshold for defendants to prove they are mentally disabled, while some states don't set standards at all. Hill's lawyer Brian Kammer said the high standard for proving mental disability is problematic because psychiatric diagnoses are subject to a degree of uncertainty that is virtually impossible to overcome.
Prosecutors have presented expert testimony and evidence that Hill is not disabled, while his attorneys have presented their own evidence to prove he is disabled. That can make it difficult to determine anything beyond a reasonable doubt, said Kay Levine, an associate professor of law at Emory University.
"Beyond a reasonable doubt can never be met if you're simply not sure which side is unequivocally telling the truth and which side is not," said Levine, who has no connection to the Hill case. "The issue with Georgia setting its mental health standard as high as it's set is that it requires such a high level of certainty that even scientists will rarely reach."
Nonetheless, Georgia's strict standard has repeatedly been upheld by state and federal courts. Last year, the 11th U.S. Circuit Court of Appeals ruled in an appeal of Hill's case that it couldn't strike down Georgia's law because the U.S. Supreme Court allows states to create their own definitions for mentally disabled. The decision, written by Judge Frank Hull, noted the justices were careful not to set their own rigid guidelines for such a definition. Even if Georgia "somehow inappropriately struck the balance" when it adopted its standard, Hull wrote, only the U.S. Supreme Court can overturn the state's law.
The Supreme Court last month declined to hear Hill's case, but his lawyer has already submitted a new request to the high court....
The state has cited expert testimony and IQ tests that concluded Hill is not mentally disabled. Before trial, Hill's family members described him as "the leader of the family" and "a father figure," the state notes. He was not in special education classes and served in the Navy, where he received promotions, the state has said.
The defense has referenced a state court judge's assessment that Hill was mentally disabled and a test that shows his IQ to be about 70. The defense has also cited expert testimony that it is not unusual for someone who is mildly mentally disabled to be able to function at a satisfactory level in an environment as structured as the military. Attorneys also presented a letter from some of Hill's teachers saying that he could never read or write at the proper grade level, and that he was promoted to the next grade only so he would continue to be with children his own age.
The Georgia Board of Pardons and Paroles is set to hear Hill's case Friday. His lawyer has asked the board to commute Hill's sentence to life in prison without parole or to grant him a 90-day delay to allow the U.S. Supreme Court to consider his case.
Included with the application to the board are letters from former President Carter and his wife, disability groups and the nephew of Joseph Handspike, the inmate Hill killed. Richard Handspike, who says he is a representative for the family, says in the letter that they were not contacted by prosecutors but would have told authorities they did not want Hill to be executed.
"I and my family feel strongly that persons with any kind of significant mental disabilities should not be put to death," Handspike said. "I believe that if the system had evidence of such disability in Mr. Hill, it should have taken steps to treat him accordingly and prevent his execution."
It has now been more than a decade since the Supreme Court ruled in Atkins that the Eighth Amendment prohibits the execution of mantally retarded defendants. In Atkins, SCOTUS punted back to the states the hardest issue the case raised: how state are to procedurally administer this new substantive limit on the death penalty. This procedural issue has been resolved in disparate ways throughout the nation, and Georgia's uniquely tough approach is arguably unconstitutional by virtue of being uniquely tough. Also, I cannot think of any other matter of criminal procedure in which a defendant is expected to prove something beyond a reasonable doubt.
Perhaps five or more Justices of the current Supreme Court would find constitutionally permissible Georgia's approach to Atkins; perhaps five or more Justices would not. Either way, this issue seems sufficiently important and ripe for SCOTUS to resolve this issue ASAP and the Hill case seems like a timely and appropriate means for doing so.