Undue Burden

Monday, July 23 2012, Warren Hill is scheduled to be executed in Georgia. He was convicted of killing another inmate while serving a life sentence for killing his girlfriend, according to the Atlanta Journal-Constitution. This is despite the fact that Warren Hill is mentally retarded. Georgia was one of the first states to ban the execution of the mentally retarded; but there is a catch. The defendant bears the burden of proving he is mentally retarded beyond a reasonable doubt. This is the only state that requires the defense to bear this burden. Only the Board of Pardons and Parole can stop his execution now.

While a judge has found that Mr. Hill is mentally retarded, with an IQ of only 70, he didn't find that fact beyond a reasonable doubt but rather by a preponderance of the evidence, which is the ordinary standard in civil matters, more likely than not. And it is on this technical basis that he will be executed. The Georgia Supreme Court voted four to three to reinstate Hill's death sentence, and at the end of last year, the U.S. Court of Appeals in Atlanta ruled seven to four to uphold that death sentence even though the majority seemed to think it "unwise."

In Atkins v. Virginia the United States Supreme Court held that it was unconstitutional to execute the mentally retarded, however the United States Supreme Court left it up to the states, both substantively and procedurally, to define and remove the mentally retarded from the pool of death-eligible capital defendants. In other words, the procedures and standards are details left to the states. No other state requires the defendant to bear this burden, either to prove mental retardation or anything else, just Georgia. History teaches us that these procedures and policies do not always remove the mentally retarded from the pool of those subject to execution, and this has proven to be the case here.

Intelligence quotient tests (IQ tests) measure intellectual functioning and serve as a good shorthand for understanding the scope of the problem. According to the Human Rights Watch report on mental retardation and the death penalty ,

the vast majority of people in the United States have IQs between 80 and 120, with an IQ of 100 considered average. To be diagnosed as having mental retardation, a person must have an IQ below 70-75, i.e. significantly below average. If a person scores below 70 on a properly administered and scored IQ test, he or she is in the bottom 2 percent of the American population...An estimated 89 percent of all people with retardation have IQs in the 51-70 range. An IQ in the 60 to 70 range is approximately the scholastic equivalent to the third grade.

In other words, executing a mentally retarded person with an IQ of 69 is like executing someone who functions at the level that a ten year old does. Mentally retarded people are significantly limited in what they are able to do, and in their ability to think ahead. A mentally retarded adult may have trouble driving a car, following directions, participating in hobbies or work of any complexity, or behaving in socially appropriate ways. He or she may have trouble sitting or standing still, or may smile constantly and inappropriately. For most mentally retarded people, limited adaptive skills make ordinary life extremely difficult unless a caring family or social support system exists to provide assistance and structure. Often, those persons facing a sentence of death usually come from extremely deprived conditions and have not received any such support, even if anyone recognized it was needed at all. They commonly come from poverty, are victims of or witnesses to violence in their homes and have few, if any, resources to cope with this lifelong condition. The environment in which they grew up is often riddled with crime, and they are easy prey for more cunning criminals who lead them into criminal activity. A mentally retarded person simply cannot see the world the way most of us are fortunate enough to be able to. For example, Morris Mason, whose IQ was 62-66, was executed in 1985 in Virginia after being convicted of rape and murder. Before his execution, Mason asked one of his legal advisors for advice on what to wear to his own funeral.

This is not to say that mentally retarded people are not responsible for their actions; that is a different inquiry altogether. But to inflict the ultimate sanction on a person who may live in a 52-year-old body like Warren Hill, but can only comprehend at the level of an eight-year-old child is cruel, and should be unusual. To do so on the basis of an extraordinarily high burden on the defense -- one not required anywhere else in the United States -- is even more so.

I can't say it better than Richard Handspike, the spokesman for the victim's family, has in an affidavit submitted to the board: "... I and my family feel strongly that persons with any kind of significant mental disabilities should not be put to death. I believe that if the system had evidence of such a disability in Mr. Hill, it should have taken steps to treat him accordingly and prevent his execution." The Board of Pardons and Parole should commute Mr. Hill's sentence to life.