Hours before Warren Lee Hill, Jr., was scheduled to be put to death on Monday, a Georgia state court judge temporarily halted his execution in order to ensure that the drugs Georgia uses as part of its lethal injection protocol—and the way the state obtained them—are legal. In the process, Judge Gail Tusan didn’t just provide a reprieve to Hill, but also to the U.S. Supreme Court, for which Hill’s death sentence poses a constitutional question the significance of which goes far beyond his case. And as with Hill’s reprieve, the Supreme Court’s absolution is likely to be temporary, at best.
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 for Monday’s stay, he would have been the 19th prisoner to be subjected to capital punishment within the United States in 2013, and the 1,339th since the Supreme Court ended its self-imposed moratorium on the death penalty in 1976.
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.”
Historically, most of the more significant eleventh-hour challenges to capital punishment (such as the Troy Davis case two years ago) have sought to prevent executions on the ground that the prisoner is actually innocent—a claim that is notoriously difficult to prove in post-conviction proceedings since it requires the prisoner to show that “no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” But Hill’s claim is far more straightforward: As a matter of law, and without any need to show what a hypothetical juror would do, his execution would violate the Eighth Amendment.
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.]
These procedural obstacles can largely be traced to a famous and scathing criticism of federal post-conviction review of state convictions penned 50 years ago by Harvard Professor Paul Bator. At the core of Bator’s critique was a simple idea—that “no legal process can assure the ultimate correctness of the results reached.” All process can do, Bator argued, is ensure the fairness of the result. Thus, so long as the proceedings leading to the prisoner’s conviction and sentence were fair, there is nothing left for the courts to do.
Over the past three decades, the states, Congress, and the Supreme Court have picked up on Bator’s theme, making it that much harder for prisoners to challenge their convictions and sentence in any context other than their direct appeal. But Warren Lee Hill’s case proves the shortcomings of Bator’s approach. Legal process can prove his mental retardation—even beyond a reasonable doubt, as Georgia uniquely requires. And legal process has already established the unconstitutionality of executing mentally retarded prisoners.
Thus, whatever led to its current posture, 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.
Stephen Vladeck