This article appeared in The Atlanta Journal-Constitution on Oct. 7, 2003
A deeply divided Georgia Supreme Court has upheld the stringent burden of proof required of defendants seeking to avoid capital punishment by claiming they are mentally retarded.
In a 4-3 decision issued Monday, the court found constitutional a Georgia law requiring defendants to prove "beyond a reasonable doubt" they are mentally retarded. Georgia remains the only state in the country that requires such a high burden of proof.
In response, three dissenting justices and death penalty lawyers said the ruling may lead to mistakes.
"By adopting this standard, the court is allowing the execution of people who are more likely than not to be mentally retarded, " said Stephen Bright, director of the Southern Center for Human Rights in Atlanta.
In 1988, Georgia became the first state in the nation to forbid execution of the mentally retarded. At the time the Legislature imposed the beyond-a-reasonable-doubt burden of proof --- the highest legal threshold possible.
Last year, the U.S. Supreme Court followed Georgia's lead by ruling execution of the mentally retarded was unconstitutionally cruel and unusual punishment. The high court said it would leave up to the states the task of developing appropriate ways to enforce its decision.
Monday's ruling by the Georgia Supreme Court addressed a challenge raised by Warren Lee Hill, who sits on death row for the Aug. 17, 1990, killing of fellow prisoner Joseph Handspike. At the time, Hill was serving a life sentence for killing his girlfriend.
Last year, DeKalb County Superior Court Judge Clarence Seeliger, hearing Hill's appeal, held that it was fundamentally unfair to require mentally retarded inmates to bear such a strict standard when the "cost of error is their life." Seeliger overturned Hill's death sentence, ruling that he must prove mental retardation only by a "preponderance of the evidence, " or a simple majority of the evidence.
But the state's highest court found the Legislature was within constitutional bounds when it enacted the more stringent standard. Exemptions from execution should be granted to only those "whose mental deficiencies are significant enough to be provable beyond a reasonable doubt, " Justice George Carley wrote.
Natalie DiSantis, spokeswoman for state Attorney General Thurbert Baker, said her office was pleased with the decision.
Thirty-eight states and the federal government allow the death penalty. Hill's lawyer, Tom Dunn, noted that among these, only Georgia demands the most stringent burden of proof of retardation. Eighteen states and the U.S. government require a preponderance of the evidence, and five states require "clear and convincing" evidence, which is between preponderance and beyond a reasonable doubt. The other states have yet to formulate a burden of proof.
"We are disappointed by the Court's 4-to-3 decision, but we are confident that the federal courts will ultimately vindicate Warren Hill's constitutional rights, " Dunn added. "Warren Hill is mentally retarded."
Writing in dissent, Justice Leah Ward Sears said that the majority opinion "implicates a fundamental principle of justice that has become firmly established in the nation's conscience and tradition --- the right of mentally retarded people to be protected from execution by the state."
Despite the federal ban on executing the mentally retarded, Georgia may now "execute people who are in all probability mentally retarded, " wrote Sears, joined by Justices Norman Fletcher and Robert Benham. "The state may even execute people who are almost certainly mentally retarded."
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