Twenty-four years after Georgia became the first in the nation to ban the execution of the mentally disabled, the state is scheduled to put to death a man deemed such by a judge.
Warren Lee Hill is set to die by lethal injection Wednesday for fatally bludgeoning a fellow prison inmate with a nail-studded, 2-by-6 wooden board. At the time, Hill was serving a life sentence at a southwest Georgia prison for killing his 18-year-old girlfriend.
Georgia enacted the groundbreaking law banning the execution of those who meet the legal criteria for mental retardation in 1988, more than a decade before the U.S. Supreme Court prohibited the practice nationwide.
Hill's problem is that a judge found him more likely than not to be mentally disabled. Georgia's law requires capital defendants to clear a far more difficult legal threshold — proving it beyond a reasonable doubt.
The State Board of Pardons and Paroles will hear Hill's clemency request Friday for a sentence of life in prison without parole. Meanwhile, state and national advocacy groups for people with developmental disabilities are urging the board to commute his death sentence.
"As Georgia has recognized for almost a quarter of a century, it would be inhumane to execute Warren Hill," Rita Young and Lesa Hope, from All About Developmental Disabilities in Decatur, wrote the board.
In their own letter to the parole board, former President Jimmy Carter and his wife Rosalynn said Hill's execution "would undermine the state of Georgia's historic leadership in promoting the rights of the developmentally challenged."
The parole board has not said when it would issue its decision.
Richard Dieter, executive director of the Death Penalty Information Center, which tracks capital cases nationwide, said he knew of no other case comparable to Hill's. Forty-four people with evidence of mental retardation have been executed since 1976, but that was before the Supreme Court's ban in 2002, he said.
"Generally, once a judge makes a decision that an inmate is mentally retarded, the execution is not allowed," Dieter said.
State Attorney General Sam Olens declined to comment. But his office, in a statement, said Hill has failed to prove he is mentally disabled.
Hill was not labeled "mentally retarded" when he attended school. He was considered a "leader" of his family, and he was promoted to the rank of petty officer after enlisting in the Navy, the office said. The office also cited testimony of state experts who determined Hill was not mentally disabled after finding he was malingering during evaluations.
Hill's lawyers say that a judge's determination that Hill is mentally disabled has never been contested. Hill's IQ is "approximately 70," which is the considered the dividing line for mental disability although other factors are considered as well, his clemency petition says.
The petition includes a statement from two of Hill's former grade school teachers who said it was "obvious" to them that Hill was mentally disabled. "He was virtually non-communicative, very withdrawn, did not interact with his schoolmates and could not read or write at grade level."
The Georgia Legislature enacted the law banning the execution of the mentally disabled in response to a public backlash to the 1986 execution of Jerome Bowden, who had an IQ of about 65.
The 1988 law requires capital defendants to prove "mental retardation" beyond a reasonable doubt, the toughest legal threshold and the same burden of proof required to convict someone of a crime. Today, Georgia is the only state in the country that sets such a high threshold.
Superior Court Judge John Allen, when presiding over Hill's case in 2002, found Hill was mentally disabled by a preponderance of the evidence, a less stringent standard used by almost two dozen states with the death penalty. Allen also declared that Georgia's beyond-a-reasonable-doubt threshold to be fundamentally unfair because it ensures the state will execute capital defendants who are more likely than not mentally disabled.
But the Georgia Supreme Court, by a 4-3 vote, ruled that the U.S. Supreme Court left it up to the states to set their own standards when it banned the execution of the mentally disabled in 2002. Because Georgia's Legislature imposed the beyond-a-reasonable-doubt standard, it is "within constitutional bounds," the ruling said. A federal appeals court last November said it could not strike down Georgia's law — "even if we believe it incorrect or unwise."
In June, the U.S. Supreme Court declined to hear Hill's last appeal, triggering his scheduled execution.
According to testimony, Hill mocked Robert Handspike while beating him to death. Handspike, who was serving life for a Fulton County murder, made threatening gestures of a sexual nature to Hill in the days leading up to the killing, inmate witnesses have said.
In a June 18 letter to the parole board, Handspike's nephew, Richard Handspike, said prosecutors did not contact the Handspike family about the decision to seek the death penalty. If they had, the family would have opposed it, he wrote.
Handspike also told the board his family "feels strongly that persons with any kind of significant mental disabilities should not be put to death. ... We do not want Mr. Hill to be executed and we believe a sentence of life without the possibility of parole is an appropriate and just resolution of this case."
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