When Robert Wayne Holsey was put to death in Georgia recently, it marked yet the latest occasion when top appellate courts declined to consider the state’s strict burden of proof for capital defendants seeking to be spared execution based on “intellectual disability.”
Among the 32 states with capital punishment, Georgia’s law for those raising intellectual disability claims stands alone. It is the only one in the nation that requires an inmate to prove such a disability beyond a reasonable doubt. It is the most difficult legal threshold to clear — the same standard required for prosecutors to clear in obtaining a criminal conviction. And this has led a number of state and federal judges to say the stringent threshold will result in the unlawful execution of intellectually disabled inmates.
Georgia’s top court and the U.S. Supreme Court could soon get another chance to revisit the statute in the latest appeal brought by death-row inmate Warren Hill.
Hill’s case is unique because two state court judges have found him to be intellectually disabled, though by a lesser burden of proof than the one required under Georgia law. These judges found Hill to be intellectually disabled by a preponderance of the evidence, meaning “more likely than not,” a standard used in 21 other states with the death penalty.
Hill’s case also stands out because three experts for the state who testified in a December 2000 hearing that Hill was not intellectually disabled have since changed their diagnoses.
In sworn statements and in interviews with The Atlanta Journal-Constitution, the three experts said their evaluations were rush jobs and a better scientific understanding leads them to believe Hill is mildly intellectually disabled. Yet Hill’s prior appeals have been denied.
“Georgia’s ‘beyond a reasonable doubt’ standard for proving claims of intellectual disability causes injustice where the state’s policy is supposed to protect against the wrongful execution of the intellectually disabled,” Hill’s lawyer, Brian Kammer, said. “Georgia was the most progressive state in the nation when it enacted the first ban on the execution of persons with intellectual disability, but the heavy burden of proof means that the intellectually disabled are protected on paper only.”
State Attorney General Sam Olens, through a spokeswoman, declined to comment.
PUBLIC OUTRAGED
In 1988, Georgia became the first state in the nation to ban the execution of the intellectually disabled. Passage of the law is widely attributed to the public outrage that accompanied the 1986 execution of Jerome Bowden, who, before being put to death in the electric chair, had been found to have the mentality of a 12-year-old.
In his final statement, Bowden thanked “the people of this institution for taking such good care of me as they have.”
Holsey, who killed a sheriff’s deputy in 1995 after robbing a Milledgeville convenience store, was executed Dec. 9. Both the Georgia Supreme Court and the U.S. Supreme Court rejected the 49-year-old’s intellectual disability claims.
Hill, meanwhile, sits on death row for using a nail-studded board to kill a fellow state prison inmate in 1990. At the time, the now 54-year-old Hill was serving a life sentence for killing his former girlfriend.
In 2002, the U.S. Supreme Court prohibited the execution of the intellectually disabled nationwide, declaring it was cruel and unusual punishment. Such defendants have diminished capacities in reasoning, judgment and impulse control and do not act with the same level of moral culpability that characterizes the most heinous adult criminal conduct, the court said. But the court left it up to each state to decide how such a determination should be made.
RULINGS PING-PONG
Deeply divided federal and state appellate courts have upheld Georgia’s “beyond a reasonable doubt” standard of proof. This includes prior challenges raised by Hill’s lawyers.
In November 2002, for example, Superior Court Judge John Allen in Columbus found Georgia’s strict threshold to be fundamentally unfair because it ensured the state would execute capital defendants who are more likely than not mentally disabled. Allen arrived at that conclusion after finding Hill to be intellectually disabled by a preponderance of the evidence.
But a year later the state Supreme Court, by a 4-3 vote, overturned Allen’s ruling. The majority said exemptions from execution should be granted only to those “whose mental deficiencies are significant enough to be provable beyond a reasonable doubt.” The dissenters argued the ruling meant the state may execute inmates who are “almost certainly” intellectually disabled.
In June 2010, a three-judge panel of the federal appeals court in Atlanta, by a 2-1 vote, found Georgia’s standard of proof unconstitutionally increased the risk that an intellectually disabled inmate would be executed.
But the entire federal appeals court, by a 7-4 vote, later overturned the panel’s decision. The court’s majority said the state’s death-penalty statute contains substantial safeguards to help jurors accurately determine whether a defendant is intellectually disabled.
A dissenting judge wrote that while Georgia was the first state to bar the execution of the intellectually disabled, “it is the only one to guarantee precisely the opposite result” because of the strict threshold.
The U.S. Supreme Court declined to hear Hill’s appeal of that ruling, but his lawyers are once again attacking Georgia’s law. This time, they are relying on a U.S. Supreme Court decision in May that rejected Florida’s rule that spared capital defendants only if they scored 70 or less on an IQ test.
IQ TESTS IMPRECISE
The U.S. Supreme Court’s decision in May was a “watershed moment” because the court gave weight to the research and practices used by mental health professionals when determining intellectual disability, said Atlanta lawyer Tim Saviello, a former law professor who has researched the issue.
IQ tests are imprecise and create an unacceptable risk that an inmate with a borderline case of intellectual disability will be wrongfully executed, the high court found. Florida, the court said, was disregarding established medical practice, which considers a broader range of factors to determine intellectual disability.
Georgia does not have such a bright-line rule regarding IQ scores when determining intellectual disability, but the high court’s reasoning can be used to spare Hill from execution, his lawyers contend in their latest appeal. If Florida’s IQ test created an unacceptable risk that intellectually disabled inmates would be executed, Georgia’s strict standard of proof does too, Hill’s lawyers said in an August court filing.
On Oct. 1, however, Butts County Superior Court Judge Thomas Wilson found that the U.S. Supreme Court’s ruling was “not sufficiently on point” to justify overturning Georgia’s standard of proof.
Wilson, who previously found Hill to be intellectually disabled by a preponderance of the evidence, also noted that Hill faces the ultimate punishment and is at the end of his appeals.
If the Georgia Supreme Court declines to hear Hill’s appeal, “it would be logical to assume that there is no doubt that the court believes that Georgia law is constitutionally correct and justice will be served,” Wilson wrote. “Should the court review this decision, this case would, in its factual concept, be a perfect and definitive decision in this area of the law.”
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