Death row inmate deserves clemency
By Eric E. Jacobson All Articles
Daily Report July 10, 2012
People with intellectual disabilities, or "ID," formerly termed "mental retardation," are all around: in our families, churches, schools, neighborhoods and workplaces. Most of us are blessed to have someone whom we know personally with intellectual disability, so we understand that people with intellectual disabilities have special needs and deserve the special protection they receive under the law.
Nonetheless, the State of Georgia plans to execute Warren Hill, an intellectually disabled man who should be entitled to this protection.
Warren Hill, who would be ineligible for the death penalty outside of Georgia because of his intellectual disabilities, has been under a death sentence for 21 years. In 1991, he was convicted of the murder of a fellow prison inmate who had threatened him and was sentenced to death after his attorneys failed to uncover evidence — such as school test scores and the testimony of teachers — demonstrating that he has an intellectual disability.
Although a state court judge considering that new evidence in 2002 found that Hill is intellectually disabled — a finding unchallenged by the government or reviewing courts — Hill has continued to languish on death row.
There is little doubt that Hill has an intellectual disability. According to numerous mental health expert witnesses, including those retained by the government trying to execute him, Hill has an IQ of about 70, which meets the standard for an intellectual disability.
Due to his disability, Hill has endured a life of hardship and tribulation. He has an extensive family history of diminished intellectual capacity and suffered from debilitating seizures throughout his youth. He grew up in poverty in Elberton, Ga., and survived chronic domestic violence at the hands of his mother and alcohol-dependent father. Hill's teachers and loved ones, as well as those in prison with him, have testified to his significant mental impairments, convincing the courts that Hill is more than likely "mentally retarded."
I know from my own professional experience that people in Hill's IQ range are simply not able to function at the level of people who don't have intellectual disabilities.
When the jury sentenced Hill in Leesburg, Ga., in 1991, they lacked crucial evidence about his mental deficits. Several jurors have stated under oath that if they had been given the evidence, it would have influenced them to return a sentence of life rather than death.
If Georgia puts Warren Hill to death, it will have failed spectacularly to uphold its moral and legal commitment not to execute persons with intellectual disabilities 14 years after passage of landmark legislation banning such executions. That legislation was enacted in response to the angry outcry which followed the execution in 1986 of an intellectually disabled Georgia man named Jerome Bowden.
The U.S. Supreme Court's 2002 decision Atkins v. Virginia followed Georgia's lead in banning the death penalty for people who are, in legal terms, "mentally retarded," and left it to the states to evaluate retardation claims.
Although Georgia's statute purports to shield the intellectually disabled from execution, in practice the law has proven to be ineffective because it requires an almost impossible amount of proof, beyond a reasonable doubt, before someone with a developmental or intellectual disability can be found ineligible for capital punishment. Men and women with intellectual disabilities can fall through the cracks. Hill now faces imminent execution.
"Beyond a reasonable doubt" is the highest standard of proof in the law. It means that the state can still execute Hill despite a court finding that he is more than likely "mentally retarded." No other state risks the lives of those with developmental disabilities to this extreme. A federal appeals court judge in 2010 remarked in this case that Georgia's "reasonable doubt" standard effectively "eviscerates the command of the Eighth Amendment that the mentally retarded shall not be executed."
Hill's final chance for life is to plead for clemency before the Georgia State Board of Pardons and Paroles. The board's discretion to commute Hill's death sentence is Georgia's last chance to prevent an unconscionable and immoral execution.
The board now has the opportunity to show mercy and compassion to Hill by granting clemency and by commuting his sentence to life without parole. The victim's family has expressed its support for commutation. By acceding to their wishes, the board can act as the "fail safe" necessary when the legal machinery of our capital punishment system makes a mistake.
Further, granting mercy to Hill would finally acknowledge the nationally recognized safeguards for defendants with developmental and intellectual disabilities on death row, and protect the constitutionally mandated rights of men and women with these disabilities.
Eric E. Jacobson is executive director of the Georgia Council on Developmental Disabilities.