The state of Georgia may soon execute Warren Lee Hill, Jr., an intellectually disabled man with an I.Q of 70

The New York Times
The state of Georgia may soon execute Warren Lee Hill, Jr., an intellectually disabled man with an I.Q of 70. Under a2002 Supreme Court ruling it is unconstitutional to execute him or anyone in that category — but the Constitution, in this case, may not win out.

Three experts concluded in 2000 that Mr. Hill was not intellectually disabled. But they have since reviewed the evidence about his mental capacity and have changed their minds. The doctor whose evaluation heavily influenced the prior finding said his work was “rushed,” “unreliable” and “in error.” He and other experts have all said that Mr. Hill is disabled, beyond a reasonable doubt.

There is no question that Mr. Hill will spend his life in jail: He was convicted of murder. He is merely trying to get off death row. This week, however, by 2-1, the United States Court of Appeals for the Eleventh Circuit denied Mr. Hill’s request to confirm his disability in court with new evidence. It did so because his appeal did not fit the restrictive terms of the Anti-Terrorism and Effective Death Penalty Act — in particular, that new evidence must raise doubt as to guilt, rather than the appropriateness of the punishment.

The majority for the Eleventh Circuit said it was compelled to reject the revised opinions. If it accepted them, the majority said, belittling the rarity of experts changing their minds, “every material witness would have the power to upset every notion of finality simply by changing his testimony.”

In an angry, impassioned dissent, Judge Rosemary Barkett wrote, “The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness.”

Lawyers for Mr. Hill are expected to appeal this manifestly unfair ruling to the Supreme Court. The justices should say forcefully, as Judge Barkett reminded, that “a congressional act cannot be applied to trump Hill’s constitutional right not to be executed.”