An Empty Eighth Amendment Promise

Warren Hill has an IQ below 70. Despite this, barring an unlikely intervention by the Supreme Court, he will be executed by the state of Georgia tonight. The likelihood of this outcome is a lesson in how Supreme Court decisions can't always be taken at face value.

That Georgia is about to send a mentally handicapped man to the death chamber is, while dismaying, not in itself surprising. What is unusual about the case, however, is that the Supreme Court issued a ruling in 2002 that would seem to make what Georgia is about to do plainly illegal. In his opinion for the Court in Atkins v. Viriginia, Justice John Paul Stevens wrote that mentally handicapped individuals were categorically excluded from the death penalty by the cruel and unusual punishment clause of the Eighth Amendment. Given Hill's low IQ and the fact that even the state's expert witnesses have recanted their earlier testimony that he was not mentally retarded, the execution of Hill would seem to be a clear violation of the Supreme Court's command.

So is the state of Georgia just nullifying the Supreme Court of the United States? It's more complicated than that. Georgia is certainly defying the spirit of Atkins, but it's not clear that it's violating the letter. Justice Stevens's opinion contained a qualification that virtually guaranteed that states would continue to execute the mentally handicapped:

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.” [My emphasis]

While the Supreme Court held that the execution of mentally handicapped people was unconstitutional, it deferred the definition of what constituted the appropriate level of mental impairment to the states. The inevitable result of this deference is to undermine the holding of the case. Indeed, this wouldn't be the first or probably even the most egregious evasion of Atkins. Last year, Texas was permitted to execute a man with an IQ of 61 who couldn't understand how to use a phone book and sucked his thumb as an adult.

Indeed, the execution of the mentally retarded was illegal in Georgia even before Atkins, but under Georgia law the burden is on the defendant to prove mental impairment "beyond a reasonable doubt." As applied by the Georgia courts, this has been a nearly impossible burden to meet. Atkins could have made such a standard clearly unconstitutional, but it didn't. Leaving the enforcement of federal rights to the states has a long and largely dismal history, and this has been no exception.

It's not clear what Atkins has actually changed. The states that don't believe that the mentally handicapped should be executed will continue not to put them on death row, and states that wish to keep executing even severely mentally handicapped individuals will make mental impairment impossible to prove. Until a majority of the Supreme Court provides meaningful supervision of state standards, the Eighth Amendment holding in Atkins will be meaningless.

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