Georgia will violate both justice and the constitution if it executes Warren Hill

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Georgia will violate both justice and the constitution if...

State law prohibits applying the death penalty to the 'mentally retarded', yet Georgia plows ahead, ignoring Hill's disability

Christof Heyns

The US supreme court says it is a violation of the constitution to execute an offender with intellectual disabilities, but the state of Georgia is poised to do just that.

Just over a year ago, the world learned that Georgia was about to execute Troy Davis, someone about whose guilt there were serious questions. Many expressed their misgivings, but he was, nevertheless, executed. It has now become clear that Georgia has finally cleared the last legal hurdles and is intent on executing Warren Hill, whose IQ is within the range of what is considered to constitute intellectual disability, or "mental retardation" (in US parlance). A state court has twice found that Hill meets the criteria for mental retardation by a preponderance of the evidence.

Hill has been on death row since 1991. His execution was stayed twice in the middle of 2012, to resolve questions relating to the lethal injection process. On 23 July, he was asked to choose his last meal (he took the usual prison food). He had already had his pre-execution physical and was waiting in the holding cell by the lethal injection room when he was told he would be executed another day. His execution was halted at the last minute to resolve a technical question about the method that was going to be used to kill him.

This has now been resolved, and state attorney general has confirmed his execution date. On 18 February, he will again be given the opportunity to choose a last meal. On 19 February, he is scheduled to be executed.

While there are many indications that the world community is moving away from the death penalty in general, international law as it currently stands does not prohibit capital punishment. A minority of governments continue to impose the death penalty. It is allowed in a small number of closely defined – and shrinking – circumstances, but international law prohibits the execution of juveniles, people who are insane, and those with intellectual disabilities.

The rationale is that these people are not considered to be as morally blameworthy for their actions as those who are not members of these classes of offenders. They are unlikely to be deterred by the threat of such punishment, and retribution against people who do not properly understand the consequences of their actions is irrational and imprudent. Where they harm others, they should be removed from society, but not pay the ultimate price.

The United States supreme court also follows this approach, and has ruled in Roper v Simmons in 2005 that those who are below the age of 18 when they committed their crimes cannot be executed. Before that, in Atkins v Virginia in 2002, the court held that it is a violation of the eighth amendment to execute those suffering from intellectual disability.

Fourteen years before the US supreme court ruled such executions as unconstitutional, Georgia had already passed a law prohibiting the death penalty for those suffering from intellectual disability. It was the first state to take this bold stance. However, in Atkins, the supreme court left it to the states to determine how to apply the court's prohibition on the execution of the intellectually disabled.

Whereas almost all other US states (including states that are active implementers of the death penalty, such as Texas and Alabama) and the federal government require proof of intellectual disability by a preponderance of evidence, the Georgia legislature has imposed a uniquely high burden on the accused to prove beyond a reasonable doubt that he is "mentally retarded" and thus should not be executed. Georgia is the only jurisdiction that imposes this heaviest burden of proof in the law on persons who must prove the existence of a mental disability.

Georgia's own law coincides with those of the country as a whole and the international community – namely, that people with intellectual disabilities should not be executed. The state should not allow itself, through the burden of proof it imposes, to end rendering that law meaningless and ineffective in practice.

The world community is again watching Georgia with great concern as it prepares to carry out another grotesque and unjust execution. There is no sense and no honor in executing children, the insane and those who suffer from intellectual disability. Georgia should not execute Warren Hill.

The Guardian UK, Wednesday 13 February 2013