The execution chamber of the US Penitentiary in Terre Haute, Indiana.

© 1997 Reuters

(New York) – The US Supreme Court should stop the state of Georgia from executing a man who evidence indicates has significant intellectual disabilities. Warren Lee Hill, Jr. is scheduled to be executed on July 23, 2012.

The issue in the case is the standard Georgia uses for proving intellectual disability. In 2002 the US Supreme Court, in Atkins v. Virginia, prohibited the execution of people with intellectual disabilities, finding that such a practice violates the US constitution’s ban on cruel and unusual punishment. Yet it left it to the states to decide how to enforce the ban. Most states have required defendants to show that it is more likely than not that they have an intellectual disability, using “a preponderance of the evidence” standard. Georgia is the only state that requires defendants to prove their disability beyond a reasonable doubt.

“Requiring proof of intellectual disability beyond a reasonable doubt in death penalty cases makes Georgia an extreme and cruel outlier,” said Antonio Ginatta, US advocacy director. “The Supreme Court should not let Georgia flout the ban on executing people with intellectual disabilities through a legal technicality.”

Tests have shown that Hill has an IQ of about 70, which is in the same diagnostic range considered by the Supreme Court in Atkins. Disability groups have said that Hill’s form of intellectual disability makes him particularly vulnerable to wrongful execution because his impairments are not easily observed.

Hill was sentenced to death in 1990 for killing a fellow prisoner, Joseph Handspike. At the time, Hill was already serving a life sentence for the 1986 murder of his girlfriend, Myra Wright.

In November 2002 a state judge in Georgia ruled that there was a preponderance of evidence that Hill has an intellectual disability. However, in 2003 the Georgia Supreme Court reversed that decision and reinstated Hill’s death sentence, and a federal appeals court later ruled that under Georgia law death penalty defendants, such as Hill, must prove beyond a reasonable doubt that they have an intellectual disability to avoid execution.

“When it comes to capital punishment, the state of Georgia has shifted the burden of proof, arguably to the party least able to handle it,” Ginatta said. “In criminal cases, the state must prove its case beyond a reasonable doubt to overcome the presumption of innocence. But in Georgia, a person with intellectual disabilities is assumed to warrant a sentence of death unless he can prove his disability beyond a reasonable doubt.”

On July 13 the Georgia State Board of Pardons and Parole heard Hill’s clemency request for a sentence of life in prison without parole. But on July 16 the board denied that request, as well as an appeal for a 90-day stay of execution. Hill’s lawyers are asking the US Supreme Court to stay the execution. If that fails, they have said they will file new appeals in the state and federal courts.

Hill’s execution was initially scheduled for July 18, but on July 17 the Georgia Department of Corrections announced it was postponing the execution until July 23 to make changes to its lethal injection drug protocol.

In addition to the federal constitution, the United States has undertaken obligations under international human rights law not to execute people with intellectual disabilities. In 2011, during the Universal Periodic Review process for the US at the United Nations Human Rights Council, the US supported a recommendation against executing people with “certain intellectual disabilities.”

By allowing states vast leeway to determine intellectual disability, however, the US is violating its international obligations and in practice permitting states to execute people with intellectual disabilities.

Human Rights Watch opposes capital punishment in all circumstances because the inherent dignity of the person is inconsistent with the death penalty. This form of punishment is unique in its cruelty and finality, and it is inevitably and universally plagued with arbitrariness, prejudice, and error.