On January 27, 2015, the state of Georgia executed death row prisoner Warren Hill, despite the tireless efforts of his lawyers and the unanimous finding of experts that he is intellectually disabled. In September 2014, Mr. Hill’s attorneys filed a new challenge to the state’s intellectual disability law based on the Supreme Court’s 2014 ruling in Hall v. Florida. The U.S. Court of Appeals for the Eleventh Circuit rejected the appeal, finding that claims regarding Mr. Hill’s intellectual disability had previously been considered and rejected.
In his state court proceedings, Mr. Hill presented four experts who testified that he was intellectually disabled, and the State presented three experts who testified that he was not. The state court concluded that, while Mr. Hill was intellectually disabled by a preponderance of the evidence, he failed to demonstrate that he was intellectually disabled beyond a reasonable doubt. As a consequence, Mr. Hill was sentenced to death.
In 2002, the U.S. Supreme Court held in Atkins v. Virginia that defendants with intellectual disabilities are ineligible for the death penalty pursuant to the Eighth Amendment prohibition on cruel and unusual punishment. The Court, however, left it up to the states to determine how to enforce this constitutional restriction. Georgia, which had enacted legislation prior to the Atkins decision, requires death-sentenced persons to prove their intellectual disabilities "beyond a reasonable doubt." Georgia is the only state with such a stringent standard of proof for Atkins claims.
In his application to the Eleventh Circuit requesting permission to file a second petition for a writ of habeas corpus, Mr. Hill submitted affidavits from the State's three experts, each of whom revised his prior opinion and concluded that Mr. Hill is intellectually disabled. The former State experts explained that their initial evaluations were extremely and unusually rushed, and based on a more thorough review, they concluded that Mr. Hill is intellectually disabled.
The ABA has previously stated its opposition to the execution of Mr. Hill based on his intellectual disability. On February 19, 2013, then-ABA President Laurel Bellows issued a statement urging the Georgia Supreme Court or the U.S. Supreme Court to stay the previously scheduled execution of Mr. Hill and asking the Georgia Board of Pardons and Parole to grant Mr. Hill’s request for clemency. While taking no position on the death penalty itself, the ABA has opposed the execution of offenders with intellectual disabilities for more than two decades.
Mr. Hill had previously received several stays of execution. On February 19, 2013, the Eleventh Circuit granted a stay of execution to consider whether Mr. Hill could litigate a second federal habeas action based on the experts' revised conclusions that he is intellectually disabled. The Georgia Supreme Court granted a separate stay based on a lethal injection protocol challenge. By April of that year, both stays were lifted, and Mr. Hill’s execution was rescheduled for July 2013. A federal appeals court rejected his claim of intellectual disability for again failing to meet the state-mandated burden of proof.
That same month, the Georgia legislature passed a lethal injection secrecy law, declaring the identity of lethal injection drug suppliers a "confidential state secret." Mr. Hill’s lawyers won another stay from Fulton County Superior Court Judge Gail Tusan until the constitutionality of the new law could be determined. This stay was automatically lifted on May 19, 2014, when a divided Georgia Supreme Court upheld the constitutionality of the secrecy law. Writing in dissent, Justice Robert Benham wrote "I fear this state is on a path that, at the very least, denies Hill and other death row inmates their rights to due process and, at the very worst, leads to the macabre results that occurred in [a botched execution in Oklahoma one month earlier]."
Despite the unanimous expert testimony confirming Mr. Hill’s intellectual disability, the Georgia Board of Pardons and Parole voted to deny his clemency request on the evening before his scheduled execution. Mr. Hill's attorney, Brian Kammer of the Georgia Resource Center, criticized the decision, saying, "The clemency board missed an opportunity to right a grave wrong."