1st July, 2010

Mental Retardation Ruling Reversed:11th Circuit Finds State Law Violates Death Penalty Defendants' Eighth Amendment Rights

A Georgia law requiring that mentally retarded death penalty defendants, in order to avoid execution, must prove beyond a reasonable doubt that they are retarded violates the Eighth Amendment's ban against cruel and unusual punishment, a judicial panel of the 11th U.S. Circuit Court of Appeals in Atlanta has found.

In issuing the opinion, the appellate panel reversed a 2003 Georgia Supreme Court ruling, finding instead that the state's stringent standard of proof "is not an appropriate way to vindicate a mentally retarded offender's constitutional right not to be put to death."

The appellate opinion, issued June 18 in a 20-year-old state prison murder case, would bring Georgia law in line with the remainder of the country as to how mentally handicapped defendants charged with capital crimes are treated, and when and how they may face the death penalty.

Although Georgia was the first state in the nation to outlaw the execution of mentally retarded defendants in 1988, it remains the only state to require an offender to provide proof of mental retardation beyond a reasonable doubt—the most stringent legal standard, according to the opinion. The maximum penalty for mentally retarded offenders in Georgia is life imprisonment.

Twenty-two other states require a defendant to prove mental retardation by a preponderance of the evidence; four states have adopted a "clear and convincing standard"—both less stringent, civil standards of proof.
Three states have no uniform standard of proof with regard to mentally retarded capital defendants.

The findings of the 11th Circuit panel—which included Judges Rosemary Barkett, Stanley Marcus and Frank M. Hull—included a strong 29-page dissent by Hull, who said that the U.S. Supreme Court's 2002 decision outlawing the execution of mentally retarded defendants, Atkins v. Virginia, "left it for the states to develop the procedural and substantive guides for determining who is mentally retarded."

Hull concluded, "Because there is no 'clearly established' federal rule regarding the burden of proof for mental retardation claims," a 1996 federal law that restricts federal civil appeals by convicted criminal defendants "mandates that this lower federal court leave the Georgia Supreme Court decision alone—even if we believe it incorrect or unwise—and affirm this case."

State Attorney General Thurbert E. Baker, who is running for the state Democratic nomination for governor and whose office is defending the Georgia statute, will ask the 11th Circuit to reconsider the ruling en banc, Baker spokesman Russell D. Willard said Tuesday. "We believe the majority decision was erroneous, and we look forward to making our argument before the full 11th Circuit," Willard said. He declined to detail the nature of the errors, saying that they would be included in pleadings the attorney general will file "shortly."

Baker was unavailable, according to a campaign staff member, and did not return calls to his campaign headquarters on the ruling or his office's decision to appeal it.

Brian Kammer, an attorney with the Georgia Resource Center who has been representing defendant Warren Lee Hill Jr. in state and federal appeals of his 1991 death sentence since 1996, said the appellate panel's ruling has reversed a "stark instance of injustice."

"The burden of proof has been challenged several times in different cases unsuccessfully in Georgia," Kammer said. "But it certainly hadn't gotten to 11th Circuit before now."

Hill's case, Kammer continued, "is a primary example of how the reasonable doubt burden of proof will likely result in the execution of the mentally retarded."

According to court pleadings and opinions in the case, Hill's death penalty sentence stems from his 1990 slaying of a fellow prison inmate. At the time, Hill was serving a life sentence for the murder of his girlfriend, whom he had shot to death. Hill bludgeoned to death a fellow inmate, who was also serving a life sentence for murder, while he was sleeping.

In 1993, the state Supreme Court affirmed Hill's murder conviction and death sentence for the inmate slaying and sent Hill to the state's Death Row. The following year, Hill filed a state habeas petition seeking reconsideration of his conviction and later amended it to assert for the first time that he was mentally retarded. In 1997, Muscogee County Superior Court Judge John D. Allen granted Hill a writ of habeas corpus to adjudicate the mental retardation claim, which was appealed and then remanded to Allen with instructions that, in considering Hill's habeas appeal, the judge should apply Georgia's "beyond a reasonable doubt" standard of proof. After an extensive evidentiary hearing, Allen found that Hill's low IQ scores satisfied criteria that he was mildly mentally retarded, but that Hill's adaptive skills—which enabled him to hold jobs, serve
in the military, save money to buy a motorcycle, learn to drive and have a girlfriend—prevented him from meeting other state criteria that would establish he was retarded.

Allen's order was issued a month before the U.S. Supreme Court ruling in Atkins v. Virginia, which found that mentally retarded individuals "because of their disabilities in areas of reasoning, judgment, and control of their impulses … do not act with the level of moral culpability that characterizes the most serious adult criminal conduct" and those impairments "can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants."

In light of the Atkins ruling, Allen agreed to reconsider his prior ruling and, in 2002, vacated his earlier order, finding that the state "has created an extremely high likelihood of erroneously executing mentally retarded defendants by placing 'almost the entire risk of error' upon the defendant" in the context of capital punishment where due process "requires the State to provide defendants more, not less, procedural protections."

Allen also found that the standard set by Georgia "is fundamentally unfair."

On appeal, the state Supreme Court reversed Allen's finding and upheld the "beyond a reasonable doubt" standard. A federal court judge rejected Hill's federal habeas petition appealing that ruling, but allowed Hill to appeal the matter to the 11th Circuit in 2008.

In its June 18 ruling, the appellate panel majority noted that the Georgia Supreme Court erred in concluding that the Georgia Legislature was "within constitutional bounds in establishing a procedure for considering alleged mental retardation that limits the exemption to those whose mental deficiencies are significant enough to be provable beyond a reasonable doubt."

"The reasoning of the Georgia Supreme Court is contrary to the command of Atkins because the reasonable doubt standard, as applied to claims of mental retardation, necessarily will result in the death of mentally retarded individuals," the opinion stated. "While it is true that Atkins left it to the states to develop ways to ensure that those mentally retarded offenders 'about whom there is a national consensus' are not subject to
capital punishment, … the Court did not give the states unfettered authority to develop procedures that nullify the Eighth Amendment's prohibition on the execution of the mentally retarded."

The discretion afforded to the states 'is not unbounded," the majority of the panel held, "and the means used to discriminate must be 'appropriate.'… [I]t would not be an 'appropriate' means to impose a burden of proof that is so insuperably high that it inevitably excluded from Atkins' protection a substantial number of mentally retarded persons. Yet because of the highly subjective nature of the factual inquiry necessary to establish mental retardation, that is precisely what Georgia's once-path breaking statute effectively has done by requiring proof beyond a reasonable doubt."

In its opinion, the appellate panel observed that the standard of proof applied "will affect whether the risk of an erroneous conclusion will more often fall on the side of convicting an innocent person or releasing a guilty one."

In criminal cases, the United States has mandated that the highest standard of proof—guilt beyond a reasonable doubt—be applied "and placing the burden of proof on the government, we make it clear that we will tolerate almost no error with respect to the reliability of the evidence leading to the deprivation of one's liberty. This burden and standard of proof reflect society's belief that 'it is far worse to convict an innocent man than to let a guilty man go free.'"

In Atkins, according to the 11th Circuit panel, the Supreme Court's paramount concern was that the states "protect the constitutional right of the mentally retarded not to be executed."

"Yet, rather than securing the constitutional right at issue here—protecting the mentally retarded from execution—Georgia has done quite the opposite," the appellate ruling holds. "By imposing the overwhelming majority of the risk of error on the defendant in its application of the most stringent standard possible, Georgia holds that it is far better to erroneously execute a mentally retarded person than to erroneously impose a life sentence on one not mentally retarded. Requiring a defendant to prove mental retardation beyond a reasonable doubt is appropriate only if the interests of a state in maximizing the number of death sentences outweigh the constitutional right of mentally retarded offenders not to be executed."

Hull asserted in her dissent that there is no U.S. Supreme Court case, including Atkins, "suggesting, much less holding, that a reasonable doubt burden of proof for claims of mental retardation violates the Eighth Amendment. Atkins did not answer that question."

That does not mean that the high court concluded that the Constitution places no restrictions on a state's determinations of mental retardation, Hull continued. "It simply did not consider or reach the burden-of-proof issue, and neither has any subsequent Supreme Court opinion. Nor do I gainsay the possibility that the Supreme Court may later determine that a reasonable doubt standard for establishing the mental retardation exception to execution is constitutionally permissible."

Her dissent continued, "We are not concerned with what a United States Supreme Court holding could or should be in the future, but only what it was as of the time of the Georgia Supreme Court's decision … in 2003."

Hull concluded, "There is no historical Eighth Amendment right of a mentally retarded person not to be executed. … Given that Hill failed to meet Georgia's reasonable doubt standard, he failed to demonstrate that he is mentally retarded, and therefore, failed to prove an impending Eighth Amendment violation. Because Hill has not established mental retardation beyond a reasonable doubt, a denial of Hill's petition does not result in the execution of a mentally retarded individual under Georgia law."

Staff Reporter R. Robin McDonald can be reached at rmcdonald@alm.com