Unless Warren Lee Hill’s Application (14A785) for a stay of execution of sentence of death that was submitted to Supreme Court Justice Thomas on Thursday is granted, he will be executed on Tuesday at 7 PM in Georgia. Mr. Hill has an IQ of 70. Three mental health professionals who originally thought that Mr. Hill was not intellectually disabled re-evaluated him and retracted their previous views, based on newer evaluation methods. None of this matters to Georgia, which is determined not only keep their lethal injection protocol secret, but also to use it to kill people who present mitigating evidence. Last week, Georgia performed the first execution in 2015, killing a Vietnam veteran with PTSD, by lethal injection.

The victim’s family does not want Warren Hill to be executed. Jurors from Hill’s original trial don’t either, but at the time, death was their only choice, because life without parole was not an option.

In 2002, the US Supreme Court decided in Atkins v Virginia that executing an intellectually disabled person is a violation of the Eighth Amendment:

 Mentally retarded defendants in the aggregate face a special risk of wrongful execution.

Our independent evaluation of the issue reveals no reason to disagree with the judgment of “the legislatures that have recently addressed the matter” and concluded that death is not a suitable punishment for a mentally retarded criminal. We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our “evolving standards of decency,” we therefore conclude that such punishment is excessive and that the Constitution “places a substantive restriction on the State’s power to take the life” of a mentally retarded offender. Ford, 477 U.S., at 405.

Georgia gets around the Supreme Court ruling in Atkins with it’s definition of intellectual disability. The Eleventh Circuit noted, In Re: Warren Lee Hill:

The state habeas court determined that Hill’s evidence failed to prove he was mentally retarded. In doing so, it employed the definition of mental retardation in O.C.G.A. § 17–7–131(a)(3), which provides that “mentally retarded” means (1) having “significantly subaverage general intellectual functioning,” (2) “resulting in or associated with impairments in adaptive behavior,” (3) “which manifested during the developmental period.” Georgia’s definition essentially tracks the clinical definitions mentioned by the Supreme Court in Atkins v. Virginia, 536 U.S. 304, 308 n. 3, 122 S.Ct. 2242, 2245 n. 3, 153 L.Ed.2d 335 (2002).

As to the first prong, the state habeas court found Hill established beyond a reasonable doubt his “significantly subaverage general intellectual functioning.”1 While the court did not find an exact IQ score, psychologists had administered multiple tests, resulting in IQ scores ranging between 69 and 77.

As to the second prong of the mental retardation standard, however, the state habeas court found Hill had failed to show beyond a reasonable doubt that he had “impairments” in “adaptive behavior” such as “communication, self-care, home living, social/interpersonal skills, use of community resources, self direction, functional academic skills, work, leisure, health, and safety.”

By finding ways to skirt an evolving standard of decency by redefining a disability so that no one qualifies, Georgia chooses to and will continue to execute the intellectually disabled. In fact, since the intellectually disabled are unable to participate in their defense on par with people who do not have disabilities, it is that group in particular that is a target for a wrongful execution. In addition, a procedural bar from raising an issue with based on updated evaluation techniques that were unavailable during initial proceedings is beyond tragic.

Executing prisoner in Georgia would be a travesty of justice