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Ten years ago, in Atkins v. Virginia, the United States Supreme Court ruled that execution of prisoners suffering from mental retardation violated the Eighth Amendment to the Constitution. However, the state of Georgia, which was in fact the first state to ban the practice, is poised to do just that on July 18. From a New York Times editorial:

This week, Georgia issued a warrant to execute Warren Lee Hill Jr., a death-row inmate convicted of murder, who has an I.Q. of 70. The Georgia Board of Pardons and Paroles is the fail-safe in the state’s criminal justice system, with a mandate to exercise mercy when the court system has failed to come to a just result. That is clearly true in this case. The trial judge found that Mr. Hill was mentally retarded by applying the fairer “preponderance of the evidence” standard in determining his mental impairment.

The State Supreme Court, however, ruled that Mr. Hill had to prove his mental retardation beyond a reasonable doubt. The dissent rightly argued that applying the tougher standard is unconstitutional because it imposes too high a risk that a court’s conclusion will be wrong. The dissent relied on the United States Supreme Court holding that it is unconstitutional to require a defendant to prove that he is incompetent to stand trial by any standard higher than a preponderance of the evidence.

In other words, even though a court has found Mr. Hill to be mentally retarded, the Georgia Supreme Court determined that this showing was not enough under the state's uniquely high burden of proof for the defendant.  
In 1988, Georgia became the first state in the nation to ban executions of the mentally disabled. Lawmakers enacted the law in response to the 1986 execution of Jerome Bowden, who had been found to have the mentality of a 12-year-old.

In passing the law, the Legislature required capital defendants to prove "mental retardation" beyond a reasonable doubt, the same standard required of juries to convict someone of a crime. Today, Georgia is the only state in the country that sets such a high burden of proof for such claims.

In November, the U.S. Court of Appeals for the Eleventh Circuit denied Mr. Hill's claim:
Judge Frank Hull, writing for the majority, said federal law "mandates that this federal court leave the Georgia Supreme Court decision alone — even if we believe it incorrect or unwise."
The United States Supreme Court has also denied review. As a result, Mr. Hill's last hope is a plea for clemency from the Georgia Board of Pardons and Paroles. There is considerable support for sparing his life. Again from the Times:
Jurors from this case said they would have sentenced Mr. Hill to life without parole if they had had the option. The family of the victim has said Mr. Hill should not be executed. The pardon board has the discretion and the duty to commute his sentence to life without parole. The legal and factual record strongly compels that just decision.
Indeed they do. Justice demands, and our constitutional precedent dictates, that Mr. Hill's life be spared. The power to do so now lies solely with the Georgia Board of Pardons and Paroles.

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