Warren Lee Hill: Execution Stayed

[Realize this whole thing is far from comical, but still ... the USSC just denied a request to vacate the stay of execution of the 11th Cir. To my understanding, that is fairly novel -- that is, denying a request to vacate a stay.  Usually, now and then, there is a denial of a stay of execution.]

Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants.

              --  Atkins v. Virginia

But, is this an "empty promise," since there is a good chance (though his execution was stayed by the 11th Cir. minutes before the execution) Warren Lee Hill will be executed?  This followed another case in Texas, cited in that article* though state does not have the "beyond a reasonable doubt" standard that is uniquely in place in Georgia.  That is, the defense has to show beyond a reasonable doubt that the person is mentally retarded.  Atkins itself allowed local discretion on procedures to determine retardation, citing an earlier case involving rules to determine insanity.  This path to an "empty promise" was written by that lax civil libertarian Thurgood Marshall, who added:

It may be that some high threshold showing on behalf of the prisoner will be found a necessary means to control the number of nonmeritorious or repetitive claims of insanity.

Doug Berman at Sentencing Law and Policy voiced concern about the Hill case, including this level of discretion, not himself being an "abolitionist," a mark of soemone who cannot neutrally talk about death penalty issues to some who contribute at that blog. I raised a few questions on the case there, including the proper rule ("clear and convincing" might work) and what to do (federal habeas relief?) when -- as here -- the original experts recanted.  It's a hard case and it very well might have been a good one to take to clarify the process.

Nonetheless, I can understand -- especially with this Court -- some desire for state flexibility.  It is tricky to set some one size fits all rule for insanity or mental competency, something the USSC was loathe to do even back in the Warren Era. The "beyond a reasonable doubt" standard here does seem excessive and there seems to be a need for some oversight when in effect the facts change on the ground.  Still, the doctors here, at least now, agree he is "mildly retarded."  His IQ is said to be around 70 (we are told in one article it is "below" but than it links to another that has it "at" -- these things are not exact anyway).

I'm for deciding on the side of life, including here, but this is not the glaring injustice a skin-deep look at the case might suggest. And, though the open quote still stands, the fact he killed while in prison for murder doesn't help, does it?  As I noted at Berman's blog, there is a report that the family of the victim (a fellow inmate that apparently sexually harassed Hill) opposes the execution. And, even in prison, there is a way to take away privileges and maybe even some harsher supermax existence. (At some point, we are left with not being able to punish more, even an execution doing so much if someone kills on death row.)  Still, are we surprised (or even outraged?) that five justices didn't agree to a stay? 

Death penalty abolitionist here. I think the penalty violates federal constitutional standards, even though the law is not there yet (so, it was a nifty move that Stevens concurred in Baze v. Rees). But, the facts of these cases repeatedly seem to have some shades of gray.  Principle leads me to decide on the side of life, but a mildly retarded person in prison for murder who will be executed for killing in prison?  Not a great avenue.

[Reporting also cites a state court stay regarding lethal injection protocols even though the state supreme court appeared to already reject such a path.  Lethal injection protocols continue to be a matter of adjudication years after Baze v. Rees.]

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* The fact he "couldn't understand how to use a phone book and sucked his thumb as an adult" really doesn't seem determinative to me though knee-jerk reactions can be found on both sides. See, e.g., the reactions when I discussed his case here. I continue to be surprised at the tenor of some of the comments at such a specialty blog.