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ATLANTA (AP) — A Georgia man whose lawyers argue he shouldn't be executed because he is intellectually disabled and who has come within hours of execution three times in recent years is scheduled to die Tuesday evening unless the U.S. Supreme Court intervenes.
Warren Lee Hill, 54, is set to be put to death at 7 p.m. at the state prison in Jackson. Different courts have intervened with temporary reprieves at the last minute on three previous occasions.
State and federal courts have already rejected his filings this time around, and the State Board of Pardons and Paroles —the only entity authorized to commute his sentence to life in prison — denied him clemency Tuesday. Hill has filings pending before the U.S. Supreme Court, which is now the only potential barrier between him and a lethal injection of the drug pentobarbital.
"The clemency board missed an opportunity to right a grave wrong," Brian Kammer, a lawyer for Hill, said in an emailed statement Tuesday. "It is now up to the U.S. Supreme Court to ensure that an unconstitutional execution of a man with lifelong intellectual disability is prevented."
Hill was sentenced to serve life in prison for the 1986 killing of his 18-year-old girlfriend, who was shot 11 times. While serving that sentence, he beat a fellow inmate, Joseph Handspike, to death using a nail-studded board. A jury in 1991 convicted Hill of murder and sentenced him to death.
Lawyers for Hill have long argued he is intellectually disabled and, therefore, shouldn't be executed. State law and a 2002 U.S. Supreme Court decision both prohibit the execution of the intellectually disabled.
But Georgia has the toughest-in-the nation standard for proving intellectual disability. It requires capital defendants to prove beyond a reasonable doubt that they are intellectually disabled in order to avoid execution on those grounds. The state has consistently said Hill's lawyers failed to meet that burden of proof.
Hill's lawyers argued that Georgia's standard is unconstitutional because mental diagnoses are subject to a degree of uncertainty that is virtually impossible to overcome. But the standard has repeatedly been upheld by state and federal courts.
In the challenge currently pending before the U.S. Supreme Court, Hill's lawyers have cited a ruling that court issued in May that knocked down a Florida law. The high court said defendants should have a fair opportunity to show the Constitution prohibits their execution. Hill's lawyers say that ruling should also invalidate Georgia's tough burden of proof.
Hill was previously set to die in July 2012, February 2013 and July 2013, but courts stepped in at the last minute with temporary stays so they would have time to consider challenges filed by Hill's lawyers. The July 2012 and July 2013 challenges each effectively halted executions in Georgia while they were pending, for about six months and 10 months, respectively.
Days before he was to be executed in February 2013, Hill's lawyers submitted new statements from the three doctors who had examined Hill in 2000 and testified at his trial that he was not intellectually disabled. In their new statements, the doctors wrote that they had been rushed at the time of Hill's trial and new scientific developments had surfaced since then. All three reviewed facts and documents in the case and wrote that they believed Hill is intellectually disabled.
Included with the clemency application Hill's lawyers submitted to the parole board were letters from former President Jimmy Carter and his wife and groups that advocate for those with disabilities. In their letter dated Jan. 21, the Carters cited the fact that Georgia was the first state, in 1988, to outlaw the execution of the mentally disabled.
"In light of the undisputed evidence that Mr. Hill is more likely than not 'mentally retarded,' his execution would undermine the State of Georgia's historic leadership in promoting the rights of the developmentally challenged," Jimmy and Rosalynn Carter wrote.
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