Warren Hill, 53, a death-row prisoner in Georgia, has just hours to live pending a last-minute stay of execution. Last July he came within 90 minutes of being put to death for killing a fellow prisoner, Joseph Handspike, in 1990. He is scheduled to be given a lethal dose of pentobarbital at 7pm Tuesday evening.
1. Nine doctors have now given expert medical opinion that Warren Hill is “mentally retarded” – the official terminology still widely used in the US in legal parlance. More acceptably expressed, that means that he is intellectually disabled.
Of those nine, three forensic psychiatrists gave evidence 12 years ago at a crucial stage in Hill’s case, finding that he did not meet the designation of “mental retardation”. Their testimony was central to the prosecution case that Hill was fully mentally capable and should be put to death for his crimes. But last week the three specialists changed their opinion
and said that they made a mistake
. The original evaluation was so rushed, they said, that they came to the wrong conclusion. They now agree with all other medical specialists that Hill is intellectually disabled.
The now-complete uniformity of medical opinion that Hill does display intellectual disabilities removes the core argument for executing Hill,
as his lawyer, Brian Kammer, has pointed out in emergency appeals to the Georgia appeals court and the US supreme court
that are currently before the judges in an eleventh-hour petition for a stay of execution.
4. The US supreme court in 2002 banned executions for prisoners who are “mentally retarded” – in other words, those with learning difficulties. The justices ruled that such executions violated the eighth amendment of the US constitution that prohibits cruel and unusual punishment.
5. Just months after the supreme court ban was imposed, a Georgia court found that Hill was “mentally retarded” by a “preponderance of the evidence”. In plain English, he was likely to be “mentally retarded” and fall into the very category of prisoner who the supreme court had just declared must not be executed.
6. Paradoxically, in 1988 Georgia became the first state in America to ban the execution of mentally disabled prisoners. It made the move in response to huge public outcry following its judicial killing of an intellectually disabled prisoner, Jerome Bowden. Days before he was put to death Bowden was tested and found to have the mental capacity of a 12-year-old. History now appears to be repeating itself.
7. When Georgia banned executions of the “mentally retarded”, it applied a standard to such cases that meant that death row prisoners had to prove “beyond a reasonable doubt” that they had learning difficulties. Experts in intellectual impairment say that is virtually impossible to do. No other state in the US applies such a harsh standard. Most states use the “preponderance of evidence” proof that Hill was found to meet.
8. Hill shows many of the classic signs of intellectual disability. He has a family history of learning difficulties and borderline intellectual functioning, though the jury at his 1991 trial heard little about that. In terms of IQ, he tests 70 – a sub-average level of functioning shared by only 3% of the general population. Such challenges render him subject to impulsive behaviour and poor decision-making at times of stress and threat.
9. The family of his victim, Joseph Handspike, is opposed to Hill being executed. Handspike’s nephew Richard Handspike has written on behalf of the family that: “I and my family feel strongly that persons with any kind of significant mental disabilities should not be put to death.”
10. To execute Hill could be a violation of international law.
Christof Heyns, UN special rapporteur on extrajudicial, summary or arbitrary executions wrote in the Guardian last week
that if the death sentence is carried out tonight it would be “another grotesque and unjust execution. There is no sense and no honor in executing children, the insane and those who suffer from intellectual disability.”