Georgia Death Row prisoner Warren Hill has had documented intellectual disability all his life. Lower Georgia courts have twice affirmed (in 2002 and 2012) that he had intellectual disability by the preponderance of evidence, which is a widely-used legal standard for determining intellectual disability in capital cases. Every expert who has examined Mr. Hill, including three doctors who previously testified for the state, unanimously agrees that Mr. Hill is a person with intellectual disability.

However, Mr. Hill is in danger of execution because the Georgia standard for proving intellectual disability in a capital case is “beyond a reasonable doubt,” which is an unscientific and –as Mr. Hill’s case shows — tragically impossible standard to satisfy. Because of the Georgia standard, Mr. Hill has been denied the constitutional protection from execution under Atkins v. Virginia (2002), which prohibits the execution of persons with intellectual disability. Mr. Hill has been denied clemency, so there is no “failsafe” to prevent his execution other than the judicial process.

However, a May 2014 U.S. Supreme Court decision, Hall v. Florida, held that state standards for determining intellectual disability in capital cases must follow medical diagnostic criteria, and Mr. Hill has challenged the Georgia standard at the Georgia Supreme Court, asserting:

Hall supports Mr. Hill’s longstanding argument that Georgia’s strict ‘beyond a reasonable doubt’ standard impermissibly ‘conflicts with the logic of Atkins and the Eighth Amendment’ and effectively renders the Supreme Court’s decision in Atkins “a nullity” by making it virtually impossible to prove intellectual disability.” (p. 4)

Georgia courts have repeatedly found that Mr. Hill is a person with intellectual disability. In 2002, the year the U.S. Supreme Court decided Atkins, a Georgia state court judge found Mr. Hill’s IQ to be approximately 70 beyond a reasonable doubt and to fulfill the overall criteria for mental retardation by a preponderance of the evidence. In 2012, the state court judge reaffirmed that Mr. Hill is a person with intellectual disability, but found he did not meet Georgia’s “beyond a reasonable doubt” standard – the strictest in the nation for proving intellectual disability.

Mr. Hill’s 2012 Petition for a Writ of Habeas Corpus to the U.S. Supreme Court states: “This case presents the extraordinary circumstance that each and every mental health expert the State of Georgia presented in state habeas proceedings to rebut Mr. Hill’s substantial proof of mental retardation has since repudiated his initial finding.” (p.2) “Every court to which Mr. Hill has petitioned in an effort to present this new and compelling evidence has denied him the opportunity to prove the merits of his claim. The Georgia State Board of Pardons and Parole has likewise refused to reopen proceedings in light of this evidence.” (p.12)

In February 2013, three doctors who had previously testified on behalf of the state regarding Warren Hill released sworn affidavits affirming that Mr. Hill has intellectual disability. In December 2000, at the request of the Georgia Attorney General’s Office, the doctors examined Mr. Hill and testified at an evidentiary hearing that Mr. Hill did not fit the criteria for intellectual disability, instead diagnosing him with borderline intellectual functioning. The doctors, Dr. Donald Harris, Dr. Thomas Sachy and Dr. James Gary Carter, now concur with all other doctors who have examined Mr. Hill and find that Mr. Hill has intellectual disability.

In their affidavit testimony Drs. Harris and Sachy report that their initial evaluation of Mr. Hill was “extremely and unusually rushed” and “not conducive to an accurate assessment of Mr. Hill’s condition” (Carter p.2, 7) and that advances in psychiatric understanding of intellectual disability now convince them that their initial finding was in error.

On April 23, 2013 an Eleventh Circuit panel in a 2-1 vote denied Mr. Hill’s habeas petition, finding that he did not meet the restrictive standards of the Anti-Terrorism and Effective Death Penalty Act and that the Court was therefore barred from considering the evidence of Mr. Hill’s mental retardation.

In a dissent to the Eleventh Circuit’s ruling, Judge Rosemary Barkett condemned Georgia’s standard of proof, stating: “The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness…. [The federal habeas statute] should not be construed to require the unconstitutional execution of a mentally retarded offender who, by presenting evidence that virtually guarantees that he can establish his mental retardation, is able to satisfy even the preposterous burden of proof Georgia demands.””