Warren Hill (pictured) was convicted of a 1985 murder, and was sentenced to death after being convicted of beating a fellow inmate to death in 1990. He is scheduled to be executed by the state of Georgia tomorrow evening. Warren Hill's IQ is 70. He has been found by a court to be mentally retarded. Georgia plans to kill him anyhow.

Yesterday, a Georgia state panel rejected a clemency appeal from Hill's lawyers. How, you might ask, does a state go ahead with the execution of a man who has been found to be mentally retarded, when the Supreme Court has outlawed that very thing? Because the Supreme Court allowed states to set their own standards for implementing that stricture, and Georgia set the strictest standard in the country: "a prisoner appealing a death sentence on grounds of mental retardation must prove 'beyond a reasonable doubt' that he is in fact retarded." No other state has such a standard (as opposed to "a preponderance of evidence," the usual standard).

Hill's lawyers have appealed to the US Supreme Court. In their motion for a stay of execution they note:

2. A stay of execution is justified on the grounds that Petitioner's counsel has filed in this Court a Petition for Rehearing of his previously filed Petition for Writ of Certiorari presenting a substantial constitutional error. The nature of this error is that he faces (now imminent) execution despite the fact that a state court charged with determining whether Petitioner is mentally retarded actually found Petitioner to be mentally retarded by a preponderance of the evidence – a finding uncontested by the government in appeals since.1 Petitioner's problem, which is close to becoming a miscarriage of justice, is that Georgia forces people attempting to invoke death ineligibility under Atkins v. Virginia, 536 U.S. 304 (2002), to prove mental retardation beyond a reasonable doubt, an impossible standard by any meaningful reckoning, especially for psychiatric diagnoses. The courts below are closely divided over whether this standard "eviscerates the command of the Eighth Amendment that the mentally retarded shall not be executed, and is therefore ‘contrary to ... clearly established Federal law, as determined by [this Court].'"3
3. Moreover, any hope that Georgia's clemency procedures would act as a "fail safe"4 to "correct injustices that the ordinary criminal process seems unable or unwilling to consider,"5 has disintegrated this morning with the denial of executive clemency.

Unless the Supreme Court steps in, Warren Hill will die tomorrow. The American death penalty in action.

UPDATE: The state of Georgia has rescheduled Hill's execution for this coming Monday, due to a change in lethal injection methods. His appeal to the US Supreme Court is still pending.

Warren Hill's attorney Brian Kammer tells us: "If Warren Hill is executed, I think it would mean that Georgia no longer takes seriously what had been an admirable commitment to protecting the mentally retarded from wrongful execution. Georgia will have abandoned its moral compass."

[Photo: GA Dept. of Corrections]