Unreasonable Doubt: Warren Hill, AEDPA, and Georgia's Unconstitutional Burden of Proof

Abstract

A Georgia state court — and seven experts — held that defendant Warren Hill was intellectually disabled under a preponderance of the evidence standard, yet still sentenced Hill to death. Indeed, Hill’s recent execution was due in substantial part to Georgia’s “preposterous burden of proof” which requires that intellectual disability be proved beyond a reasonable doubt, a standard experts have said is nearly impossible to satisfy. Georgia’s law “effectively limits the constitutional right protected in Atkins [v. Virginia],” and creates a conditional, not categorical, ban, on the execution of intellectually disabled defendants. Neither Atkins nor the Constitution countenance this result, which is antithetical to the “fundamental fairness [that is] essential to the very concept of justice.”Some of the Supreme Court’s current and former members agree. Justice Sandra Day O’Connor acknowledged that, if “statistics are any indication, the system may well be allowing some innocent defendants to be executed.'' Justices Byron White and Potter Stewart stated that the death penalty was “wantonly and freakishly imposed,” while Justice William Brennan famously vowed that he would never affirm a death sentence. Justice Ginsburg flatly stated that “[p]eople who are well represented at trial do not get the death penalty.”Ultimately, Warren Hill’s case is not just about the injustice of executing those who are intellectually disabled. It is a microcosm of the arbitrariness that time has proven to be neither fixable nor consistent with the “evolving standards of decency that mark the progress of a maturing society.” Georgia’s death penalty scheme has already been found unconstitutional once, and its reasonable doubt standard should likewise meet its constitutional demise. If intellectually disabled individuals like Warren Hill continue to be executed, “the reverberations of injustice [will not be] so easily confined,” because the resulting unfairness will be impossible to ignore. As time has proven, the only way to ensure that “death is different” is to bury the death penalty, as the Court once said, “in the graveyard of the forgotten past.”