Warren Lee Hill Jr., with an I.Q. of 70, is scheduled to be executed on Tuesday in Georgia. The Supreme Court should stay the execution, as his lawyers have requested, and recognize that Georgia makes it too hard for an offender to prove retardation.
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In 2002, the justices banned capital punishment for the mentally retarded, but a question remains over how states handle such cases. Georgia is the only state in the country that requires a defendant to prove retardation beyond a reasonable doubt.
That is far too heavy a burden of proof because it is too easy to cast doubt on evidence concerning mental capacity.
Mr. Hill has proved his retardation in state trial court twice by the more sensible "preponderance of the evidence" standard. But the Georgia Supreme Court said Mr. Hill needed to meet the higher "beyond a reasonable doubt" standard set by state statute.
When the Supreme Court directed the states to bar executions for the retarded, it left them "the task of developing appropriate ways" to make a determination about retardation. But the justices could not have intended states to impose, as Georgia has, a standard of proof that is nearly impossible to meet.
The United States Court of Appeals for the 11th Circuit has wrestled with the Hill case for years. In 2010, by 2 to 1, a panel of the appeals court held that the Georgia Supreme Court's ruling was contrary to the controlling precedent of the United States Supreme Court.
But, in 2011, the full appeals court disagreed, saying the state court ruling was a reasonable interpretation of the Supreme Court decision.
The justices should reject that analysis. They should rule that Georgia's burden of proof for retardation is too high and violates the constitutional right of mentally retarded offenders to be shielded from the death penalty.
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