Drawing headlines lately, and an editorial from no less than the New York Times, is the case of Warren Lee Hill, Jr. This is what the Times wants you to know: in 2002, SCOTUS ruled that the execution of the mentally retarded violated the 8th Amendment’s prohibition of cruel and unusual punishment. The problem is how to establish mental retardation. As anyone who’s ever seen Forrest Gump knows, having an IQ below 70 is typically one of the benchmarks used.
Warren Lee Hill’s IQ has been tested at 77. If only he had Sally Field as a mama to offer her services to the parole board and knock his score down a few points.
However, the Georgia legal definition of mental retardation is more complicated than Hollywood’s, and Hill indeed was found to have “significantly subaverage general intellectual functioning.” (It does seem that his IQ has been tested multiple times, with different scores.) But the sticking point became the second prong of the definition, which requires that this subpar functioning result in “impairments in adaptive behavior.” It has been offered against him that Hill has been able to hold a job, save money to buy a car, serve in the military, and have friends.
The jokes write themselves – for instance, are we to believe there are no retarded drivers out there? – but the fact is that the man’s life is at stake, and Georgia is being a bit of a stickler here in terms of the burden of proof applied.
There are two common burdens of proof that you hear about – proof beyond reasonable doubt, which is required for criminal convictions, and proof based on a preponderance of the evidence, which is used in civil cases and Grand Jury proceedings, among other things. Reasonable doubt means that no right-minded juror would vote to acquit; it does not mean that you are absolutely sure (you can have unreasonable doubt, so to speak), but that you’re pretty damn sure. But a preponderance is like two scales – retarded and not retarded – and even a feather more on one side or the other determines the ruling.
Georgia is the only state which uses reasonable doubt as the burden of proof for establishing mental retardation. Many human rights advocates are saying this is unfair and even unconstitutional, and they have a point about Georgia’s burden being exceptionally high. But it seems the retarded forest is being lost through the mentally challenged trees.
Consider, please, some facts of Hill’s case, as provided in a 2011 US Court of Appeals decision:
In 1990, while Hill was serving a life sentence for the murder of his girlfriend, he murdered another person in prison. Using a nail-studded board, Hill bludgeoned a fellow inmate to death in his bed. As his victim slept, “Hill removed a two-by-six board that served as a sink leg in the prison bathroom and forcefully beat the victim numerous times with the board about the head and chest as onlooking prisoners pleaded with him to stop.” …Hill “mocked the victim as he beat him.”
This is not the stuff of which Forrest Gump is made.
Um, unless you remember the part of the movie where America’s Favorite Slowpoke ruthlessly beats the shit out of that douchey anti-war guy who got rough with Jenny. But in that case the honor of a white woman was at stake, and it’s well-known that white women rule the world, from beyond the grave at least.
And in fact, two non-profit types were on Georgia public radio two days ago, arguing that Hill only bludgeoned his fellow inmate to death because “he had been threatened and bullied and was really in fear for his life.” Oh shit, the b-word. Those wishing to spare the life of Warren Hill have to try to paint a picture of him as some kind of atavistic primate who doesn’t know right from wrong and blindly reacts to stimuli.
Atavistic and stimuli in the same sentence: ten points.
I don’t think the facts of the case support such an argument, and I don’t think an argument against killing someone should be founded on one either. Now, you cannot fault Mr. Hill’s lawyers for trying every conceivable approach in order to save their client, and Georgia’s super-standard of mental retardation does cry out for remedy, but it seems to me that turning anti death penalty activists into the boys who cried retard may do more damage than good. It’s the same reason that many of the millions who cried innocent with Troy Davis also missed the larger point.
There is a tide in the affairs of capital punishment, and it looks like in this country that tide is slowly rolling away from executions. Perhaps the biggest factor is the economy, since the death penalty is so expensive, but it could just be that the evolving standards of decency are making their crawl to the life without parole finish line. It is only decency, and not a better definition of retard, that will put an end to execution in this country. It will only be when we – even as victims ourselves – decide not to strain mercy but to let it fall as the gentle rain of heaven; only when we decide to recognize that every human being is more than his or her worst act.
And while we’re speaking of superlatives such as worst, I’ve always had a problem with the idea that death is the crime that deserves the worst punishment we can give. Compare Hill’s potential saving of his life with a slick tax-sheltering bastard who claims to be a job creator and abuses the English language by “RETIRING RETROACTIVELY” so as to fudge his outsourcing record. And that is only one tiny example out of a sea of white collar atrocities that we could fish here for days on end.
I don’t think Mitt Romney should be killed either, though perhaps he deserves to be tickled incessantly for a few decades. It’s the inherent flaws in any human system that sets out to rank good and bad deeds that I’m after. It’s certainly also possible that death might not be the worst punishment possible, and that life without parole is more painful, in the long run. In which case, go ahead and ask Warren Lee Hill, Jr. if he wants to live or die.
Just keep in mind he may not be fully equipped to answer the question in his right mind.
And you see I don’t just mean because he may be legally retarded. You may not have liked that I used the r-word in this post, although it is the one still used in Georgia’s laws. The CDC and others tell us that the more appropriate term these days is “intellectually disabled,” but I wanted to use retarded for another purpose.
David Dow is a Texas lawyer who recently gave a Ted talk about the death penalty. In it, he pointed out that 8 times out of 10, he can write you the biography of a death row inmate simply by knowing his or her name. He can do this because so many of our murderers share a kind of history. Abuse, neglect, early exposure to drugs and violence, juvenile detention centers – time and again these are the preconditions for murderers.
Retard is a very old word, from the Latin tardus meaning slow, and even though it is not politically correct because it is used as a slur, I think it is no exaggeration to say that the vast majority of people on death row are retarded, in that their development was slowed by a number of aggravating factors. And while this is no excuse for their behavior, we as a society will not make progress in our fight against crime until we get a better handle on just how many retards we have in this country.
The truly retarded in this country never develop a proper respect for the lives of others because they are so frequently encouraged to ignore the value of themselves. Sister Helen Prejean gave a speech in Georgia that I listened to, and in it she described how Jerome Bowden, a past Georgia death row inmate, was tested for intellectual disability. Before the test, he was counseled by friends on the row not to do too well. But he said he’d never passed any test before in his life, and this was one time he was going to show he was good enough. So he did. He got a 65. And we killed him.
And that’s retarded.
Warren Hill Jr.’s execution is currently set for Monday, July 23. An emergency appeal has been filed with SCOTUS. Georgians For Alternatives to the Death Penalty is probably your best source for last minute actions and vigils.