Texas, Ga. Ready to Execute Mentally Disabled Convicts, Despite Court Precedent Against Such Executions

by Jeremy Leaming

Unless the U.S. Supreme Court steps in to uphold its precedent on the death penalty, Texas and Georgia will execute two men who are mentally disabled.

Although several states over the last five years have abolished capital punishment, others such as Texas and Georgia remain seemingly oblivious to Supreme Court precedent or obstinately opposed to providing those on death row a proper hearing.

In Texas, the nation’s most ruthless proponent of capital punishment, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit has flat out refused to follow the Supreme Court’s March 2012 Martinez v. Ryan opinion, which cleared the way for federal courts to review some post-conviction habeas reviews raising ineffective counsel claims.

Yokamon Hearn convicted and sentenced to death for kidnapping and murdering a man in Dallas was not competently represented at trial or at post-conviction proceedings. As the Texas Defender Service notes, Hearn’s trial attorneys failed to uncover and reveal at trial a slew of mitigating circumstances, such as the fact that he suffered from brain damage. During his appeals, Hearn’s new attorney’s also failed to raise the mitigating circumstances.

Even after the high court’s opinion in Martinez, the Fifth Circuit panel, in what the Atlantic’s Andrew Cohen details as a rather strained opinion found a way to shut down any further review of mitigating factors in Hearn’s case. The court, “the most stridently conservative federal appeals court in the nation” found a way “to avoid giving Hearn the relief to which he is entitled,” Cohen wrote.

Texas Defender Service Executive Director Kathryn M. Kase notes that the full Fifth Circuit has been asked to review the panel decision, but because of the Circuit’s “history of flouting” Supreme Court rulings fears that Hearn will be executed on July 18, unless the Supreme Court intervenes.

In the Georgia case, which Cohen also covers, Warren Hill is facing the death penalty even though, as Cohen notes, a veteran Georgia state judge has said Hill is mentally disabled.

Again, Supreme Court precedent is in play.

In its 2002 Atkins v. Virginia opinion, the high court ruled that the Eighth Amendment’s bar against excessive sanctions and “cruel and unusual punishment” prohibit states from executing mentally disabled convicts. In the majority opinion, Justice John Paul Stevens noted the growing number of state legislatures that had moved to bar execution of the mentally disabled.

Though Georgia bars execution of the mentally disabled, its definition of what constitutes such a condition, is rigid. The state requires that mental disability must be proved beyond a reasonable doubt.

In a July 6 editorial, The New York Times noted that the Supreme Court, a decade ago, “banned the death penalty” for the mentally disabled. However, the editorial continued, “Georgia apparently has not gotten the message. It is the only state with a statute requiring a defendant to meet the unfairly heavy burden of proving retardation beyond a reasonable doubt. This stringent standard could be readily manipulated by experts, resulting in unconstitutional executions.”  

The Georgia Supreme Court applied its stringent standard in upholding the death penalty for Hill. But Georgia Justice Leah Sears in dissent, wrote, “Despite the federal ban on executing the mentally retarded, Georgia’s statute, and the majority decision upholding it, do not prohibit the state from executing mentally retarded people. To the contrary, the State may still execute people who are in all probability mentally retarded. The state may execute people who are more than likely mentally retarded. The State may even execute people who are certainly mentally retarded.”

Today the Georgia Department of Corrections delayed the execution date of Hill until July 23, in order to prepare for switching to a one-drug lethal injection. That action followed Georgia’s decision to deny clemency to Hill.

Hill’s attorney, Brian Kammer, has lodged a petition with the Supreme Court asking it to stay the execution. Kammer blasted Georgia’s decision to deny clemency to Hill, saying it rendered “meaningless state and federal constitutional protections against wrongful execution of persons with mental retardation.”

A wide array of individuals and institutions has urged Texas and Georgia to halt plans to execute Hill and Hearn.

Today, the United Nations weighed in.

“Warren Hill and Yokamon Hearn were both convicted of murder in separate incidents,” Christof Heyns of the U.N. said in a statement. “The convictions have been the subject of a number of legal appeals based on the defendants’ mental health; however, their death sentences were upheld despite claims that the defendants had psychosocial disabilities, and the existence of a federal ban on such executions.”

As long as the majority of states is devoted to imposing a constitutionally suspect form of punishment for those convicted of certain crimes, it is imperative that those states respect and properly follow procedures set forth by the Supreme Court on the use of the costly, ineffective, but politically popular form of punishment.