The state of Georgia is set to execute Kelly Gissendaner next week, on Tuesday September 29. In some ways this case is unusual, even exceptional; in other ways, it’s business as usual – especially in a state like Georgia.
What makes Kelly Gissendaner’s case different? For one thing, she’s a woman. Gissendaner is the only woman on Georgia’s death row. If she’s executed, she’ll the first woman put to death by the State of Georgia in 70 years. SEE THE REST OF THIS POST
For me, it is bringing back memories, both painful and inspiring.
I started on staff with Amnesty about one month after the February 2007 release of the report “Where is the Justice For Me,” the first of what was to be four reports on Troy Davis. It was the first thing I read as an Amnesty staffer. I had come from Texas, where I had been a volunteer in death penalty abolition efforts, so I had seen my share of sleeping lawyers, hanging judges, and callous Governors.
Billy Slagle died in a holding cell, like the one in the Southern Ohio Correctional Facility featured here, three days before the state of Ohio was to execute him (Photo Credit: Mike Simons/Getty Images).
Back in 2010, the cruelty – and absurdity – of the death penalty was on full display when Brandon Rhode tried to commit suicide just days before he was to be executed by the state of Georgia. The state rushed him to the hospital and saved his life – only to execute him a week later.
The suicide attempt reportedly left Rhode brain damaged. He was shackled to a restraint chair for the next 7 days, and then the execution proceeded. The lethal injection may have been botched, as Rhode’s eyes remained open the entire time.
A challenge to Georgia’s “Lethal Injection Secrecy Act“ has led the Fulton County Superior Court in Atlanta to extend Warren Hill’s stay of execution. An appeal from the state of Georgia won’t be filed in time and his execution warrant will expire.
The secrecy law, which went into effect July 1, allows the state to withhold from the courts information about the drugs they intend to use in executions. This, of course, makes it impossible for the courts to determine if said drugs will be effective enough to prevent excessive pain and suffering that would render the execution a “cruel and unusual punishment” in violation of the constitution.
There is also a “separation of powers” question: can the executive and legislative branches of government set up a system that keeps the judicial branch in the dark about the most awesome and extreme power the state can wield? In other words, is it OK that the public and the courts are denied information they need to ensure that the law is upheld and that human rights and constitutional rights are protected?
Warren Hill – an African American man with an IQ of 70 who was convicted of murder in 1991 – was set to be executed at 7 p.m. tonight. He has been found intellectually disabled by all the doctors and experts who have examined him. The carrying out of his execution would directly contradict the 2002 U.S. Supreme Court decision in Atkins v. Virginia, in which the Court found the execution of the “mentally retarded” to be ‘cruel and unusual punishment.’ Several jurors as well as the victims’ family have expressed their opposition to the use of the death penalty in this case and have asked that his sentence to be commuted to life without parole.
Hill was granted a stay today, not on those grounds, but on the grounds that the secrecy surrounding Georgia’s lethal injection drugs violates Hill’s constitutional rights. Georgia’s new “Lethal Injection Secrecy Act” shields from the courts and the tax-paying public how Georgia has managed to obtain its lethal injection drugs. This prevents Hill from know whether or not the drugs to be used will be effective or whether they will cause serious pain and suffering in violation of the Constitution.
Late afternoon on July 3 when the least possible number of people would be paying attention, using a new law that makes the acquisition of execution drugs a state secret, Georgia scheduled the execution of Warren Hill, who is now set – barring intervention from the US Supreme Court or the Georgia Attorney General – to be put to death on July 15.
Georgia authorities did this despite the fact that:
Warren Hill, who came within an hour of being executed by the state of Georgia in February, has filed a habeas petition at the US Supreme Court. It was the Supreme Court that banned execution of those with “mental retardation” in 2002, although it was left to the states to decide how to determine a defendant’s intellectual disability.
As you may recall from previous posts, Warren Hill was found to be “mentally retarded” by a “preponderance of the evidence” by a Georgia state judge. This finding would have exempted him from execution in other states. But Georgia, and only Georgia, requires proof of “mental retardation” to be “beyond a reasonable doubt.”
Earlier this year, the three mental health experts who had originally testified for the state – thereby creating “reasonable doubt” about Hill’s “mental retardation” claim – took a second, deeper look, and they now agree that Hill is in fact disabled to the extent that it would be unconstitutional to execute him. So now that all 7 experts who have examined him are of the unanimous opinion that Hill is “mentally retarded,” his lawyers have gone back to court to establish that the “beyond a reasonable doubt” threshold has been reached.
Georgia will not be able to execute Warren Hill on Monday. He has been granted a temporary stay so the state of Georgia can sort out whether the sudden switch to a one-drug lethal injection protocol last week violated state laws guaranteeing public input on important administrative procedures (like killing people).
This is good news, in that Hill will not immediately be put to death, but there is no question that Georgia fully intends to execute a man with an IQ of 70 whom state judges have declared to be “mentally retarded” by all legal standards except the “beyond a reasonable doubt” bar used only by Georgia.
That the stay was granted on the lethal injection question allows the state of Georgia to evade further scrutiny of the way it handles capital punishment for the mentally disabled. For now, the Supreme Court, which banned executions of those with intellectual disabilities ten years ago, will not be reviewing Warren Hill’s case or the unique Georgia law upon which the state bases its right to kill him.
Clemency was denied for Warren Hill despite his diagnosis of mental retardation.
The Georgia State Board of Pardons and Paroles has disgraced itself, and the state it represents … again. The Georgia Board exists, like all executive clemency institutions, to inject a bit of mercy and humanity into the cold, clinical processes of our justice system.
The Supreme Court ruled the execution of persons with “mental retardation” unconstitutional in 2002. Shortly thereafter, a Georgia judge found Mr. Hill to be “mentally retarded” by a “preponderance of the evidence”. But Georgia, alone among the 33 death penalty states, requires proof of “mental retardation” to be “beyond a reasonable doubt”, the most difficult legal standard to reach. So the courts couldn’t stop an execution that would not go forward in any other state and, more likely than not, would be unconstitutional.