Cover Story: Death row’s insurmountable burden of proof

In 2002 the U.S. Supreme Court changed the way the death penalty is applied. In Atkins v. Virginia, the Justices found that the execution of “mentally retarded” people — that’s the law’s language, not mine — is, in fact, unconstitutional. That ruling came some 14 years after Georgia became the first state in the country to outlaw the practice. So why does it still happen? And why are we still talking about it here in Georgia with the Warren Lee Hill case?

The answer lies largely in some peculiarities in our criminal code and its practice.

You know in cop dramas where they talk about pleading insanity in criminal trials? To determine the criminal defendant’s mental health, several questions are asked. First off, is the defendant even mentally able to stand trial? Second, does his or her mental state play into the punishment?

Each state has its own rules on how to determine whether a criminal defendant is intellectually disabled. But individual states differ regarding whose responsibility it is to prove mental incapacity, and which party, prosecution or defense, has the burden of proof.

Most states require the prosecution to prove the defendant is competent. A minority requires the defendant to prove it himself. Of those, almost all require the defendant to carry the lowest of burdens, known as preponderance. That’s the norm. A defendant must only prove that he is more likely than not to be mentally incompetent. But Georgia requires much more. Georgia, and Georgia alone, demands the defendant prove his mental incapacity at an absurdly high level: beyond a reasonable doubt.

To carry that burden, the proof must be overwhelming. The courts consider an IQ of below 70 as the threshold for mental retardation. Let’s say one expert testifies that a defendant is below that IQ. If another expert testifies that he’s above, even slightly, he’s eligible for the death penalty. This leads to a battle of the experts.

If the prosecution thinks the defense will argue mental incapacity, they will order an evaluation long before trial begins. If the evaluators find the defendant “mentally retarded,” many district attorneys will run through a number of experts until they find one who thinks otherwise. With experts on both sides, a judge will rarely find the defendant has proven beyond a reasonable doubt that he or she meets the legal standard for mental deficiency.

This means in practice that the judge almost never decides a defendant is “mentally retarded” and protected from the death penalty unless the prosecution has conceded the issue. If a defendant appeals, he’s unlikely to get a more sympathetic look. That’s because the burden of proof is so high that appellate judges are wary to second-guess their trial judge colleagues. That means the only avenue for a convicted defendant to prove he’s mentally incompetent is a process in the federal courts called habeas corpus. But thanks to the Antiterrorism and Effective Death Penalty Act of 1996 — a law allegedly passed to curtail terrorism — gaining access to even this remedy has proven incredibly difficult for criminal defendants.

In Georgia, the reality is that once the prosecutor has decided he’s going for the death penalty and gets an expert who says the defendant is competent, no judge is likely to derail those efforts. So while Atkins v. Virginia says one thing about the “mentally retarded,” the reality of Georgia’s criminal practice says another.