An earlier version of this blog post used the phrase “mentally retarded” to describe Mr. Hill. That phrase is the one used by the Supreme Court in its decision in Atkins v. Virginia, barring executions for this population. Having heard from concerned readers, we have corrected the post to use what is now the medically preferred phrase, “intellectually disabled.”

Georgia stands poised to execute Warren Hill on Monday even though a Georgia court affirmed yesterday that Hill has an IQ of only 70. The court said that Hill meets the overall criteria for being intellectually disabled. But, Georgia law requires that death row inmates prove beyond a reasonable doubt they are intellectually disabled in order to avoid execution, and the court said Hill failed to do that.

A decade ago, the Supreme Court ruled that it is unconstitutional to execute people with mental retardation in Atkins v. Virginia, noting that their disability "places them at special risk of wrongful execution."

We wrote about Hill earlier this week, along with Yokaman Hearne, who was facing execution in Texas despite compelling evidence of serious mental disabilities. Regrettably, the State of Texas went forward with Mr. Hearne’s execution on Wednesday. But it is not too late for justice and common sense to prevail in Georgia. It is now up to the U.S. Supreme Court, which has before it Mr. Hill’s last remaining appeals.

Georgia’s requirement that death row inmates prove mental retardation beyond a reasonable doubt is an unfairly heavy burden. It is entirely appropriate to hold the prosecution to that strict standard when it seeks a conviction or sentence that would deny a person his liberty or life: better a guilty man go free than an innocent one be condemned. But it is unconscionable to hold a defendant to this high standard – and no other state does so – in considering whether his mental retardation bars execution. The standard creates too much risk that we will execute a person who is intellectually disabled.

Hopefully, Hill’s execution will be stopped before Georgia commits the ultimate miscarriage of justice.

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