How indeed. Declaring the new law likely unconstitutional, the judge promptly stayed Hill's execution, which was then scheduled for tonight at 7 p.m ET. Georgia was unable to appeal the trial judge's ruling today to the Georgia Supreme Court because state lawyers did not receive on time the court reporter's transcript from Thursday's hearing. And the state's death warrant for Hill expires tomorrow. This means that Hill won't be executed this week or anytime soon.

This is now the second time this year alone that Hill was scheduled for execution only to receive a stay. The last time, in February, Hill earned a reprieve so that the courts could evaluate the merits of his underlying claim that he cannot be lawfully executed anyway because the Eighth Amendment forbids the execution of the "mentally retarded.*" Back then, Georgia officials blamed Hill's attorneys for the delay. Today, those state officials have no one to blame but themselves.

For years now I have been writing about how the death penalty in America is slowly losing popular support because of the arbitrary and capricious manner in which it is carried out. For years now I have been chronicling instances where state officials are so ardent in their zeal to execute people that they lose sight of the larger commands of constitutional law. This case is just the latest, and most potent, example of this lamentable trend.



To prove my point, let me briefly recap what's happened here. First, state officials argued in court that Hill was not "mentally retarded" beyond a reasonable doubt, the standard required under Georgia's uniquely onerous capital laws. Then, when the three government doctors who examined Hill changed their minds, when they conceded that their initial evaluations of Hill had been flawed and that his retardation in fact satisfied the state's standard, Georgia argued that it was too late for Hill to rely upon this changed evidence.



And then, while Hill's lawyers and state attorneys were fighting over that standard, and federal procedural rules, and Hill's mental condition in light of the Supreme Court's recent prohibition against the execution of the "mentally retarded," the state Department of Corrections went to state lawmakers and asked them to enact a "secrecy" law so that the suppliers of lethal drugs (which are getting scarcer and scarcer these days after European manufacturers stopped shipping phenobarbital to the U.S. for fear it would be used in executions) would not be subject to public scrutiny or judicial review. While Georgia was fighting over core constitutional principles, it sought to shield its fight from public view. As a matter of law, as a matter of ethics, as a matter of morality, it's deplorable.

What happens now? Georgia must appeal the trial judge's ruling to the state supreme court, the justices of which are in recess during the month of August. Hill's attorney tells me that the drugs that were to be used on his client this week will expire in early August. The state likely won't be able to issue a new death warrant unless and until it wins its appeal on the new "secrets" law (which it likely won't). And the United States Supreme Court, which was on standby all this past week waiting to see if it would be needed, has placed Hill's case on its conference docket for September.