11th Circuit Judge Stanley Marcus, an appointee of Ronald Reagan, and 11th Circuit Judge Frank Hull, an appointee of Bill Clinton, are responsible for this ruling. They are responsible, in other words, for a ruling which could lead to the execution of a man who is indisputably mentally retarded. In dissent, an appalled Judge Rosemary Barkett, another Clinton appointee, called out her colleagues for "the perverse consequences" of a federal statute requiring a federal court to "acquiesce to, even condone, a state's insistence on carrying out the unconstitutional execution of a mentally retarded person." Then, Judge Barkett added:

The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness. Just as we have recognized that a petitioner who "in fact has a freestanding actual innocence claim ... would be entitled to have all his procedural defaults excused as a matter of course under the fundamental miscarriage of justice exception," I see no reason not to accord the same consideration to one who has a freestanding claim that he is, in fact and in law, categorically exempt from execution. (citations omitted by me).

Rebuffed by the very court which halted Hill's execution in February, Hill's attorneys now will have to seek relief at the Supreme Court, where Justice Anthony Kennedy, the author of the Atkins ruling, sits waiting. He will have a stark choice to make. On the one hand, there is the Antiterrorism and Effective Death Penalty Act of 1996, the federal statute that states like Georgia are able to use as swords against defendants like Hill -- the statute that appellate judges like Marcus and Hill hide behind so that they don't have to aid convicted murderers.

And on the other hand, there is the Eighth Amendment and its prohibition against the execution of the mentally retarded. In Atkins, Justice Kennedy, ever the advocate of state autonomy, craftily permitted states like Georgia to use their own standards to determine which capital defendants are mentally retarded and which are not. Well, here we are. Every expert from Georgia who has evaluated Hill believes today that he is mentally retarded. No expert believes otherwise. What's Justice Kennedy going to do about that? And what's he going to do about this dubious 11th Circuit ruling? It stands for the proposition that, when it comes to new evidence of mental retardation in capital case, the federal courts are going to stand for nothing at all.

* The phrase "mentally retarded" as used here is the legal term of art used by the Supreme Court and lower courts.

** Using this logic, there could never be any appellate relief for inmates like Hill, no matter how strong such new evidence could be, so long as a defendant persisted in making the best argument available to him. In other words, the fact that Hill has continuously asserted that he is mentally retarded has now been used against him by these judges as proof of his failure to make a "new claim."