Because his case directly challenges the Supreme Court's prohibition against executing the mentally retarded, because it's (so far) such a great example of how easy it is for lower courts to ignore the spirit of High Court commands, I have written many times before (here, here and here) about Hill. His execution was 30 minutes away in February when it was halted by the 11th U.S Circuit Court of Appeals in order to evaluate the evolution of his doctors' views on his mental condition.

What's happening now -- what makes this week crucial -- is that Georgia last week rescheduled Hill's execution after the 11th Circuit rejected his latest arguments. Hill's lawyers have in turn just today filed a Motion to Stay the Execution at the 11th Circuit--unlikely to grant it. For several months Hill's lawyers have had an appeal to the Supreme Court of the United States pending on this case. Even though the Supreme Court is not in session, it must now take some sort of action (either agreeing to hear the appeal or denying it) before July 15, when Hill is scheduled to be executed.

If Hill's attorneys are to spare his life (here is their Supreme Court Petition), they must get the justices in Washington to give clarity and meaning to their 2002 decision in Atkins v. Virginia. In Atkins, by a 6-3 vote, with Justice John Paul Stevens** writing the majority opinion, the Court outlawed the execution of mentally retarded prisoners but allowed state lawmakers and judges to determine the legal standards by which prisoners would be deemed "retarded." The justices assumed, as they must, that state officials would act in good faith to implement the prohibition they announced in the case.



At the time it was issued, the Atkins ruling was widely hailed as a reasonable compromise -- a federal judicial command (thou shalt not execute the mentally retarded) coupled with broad deference to state autonomy (states shall determine who is and who is not retarded). Indeed, the formula is a familiar one to anyone who has followed the jurisprudence of Justice Kennedy -- his opinion last month in the Defense of Marriage Act case tracks that very dichotomy. In Atkins, as in Windsor v. United States, Justice Kennedy's avowed love of federalism meshed with his concerns about individual rights.



But the key to the Atkins compromise was always the conduct of state officials. Would they interpret state laws to shield mentally retarded murderers from execution? Or would they apply state rules in ways that circumvented Atkins' prohibition? So far, in Georgia, the answer has been unequivocal. Alone in the nation, Georgia long ago chose the toughest possible legal standard -- a defendant like Hill would have to prove his mental status beyond a reasonable doubt. And in Hill's case, now that such a finding has been made, state officials have resorted to a series of technical arguments for why the courts should ignore that finding.