The state of Georgia seems confused. It doesn’t seem to get when it’s reasonable to expect proof “beyond a reasonable doubt.”

Every judge, lawyer and defendant – actually anyone who’s even seen a television show about the law – knows that the reasonable-doubt standard applies to the prosecution in criminal cases. Since it’s extreme—constitutionally and ethically speaking—to deprive someone of his or her liberty, our legal system places the burden on the government to establish its case.



There’s one exception to this rule. In Georgia, a prisoner appealing a death sentence on grounds of mental retardation must prove “beyond a reasonable doubt” that he is in fact retarded.

Accordingly, unless the Supreme Court intervenes, the state of Georgia will send Warren Hill, a man with an I.Q. of 70, to his death on Wednesday. Jurors in his case say they would have sentenced him to life without parole if they had that option. The family of the victim has said he should not be executed.

But the Georgia pardons board has just denied his appeal for clemency.

The Supreme Court banned the imposition of the death penalty on mentally retarded offenders a decade ago, but left it to the states to decide how to carry out that order. Of the 50 states, only Georgia requires proof of retardation beyond a reasonable doubt.

Mr. Hill appealed to the State Supreme Court, which issued a 4-3 ruling upholding the law, and the 11th Circuit Court of Appeals deferred to the state. But the dissenting minority in that case argued that the federal courts must “guard against extreme malfunctions in the state criminal justice systems.”

Although the Supreme Court refused to review of the case in June, Mr. Hill’s lawyer, Brian Kammer plans to ask them to reconsider and, meanwhile, stay the execution.

I believe strongly that the death penalty is morally wrong, and our editorial board has argued that the Supreme Court was wrong when it upheld its constitutionality. It’s impossible to administer it fairly and ethically, as the situation in Georgia clearly demonstrates.