Hill Dissent - Bypass AEDPA for Those Exempt from Execution?

By William Peacock, Esq. on April 26, 2013 | Last updated on March 21, 2019

Seven experts. Seven opinions that all agree: Warren Lee Hill, Jr. is mentally retarded. Judge Barkett's passionate dissent starts at a point the majority barely reached when they used procedural hurdles to deny Hill's habeas petition -- the fundamental proposition that Hill, per the Constitution, is exempt from execution.

The crux of her argument is this: no statute, even one as strict as the Antiterrorism and Effective Death Penalty Act (AEDPA), should trump the Constitution. Three classes of individuals are exempt from execution, per the Supreme Court's interpretation of the Eighth Amendment's prohibition on cruel and unusual punishments: the insane, the mentally retarded, and juvenile offenders.

Those who have a freestanding actual innocence claim can bypass the gatekeeping procedures of the AEDPA. Barkett would have a similar bypass for those who are categorically exempt from execution.

Hill's case is certainly unique. Until the three mental health experts for the prosecution changed course in 2012, he had no way to meet Georgia's controversial "retardation beyond a reasonable doubt" standard. One might say that he didn't have a cognizable claim until 2012, yet, if he had waited until then, he'd likely be dead.

Barkett points out in a footnote one interesting distinction that may make a difference if rehearing en banc is granted: his previous trip to the Eleventh Circuit argued that Georgia's high burden of proof violated the Eighth Amendment. He currently argues that his execution itself violates the Eighth Amendment. It's a narrow, but compelling distinction.

She also addresses past cases where the Supreme Court made exceptions to the AEDPA for insane defendants. In Martinez-Villareal, a petitioner had made multiple Ford claims. The court reasoned that the earlier claim wasn't ripe for adjudication. The Ford "ripeness" reasoning reappeared in Panetti in 2007. One would imagine a similar argument could apply here - Hill's retardation claim wasn't ripe until the experts changed course in 2012.

Barkett makes many compelling points in her dissent. One wonders if these points will form the basis of a reversal of the majority opinion, either in rehearing, or by the Supreme Court. Such a reversal could take either a narrow path (his prior claim attacked Georgia's burden of proof, present claim attacks execution itself) or a wider path (establish a bypass allowing habeas petitions for those who are categorically exempt from execution).

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