Burden of Proof in Establishing Mental Retardation in Capital Cases
===================================================================

* Alexander Westphal
* Madelon Baranoski

## The Standard of Beyond a Reasonable Doubt for Establishing Mental Retardation in Capital Cases Is Unconstitutional Under the Eighth Amendment

In *Hill v. Schofield*, 608 F.3d 1272 (11th Cir. 2010), the defendant appealed the decision by the U.S. District Court for the Middle District of Georgia denying the *habeas* petition that challenged his death sentence. The district court did grant appealability of the Georgia Supreme Court's decision to uphold the state statutory requirement that mental retardation must be proved beyond a reasonable doubt for exemption from the death penalty. Mr. Hill claimed that the statutory standard was in violation of the constitutional ban on cruel and unusual punishment, as established by *Atkins v. Virginia*, 536 U.S. 304 (2002).

#### Facts of the Case

In 1991, Warren Lee Hill was convicted and sentenced to death for the 1990 murder of his prison cellmate. Both his conviction and his sentence were affirmed on direct appeal in 1993, and *certiorari* was denied by the Supreme Court in 1994. Subsequently, Mr. Hill initiated a *habeas* petition, arguing that mental retardation exempted him from execution. The state *habeas* court found that the evidence that he was mentally retarded was credible and granted his writ to conduct a jury trial in which the preponderance-of-the-evidence standard was to be applied.

Georgia appealed, and the state supreme court reversed and remanded the case, directing the *habeas* court to determine without a jury whether Mr. Hill could establish his claim of mental retardation beyond a reasonable doubt (*Turpin v. Hill*, 498 S.E.2d 52 (Ga. 1998)), the standard established by Georgia state law (Ga. Code Ann. § 17-7-131(c) (3) (1998)). In 2002, the *habeas* court found that although Mr. Hill's IQ score was low enough to meet the criterion for mental retardation beyond a reasonable doubt, he did not demonstrate sufficient impairment in adaptive function. For the psychiatric definition of mental retardation, both are needed (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), 2000, p 41). The court concluded that Mr. Hill was not entitled to *habeas* relief. Concurrently, *Atkins* was being heard by the United States Supreme Court; in that case, the Court held that the execution of offenders with intellectual disabilities was in violation of the Eighth Amendment's ban on cruel and unusual punishment.

Mr. Hill repetitioned the *habeas* court on the basis of *Atkins*, arguing that the use of the beyond-a-reasonable-doubt standard was unconstitutional. The *habeas* court agreed and found that the standard placed an undue burden on the defendant by creating “an extremely high likelihood of erroneously executing mentally retarded defendants” (*Hill*, p 1275). The court found that Mr. Hill's claim of mental retardation was supported by a preponderance of the evidence. Georgia appealed, and the state supreme court reversed (*Head v. Hill*, 587 S.E.2d 613 (Ga. 2003)). Mr. Hill initiated federal *habeas* proceedings in the U.S. District Court for the Middle District of Georgia. That court denied the *habeas* petition, but granted a certificate of appealability on the mental retardation claim.

#### Ruling and Reasoning

A three-judge panel of the Eleventh Circuit Court of Appeals reversed the district court's denial of Mr. Hill's petition for *habeas*, reasoning that the evidentiary standard of beyond a reasonable doubt, the most stringent standard in use, imposed the “overwhelming majority of the risk of error on the defendant” (*Hill*, p 1279). It held that by applying this standard, “Georgia holds that it is far better to erroneously execute a mentally retarded person than to erroneously impose a life sentence on one not mentally retarded” (*Hill*, p 1279) and “eviscerates the command of the Eighth Amendment” (*Hill*, p 1283).

#### Dissent

Circuit court Judge Hull dissented from the majority opinion. She wrote, “There is no holding in *Atkins*, or any other Supreme Court decision … invalidating a reasonable doubt standard for mental retardation claims” (*Hill*, p 1284). Judge Hull emphasized that although there is a national consensus against executing offenders with mental retardation, there is not one on how to determine mental retardation.

#### Discussion

The majority decision in this case is a clear choice to err on the side of imposing a life sentence on “one not mentally retarded” rather than to execute a “mentally retarded person.” However, Mr. Hill's case demonstrates that establishing mental retardation for legal purposes is not straightforward. Mr. Hill was found to be mentally retarded according to the standard of preponderance of evidence, but not by the standard of beyond a reasonable doubt. Most of the states that impose the death penalty use preponderance of evidence. Thus, had Mr. Hill been charged in Alabama instead of Georgia, for example, he would not have been executed, based on the evidence that he presented for mental retardation.

The definition of mental retardation used in *Atkins* (p 318) is “having significantly subaverage general intellectual functioning resulting in or associated with impairments in adaptive behavior which manifested during the developmental period,” a definition that captures the general spirit of the meaning used in most clinical contexts.

Disassociations between adaptive and intellectual function are not unusual. For example, people with autism spectrum disorders frequently have substantial impairments in adaptive function coupled with normal IQ scores. Severe personality disorders can also lead to poor adaptive function in the presence of normal intelligence. People with these types of dissociation are not defined as mentally retarded. Less common are cases like Mr. Hill's, in which adaptive capacity exceeds intellectual capacity (validly measured), since intellectual limitations lead to adaptive impairments. The *Atkins* decision recognized the relationship between intelligence and adaptive capacity, implying causality in the phrase “resulting in.” However, the *Atkins* decision adds the phrase “or associated with” denoting, in fact, a meaningful distinction between a causal and a correlational relationship for intelligence and adaptive capacity.

Although the initial ruling of the Eleventh Circuit implies an appreciation of the lack of diagnostic precision by recognizing that beyond a reasonable doubt is too high a standard, the decision does not clarify how cases with divergent and clinically inconsistent findings are to be decided. The *Atkins* decision parsed the diagnostic context in which IQ, adaptive function, and age of onset are to be considered together as correlated but freestanding determinants. From that ruling, it is a short step to a situation in which the legal standard can be applied to each criterion separately. In *Hill*, the court treated the diagnostic criteria as statutory elements to be proved separately, rather than as diagnostic markers to be evaluated as components of a unitary concept. *Hill* illustrates the difficulty in applying clinical criteria, derived from scientific theory and used as a guide to assessment and treatment, to a legal question that requires absolute certainty.

#### Follow-Up

In November 2010, following a poll of Eleventh Circuit judges in active service, the court ordered a rehearing *en banc* and vacated the previous decision (*Hill v. Schofield*, 625 F.3d 1313 (11th Cir. 2010)). The decision from that *en banc* hearing was published November 22, 2011 (*Hill v. Humphrey*, 662 F.3d 1335 (11th Cir. (2011)). Regarding the issue of the appropriate standard of proof, the majority noted that “*Atkins* expressly left it for the states to develop the procedural and substantive guides for determining who is mentally retarded” (*Hill*, p 2). Regarding the burden of proof the court stated: Because there is no specific, much less “clearly established” by Supreme Court precedent, federal rule regarding the burden of proof for mental retardation claims [the Antiterrorism and Effective Death Penalty Act of 1996] mandates that this federal court leave the Georgia Supreme Court decision alone—even if we believe it incorrect or unwise—and affirm in this case [*Hill*, p 2]. Clearly, this is an evolving area of law, and future developments will continue to define the standards and procedures deemed constitutionally acceptable.

## Footnotes

*   Disclosures of financial or other potential conflicts of interest: None.

*   © 2012 American Academy of Psychiatry and the Law