Georgia won't kill Warren Hill today. Hill, a death row inmate with a reported IQ of 70, was granted a stay hours before his scheduled 7 p.m. execution. And while Hill's mental capacity is at the center of the national debate surrounding the constitutionality of Georgia' plans to use capital punishment in his case, that's not why a Fulton county judge stepped in today. The stay, pending a hearing on Thursday, has to do with how the state obtains the drugs used in lethal objections.
Hill's lawyers challenged the constitutionality of Hill's execution by questioning a new state law, the Lethal Injection Secrecy Act. The law makes the method by which the state obtains the drug used for lethal injections, as well as how they're manufactured, state secrets. At The Atlantic, Andrew Cohen has explained the reason this law exists, and how it applies to Hill's case:
For reasons that are now fairly well-known, the state has had trouble finding the drug -- Pentobarbital -- that is required to complete the execution. This is so because the U.S. manufacturer of the drug ceased to produce it in 2011 after European manufacturers embargoed its importation here (because of their objections to its use in American executions). As "official" supplies of the drug have dwindled, state officials have resorted to dramatic means -- including possibly unlawful means -- to obtain it...
...This unprecedented secrecy, Hill's lawyers argue in their Friday brief, this freezing out of judicial review of capital protocols, creates a "grave risk" that their client will be subjected to "excruciating and unnecessary pain and suffering" when he is killed.
According to the Atlanta Journal-Constitution, the drug intended for use in Hill's execution came from an individual pharmacy, because it's impossible for Georgia to purchase it from a larger manufacturer at this point. Pentobarbital, the paper explains, is the back-up drug for Georgia executions: after the state ran out of their supply of the three-drug cocktail usually used in lethal injections, they turned to the single drug, usually used to euthanize animals. Then, their supply of Pentobarbital ran out, too.
In February, Hill came within 30 minutes of dying before federal and state appeals court intervened, in order to further examine whether Hill was indeed mentally disabled. The Supreme Court's 2002 Atkins v. Virginia decision bars capital punishment for the "mentally retarded" (SCOTUS's words), but leaves it up to the states to decide what that means. Georgia's definition is widely-regarded as the strictest in the country. Hill, already serving a life sentence for murder, was sentenced to death for the 1990 murder of a fellow inmate. If the judge rules in the state's favor on Thursday, allowing the execution to go forward, the state will need to reschedule.
Update, 5:02 p.m.: According a statement emailed to The Atlantic Wire from Hill's lawyers, the new execution date could be as soon as 7 p.m. on July 18, the day of the morning hearing. But they're hoping the stay will hold off a final decision on Hill's fate for longer than that. Attorney Brian Kammer said:
Today, the Court found that more time is needed to explore Mr. Hill's complaint, which raises serious concerns about the extreme secrecy surrounding the execution process in Georgia, and the new Lethal Injection Secrecy Act, which took effect one day before Georgia issued a death warrant for Mr. Hill. At this time, there is far too much we do not know about how the state intends to proceed in this, the most extreme act a government can take against a citizen.
Ultimately, we are hopeful that the United States Supreme Court will hear Mr. Hill's pending Petition for Writ of Habeas Corpus, and will have the opportunity to consider the important new evidence in this case, that there is unanimous consensus among all the doctors who have examined Mr. Hill, including three who previously testified for the state, that he is a person with mental retardation, and thus ineligible for the death penalty.
The Supreme Court has a habeas petition pending with the Supreme Court concerning Hill's mental capacity. But the court won't decide whether to take it up or not until September 30.
Photo: Warren Hill, via Reuters.