An Intolerable Burden of Proof

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The Supreme Court ruled in 2002 that it is unconstitutional to execute mentally retarded criminals, finding that the death penalty cannot be justified for these offenders because they are morally less culpable.

The court left it to the states to determine how to apply that constitutional restriction. Georgia has chosen to undermine the court’s principled ruling. It is the only state to require that offenders prove they are mentally retarded beyond a reasonable doubt, a procedural threshold that is extremely difficult to reach. In a 7-to-4 ruling last week, the United States Court of Appeals for the 11th Circuit unwisely upheld this Georgia standard. The Supreme Court should review that decision and strike down this intolerable burden of proof.

The Supreme Court’s 2002 ruling applies to people whose intellectual functioning is subaverage (mainly with an I.Q. of 70 or below), who are limited in communicating, caring for themselves and other adaptive skills and who show these traits before they are 18. In the Georgia case of Warren Lee Hill Jr., Mr. Hill’s I.Q. of 77 was found to meet the threshold, but he was unable to prove beyond a reasonable doubt that his adaptive skills were impaired.

Judgments about mental impairment are necessarily based on subjective interpretations of behavior. The Supreme Court has noted how hard it is to prove this kind of mental condition beyond a reasonable doubt. Proof turns on expert testimony, and an effective opposing expert can raise doubt. That is why, of the 33 other states with the death penalty, 28 use a lower standard of proof for mental retardation.

http://www.nytimes.com/2011/11/30/opinion/an-intolerable-burden-of-proof.html?nl=todaysheadlines&emc=tha211