I don't know whether my reaction is idiosyncratic or shared by other Michiganders, but growing up in a non-death penalty state I find I have an outsider's fixation with death penalty cases. I relate to them with the same kind of morbid fascination that I, as a Northerner, have for certain especially appalling and exotic tropical diseases. The lawyers who take on death row inmates as clients seem as chivalric and heroic as knights errant, wandering in a jurisprudential landscape that has a distinctly through-the-looking-glass feel.
The current crop of cases in which prisoners' lives hinge on whether they can demonstrate a profound-enough level of retardation particularly strike me as especially Alice-in-Wonderlandish. A short new piece by Andrew Cohen in The Atlantic, "Warren Lee Hill and his cause: live to fight another day," does a good job of framing the questions left unanswered since 2002 when Atkins v. Virginia declared the execution of the mentally retarded unconstitutional:
As it moves forward, and I hope it moves all the way to Washington, the case presents the justices with an opportunity to strengthen -- to save, really -- the letter and the spirit of Atkins. In that case, they tried to be all things to all people. It was a mistake, and they now should fix it. Even as they announced a national standard (executing those who cannot comprehend the nature of their punishment is "cruel and unusual"), the justices announced that states could weasel out of the new rule by identifying for themselves who is and who is not mentally retarded.
The result, predictably, was that some outlier states, where the politics of the death penalty still tolerate a zealous approach to executions, have done an awful lot of weaseling over the past decade. Last summer, to cite just one egregious example, Texas flouted the justices and Atkins when they executed Marvin Wilson, a man who had an IQ of 61. And then there is Warren Lee Hill, who was faced under Georgia law with the near-impossible task of proving beyond a reasonable doubt that he is, in fact, mentally retarded.
