Next Wednesday, July 18, reckons to be another banner day in the history of capital punishment in America. Sometime between 6 p.m. and midnight, the state of Texas is scheduled to execute a convicted murderer named Yokamon Hearn, a man who has, since early childhood, shown clear and consistent evidence of brain damage. And at 7 p.m., the state of Georgia plans to execute a convicted murderer named Warren Hill, who years ago was deemed by a veteran state judge to be mentally retarded.
These executions will take place, absent extraordinary Supreme Court or gubernatorial intervention, because federal and state judges at lower levels of our nation’s justice system have perversely interpreted recent United States Supreme Court decisions. Whereas the Justices have tried in the past few years to give men like Hearn and Hill more access to meaningful appellate review, judicial obstructionists down below have refused to apply either the letter or the spirit of the new procedural rules.
In Texas, the perpetually rogue Fifth Circuit, in an opinion dripping with disdain for the justices in Washington, has just refused to apply the precedent established in Martinez v. Ryan, a Supreme Court decision issued in March that sought to expand appellate rights for defendants like Hearn. In Georgia, meanwhile, the state supreme court has refused to designate Hill as mentally retarded, scoffing at the mandate of Atkins v. Virginia, the Supreme Court’s ruling banning the execution of the mentally retarded.