The 6th Circuit Court of Appeals recently overturned the death sentence of Habeas Corpus petitioner Danny Hill, finding that Hill was intellectually disabled, and therefore ineligible for the death penalty under Atkins v. Virginia.
Hill was originally convicted of murder and sentenced to death in 1986. His conviction and sentence were affirmed on direct appeal. It was not until 2002, while Hill’s first Habeas petition was pending in the Federal Court of Appeals, that the Supreme Court handed down Atkins. That decision relied on Supreme Court precedent that execution violates the 8th Amendment bar on cruel and unusual punishment when it is not proportional to the offense committed. The Atkins Court held that because of their lessened culpability, the death penalty is disproportionate when applied to intellectually disabled individuals.[i]
While the Supreme Court left it up to the states to decide how they would determine which defendants were intellectually disabled, it noted that two prominent psychiatric manuals require three separate findings in order to make such a diagnosis: (1) significantly subaverage intellectual functioning, typically indicated by an IQ of 70 or lower; (2) significant limitations in adaptive functioning; and (3) manifestation or onset before the age of 18.
Following Atkins, the Court of Appeals remanded Hill’s case to the District Court, with instructions to remand to the state courts to determine if Hill was entitled to relief under Atkins. The Ohio Court of Appeals and Ohio Supreme Court had already determined in Hill’s direct appeal that Hill was intellectually disabled. On remand, the court determined that issue preclusion did not apply to this determination, since the issue of whether Hill was intellectually disabled was not essential to Hill’s conviction and sentence in 1986, before Atkins was decided.
During the hearing on Hill’s Atkins claim, the court ruled that “the focus of the evaluation would be Hill’s present functioning, and therefore that contemporary evidence was what was primarily relevant – not historical accounts.” Three expert witnesses testified during the hearing. One had been appointed by the court, one was retained by the State, and one retained by Hill. The evidence at the hearing showed that Hill’s IQ at the time of trial ranged from 55 to 68, low enough that the parties agreed he qualified as intellectually disabled under the first prong of Atkins. He also had the moral development of a two-year old. Hill had always struggled in in school, and was placed in special education classes from kindergarten forward. He remained essentially illiterate for his whole life, and was unable to take care of his hygiene independently, without reminders to brush his teeth or shower. While the defense expert focused on these facts, the other two experts pointed at evidence of Hill’s intelligence and sophistication, which was inconsistent with an intellectual disability diagnosis. This evidence included the fact that Hill had arranged a press conference with local news outlets in 2000, in order to draw attention to his case, something the State’s expert claimed he had never seen an intellectually disabled person do. Both the State’s and the court’s experts were impressed with Hill’s memory of events, and by the fact that he was able to tell a complex and detailed account of events leading up to the murder. The court’s witness found Hill’s account “remarkable and not likely, not very plausible,” but nevertheless noted “the degree of organization, the degree of complexity, and the degree of memory,” which she believed would be unusual for an intellectually disabled person. The State also presented evidence of Hill’s current level of functioning in prison and interaction with prison staff and law enforcement to show that he was not disabled.
The defense expert testified that this behavior was not inconsistent with that of a mildly intellectually disabled person, explaining that many such people “are quite aware of their deficits in learning and functioning, and are somewhat worried that other people will find that also. So they oftentimes will develop certain skill areas that they can hold out as indicating that they have a competence in a certain area, and therefore, are trying to mask . . . what their deficits actually are.” Ultimately, the state and court experts opined that Hill was not disabled, while the defense expert opined that he was mildly intellectually disabled. The court credited the two experts, and held Hill was not entitled to relief under Atkins. Hill then renewed his Habeas petition in the Federal Courts.
Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), The District Court could grant Hill’s petition on the Atkins claim only if the state court’s decision that he was not intellectually disabled was either an unreasonable application of clearly-established law, or an unreasonable determination of facts. Under this standard of review, the District Court denied the petition. The 6th Circuit reversed. It based this decision, in part, on Moore v. Texas, decided by the Supreme Court in 2017. In Moore, The Supreme Court reversed the Texas Court of Criminal Appeal’s decision that the defendant was not intellectually disabled. The Court found that the Texas court had improperly discounted the defendant’s adaptive deficiencies, and instead focused on his adaptive strengths, an approach rejected by the medical community.
The 6th Circuit found that the Ohio courts had made the same mistake as the Texas court in Moore, by focusing selectively on evidence of Hill’s strengths, while discounting evidence of his deficiencies. On appeal by the state, The Supreme Court held that the 6th Circuit should not have applied Moore retroactively. It therefore remanded for reconsideration of Hill’s claim under Atkins based only on the law that was applicable in 2008, when Ohio courts addressed the issue.
On remand, the 6th Circuit again reached the same conclusion that Hill was intellectually disabled. The Court noted that every court that had addressed the issue before Atkins was decided had found Hill to be intellectually disabled, and that he had been in special education classes for his entire time in school, that in prison he was unable to complete simple tasks without supervision, or maintain basic personal hygiene without reminders, and that he had been functionally illiterate his entire life. The 6th Circuit found that the Ohio courts had unreasonably discounted the extensive record of his disability, and instead focused on arbitrary and largely irrelevant facts, such as anecdotal accounts of prison staff, to show that Hill was of average intelligence. The Ohio courts also found evidence of Hill’s initiative and ability for self-preservation in voluntarily going to the police to talk about the murder in 1985, and crafting a narrative to try and deflect suspicion from himself. The 6th Circuit pointed out that Hill that was “not even a suspect before he went to the police, and his statements are what aroused their suspicion. Incriminating oneself is hardly self-preservation.”
We can expect that the State will seek review of this decision, either by the Supreme Court, or the full 6th Circuit sitting en banc. Could either court reverse the latest decision? The AEDPA is very deferential to state court decisions. Also, the Atkins standard is broad, and deliberately left it up to the states to decide how to determine whether a defendant was intellectually disabled. Without guidance from the Court’s later decisions such as Moore, there is room for a reviewing court to find that the state court decision did not violate the clearly-established law at the time.
The Ohio court focused on present, rather than past evidence of Hill’s intellectual disability. As the 6th Circuit pointed out in its opinion, the diagnostic requirement that deficiencies appear by age 18 inherently contemplates that this is a backwards-looking, and not a strictly present focused analysis. However, The Atkins court did not require states to follow the three-pronged analysis. While later Supreme Court cases including Moore and Florida v. Hall have emphasized that state law on this issue should at least be rooted in medical consensus, those cases would not apply retroactively to Hill. Therefore, the three-prong analysis would not be considered clearly-established law for purposes of Hill’s petition. The 6th Circuit noted that Ohio adopted the three-prong test in State v. Lott. It held that that since the US Supreme Court directed the states in Atkins to develop their own tests for intellectual disability, and Ohio did just that in Lott, that Lott should be treated as clearly-established law in this context. However, this, to the best of my knowledge, is a novel argument. Clearly-established law in the AEDPA context refers only to holdings of the Supreme Court of the United States.
Still, if Atkins is to have any effect, there must be some application of it that would qualify as unreasonable under AEDPA. The Hill case presents a large body of evidence of the defendant’s disability. If the state courts did not have any rational reason for deciding the case based on a much smaller amount of information that highlighted Hill’s strengths, rather than the much larger body of evidence showing his deficiencies, that could qualify as an unreasonable interpretation of Atkins. A reviewing court could also affirm the 6th’s Circuit’s decision on the basis that the state court made an unreasonable determination of facts. Still, it is far from clear what the outcome will be.
[i] The Atkins court used the term “mentally retarded.” Since then, “intellectually disabled” has become the preferred term.