This post originally appeared on scotusblog.com
UPDATE 8:20 p.m. Georgia completed the execution of Warren Hill, with death pronounced at 7:55 p.m.
In two brief orders allowing the state of Georgia to execute a man whose lawyers claim he is intellectually disabled, the Supreme Court gave a strong signal on Tuesday evening that it is not undertaking a general review of capital punishment this Term. Two Justices dissented from one of the two orders permitting the execution of Warren L. Hill, Jr.; there were no noted dissents from the other order.
Hill has attempted repeatedly to challenge the constitutionality of Georgia’s procedure for determining when a death-row inmate is too intellectually disabled to be put to death: it requires proof beyond a reasonable doubt of that disability. In his latest plea to the Justices, he asked that the Court apply to his case a 2014 ruling, in the case of Hall v. Florida, putting new limits on state authority to execute those with intellectual disabilities. The Court gave no reason on Tuesday for turning down both of his new pleas.
Hill has been on death row for nearly a quarter of a century, and has been close to execution three times before. He was sentenced to death for the 1990 murder of a fellow prisoner.
His lawyers’ requests for the Court to spare him brought before the Justices the first scheduled execution since they agreed last Friday to hear an appeal by three Oklahoma inmates, challenging the constitutionality of the lethal-drug protocol in use in that state. That grant of review was not explained, leading to some speculation that the Court might make a more searching examination of death sentencing when the Oklahoma case unfolded, instead of confining review to the specific drug protocol there.
Although the planned execution of Warren Hill in Georgia did not involve a challenge to the lethal-drug protocol used in that state (it is different from Oklahoma’s), the Hill case has been closely watched for any indication that other executions might be put on hold until after the Oklahoma case is decided. The denial of a postponement for Hill provided the answer: other executions will proceed.
Even though the Court has agreed to review the challenge by the three Oklahoma inmates, it still has not acted on the question of whether their execution dates will now be postponed. The state of Oklahoma, and lawyers for the three inmates, have asked the Court to postpone the scheduled execution dates, although they have taken different positions on how long a postponement should last.
One of the Oklahoma inmates is scheduled to be put to death on Thursday. The others have execution dates next month and in March. The Court gave no indication on Tuesday of when it might act on the postponement requests.
Other executions in other states are scheduled in coming days. The Court’s denial of a delay in the Warren Hill case suggested that most, if not all, of those other cases are not likely to result in delayed executions.
The actions in the Georgia case involved denials of an ordinary petition for review, plus an “original” petition for review — that is, a petition filed directly in the Supreme Court, without a prior lower court ruling on it. That was filed by Hill’s lawyers because they were running out of options, since lower courts and Georgia pardon officials had refused in recent days to grant any delay of the scheduled execution.
On the denial of the regular petition, Justices Stephen G. Breyer and Sonia Sotomayor noted, without explanation, that they would have granted a delay of the execution. There were no noted dissents on denial of the “original” petition.
Last week, when the Court first allowed an execution of one of the Oklahoma inmates, before it granted review of the case of the other three prisoners, Breyer and Sotomayor were joined in dissent by Justices Ruth Bader Ginsburg and Elena Kagan. If those two voted on the requests Tuesday, there was no indication of how they had voted.
