Georgia Supreme Court Rejects Black Man's Death Row Appeal

In photo, Georgia. Attorney General Sam Olens who sought to expedite an appeal in the case of a death row inmate whose execution was delayed in July.  From [HERE] The Supreme Court of Georgia on Monday rejected [opinion, PDF] claims by death row inmate Warren Lee Hill  that the Board of Corrections violated the Georgia Administrative Procedure Act (APA) [materials] by not holding a public hearing before changing the state's lethal injection [DPIC backgrounder] execution procedure. One of the APA's rule-making requirements is to give 30 days notice [OCGA § 15-13-4 text] to interested persons, the state's General Assembly and the Secretary of State before adopting or repealing any rule. The court's opinion states that the APA specifically excludes the Board of Corrections and penal institutions from qualifying "agencies" under the Act. Therefore, the provisions of the APA do not apply to the Board, unless a section of the Act specifically states otherwise. The court concluded that the Board of Corrections is not required by statute to make rules regarding the subject of lethal injection procedures. The Supreme Court of Georgia held:

Due to litigation challenging existing methods of execution and due to other factors, both judicial and non-judicial, that have affected the availability of certain drugs, the Commissioner has recently found it necessary or wise to make repeated changes to the lethal injection procedures employed by the Department. We conclude that it was not unreasonable for the Board to entrust the specific topics involved in the management of executions to the Commissioner under the statutory and constitutional mandates that already apply to him rather than to give him detailed and rigid directives through rules.

Thus the court concluded that the Board of Corrections does not have a legal duty under the APA to make rules regarding the lethal injection procedure.

In July the Supreme Court of Georgia unanimously granted a stay of execution Hill 90 minutes before he was scheduled to be executed by lethal injection. The court granted the stay to consider an appeal by Hill, 52, regarding the recent change by the Georgia Department of Corrections to its lethal injection protocol, the traditional three-drug "cocktail" having been replaced with a single dose of the sedative pentobarbital. In a separate order the court also denied Hill's request to hear his appeal of a Butts County Superior Court ruling, which held that Hill had failed to prove beyond a reasonable doubt  that he is mentally disabled, and that the "beyond a reasonable doubt" standard itself is constitutional. Terrica Ganzy [official profile], Staff Attorney for the Southern Center for Human Rights [advocacy website], argued that Warren Hill was improperly sentenced to death [JURIST comment] and that Georgia should adopt a "preponderance of evidence" standard for mentally disabled claims in capital offense cases.