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Eleventh Circuit to consider en banc how Georgia implements Atkins death penalty bar

By Douglas A. Berman

A helpful reader altered me to this new order from the Eleventh Circuit, which orders en banc review in a case concerning Georgia's procedures for implementing the Supreme Court's 2002 Atkins ruling prohibiting the execution of mentally retarded persons.  In this prior post, I reported on the panel ruling in Hill v. Schofield, No. 08-15444 (11th Cir. Jun. 18, 2010) (available here).  That panel decision declared unconstitutional Georgia's approach to implementing Atkins "because Georgia?s requirement of proof beyond a reasonable doubt [placed on the defendant to prove he is mentally retarded and thereby ineligible for the death penalty] necessarily will result in the execution of the mentally retarded [and thus] the Georgia Supreme Court?s decision [approving this approach] is contrary to the clearly established rule of Atkins...continue to full post

Full post as published by Sentencing Law and Policy on November 09, 2010 (boomark / email).