he 11th U.S. Circuit Court of Appeals’ 7-4 decision means Georgia is the only state in the country that sets the highest barrier for defendants raising such claims to escape execution. Dissenting judges said it will lead to mentally disabled inmates being executed. Report by ajc.

Death-penalty lawyers said the ruling means capital defendants could prove they are almost certainly mentally disabled and still face execution. The ruling will be appealed to the U.S. Supreme Court, a lawyer involved in the case said.

Judge Frank Hull, writing for the majority, said the U.S. Supreme Court left it up to states to develop their own guidelines when it barred the execution of the mentally disabled in 2002.

The Georgia Supreme Court recently upheld the state’s standard that an inmate must prove disability beyond a reasonable doubt, Hull noted. Because there is no U.S. Supreme Court precedent to the contrary, federal law “mandates that this federal court leave the Georgia Supreme Court decision alone — even if we believe it incorrect or unwise.”

Hull also said Georgia’s death-penalty process contains substantial safeguards that help jurors accurately determine whether a defendant is mentally disabled. They include the right not to be sentenced to death except by a unanimous verdict, the right to appeal and the opportunity to present experts, cross-examine the state’s witnesses and question jurors about their biases regarding mental disability.

Even so, Hull acknowledged, the U.S. Supreme Court “may later announce that [Georgia's] reasonable doubt standard … is constitutionally impermissible.”

The U.S. government and 23 states with the death penalty require defendants claiming mental disability to prove it under the lowest threshold — a preponderance of the evidence, meaning it is more likely true than not. Five states have adopted a tougher test — clear and convincing evidence.

The court ruled in the case of twice-convicted killer Warren Hill. Brian Kammer, Hill’s lawyer, used the state’s unusually tough standard as the basis of his appeal and vowed to take the case to the nation’s highest court.

“I am sickened by the [court’s] ruling today, because it effectively allows Georgia free rein to execute people who, like Mr. Hill, have been found to be mentally retarded,” he said. “This decision is yet another legal and moral disaster involving Georgia’s death penalty jurisprudence.”

State Attorney General Sam Olens declined comment, his spokeswoman said.

Hill is on death row for bludgeoning a fellow inmate to death with a nail-studded board in 1990. At the time, he was serving a life sentence for killing his girlfriend.

Tuesday’s ruling sparked a vigorous dissent from Judge Rosemary Barkett, who said the beyond reasonable doubt threshold will “inevitably lead .. to the frequent execution” of the mentally disabled.

“This utterly one-sided risk of error is all the more intolerable when the individual right at stake is a question of life or death,” Barkett wrote.

While Georgia was the first state to bar the execution of the mentally disabled, “it is the only one to guarantee precisely the opposite result” with its tough definition of the condition, she said.

Judge Charles Wilson also dissented. He said the majority’s logic would allow Georgia to require mentally disabled defendants to prove their claims “beyond any shadow of a doubt — a standard requiring … that prisoners obtain the unanimous consent of a 100-member panel of state-appointed psychologists, ten consecutive IQ tests showing an intelligence quotient of no more than 30 and supporting affidavits from the victims’ families and the governor.”

The survey, conducted this month, comes as criminal-justice-reform advocates are gathering signatures for a 2012 ballot measure that would ban capital punishment in California. Report by  the San Francisco Chronicle.

The poll shows they have their work cut out for them: A solid 68 percent of voters favor keeping the death penalty, with conservatives overwhelmingly in support and nearly half of liberals opposed. But for the first time since the poll began asking the question 11 years ago, more voters – 48 percent – say they would prefer that someone convicted of first-degree murder serve life without the possibility of parole. Forty percent prefer the death penalty.

Field Poll director Mark DiCamillo noted that 11 years ago, 44 percent of those polled said they preferred death as punishment for first-degree murder and only 37 percent in favored life in prison. Last year, it was nearly evenly split.

But this year, the debate has gathered steam in California and elsewhere. The recent execution of a Georgia man many believe was innocent reignited the debate nationally, and executions have been on hold in California since 2006 because of a lawsuit challenging the state’s lethal injection method.

Forty-three percent of voters surveyed by the Field Poll said they think the death penalty is cheaper than life imprisonment, while 41 percent think it is more expensive.

A recent study, however, found that maintaining the death penalty costs $184 million a year more than it would cost taxpayers to simply leave the state’s condemned killers in prison for life. The higher cost is largely the result of legal fees associated with death sentence appeals. The same study found the average execution takes place 25 years after conviction.

The Field Poll also found that a majority of voters, 52 percent, believe that innocent people are executed so rarely that it is “unimportant”; that voters are nearly evenly split on whether a life without parole sentence really means someone will never get out of prison; and that by a 45 to 41 percent margin, voters believe that minorities are no more likely to receive the death penalty than whites.

How voters answer those four questions is directly tied to whether they support life in prison over death, DiCamillo said. But overall, he said, voters are far more skeptical of capital punishment than they were two decades ago.

“There has been a change in attitude,” he said. “Twenty-two years ago, the death penalty side argument prevailed by a large majority – now voters are divided in their opinions on many statements, including the cost of death versus life in prison, does a life sentence actually guarantee they will stay in prison, whether innocent people are executed, and their views of how it is administered to the ethnic population.”

The telephone poll had a margin of error of plus or minus 3.2 percentage points and was conducted between Sept. 1 and 12 among 1,001 registered California voters.

In this time of economic turmoil some legislators in Kansas and elsewhere say the price of justice is too high. They have introduced legislation to take the death penalty off the books over financial concerns. CNN reports.

“Because of the downturn in the national economy, we are facing one of the largest budget deficits in our history,” state Sen. Carolyn McGinn, a Republican, said in an opinion piece posted on TheKansan.com Friday. “What is certain is we are all going to have to look at new and creative ways to fund state and community programs and services.”   The state would save more than $500,000 per case by not seeking the death penalty, McGinn wrote, money that could be used for “prevention programs, community corrections and other programs to decrease future crimes against society” …

A 2008 study by the Urban Institute, an economic and social policy research group based in Maryland, found that an average capital murder trial in the state resulting in a death sentence costs about $3 million, or $1.9 million more than a case where the death penalty is not sought.  A similar 2008 study by the ACLU in Northern California found that a death- penalty trial costs about $1.1 million more than a non-death-penalty trial in California …

New Mexico, which also has a bill before the Legislature to abolish the death penalty, has already seen a case where costs dictated the outcome. Last year, the New Mexico attorney general’s office agreed to drop the death penalty for two inmates involved in the stabbing death of a guard, Ralph Garcia, during a 1999 riot at the Guadalupe County Correctional Facility.   The change came after the state Legislature failed to provide additional funding for defense attorneys contracted to handle the case by the public defender’s office.  In court documents filed at the time, Attorney General Gary King said his office could not “in good faith under these circumstances” pursue the death penalty against Robert Young and Reis Lopez …

In Colorado, House Bill 1274 proposes to put the anticipated savings from abolishing the death penalty toward the Colorado Bureau of Investigation’s cold case homicide team.

Other States with bills for an economic end to the death penalty include Washington, Montana, Nebraska, Texas and New Hampshire.

As the warden of San Quentin, I presided over four executions. After each one, someone on the staff would ask, “Is the world safer because of what we did tonight?”  We knew the answer: No.

I worked in corrections for 30 years, starting as a correctional officer and working my way up to warden at San Quentin and then on to the top job in the state — director of the California Department of Corrections and Rehabilitation. During those years, I came to believe that the death penalty should be replaced with life without the possibility of parole.I didn’t reach that conclusion because I’m soft on crime. My No. 1 concern is public safety. I want my children and grandchildren to have the safety and freedom to pursue their dreams. I know from firsthand experience that some people are dangerous and must be removed from society forever — people such as Robert Lee Massie.

I presided over Massie’s execution in 2001. He was first sentenced to death for the 1965 murder of a mother of two. But when executions were temporarily banned in 1972, his sentence was changed to one that would allow parole, and he was released in 1978. Months later, he killed a 61-year-old liquor store owner and was returned to death row. For supporters of the death penalty, Massie is a poster child. Yet for me, he stands out among the executions I presided over as the strongest example of how empty and futile the act of execution is.

I remember I did my job, but I don’t believe it was the right thing to have done. We should have condemned Massie to permanent imprisonment — that would have made the world safer. But on the night we executed him, when the question was asked, “Did this make the world safer?” the answer remained no. Massie needed to be kept away from society, but we did not need to kill him. that night clearly. It was March 27, 2001. I was the last person to talk to Massie before he died. After that, I brought in the witnesses. I looked at the clock to make sure it was after midnight. I got a signal from two members of my staff who were on the phone with the state Supreme Court and the U.S. attorney general’s office to make sure there were no last-minute legal impediments to the execution. There was none, so I gave the order to proceed. It took several minutes for the lethal injections to take effect.Why should we pay to keep him locked up for life? I hear that question constantly. Few people know the answer: It’s cheaper — much, much cheaper than execution.  I wish the public knew how much the death penalty affects their wallets. California spends an additional $117 million each year pursuing the execution of those on death row. Just housing inmates on death row costs an additional $90,000 per prisoner per year above what it would cost to house them with the general prison population. A statewide, bipartisan commission recently concluded that we must spend $100 million more each year to fix the many problems with capital punishment in California. Total price tag: in excess of $200 million a year more than simply condemning people to life without the possibility of parole.

If we condemn the worst offenders, like Massie, to permanent imprisonment, resources now spent on the death penalty could be used to investigate unsolved homicides, modernize crime labs and expand effective violence prevention programs, especially in at-risk communities. The money also could be used to intervene in the lives of children at risk and to invest in their education — to stop future victimization.  As I presided over Massie’s execution, I thought about the abuse and neglect he endured as a child in the foster care system. We failed to keep him safe, and our failure contributed to who he was as an adult. Instead of spending hundreds of millions of dollars to kill him, what if we spent that money on other foster children so that we stop producing men such as Massie in the first place?

As director of corrections, I visited the Watts district in Los Angeles and met with some ex-offenders. I learned that the prison system is paroling 300 people every week into the neighborhood without a plan or resources for success. How can we continue to spend more than $100 million a year seeking the execution of a handful of offenders while we fail to meet the basic safety needs of communities such as Watts?  It is not realistic to think that Watts and neighborhoods like it will ever get well if we can’t — or won’t — support them in addressing the problems they face.

To say that I have regrets about my involvement in the death penalty is to let myself off the hook too easily. To take a life in order to prove how much we value another life does not strengthen our society. It is a public policy that devalues our very being and detracts crucial resources from programs that could truly make our communities safe.