Georgia poised to no longer be outlier on process for deciding who is death-penalty ineligible based on intellectually disability

The Supreme Court nearly 23 years ago in Atkins v. Virginia, 536 U.S. 304 (2002), ruled that that an execution of persons with intellectual disability would violate the Eighth Amendment’s prohibition on cruel and unusual punishments.  In so doing, the Court decided to “leave to the States the task of developing appropriate ways to enforce the constitutional restriction.” 

Different states have taken different procedural approaches to this matter, with Georgia’s process unique in requiring proof of disability beyond a reasonable doubt to a jury.  But this new local article suggest that Georgia is on the verge of changing this process, and here are the basics from the start of the article:

Georgia is the only state with the death penalty that requires defendants to prove beyond a reasonable doubt that they are intellectually disabled to be spared execution — a high legal standard that no one charged with intentional murder has cleared.

But that would change under a bill that is now sitting on Gov. Brian Kemp’s desk that would lower the standard of proof.

Advocates have pushed for the change for two decades, but a south Georgia lawmaker, Glennville Republican state Rep. Bill Werkheiser, was able to convince his colleagues that the state’s law was incompatible with the constitution’s prohibition against executing people who are intellectually disabled.

Werkheiser often pointed to a 2021 Georgia Supreme Court case where a judge wrote in a dissenting opinion that using the highest possible burden of proof increases the risk that someone with an intellectual disability is executed.

House Bill 123 lowers the standard of proof for proving someone has an intellectual disability to a preponderance of the evidence, ending Georgia’s outlier status as the only state that requires beyond a reasonable doubt.

The measure also creates a pre-trial hearing where a judge would focus only on the question of whether the defendant is intellectually disabled.  Today, a jury is determining whether a defendant is intellectually disabled at the same time they are hearing grisly details about the alleged crime and deciding the person’s guilt or innocence.