ATLANTA (AP) — Georgia makes it harder than any other state for an individual to prove they are legally exempt from the death penalty because of an intellectual disability. A bill that would change that is on track to become law after a yearslong push.
The Senate approved the measure 53-1 Monday, after receiving overwhelming support from both parties in the House earlier this month. It is set to go to Republican Gov. Brian Kemp’s desk.
In 1988, Georgia became the first state to outlaw the death penalty for intellectually disabled people. The U.S. Supreme Court followed in 2002, ruling that executing intellectually disabled people violates constitutional protections against cruel and unusual punishment.
But Georgia is the only state that requires individuals to prove beyond a reasonable doubt that they have an intellectual disability. Sponsored by Glennville Republican state Rep. Bill Werkheiser, House Bill 123 would lower that standard to a preponderance of evidence and alter trial procedures to ensure people get a fair chance to convince judges and jurors alike of their disability.
In multiple Georgia cases, lawyers have argued without success that their clients had intellectual disabilities. In some of them, judges said they may have succeeded if Georgia had changed its strict rules. One wrote that he would “embrace” efforts by lawmakers to do so.
In the House, Sandy Springs Democratic Rep. Esther Panitch called executing people with intellectual disabilities a “moral failure.”
“How we protect the most vulnerable and intellectually disabled individuals facing the death penalty is the ultimate test of our collective moral character, and I submit that we must choose compassion over retribution and understanding over punishment,” Panitch said.
An attempt to change the law last year failed. Soon afterward, the state executed Willie James Pye, whose IQ was low enough to indicate that he was intellectually disabled, according to his lawyers.
While opposing it in the past, district attorneys have said more recently that they are OK with changing the reasonable doubt standard. But some have balked at a couple of procedural changes included in the bill: one that adds a pretrial hearing to determine whether someone has an intellectual disability, which is mandatory if prosecutors agree to it; and another that establishes a separate process in a trial for determining whether someone is guilty and has an intellectual disability.
Most states have these options. Lawyers say changing the reasonable doubt standard won’t stop intellectually disabled people from getting the death penalty unless it is paired with procedural changes. Separate processes would ensure jurors can evaluate whether someone is intellectually disabled objectively, without being influenced by the evidence of the crime the person committed, the lawyers say.
Prosecutors say the bill would make it too difficult to pursue the death penalty and stop the practice altogether. They said lawmakers should just ban the death penalty if that is their ultimate aim.
But at a recent Senate Judiciary committee meeting, T. Wright Barksdale III, district attorney for the Ocmulgee Judicial Circuit in central Georgia, acknowledged the bill was likely going to pass regardless of whether he liked it so he asked for changes instead.
The final bill, which Werkheiser said will likely get House approval, requires the defense to provide prosecutors with their evidence of intellectual disability no later than 60 days ahead of the pretrial hearing. Within 30 days of receiving that, prosecutors have to provide the defense with discovery for that hearing. It also adds the option for people to receive sentences of life without parole instead of the death penalty, instead of just a life sentence.
Meanwhile, lawmakers on both sides remained enthusiastic about the bill, with a Senate committee tweaking it so it would go into effect immediately and apply to all pending cases.
“It’s been a three-year process, but I feel like it sends a huge message and balances moderation with justice and wisdom,” Werkheiser said after the vote.
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Kramon is a corps member for The Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues. Follow Kramon on X: @charlottekramon.
