A coalition of disability rights groups, legal experts, and conservative advocates are urging the U.S. Supreme Court to strike down the uniquely harsh burden of proof Georgia has imposed upon defendants seeking to establish their ineligibility for the death penalty because of intellectual disability.
In four friend-of-the-court briefs filed in late December 2021, two former U.S. solicitors general, eight former prosecutors and judges, seven leading disability rights organizations, scholars, and experts in intellectual disability, and a group of conservative legal reform advocates all urged the Court to declare unconstitutional Georgia’s requirement that capital defendants and death-row prisoners prove “beyond a reasonable doubt” that they are intellectually disabled. The filings came in the case of Rodney Young, a Georgia death-row prisoner long classified in school records as “mentally retarded” (the previous name for intellectual disability), who is challenging the requirement.
Under the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia, the execution of someone with intellectual disability violates the Eighth Amendment ban on cruel and unusual punishment. No other state requires capital defendants to prove intellectual disability beyond a reasonable doubt, and even Georgia does not impose a comparably high burden in assessing the eligibility of intellectually disabled individuals for social services. Since Georgia adopted the standard in 1988, neither Young nor any other defendant tried for intentional murder has ever been able to satisfy it.
Young’s lawyers and the friend-of-the-court briefs argue that Georgia’s law violates both the Court’s ruling in Atkins and his Fourteenth Amendment right to due process. Noting that the “beyond a reasonable doubt” standard is not imposed on the defendant in any other constitutional rights claim, Young argues that “Georgia is an extreme outlier … not only with respect to Atkins claims, but with respect to all of constitutional law.”
Georgia was the first state to pass a law exempting people with intellectual disability from the death penalty, and the author of the law says the high burden of proof was a drafting error. Jack Martin, one of the legislators responsible for drafting the bill, said in 2013, “I dropped the ball.… It was sloppy draftsmanship, pure and simple.” The bill was not intended to create a “beyond a reasonable doubt” standard but, Martin said, a key clause was put in the wrong place. “I don’t think anybody intended that to happen.”
The Amicus (Friend-of-the-Court) Briefs
In their amicus brief, filed on December 23, 2021, Charles Fried, U.S. Solicitor General under President Ronald Reagan, and Seth Waxman, U.S. Solicitor General under President Bill Clinton, wrote that the outcome of Young’s case has important implications for the rule of law. “Invalidating Georgia’s rule would not only eliminate an extreme and unconstitutional outlier but would also reaffirm several principles vital to the rule of law,” they wrote, “including that lower courts are obligated to follow this Court’s precedents irrespective of whether they think those precedents are correct or might be reconsidered and that procedural rules may not subvert substantive protections.” They point out that the consequence of a wrongful execution “is as grave and irreversible as can be,” while the consequence of imposing the available non-capital sentence — usually a sentence of life without parole — on someone who is almost but not quite ineligible to be sentenced to death “is modest.”
A group of eight former judges and prosecutors, in an amicus brief also filed on December 23, emphasized the historical purpose of the beyond-a-reasonable-doubt standard: “to preserve human life and liberty.” “Georgia’s unprecedented rule jarringly subverts the purposes the beyond-a-reasonable-doubt standard has served throughout its history,” they continue. “Rather than err on the side of protecting individual life and liberty, the Georgia rule errs on the side of death and virtually guarantees the execution of intellectually disabled individuals. Indeed, in the more than thirty years since the rule was created, not one capital defendant has persuaded a jury of his intellectual disability in a case of intentional murder.”
The individual signers of the brief included former Texas Court of Criminal Judge Elsa Alcala, whose reasoning was adopted by the Supreme Court in Moore v. Texas to strike down scientifically unjustifiable limitations on proof of intellectual disability imposed by Texas; former Florida Supreme Court Justice James E.C. Perry, whose reasoning was adopted by the Supreme Court in Hall v. Florida to strike down Florida’s use of a clinically invalid strict IQ cutoff of 70 to limit the individuals who qualified for a determination of intellectual disability; and former Georgia Supreme Court Justice Norman S. Fletcher, who dissented from the state’s pre-Atkins ruling in Jenkins v. State that initially upheld Georgia’s proof-beyond-a-reasonable-doubt requirement.
A third amicus brief, filed on December 27, 2021 by a group of disability rights organizations and experts, including the Disability Rights Legal Center and the National Disability Rights Network, described both the risk of jurors relying on unscientific assessments of intellectual disability and the disparity between Georgia’s burden of proof and the treatment of intellectual disability in other aspects of law. On the issue of juror understanding of intellectual disability, the brief explains, that Georgia judges “instruct[ ] jurors that a reasonable doubt ‘is a doubt based upon common sense and reason,’ [which] all but invites jurors to rely on lay perceptions of intellectual disability and lay stereotypes” such as those the Court already struck down in Moore to reject a defendant’s meritorious intellectual disability claim.
“Georgia allows jurors to find reasonable doubt by relying on one or more stereotypes about intellectual disability or on seemingly inconsistent diagnostic evidence, even though, under accepted clinical standards, such evidence could well support a diagnosis of intellectual disability,” the rights advocates wrote. Their brief also contrasts Georgia’s treatment of intellectual disability in death-penalty cases with its treatment in other situations. “Georgia does not require that intellectual disability be proven beyond a reasonable doubt in areas ranging from providing services for people with intellectual disability to determining limitations periods for medical-malpractice suits,” the experts say. “Only here — when a person’s life is at stake — has Georgia chosen to place ‘almost the entire risk of error’ on the person in need of the law’s protection.”
The fourth brief, filed by the Rutherford Institute, a conservative non-profit legal services organization dedicated to civil liberties and human rights, Conservatives Concerned About the Death Penalty, and Brett Harrell, a former Republican state legislator representing Georgia Conservatives Concerned About the Death Penalty, highlights the government overreach inherent in the Georgia law. Burdens of proof, they write, is one way “our legal system protects individual rights and liberties” and “serve to allocate the risk of error between the parties involved, … reflect[ing] a societal judgement about which party should bear that risk.” In criminal cases, they write, “the government typically bears the risk of error.”
In a capital case, their brief argues, “a wrongful execution is irreversible.” In such cases, risk of error “cannot be placed on the individual asserting his constitutional right not to be executed.” Without any compelling reason, and alone among the states, they conservative advocates write, “Georgia has departed from this allocation of risk. … This Court should welcome the opportunity to correct Georgia’s deeply consequential overreach.”
Adam Liptak, Language Mistake in Georgia Death Penalty Law Creates a Daunting Hurdle, New York Times, January 3, 2022.
Read the briefs filed in the U.S. Supreme Court in Young v. Georgia.
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