Georgia Death-Row Prisoner Asks Supreme Court to Strike Down Law That Evades Prohibition on Executing the Intellectually Disabled

Georgia death-row pris­on­er Billy Daniel Raulerson, Jr. (pic­tured) is ask­ing the U.S. Supreme Court to strike down a state law that, he argues, is per­mit­ting Georgia to uncon­sti­tu­tion­al­ly exe­cute indi­vid­u­als with Intellectual Disability. On March 27, 2020, the Court is sched­uled to con­sid­er whether to hear the case of Raulerson v. Warden and to review the con­sti­tu­tion­al­i­ty of Georgia’s evi­den­tiary require­ment that cap­i­tal defen­dants prove they are intel­lec­tu­al­ly dis­abled ​“beyond a rea­son­able doubt” before they are exempt­ed from execution.

In 2002, in Atkins v. Virginia, the U.S. Supreme Court declared that the exe­cu­tion of indi­vid­u­als with intel­lec­tu­al dis­abil­i­ty vio­lates the Eighth Amendment pro­scrip­tion against cru­el and unusu­al pun­ish­ment. While it has struck down sev­er­al oth­er state evi­den­tiary rules that had result­ed in the exe­cu­tion of some intel­lec­tu­al­ly dis­abled offend­ers, it has so far declined to inter­vene in cas­es chal­leng­ing Georgia’s strict bur­den of prov­ing intel­lec­tu­al dis­abil­i­ty. In 1988, Georgia became one of the first states in the nation to pro­hib­it the death penal­ty for the intel­lec­tu­al­ly dis­abled. Yet, 32 years lat­er, not a sin­gle defen­dant charged with inten­tion­al mur­der has been able to meet the state’s ​“beyond a rea­son­able doubt” bur­den of proof.

Raulerson filed his peti­tion chal­leng­ing that stan­dard on January 24, 2020, call­ing Georgia’s bur­den of proof an ​“out­lier” prac­tice that no oth­er state used in deter­min­ing intel­lec­tu­al dis­abil­i­ty and that Georgia itself did not use in any oth­er facet of intel­lec­tu­al dis­abil­i­ty law. Raulerson’s peti­tion drew friend-of-the-court sup­port in briefs filed by a coali­tion of dis­abil­i­ty rights orga­ni­za­tions and men­tal dis­abil­i­ty pro­fes­sion­als and by The Southern Center for Human Rights and the Roderick & Solange MacArthur Justice Center. Citing Cooper v. Oklahoma, a 1996 Supreme Court deci­sion that struck down a less­er ​“clear and con­vinc­ing evi­dence” stan­dard that Oklahoma required defen­dants to meet for prov­ing incom­pe­tence and Atkins’ absolute bar to exe­cut­ing the intel­lec­tu­al­ly dis­abled, Raulerson asked the Court to take his case and declare Georgia’s bur­den of proof unconstitutional.

In Cooper, the Court held that a ​“pro­ce­dur­al rule [that] allows the State to put to tri­al a defen­dant who is more like­ly than not incom­pe­tent” — and who there­fore can­not be tried at all — vio­lates due process. It lat­er declared in Hall v. Florida in 2014 that “[n]o legit­i­mate peno­log­i­cal pur­pose is served by exe­cut­ing a per­son with intel­lec­tu­al dis­abil­i­ty.” Even worse than Cooper, Raulerson says, Georgia’s pro­ce­dur­al rule allows the state to put to death a per­son who is more like­ly than not intel­lec­tu­al­ly dis­abled and who, under the Atkins deci­sion, is not eli­gi­ble for the death penal­ty in the first place. 

In a March 20 op-ed for the American Constitution Society blog, Sara Totonchi, the Southern Center’s Executive Director, pro­vid­ed three rea­sons why the time is now right for the Court to strike down Georgia’s intel­lec­tu­al dis­abil­i­ty stan­dard. She writes that the Court must act because: 1) under this stan­dard, there has not been a sin­gle find­ing of intel­lec­tu­al dis­abil­i­ty in Georgia in more than 30 years; 2) Georgia does not use such a high stan­dard of proof for intel­lec­tu­al dis­abil­i­ty in any oth­er con­text, such as schools or social ser­vices; and 3) both the Georgia Supreme Court and the state leg­is­la­ture have refused to act to change the standard. 

Georgia accepts a com­pre­hen­sive eval­u­a­tion or med­ical diag­no­sis of intel­lec­tu­al dis­abil­i­ty as suf­fi­cient for indi­vid­u­als to qual­i­fy for edu­ca­tion­al and social ser­vices reserved for the intel­lec­tu­al­ly dis­abled, Totonchi explains. Yet ​“when the stakes are the high­est” in death-penal­ty cas­es, she says, Georgia evades its con­sti­tu­tion­al oblig­a­tions by adopt­ing an ​“unat­tain­able stan­dard” that, in the words of one fed­er­al appeals judge, ​“demands a lev­el of cer­tain­ty that med­ical experts sim­ply cannot provide.”

Totonchi calls upon the Court to heed its own warn­ing that if states are allowed ​“to define intel­lec­tu­al dis­abil­i­ty as they wished, the Court’s deci­sion in Atkins could become a nul­li­ty, and the Eighth Amendment’s pro­tec­tion of human dig­ni­ty would not become a real­i­ty.” She points to the case of Warren Hill, ​“who every expert agreed … was intel­lec­tu­al­ly dis­abled,” as proof that Georgia has con­firmed the Court’s fears. Despite the uni­ver­sal pro­fes­sion­al agree­ment that he was intel­lec­tu­al­ly dis­abled, ​“Warren Hill could not prove his dis­abil­i­ty” beyond a rea­son­able doubt, she writes, and he was executed. 

Totonchi con­cludes: ​“The state of Georgia has exe­cut­ed an indi­vid­ual with intel­lec­tu­al dis­abil­i­ty, and it will do so again so long as it employs its uncon­sti­tu­tion­al stan­dard. The Court should grant cer­tio­rari in Raulerson and bring Georgia into com­pli­ance with the Constitution.”