For the third consecutive session, the Georgia House of Representatives is reviewing a bill seeking to provide better protections to capital defendants with intellectual disabilities. Currently, the state requires a defendant to prove “beyond a reasonable doubt” that they have an intellectual disability – the only death penalty state to have this unusually high standard. Introduced by a bipartisan group of legislators on January 27, 2025, HB 123 would lower the standard of proof required to a “preponderance of evidence” and provide future capital defendants with a pretrial hearing to evaluate intellectual disability claims.
In the past 20 years, no jury has found a defendant to be ineligible for the death penalty under Georgia’s intellectual disability law.
On February 6, 2025, Georgia’s House Judiciary Non-Civil Committee held a hearing on HB 123, which is sponsored by five Republicans1 and one Democrat2. “I believe it is incumbent upon the state to protect those who cannot protect themselves,” said one of the primary sponsors, Rep. Bill Werkheiser (R‑Glennville), who also emphasized that the prospective nature of this bill would not “open the floodgates” to the state’s more than 30 death row prisoners. During the hearing, T. Wright Barksdale III, the district attorney for the Ocmulgee District Attorney’s Office, expressed his support for changes to the standard of proof but opposed other changes outlined in the bill. DA Barksdale acknowledged that “a number of states have a different standard [in cases involving intellectual disabilities],” but said he opposed the “procedural changes” because they “would all but kill the death penalty in the state.” The hearing adjourned without a committee vote; past bills have failed to receive a committee vote before the session’s end3.
“I believe it is incumbent upon the state to protect those who cannot protect themselves.”
Although Georgia was the first state to pass a law exempting people with intellectual disabilities from the death penalty, it has continued to carry out executions of people with this condition more than 30 years later. Two years following the 1986 execution of Jerome Bowden, a Black man with an IQ of 65, the state passed a law prohibiting the execution of people with intellectual disabilities. This measure was enacted well before the U.S. Supreme Court’s 6 – 3 ruling in Atkins v. Virginia (2002), which found that executing people with intellectual disabilities was cruel and unusual punishment in violation of the 8th amendment. As recent as March of last year, the state executed Willie Pye, who was determined by a state expert to have a “full scale IQ at 68.”4
A recent article by The Atlantic Journal-Constitution highlights the decades-long wait times encountered by two death-sentenced prisoners with intellectual disability claims. Sentenced in 1986, Dallas B. Holiday, who has scored 69 and 70 on IQ exams, finally had his case reviewed in 2022 after 32 years of inactivity. Mr. Holiday was resentenced to life in 2024. Michael Miller, another death-sentenced prisoner with low IQ scores, continues to wait for the courts to hear his claim. John Marshall Law School Professor B. Michael Mears attributed the unusual delays in these cases to “Georgia penny-pinching” pay for defense attorneys representing indigent defendants beyond the initial stage of appeals.
Jennifer Peebles and Jozsef Papp, Forgotten and waiting to die: How Georgia left intellectually challenged men on death row for decades, The Atlantic Journal-Constitution, February 6, 2025; Ambria Burton, House committee hears legislation on pretrial hearings for death penalty for intellectually disabled, Georgia Public Broadcast, February 6, 2025; Jill Nolin, Georgia sets legal bar very high to shield intellectually disabled people from death penalty, Georgia Recorder, February 5, 2025; Georgia Moves Closer to Establishing Fair Process for Determining Intellectual Disability in People Facing Death Penalty, Southern Center for Human Rights, March 8, 2022;
