Georgia House Considers Bill to Provide Pretrial Hearings to Identify Capital Defendants with Intellectual Disability

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. 

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. 

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 8^th 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.