Georgia House of Representatives Unanimously Passes Bill to Ease Threshold to Prove Intellectual Disability Ahead of Capital Trials

On March 4, 2025, the Georgia House of Representatives, in a 172 – 0 vote, unanimously passed HB 123, which would provide pretrial hearings for capital defendants to raise intellectual disability claims and would lower the standard of proof for those claims from “beyond a reasonable doubt” to a “preponderance of evidence,” in line with other the other 26 states that still retain the death penalty. The bill was originally introduced by Republican Representative Bill Werkheiser during Georgia’s last legislative session, just months ahead of the scheduled execution of Willie James Pye, and was voted out of committee in this session with the support from House Majority leader Chuck Efstration. Attorneys for Mr. Pye argued that he suffered from brain damage and intellectual disability, yet the courts held they could not prove that “beyond a reasonable doubt.” Mr. Pye was executed on March 20, 2024. The bill is now pending in the state Senate.

In 1988, Georgia became the first state to ban the death penalty for individuals with intellectual disability. The U.S. Supreme Court followed suit in 2002 when it held in Atkins v. Virginia that executing those with intellectual disability violates the 8^th Amendment protection against cruel and unusual punishment. With this decision, the Supreme Court allowed each state to set its own threshold for determining intellectual disability. The current threshold established in Georgia requires an individual to prove intellectual disability “beyond a reasonable doubt.” Georgia is the only state that retains this high burden of proof. Since Georgia established this standard in 1988, no one charged with an intentional homicide has met the burden of proof to prove intellectual disability.

In addition to lowering the standard of proof for those making an intellectual disability claim, HB 123 also ultimately changes the point at which a jury will hear evidence of that disability. At present, juries in Georgia are asked to determine whether an individual has an intellectual disability at the same point at which they determine guilt or innocence. Rep. Werkheiser explained the flaw in this process: “The problem is if you do it at the end of a trial, after a jury has seen two weeks of horrendous photos and images and stuff they wish they could unsee, it’s hard to say that a jury would be unbiased and may want to up the penalty.”

In hearings held in February 2025, local prosecutors and state district attorneys were split in their opinions of the bill’s two provisions. Some, including Randy McGinley of the Alcovy Judicial Circuit, opposed the bill because it would add more steps to the trial process, making capital punishment cases, in his opinion, “unmanageable.” Local prosecutors, however, support the reduction in the standard of proof required to show someone is intellectually disabled. While prosecutors claimed they do not seek the death penalty for individuals with intellectual disability, Southern Center for Human Rights senior attorney Michael Admirand testified that Georgia has executed prisoners whose intellectual disability remains disputed. Mr. Admirand argued that this bill addresses the risk of such executions occurring in the future.

In a speech ahead of the floor vote, Representative Esther Panitch said, “Executing an intellectually disabled person is not an act of justice, but a moral failure.” She said, “an intellectually disabled individual 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.”