Georgia Senate Passes Bill Lowering Legal Standard for Intellectual Disability for Capital Defendants; Sends Bill to Governor’s Desk

On March 31, 2025, the Georgia Senate, in a 53 – 1 vote, passed HB 123, send­ing the bill to Governor Brian Kemp’s desk to be signed. HB 123 pro­vides 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 the oth­er 26 states that still retain the death penal­ty. The near-unan­i­mous Senate vote comes on the heels of a unan­i­mous vote in the Georgia House of Representatives (172 – 0) in sup­port of the bill. Because of amend­ments made to the Senate ver­sion of the bill, the House was required to approve the leg­is­la­tion a sec­ond time, which it did with a 150 – 3 vote on March 31. When ini­tial­ly passed in the House, the bill received a stand­ing ova­tion and sup­port from state law­mak­ers who typ­i­cal­ly sup­port the use of cap­i­tal pun­ish­ment. Senator Brian Strickland, the bill’s spon­sor in the sen­ate, said that ​“every­one seemed to real­ly like this policy.”

The Southern Center for Human Rights applaud­ed the legislature’s actions, with exec­u­tive direc­tor Terrica Redfield Ganzy not­ing that ​“this change will put Georgia in line with twen­ty-six oth­er states that have pro­tec­tions for peo­ple with intel­lec­tu­al dis­abil­i­ty.” Ms. Ganzy also praised Representative Bill Werkheiser, one of the bill’s pri­ma­ry spon­sors for his efforts to pass this leg­is­la­tion. Rep. Werkheiser, fol­low­ing Senate vote, thanked his col­leagues for help­ing to get this bill through the ses­sion. ​“There were so many advo­ca­cy groups that joined along the way that were not only encour­ag­ing, but pro­vid­ed assis­tance in so many ways. It was a team effort from so many,” said Rep. Werkheiser. This was third con­sec­u­tive ses­sion in which this leg­is­la­tion was proposed.

In addi­tion to low­er­ing the stan­dard of proof for those assert­ing an intel­lec­tu­al dis­abil­i­ty claim, HB 123 crit­i­cal­ly changes the point at which a deter­mi­na­tion about the dis­abil­i­ty will be made. Juries in Georgia are cur­rent­ly asked to deter­mine whether an indi­vid­ual has an intel­lec­tu­al dis­abil­i­ty at the same point at which they deter­mine guilt or inno­cence. Rep. Werkheiser, who spon­sored this bill, explained the con­cern: ​“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.” The new pro­vi­sion allows evi­dence of intel­lec­tu­al dis­abil­i­ty to be pre­sent­ed in a pre­tri­al hear­ing and decid­ed by the judge. A find­ing of intel­lec­tu­al dis­abil­i­ty would mean the defen­dant would not be eli­gi­ble for a death sentence.

Under the bill’s pro­vi­sion, defense coun­sel must sub­mit evi­dence of intel­lec­tu­al dis­abil­i­ty to pros­e­cu­tors a min­i­mum of 60 days before pre­tri­al hear­ings com­mence. Prosecutors then face a 30-day dead­line to pro­vide cor­re­spond­ing dis­cov­ery mate­ri­als to the defense after receiv­ing such evi­dence. The bill also stip­u­lates that any­one found guilty and also found to have an intel­lec­tu­al dis­abil­i­ty under the new stan­dard and pro­ce­dures would be sen­tenced to either ​“life in prison or Life Without Parole (LWOP).” Following the vote, Rep. Werkheiser reflect­ed on the extend­ed devel­op­ment process, stat­ing: ​“This three-year jour­ney has cul­mi­nat­ed in leg­is­la­tion that pow­er­ful­ly demon­strates our com­mit­ment to bal­anc­ing mod­er­a­tion with jus­tice and wisdom.”

In 1988, Georgia became the first state to ban the death penal­ty for indi­vid­u­als found to be intel­lec­tu­al­ly dis­abled. The U.S. Supreme Court fol­lowed suit in 2002, in its rul­ing in Atkins v. Virginia that exe­cut­ing those with intel­lec­tu­al dis­abil­i­ty vio­lates the 8^th Amendment pro­tec­tion against cru­el and unusu­al pun­ish­ment. While estab­lish­ing this con­sti­tu­tion­al pro­tec­tion, the Supreme Court left states with the author­i­ty to deter­mine their own stan­dards for defin­ing intel­lec­tu­al dis­abil­i­ty. Georgia imple­ment­ed a more strin­gent require­ment than oth­er states: defen­dants must prove their intel­lec­tu­al dis­abil­i­ty ​“beyond a rea­son­able doubt.” Since its imple­men­ta­tion in 1988, no one charged with inten­tion­al homi­cide has suc­cess­ful­ly met this bur­den of proof to estab­lish intel­lec­tu­al dis­abil­i­ty. As recent as March 2024, the state exe­cut­ed Willie Pye, who was deter­mined by a state expert to have a ​“full scale IQ at 68.”

Gov. Kemp will have 40 days to sign the leg­is­la­tion into effect, or to veto the bill. If he does not sign the leg­is­la­tion with­in 40 days, it will go into effect automatically.