The Georgia Supreme Court is considering a challenge to the uniquely high burden of proof the state imposes on capital defendants and death-row prisoners to determine whether they are ineligible for the death penalty because of intellectual disability. On March 23, 2021, the court heard argument in a case brought by Rodney Young, a death-row prisoner who asserts that Georgia’s harsh standard unconstitutionally subjects defendants with intellectual disability to capital prosecution and possible execution.
Under Georgia law, a defendant who faces the death penalty must prove “beyond a reasonable doubt” that he or she is intellectually disabled. Georgia is the only state to employ this high burden of proof in death-penalty cases — the most onerous burden imposed by any state — and does not impose a comparably high burden on intellectually disabled individuals in assessing their eligibility for social services.
Young’s lawyers argue that the “beyond a reasonable doubt” standard is unmeetable and an “insurmountable hurdle.” “This court has before it a clear showing that it is not merely an unacceptable risk created by this standard of proof but a near certainty that persons with intellectual disability will be executed,” said Josh Moore, one of Young’s lawyers, during oral argument.
During the oral argument, Georgia Supreme Court justices inquired about two recent U.S. Supreme Court decisions that struck down excessively harsh standards other states had created for assessing intellectual-disability claims in death-penalty cases. In Hall v. Florida (2014) and Moore v. Texas (2017), the U.S. Supreme Court declared unconstitutional the definitions Florida and Texas employed for determining intellectual disability, saying that the standards deviated from accepted medical norms in a manner that placed some intellectually disabled individuals at risk of execution. “[B]oth [cases] say that they are meant to address the creation of an unacceptable risk that persons with intellectual disability will be executed,” Justice Charles Bethel said.
“The bottom line here,” Moore said of Georgia’s evidentiary burden for proving intellectual disability, “is that if the framework creates an unacceptable risk that persons with intellectual disability will be executed, it is unconstitutional. That’s exactly what we’re dealing with.”
In Hall, the Supreme Court ruled that Florida’s adoption of a strict IQ cutoff score of 70 before a defendant could be considered intellectually disabled unconstitutionally deviated from the accepted definition of intellectual disability, in which individuals with IQs between 70 – 75 are routinely diagnosed with intellectual disability if they have associated deficits in daily functioning. In Moore, the Court ruled that Texas’ emphasis on a defendant’s adaptive skills, rather than his or her deficits, and its use of lay stereotypes in assessing a defendant’s functioning also unconstitutionally deviated from the medical community’s approach to determining intellectual disability.
The medical community requires proof of each of the three elements of intellectual disability — significantly subaverage intellectual functioning, significant impairments in adaptive functioning, and onset during the developmental period — to a reasonable degree of diagnostic certainty, far below the “beyond a reasonable doubt” standard imposed in Georgia.
Young was convicted and sentenced to death in 2012, ten years after the Supreme Court ruled in Atkins v. Virginia that subjecting individuals with intellectual disability, then known as “mental retardation,” to execution violated the Eighth Amendment prohibition against cruel and unusual punishment. Young had been classified as “educable mentally retarded” and placed in special education classes. However, school records containing the results of intelligence testing had since been destroyed and jurors found that Young had not proven his disability beyond a reasonable doubt.
Since 1988 — when Georgia’s guilty but mentally retarded law was enacted — only one of 379 Georgia capital defendants has been determined to be intellectually disabled, according to a study published by Professor Lauren Sudeall at the Georgia State University College of Law. That case, the study noted, pre-dated Atkins and involved a felony murder in which the defendant was not accused of an intentional killing. The study found that there has never been a jury finding of guilty but mentally retarded in a case of “malice murder” or in any capital murder case post-Atkins.
“Intellectual disability is something that’s hard to pinpoint with precision,” Sudeall told the Atlanta Journal-Constitution. “So when you impose a standard this high it’s nearly impossible to meet.”
In January 2015, Georgia executed Warren Hill despite a finding by a trial judge and the unanimous agreement of experts for the state and the defense that he satisfied the medical definition of intellectual disability. However, in a 4 – 3 vote, the Georgia Supreme Court overturned the trial court’s determination, holding that Hill’s lawyers had failed to clear the evidentiary threshold of proof beyond a reasonable doubt. The state executed Kenneth Fults in April 2016 despite evidence of intellectual disability, including that he “functions in the lowest 1 percent of the population.”
Bill Rankin, High court to be asked to overturn intellectual disability threshold, Atlanta Journal Constitution, March 19, 2021; Bill Rankin, State high court considers burden of proof for intellectual disability, Atlanta Journal Constitution, March 23, 2021; Sara Totonchi, Georgia’s Unconstitutional Standard for Determining Intellectual Disability in Death Penalty Cases, American Constitution Society, March 20, 2020; Lauren Sudeall Lucas, An Empirical Assessment of Georgia’s Beyond A Reasonable Doubt Standard To Determine Intellectual Disability In Capital Cases, Georgia State University Law Review, Vol. 33, Issue 3, 2017.
