STUDY: Juries Have Never Found Anyone Intellectually Disabled Under Georgia’s Insurmountable Standard of Proof

No death penal­ty jury has ever found a defen­dant charged with inten­tion­al mur­der to be inel­i­gi­ble for the death penal­ty under Georgia​’s intel­lec­tu­al dis­abil­i­ty law, accord­ing to a new empir­i­cal study pub­lished in Georgia State University Law Review. 

The study, by Georgia State Law Professor Lauren Sudeall Lucas, exam­ined 30 years of jury ver­dicts under the state’s Guilty But Mentally Retarded statute, which has the most oner­ous stan­dard in the nation for prov­ing intel­lec­tu­al dis­abil­i­ty. ​“Georgia is an out­lier,” Lucas says. It is the only state to require a cap­i­tal defen­dant to prove his or her intel­lec­tu­al dis­abil­i­ty beyond a rea­son­able doubt, and the only state to require that this deter­mi­na­tion be made at the same time that the jury is con­sid­er­ing the defendant’s guilt. 

“This study pro­vides, for the first time, an account­ing of how Georgia defen­dants have been unable to over­come the very high bur­den of estab­lish­ing intel­lec­tu­al dis­abil­i­ty before a jury at the guilt phase of a cap­i­tal tri­al — a find­ing that,” Lucas says, ​“has nev­er occurred in a case of intentional murder.” 

In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that defen­dants with intel­lec­tu­al dis­abil­i­ty — then known as men­tal retar­da­tion — can­not be exe­cut­ed. The rul­ing, how­ev­er, left states with dis­cre­tion in estab­lish­ing pro­ce­dures for deter­min­ing which defen­dants have intellectual disability. 

Some states respond­ed by adopt­ing prac­tices that made it more dif­fi­cult to prove intel­lec­tu­al dis­abil­i­ty. In two recent cas­es, Hall v. Florida (2014) and Moore v. Texas (2017), the Supreme Court struck down oth­er out­lier intel­lec­tu­al dis­abil­i­ty stan­dards that devi­at­ed from accept­ed clin­i­cal def­i­n­i­tions of intel­lec­tu­al dis­abil­i­ty. It has nev­er ruled on Georgia’s stan­dard of proof. 

To illus­trate the effect of Georgia’s out­lier prac­tice, Lucas explores the case of Warren Hill (pic­tured), whom Georgia exe­cut­ed in 2015 even though every men­tal health expert who had eval­u­at­ed Hill agreed he had intel­lec­tu­al dis­abil­i­ty. A state court judge found that Hill had proven his intel­lec­tu­al dis­abil­i­ty by a ​“pre­pon­der­ance of the evi­dence” (more like­ly than not), the stan­dard employed in near­ly every death penal­ty state. However, the state courts ruled that Hill had not proven his intel­lec­tu­al dis­abil­i­ty ​“beyond a rea­son­able doubt.” The U.S. Court of Appeals for the Eleventh Circuit upheld the use of that stan­dard, the U.S. Supreme Court declined to review the case, and Hill was executed. 

Lucas con­cludes, ​“The absence of a sin­gle jury find­ing of intel­lec­tu­al dis­abil­i­ty in an inten­tion­al mur­der death penal­ty case in the near­ly three decades of the statu­to­ry exemp­tion, and the absence of a sin­gle jury find­ing of intel­lec­tu­al dis­abil­i­ty in any mur­der case post-Atkins, leaves lit­tle ques­tion that Georgia’s statute has failed to pro­tect those with intel­lec­tu­al dis­abil­i­ty from exe­cu­tion as promised, and as required by the U.S. Constitution and Georgia constitution.”