Georgia set to ease strict rules for proving intellectual disability in death penalty cases

ATLANTA - Georgia is poised to ease the nation’s toughest standard for proving intellectual disability in capital cases, with a bill heading to Gov. Brian Kemp’s desk after overwhelming bipartisan support in both chambers of the legislature.

SEE ALSO: Georgia lawmakers consider easing one of the nation’s toughest death penalty laws

What we know:

The Senate passed House Bill 123 in a 53-1 vote Monday, weeks after the House approved it with strong backing from both parties. 

The final version of the bill includes new deadlines and disclosure requirements. Defendants must provide notice and evidence of intellectual disability at least 60 days before the pretrial hearing. Prosecutors then have 30 days to share their discovery materials for that hearing. The bill also clarifies that life without parole — not just life imprisonment — may be considered as a sentencing alternative.

What they're saying:

Sponsored by Republican Rep. Bill Werkheiser of Glennville, the bill lowers the burden of proof for defendants claiming intellectual disability from "beyond a reasonable doubt" to "a preponderance of the evidence" — aligning Georgia with every other state in the country.

"It’s been a three-year process, but I feel like it sends a huge message and balances moderation with justice and wisdom," Werkheiser said following the vote.

Defense attorneys and advocates say these reforms are essential. They argue that without changes to trial procedures, easing the burden of proof alone won’t prevent wrongful executions.

In multiple Georgia cases, defense lawyers have unsuccessfully argued their clients were intellectually disabled. Judges in some of those cases acknowledged the defendants might have prevailed under a less stringent standard. One judge wrote that he would "embrace" legislative changes to the law.

Sandy Springs Democratic Rep. Esther Panitch called executing people with intellectual disabilities a "moral failure."

"How we protect the most vulnerable and intellectually disabled individuals 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," Panitch said during House debate.

The other side:

Prosecutors who oppose the bill say lawmakers should simply ban capital punishment outright if that is their ultimate goal.

At a recent Senate Judiciary Committee hearing, T. Wright Barksdale III, district attorney for Georgia’s Ocmulgee Judicial Circuit, said he expected the bill to pass regardless of his position. Instead, he pushed for specific revisions.

Dig deeper:

Georgia was the first state to ban the execution of intellectually disabled people in 1988. The U.S. Supreme Court followed in 2002, declaring such executions unconstitutional. But Georgia remains the only state that has required defendants to meet the highest standard of proof — beyond a reasonable doubt — to show they are exempt from capital punishment due to intellectual disability.

The backstory:

House Bill 123 also introduces procedural changes designed to give defendants a more equitable chance to prove their disability. These include a pretrial hearing to assess intellectual disability, mandatory if prosecutors agree, and a separate phase during trial for jurors to consider whether the defendant is intellectually disabled, apart from determining guilt.

An effort to change the law failed last year. Not long after, the state executed Willie James Pye, whose attorneys argued his low IQ indicated an intellectual disability.

While many prosecutors had long resisted such reforms, some have recently softened their stance on changing the burden of proof. Still, concerns remain. Opponents argue the procedural revisions — particularly the pretrial hearing and the bifurcated trial process — could make it too difficult to pursue the death penalty at all.

What's next:

If signed by Gov. Kemp, the bill would mark a historic shift in how Georgia handles capital cases involving intellectually disabled defendants — and bring the state in line with national legal standards.

A Senate committee amendment ensures the law will take effect immediately and apply to all pending cases.