Changing burden of proof for proving intellectual disability in Georgia

In 2002, the U.S. Supreme Court ruled that executing those with intellectual disabilities was a violation of the eighth and fourteenth amendments’ protection against cruel and unusual punishment. The court left it up to individual states to develop standards for determining intellectual disability. Sadly, Georgia stands alone among all the states in requiring the highest burden of proof – beyond a reasonable doubt. As a result, individuals with intellectual disability have been executed, and are at risk of being executed again.

We continue to work to get legislation introduced in the Georgia General Assembly to change this burden of proof to “preponderance of the evidence.”

Background

  • Intellectual disability is a disability characterized by significant limitations in both intellectual functioning (which refers to general mental capacity, such as learning, reasoning, problem solving, etc.) and in adaptive behavior (the collection of conceptional, social, and practical skills that are learned and performed by people in their everyday lives), which covers many everyday social and practical skills. This disability originates before the age of 22. (American Association on Intellectual and Developmental Disabilities. http://aaidd.org/intellectual-disability/definition)
  • People often confuse intellectual disability with other common diagnoses and labels. ID is not mental illness, schizophrenia, bipolar depression, conduct disorders or other behavioral or mental health diagnoses.  It is not Fetal Alcohol Spectrum Syndrome (FAS/FAE); Autism Spectrum Disorder (Autism); Post Traumatic Stress Disorder (PTSD), Attention Deficit or Attention Deficit Hyperactivity Disorder (ADD or ADHD). People may have co-occurring disabilities, such as those listed, but having an intellectual disability must meet the specific diagnostic criteria of intellectual disability.
  • In 1986, Jerome Bowden, a man with intellectual disabilities, was executed in Georgia. This caused such a backlash that Georgia was the first state that voluntarily banned the execution of people with intellectual disabilities in 1988. This was 14 years before the Supreme Court ruled on the matter in Atkins v. Virginia.
  • In 2002, the United States Supreme Court ruled in Atkins v. Virginia that the execution of individuals with intellectual disabilities was a violation of the Eighth Amendment’s protection against cruel and unusual punishment.
  • The Court left it up to individual states to develop procedures for determining intellectual disability.
  • In the Supreme Court’s 2014 decision, in Hall v. Florida, the court ruled that medical standards must inform the state’s enforcement of Atkins The court acknowledged that there was professional medical consensus as it related to intellectual disability and this must guide state law.

Current Process in Georgia

  • Under the current process in Georgia, the prosecutor must persuade the jury of a defendant’s guilt beyond a reasonable doubt while the defendant must simultaneously prove and their intellectual disability beyond a reasonable doubt.
  • Juries trying these cases have the option of returning a verdict of guilty, not guilty, or guilty but with intellectual disability.
  • Georgia is the only state that requires the jury to make an intellectual disability determination at the same time as they are deciding guilt.
  • If found guilty but with intellectual disability, the death penalty is automatically off the table.
  • In Georgia post-Atkins, no defendant has been able to prove their intellectual disability beyond a reasonable doubt.
  • Hall v. Florida, the court ruled that medical standards must inform the state’s enforcement of Atkins The court acknowledged that there was professional medical consensus as it related to intellectual disability and this must guide state law.

Why This Change is Necessary

  • Georgia is the only state in the country that uses the most difficult standard of proof in order to meet the legal standard of Intellectual Disability (formerly called ‘mental retardation’), “Beyond a reasonable doubt.”
  • This standard is an extremely difficult legal obstacle to overcome, and Georgia is an outlier in requiring it.
  • “Preponderance of the Evidence” is the only way to ensure that people with intellectual disability are not executed.
  • Sound public policy would prioritize the protection of vulnerable people from wrongful execution.
  • Governor Kemp and the leadership in the legislature have the opportunity to do the right thing by changing this law.
  • the court ruled that medical standards must inform the state’s enforcement of Atkins The court acknowledged that there was professional medical consensus as it related to intellectual disability and this must guide state law.

What Other States Have Done

  • Capital punishment is currently authorized in 27 states, by the federal government and the U.S. military.
  • Of all the states that still have the death penalty, all but 2 (AZ, FL) use the standard of “Preponderance of the Evidence” at sentencing. (4 states are non-specified).
  • In recent years, New Mexico (2009), Illinois (2011), Connecticut (2012), Maryland (2013), New Hampshire (2019), Colorado (2020) and Virginia (2021) have legislatively abolished the death penalty, replacing it with a sentence of life imprisonment with no possibility for parole.
  • The Nebraska Legislature also abolished capital punishment in 2015, but it was reinstated by a statewide vote in 2016. Additionally, courts in Washington and Delaware recently ruled that the states’ capital punishment laws are unconstitutional.
  • In 2021, a bipartisan bill in Tennessee created a procedure by which death-row prisoners can obtain judicial review of claims that they are ineligible for the death penalty because of intellectual disability.
  • The court acknowledged that there was professional medical consensus as it related to intellectual disability and this must guide state law.