House committee hears bill to change proof and timing for intellectual‑disability claims in Georgia capital cases

At a hearing of the Georgia House Noncivil Judiciary Committee, Representative Brett Werkheiser presented House Bill 123, which would change the standard of proof for claims that a defendant has an intellectual disability in capital cases from beyond a reasonable doubt to a preponderance of the evidence and require a separate pretrial determination of intellectual disability before the guilt phase.

The bill’s author, Representative Brett Werkheiser, told the committee the measure “does two things”: it lowers the burden of proof and moves the intellectual‑disability determination to a separate hearing before trial. Werkheiser said the change would align Georgia with other states and noted the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia, which held that executing people with intellectual disability violates the Eighth Amendment. He also said the bill would apply only to future cases, not to people currently on death row: “it does not open the avenue for anybody who is currently on death row,” Werkheiser said.

Maisie Lynn Gertin, speaking for the Georgia Association of Criminal Defense Lawyers, said Georgia is an outlier in requiring defendants to prove intellectual disability beyond a reasonable doubt and that combining the guilt and disability determinations in a single jury proceeding is prejudicial. “Georgia is the only state that requires proof beyond a reasonable doubt that a person is living with intellectual disability,” Gertin said, and she urged the committee to adopt both the lower proof standard and the pretrial procedure as drafted in HB 123.

Prosecutors and a district attorney who prosecuted recent capital cases said they generally would accept changing the burden of proof but strongly opposed the bill’s procedural changes. Wright Barksdale, district attorney for the Altmulgee Judicial Circuit, said the pretrial hearing and the bill’s new trial structure would add steps that could be repeatedly appealed and, in practice, “would all but kill the death penalty in the state.” Barksdale described the bill’s procedural scheme as adding an extra stage and additional appellate opportunities that, he said from his trial experience, would extend cases by years and increase litigation.

Sheila Ross, a prosecuting attorney who testified with Barksdale, told the committee the bill as drafted would create a “trifurcated proceeding” with no practical exit ramp for the state: if a defendant loses at the pretrial stage, Ross said, the litigation on the disability issue can continue through the jury phase and later appeals and habeas petitions. “There is no exit ramp,” Ross said; under the bill as drafted, she argued, the same issue could be litigated repeatedly by successive fact‑finders.

Witnesses described how the current Georgia practice typically handles intellectual‑disability claims during the same trial phase as guilt and noted existing plea practices. Ross and Barksdale both said prosecutors often negotiate pleas in close cases, which is one reason the state has rarely executed someone judged to have an intellectual disability.

The committee heard competing practical concerns: proponents said the bill would correct a unique and constitutionally fraught requirement in Georgia and prevent executing people with intellectual disability; opponents said the procedural structure would encourage repeated litigation, prolong cases, and in effect make the death penalty unworkable. Barksdale recounted statistics from his experience, saying there were “128 people on death row” in 1999 and that the state now has far fewer death‑row inmates; he also said only five death sentences have been rendered in Georgia since 2011.

The hearing concluded without a committee vote on HB 123. Committee leadership said time had run short and encouraged lawmakers and stakeholders to meet again with the bill’s author for further negotiation. No formal action was taken on the bill during the hearing.