Georgia committee hears bill to lower proof standard, shift timing of intellectual-disability determinations in capital cases

Representative Werkheiser introduced House Bill 123 during a Noncivil Judiciary Committee hearing, saying the bill would change how Georgia determines intellectual disability in capital cases by lowering the standard of proof and moving the disability determination to a separate pretrial hearing.

"It changes the standard of proof from beyond, resonant beyond reasonable doubt to a preponderance of evidence," Werkheiser said, and he added the bill "does not open the avenue for anybody who is currently on death row." He told the committee the U.S. Supreme Court in Atkins v. Virginia (2002) found executing people with intellectual disability violates the Eighth Amendment, and said Georgia remains an outlier by keeping the higher proof standard and a combined proceeding.

The Georgia Association of Criminal Defense Lawyers testified in support. Maisie Lynn Gertin said HB 123 addresses both the standard of proof and the procedure for resolving intellectual-disability claims, arguing the current practice of asking jurors to decide disability at the same time as guilt can be "confusing" and "prejudicial." Gertin said the bill would bring Georgia into alignment with other jurisdictions on procedure and proof.

Opposing witnesses representing prosecutors said they are willing to accept lowering the proof standard but strongly object to the procedural changes that would create a separate pretrial hearing and a trifurcated trial structure. Wright Barksdale, district attorney for the Altmulgee Judicial Circuit, said the procedural provisions "would all but kill the death penalty in the state," arguing that additional pretrial rulings and interlocutory appeals would prolong litigation and often end capital prosecutions before trial.

Prosecutor Sheila Ross told the committee she is concerned the bill "has no exit ramp" for repeated litigation on the same intellectual-disability claim: if a defendant loses in a pretrial hearing, the bill as drafted would still allow subsequent challenges at trial and in postconviction proceedings, potentially leading to repeated litigation of the same issue over many years.

Committee members asked whether limiting further litigation after an adverse pretrial ruling would be constitutional; witnesses noted other jurisdictions (federal courts and California were cited) use pretrial determinations that can be final on the issue, but defenders said defendants should still be able to raise intellectual disability in mitigation before a jury.

Witnesses also disputed the numbers and practical effects cited by each side. Barksdale said death sentences in Georgia have fallen in recent decades and argued prosecutors already exercise restraint in seeking death. Defense witnesses and the bill sponsor said the bill would narrow the risk of executing someone with intellectual disability and make case handling more efficient for the relatively small number of capital cases where the issue arises.

No committee vote on HB 123 was recorded; the hearing was for testimony only. Earlier in the session the committee adopted its noncivil judiciary committee rules by acclamation.

The committee chair indicated more work was expected and encouraged meetings between the bill author, prosecutors and supporters to negotiate changes before the committee takes further action.