Georgia committee hears HB 123 to change intellectual‑disability standard in capital cases

The Georgia House Judiciary Non‑Civil Committee held a hearing on House Bill 123, a measure that would lower the burden of proof for a defendant to show intellectual disability in capital cases and create a separate pretrial hearing to decide the issue, committee members and witnesses said.

Representative Werkheiser, the bill’s sponsor, told the committee that HB 123 "does two things." He said the bill would change "the standard of proof from beyond reasonable doubt to a preponderance of the evidence" and would require an early, separate hearing to determine whether a defendant has an intellectual disability before the guilt phase of a capital trial.

The change to the timing of the disability determination, Werkheiser and supporters said, is intended to avoid juror bias that can arise after jurors have seen graphic evidence in capital trials. "Capital punishment cases are very long and usually very gruesome," Werkheiser said, and an early determination would separate the factual question of disability from later mitigation and sentencing proceedings.

Maisie Lynn Gertin of the Georgia Association of Criminal Defense Lawyers told the committee that the state is an outlier in requiring a beyond‑a‑reasonable‑doubt burden for intellectual‑disability claims and that HB 123 "offers a reasonable means to address both" the proof standard and the procedure.

Wright Barksdale, district attorney for the Altmulgee Judicial Circuit, and Sheila Ross, representing prosecuting attorneys, both supported changing the standard of proof but strongly opposed the bill’s procedural changes. Barksdale said, "the procedural changes to this bill would all but kill the death penalty in the state." He described how an added pretrial hearing, additional trial phases and repeated appeals would prolong litigation and, in his view, make capital punishment effectively unworkable under current practice.

Ross said the litigation pathway created by the bill "has no exit ramp," allowing the same issue — whether a defendant is intellectually disabled — to be relitigated repeatedly at multiple stages: the pretrial judge, the jury at trial and in successive appeals. She warned the structure could lead to continuous, overlapping appeals and delays even when courts repeatedly reject the disability claim.

Committee members asked whether those procedural concerns could be addressed by narrowing the bill (for example, by preventing relitigation after an adverse pretrial ruling, as is done in federal and some state systems). Some members said they were open to changing only the burden of proof while removing the additional procedural steps.

The committee took no vote on HB 123 during the hearing. Earlier in the session the committee adopted its non‑civil judiciary rules by acclamation. The chairwoman encouraged stakeholders to meet with the bill’s author and committee leadership to try to reach compromises; the hearing ended early because committee members had to attend simultaneous Georgia Department of Transportation elections elsewhere.

The bill references a 2002 U.S. Supreme Court decision limiting execution of people with intellectual disability and would alter current Georgia practice on how those claims are decided and what proof is required. Supporters said the measure would align Georgia with other capital‑punishment states on proof standards; prosecutors said the combination of procedural changes and altered sentencing outcomes would make the death penalty infeasible in practice.

The committee indicated further work and negotiation will be necessary before any vote. No final legislative action on HB 123 occurred at the hearing.