(Georgia Recorder) — A proposal designed to minimize the potential that Georgia executes someone with an intellectual disability unanimously advanced out of a House committee Wednesday.
The bill faced opposition from district attorneys opposed to the creation of a new pre-trial hearing focused solely on whether a defendant is intellectually disabled – an additional step that they argued would bog down an already lengthy process.
Today, juries determine whether a defendant is intellectually disabled at the same time they are deciding whether the person is guilty or innocent.
“The problem is if you do it at the end of a trial, after a jury has seen two weeks of horrendous photos and images and stuff they wish they could unsee, it’s hard to say that a jury would be unbiased and may want to up the penalty,” said Glennville Republican state Rep. Bill Werkheiser, the bill’s sponsor.
District attorneys who spoke to lawmakers Wednesday and at an earlier hearing objected to adding another step to the trial process, which usually precedes years of appeals.
“I think, as district attorneys, our job is to follow the law. If there’s available punishments and it’s appropriate in that case after reviewing the facts, to seek even the most severe punishment, then it’s our job to do that,” said Randy McGinley, district attorney of the Alcovy Judicial Circuit.
“But if we’re here to make the death penalty something so unmanageable to even seek … then just repeal it, make it not an option,” he said.
Rep. Tyler Paul Smith, a Bremen Republican who chairs the House Judiciary Non-Civil Committee and who is a co-sponsor of the bill, pushed back on that interpretation of what the bill does.
“I don’t think this bill does away with the death penalty as a whole. I think it aims to do away with it for those with intellectual disabilities,” Smith said.
Smith also said to McGinley: “This bill didn’t come about because of good prosecutors like you.”
Local prosecutors have, however, embraced another change in the bill that would lower the high legal bar that Georgia has set for proving someone is intellectually disabled. Georgia is the only state that requires defendants to prove beyond a reasonable doubt – which is the highest threshold possible – that they are intellectually disabled.
Georgia became the first state with the death penalty to ban the execution of intellectually disabled defendants when it passed a law in 1988, which was well ahead of a U.S. Supreme Court ruling that said executing someone who is intellectually disabled amounted to cruel and unusual punishment.
But in the nearly four decades that have passed, no one charged with intentional murder has succeeded in clearing that high bar.
The district attorneys who fought the bill said this is because prosecutors are not seeking the death penalty for people who are intellectually disabled. But over the years, there have been inmates executed in Georgia whose intellectual capacities are still being hotly debated, including as recently as last year.
“We can debate that until we’re blue in the face,” Michael Admirand, staff attorney with the Southern Center for Human Rights. “I think the question for this committee isn’t whether or not we have. It’s whether there’s too high a risk that we will, and this bill would ensure that we don’t.”
The bill received a boost Wednesday from Majority Leader Chuck Efstration, a Mulberry Republican who made the motion that advanced the bill out of committee for the first time in the string of efforts over the years to pass a similar bill.
“It was a very loud unanimous ‘yes’ that ended with an applause from the committee members, and I don’t know if I’ve seen that before,” Werkheiser said after the vote.
The bill, which now heads to the gatekeeping rules committee, would not apply to anyone already on death row. Bills have until March 6 to clear at least one chamber to have the clearest path to becoming law.
