March 20, 2020

Georgia’s Unconstitutional Standard for Determining Intellectual Disability in Death Penalty Cases

Sara Totonchi Executive Director of the Southern Center for Human Rights and member of ACS Georgia Chapter Board of Advisors

In 1986, the state of Georgia executed Jerome Bowden, a man with a full-scale IQ of 65. While Bowden was strapped to the electric chair, he thanked the prison for taking good care of him. State officials faced widespread criticism for the execution and vowed to ensure that the state would not execute a defendant with intellectual disability again. Two years later, the state passed a law prohibiting such executions.

It’s shocking to think that since the passage of the law 32 years ago, there has never been a single finding of intellectual disability at a trial involving intentional murder in Georgia. There is a simple reason for this: Georgia is the only state in the country that requires capital defendants to prove their intellectual disability beyond a reasonable doubt.

Long after Georgia enacted its law, the U.S. Supreme Court made clear in Atkins v. Virginia that the Eighth Amendment prohibits the execution of defendants with intellectual disability. However, Georgia’s unique standard means that, notwithstanding the Court’s decision in Atkins, the state still is doing just that. This unconstitutional practice has to stop. That is why our office, the Southern Center for Human Rights, along with the Roderick & Solange MacArthur Justice Center, filed an amicus brief in Raulerson v. Warden, No. 19-941, urging the Court to invalidate Georgia’s standard. As we explained in our brief, there are three primary reasons as to why the Court should declare Georgia’s statute unconstitutional.

First, there has not been a single finding of intellectual disability at trial in a case involving intentional murder in Georgia. In the words of one Eleventh Circuit judge, Georgia’s onerous statute “demands a level of certainty that medical experts simply cannot provide.” Because of this, capital defendants in Georgia do not have a meaningful opportunity to prove that they fall within the scope of Atkins.

Second, Georgia does not impose this standard for intellectual disability in any other context. For instance, in the education context, a student can be placed into special education as long as a comprehensive evaluation indicates intellectual deficits. In the social services context, an individual is eligible for disability services if she receives a diagnosis of intellectual disability. In both instances, the evaluation conforms with accepted medical standards. Georgia imposes an unattainable standard for proving intellectual disability only in the death penalty context—when the stakes are the highest.

Finally, it is clear that Georgia is not going to amend its statute to conform with the Constitution’s demands. The Georgia Supreme Court has repeatedly upheld the statute as constitutional. And the Georgia Legislature has consistently resisted efforts to change the standard, including as recently as 2018. Legislators have recognized that Georgia is an outlier, but nothing will change unless the Supreme Court intervenes.

The Court has warned that, if states are permitted “to define intellectual disability as they wished, the Court’s decision in Atkins could become a nullity, and the Eighth Amendment’s protection of human dignity would not become a reality.” Georgia has confirmed the Court’s fear. Warren Hill could not prove his disability, even though every expert agreed that he was intellectually disabled. Hill was executed. Willie Palmer could not prove his disability, even though he struggled to put his shoes on the correct feet. Palmer remains on death row. And Billy Raulerson also could not prove his disability, even though testimony at his trial indicated that he functions at the level of a 12-year-old. Raulerson is now at risk of execution.

The state of Georgia has executed an individual with intellectual disability, and it will do so again so long as it employs its unconstitutional standard. The Court should grant certiorari in Raulerson and bring Georgia into compliance with the Constitution.