House committee hears legislation on pretrial hearings for death penalty for intellectually disabled

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On Tuesday, Rep. Bill Werkheiser (R-Glennville) introduced legislation to the House Judiciary Non-Civil Committee that would provide pretrial proceedings in death penalty cases when the accused has an intellectual disability.

Georgia law defines intellectual disability as "having significantly subaverage general intellectual functioning resulting in or associated with impairments in adaptive behavior which manifested during the developmental period."

Werkheiser noted during the hearing that in 2002, the Supreme Court said it violated the 8th amendment of the Constitution to execute someone with intellectual disability because it was cruel and unusual punishment.

Georgia is about the only state in the country to continue to do so.

"Since we [Georgia] have done that more than once," he said. "One such instance was in 2015 when it was unanimous between the defense and the prosecution that the person had an intellectual disability. It rose to the level of the Supreme Court as all capital cases do, and one of the justices said until the legislature fixes this, we have no choice. So they did execute that individual."

"I believe it is incumbent upon the state to protect those who cannot protect themselves," he added.

House Bill 123 would change the standard of proof from beyond reasonable doubt to a preponderance of evidence.

The legislation would also determine the issues of intellectual disability before the case and a hearing before the trial.

"The reason for that is capital punishment cases are very long and usually very gruesome, and after hearing weeks of testimony and seeing images that most people wish to unsee, there's a bias there," Werkheiser explained to the committee. "So then the determination is whether that person has ID (intellectual disability) or not, when in reality either you have ID or you don't.

"And so the argument is made that you have that hearing at the beginning of the trial as to whether someone has ID or not, and then you did the case," he added.

Werkheiser emphasized that the legislation would not "open the floodgates" for anybody currently on death row but would apply to future cases.

T. Wright Barksdale III, the district attorney for the Ocmulgee District Attorney's Office, stated during the hearing that he opposed everything in the bill besides changing the standard of proof.

Barksdale, who was the DA that prosecuted the two most recent death penalty cases in Georgia, emphasized that nobody with intellectual disabilities has been put to death in the state of Georgia and that the legislation threatens the future of the death penalty in the state.

"The district attorney's office is willing to agree to have the standard of proof changed," he said. "We recognize that a number of states have a different standard than what we currently have. However, understand this: the procedural change to this bill would all but kill the death penalty in the state."

The committee hearing was adjourned without a vote from the committee.