Lauren Sudeall Lucas, associate professor of law and faculty director of the Center for Access to Justice, testified Thursday, Feb. 22, before a subcommittee of the House Judiciary Non-Civil Committee regarding HB 768, which pertains to the standard and procedure for determining intellectual disability in capital proceedings.
Lucas will discuss why Georgia’s existing standard is likely unconstitutional under governing Supreme Court law and other issues it entails.
“I am heartened to see that the Legislature has decided to take up the issue this session,” Lucas said. “Georgia’s standard and procedure for determining intellectual disability in capital cases has made it an outlier. Making necessary changes to Georgia’s statute will ensure going forward that the state does not unconstitutionally execute anyone who is in fact intellectually disabled.”
Lucas addressed the issue in her article “An Empirical Assessment of Georgia’s Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases,” published in the Georgia State University Law Review Spring 2017 issue (Vol. 33, No. 3). The article, based on a study done by Lucas with research assistance from Jobena Hill (J.D./M.B.A. ’19), Daniel Richardson (J.D. ’16), and Kaitlyn Welch Nigro (J.D. ’15), is the first to offer empirical evidence of how Georgia’s statute has applied in practice.
The study, which reviewed cases starting with when Georgia’s GBMR (“guilty but mentally retarded”) statute took effect in 1988, revealed that only one defendant in a capital case has ever received a GBMR verdict from a jury. Since the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia, which held that executing a person with intellectual disability violates the Eighth Amendment, no capital defendant in Georgia has received such a jury verdict.
In Atkins, the Court left to individual states the question of which procedures should be applied to determine who qualifies as intellectually disabled for purposes of exemption from the death penalty.
“But, the Supreme Court has also made clear in its more recent cases that certain state procedures violate Atkins’ holding,” Lucas said. “The Court’s 2014 decision in Hall v. Florida and its 2017 decision in Moore v. Texas held that rules creating an ‘unacceptable risk’ that someone with intellectual disability will be executed are unconstitutional. I believe the findings in my article provide strong support for the argument that Georgia’s current standard creates such a risk.”
The bill before the committee replaces the ‘beyond a reasonable doubt’ standard with a ‘clear and convincing standard’ in some instances, which is an improvement, Lucas said, but the constitutionality of a ‘clear and convincing’ standard is still unclear.
“Georgia would still remain in the minority by imposing such a standard – only three other states use a ‘clear and convincing standard’ at sentencing, which essentially means that a defendant must prove that he is substantially more likely than not to be intellectually disabled.”
Adopting a clear and convincing standard to prove intellectual disability would allow Georgia to execute a defendant who was more likely than not intellectually disabled, triggering both due process and Eighth Amendment concerns, Lucas said.
In addition, Lucas points out that under current law, Georgia is also alone in requiring consideration of intellectual disability during the guilt phase of trial, which raises additional constitutional issues.
“For the jury to consider both issues at the same time not only departs from accepted clinical standards, but also creates a risk that evidence concerning the capital crime will distort the jury’s decision on intellectual disability when it really has no bearing on that question,” she said. “Thus, the same danger is present that defendants who are intellectually disabled may be executed in violation of the Constitution.”
Lucas will propose that the committee adopt the bill’s recommendations for changing the time and manner in which intellectual disability can be raised, change the standard imposed in evaluating such claims, and adopt a preponderance of the evidence standard in all instances to avoid additional constitutional issues.