REAL COMMUNITIES: Intellectual Disability and the Death Penalty in Georgia

Leading up to the 2016 legislative session, a new coalition was formed to advocate for a bill that will change Georgia’s current standard of proof for proving intellectual disability from “beyond a reasonable doubt” to “preponderance of the evidence” in death penalty cases involving people with intellectual disabilities.

The Proof to a Preponderance of the Evidence (PAPE) Project is a coalition led by the Georgia Council on Developmental Disabilities (GCDD), Georgians for Alternatives to the Death Penalty (GFADP) and Georgia Catholics Against the Death Penalty. The PAPE Project grew out of GCDD’s partnership with GFADP as a part of the Real Communities Initiative.

Preponderance of the evidence, according to the Legal Information Institute, means that more than 50% of the evidence points to something. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence.

Of the 31 states that still have the death penalty, 22 states use the standard of “preponderance of the evidence,” five states use “clear and convincing,” three states do not specify a standard, and one – Georgia – has the standard of “beyond a reasonable doubt” for proving an intellectual disability to the courts. This standard is an extremely difficult legal obstacle, and Georgia is the only state with such a high standard placed on people with intellectual disabilities.

Because of the nature of diagnostic processes and necessary documentation needed to adequately prove intellectual disability, a standard of preponderance of the evidence is the only way to ensure that people with intellectual disabilities will not be executed.

In 1986, the State of Georgia executed Jerome Bowden, a man with intellectual disabilities. His execution caused such a backlash that Georgia was the first state to voluntarily ban the execution of people with intellectual disabilities in the state legislature in 1988. Unfortunately, the legislation was largely a symbolic gesture, as this was done by imposing the highest legal standard of proof onto individuals with intellectual disabilities to prove that they do have an intellectual disability “beyond a reasonable doubt.”

Fourteen years later in 2002, the Supreme Court ruled in Atkins v. Virginia that the execution of people with intellectual disabilities was a violation of the Eighth Amendment’s protection against cruel and unusual punishment. The Atkins decision left it up to individual states to decide the standard of proof they would use for determining an intellectual disability.

In 2014, the Supreme Court again revisited the issue of intellectual disability and capital punishment in Hall v. Florida. The decision stated that medical standards must support the state’s enforcement of Atkins protections. The court acknowledged that there is professional medical consensus as it relates to intellectual disabilities and it must guide state law.

Despite the Supreme Court rulings, Georgia continues to be an outlier with “beyond a reasonable doubt,” and as a result, continues to execute people with documented intellectual disabilities, most recently Warren Lee Hill in January of 2015.

GCDD and GFADP will be advocating for this issue in the 2016 General Assembly. Mark your calendars for GFADP’s annual advocacy day on February 9, 2016 at 9:00 am at Central Presbyterian Church across from the Georgia State Capitol. If you are interested in learning more about this issue, or would like to get involved in advocating for this important piece of legislation, contact Community Builder Dorinda Tatum with GFADP for more information: mailto: 404.749.6889. Register for Advocacy Days.

Caitlin Childs is the GCDD Real Communities organizing director.

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