An Empirical Assessment of Georgia's Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases

• Publication year: 2017

An Empirical Assessment of Georgia's Beyond A Reasonable Doubt Standard To Determine Intellectual Disability In Capital Cases

Lauren Sudeall Lucas
Georgia State University College of Law

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AN EMPIRICAL ASSESSMENT OF GEORGIA'S BEYOND A REASONABLE DOUBT STANDARD TO DETERMINE INTELLECTUAL DISABILITY IN

CAPITAL CASES

Lauren Sudeall Lucas^*

Abstract

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment's prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty. More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability. Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants to prove their intellectual disability beyond a reasonable doubt at the guilt phase of the trial to be legally exempted from execution.

This article is the first to provide an empirical assessment of Georgia's "guilty but mentally retarded" (GBMR) statute, including its beyond a reasonable doubt standard of proof. In doing so, it fills a critical gap not only in the scholarly literature on the subject, but also for those who continue to litigate the issue. Its analysis reveals that no defendant facing the death penalty in Georgia has ever received a GBMR verdict for malice murder from a jury in the statute's nearly

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thirty-year existence. Prior to Atkins, only one capital defendant had ever received a GBMR jury verdict at trial, in a felony-murder case, by meeting this extremely high standard of proof, thus exempting herself from the death penalty.

The absence of any successful GBMR jury verdict in a malice murder case and the absence of any successful GBMR verdict in any capital case post-Atkins, in combination with Georgia's lone status in imposing such a procedure, all contribute to the argument that the beyond a reasonable doubt standard, and the jury's decision regarding intellectual disability in the guilt phase create, in the words of the Court, an "unacceptable risk" that capital defendants with intellectual disability will be executed in violation of the Eighth Amendment.

Introduction

In 2002, the United States Supreme Court declared in Atkins v. Virginia that the execution of people with intellectual disability¹ violates the Eighth Amendment's prohibition on cruel and unusual punishment.² In doing so, the Court expressly left the procedures to be used in identifying intellectual disability to the states.³ In the wake of Atkins, states developed varying standards for the definition of intellectual disability; the evidence that a sentencer may consider in making the determination whether a capital defendant is intellectually

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disabled; and the procedures, including the standard of proof, by which that determination must be made. Among those states, Georgia stands alone as the only state to require that a defendant claiming constitutional exemption from the death penalty based on intellectual disability, must prove that disability beyond a reasonable doubt at the guilt phase of a capital trial. This article provides, for the first time, an empirical assessment of Georgia's guilty but mentally retarded (GBMR) statute.

Part I provides an overview of the legal backdrop for this project. It reviews the history of the Georgia statute, its accompanying standard of proof, and the legal challenges posed to that standard in both state and federal court. It also highlights other cases suggesting that the following facts—that every other state has refused to adopt such a standard, that not one defendant in Georgia has ever met this standard in a case of malice murder, and that not one defendant has met the standard in any case following the Atkins decision—are highly relevant to an analysis of whether Georgia's GBMR statute violates the Eighth Amendment.

Part II introduces the empirical analysis of how capital defendants seeking an exemption on the basis of their intellectual disability in Georgia have fared under the "beyond a reasonable doubt" standard. It describes the immediate need for such a study, illustrated most poignantly by the Warren Hill case, the methodology used in conducting the analysis, and the results of the study. Based on this analysis, and on the best documentation obtainable, the study concludes that no defendant since Atkins has successfully proven to a jury in a capital trial that he meets the criteria for intellectual disability. Only one defendant in Georgia in the statute's nearly thirty-year history has been able to successfully prove before a jury that she is intellectually disabled beyond a reasonable doubt.

Part III explores in further detail cases in which the issue of intellectual disability was asserted at the trial level, to illustrate reasons why the Georgia statute has failed in practice to protect those with intellectual disability from the death penalty. Because it has become nearly impossible to prove intellectual disability to a jury at

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trial, Georgia's GBMR statute has created the unacceptable risk that defendants with intellectual disability will be executed in violation of the Eighth Amendment.

I. GBMR in Georgia: The Legal Landscape

The Georgia statute creating the procedure by which capital defendants with intellectual disability must prove an exemption from the death penalty, referred to herein as the GBMR statute, has been the subject of considerable litigation and public debate in its nearly thirty-year history. Part I.A provides historical background and an overview of the statute establishing that standard, and Part I.B summarizes the most recent legal challenges to Georgia's beyond a reasonable doubt standard. In Part I.C, the article provides some context as to the current climate regarding challenges to other state procedures used to determine intellectual disability in capital cases and provides a backdrop for why this study, demonstrating the overwhelming inability of capital defendants in Georgia to prove their intellectual disability beyond a reasonable doubt post-Atkins, is critical to the constitutional analysis of Georgia's statute.

A. History of the Georgia GBMR Statute

Although an outlier in imposing such a high standard of proof and in placing the determination of intellectual disability at the guilt phase of the trial, Georgia was also the first state to outlaw execution of people with intellectual disability.⁴ The statute was enacted in response to public outrage over the execution of Jerome Bowden, who had an intelligence quotient (IQ) of 59 and could not count to ten.⁵ The General Assembly opted to address the issue by tacking an additional option on to the list of possible pleas in Georgia Code section 17-7-131, which governs pleas of insanity and

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incompetency.⁶ As amended, the statute offers defendants the option to plead "guilty," "not guilty," "not guilty by reason of insanity" (NGRI), "guilty but mentally ill" (GBMI), and "guilty but mentally retarded" (GBMR).⁷ Upon receiving a verdict of GBMR, a capital defendant would receive a life sentence.⁸ Georgia's definition of intellectual disability adopted by the legislature closely tracked the definitions established by the American Psychiatric Association (APA) in the Diagnostic and Statistical Manual of Mental Disorders (DSM) and the manual published by the American Association on Intellectual and Developmental Disabilities (AAIDD) (formerly the American Association on Mental Retardation (AAMR)). With only slight variations, each definition outlines three criteria that must be met for a diagnosis of intellectual disability: (1) significantly sub-average intellectual functioning; (2) significant deficits in adaptive behavior; and (3) onset in the developmental period.⁹

One result of the decision to incorporate the issue of intellectual disability into this part of the Georgia Code—and, accordingly, into the finding of guilt—is that the same standard of proof was applied to the finding that a defendant is intellectually disabled. The statute requires a jury to find "beyond a reasonable doubt that the defendant is guilty of the crime charged and is mentally retarded."¹⁰

A year after the statute was enacted, in the case of Fleming v. Zant, the Georgia Supreme Court held that the execution of people with intellectual disability violated the Georgia constitution's prohibition on cruel and unusual punishment.¹¹ Son Fleming was tried prior to July 1, 1988, the effective date of the GBMR statute, but sought the benefit of the exemption from the death penalty, as a man with an

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intellectual disability. The Court announced the new constitutional rule under Georgia law as well as a procedure for those defendants, like Fleming, who were tried before the statute's enactment. Under the Court-created procedure, those defendants raising an intellectual disability argument in the post-conviction setting would only bear the lesser "burden of proving retardation by a preponderance of the evidence" before a jury.¹²

At Warren Hill's capital trial in 1991, his lawyers failed to raise the issue of his intellectual disability at trial. In post-conviction proceedings, Hill sought to use the procedure announced in Fleming to have his claim of intellectual disability determined under a preponderance of the evidence standard by a jury. The Georgia Supreme Court held in Turpin v. Hill that the standards set forth in Fleming were "not applicable to mental retardation claims raised in cases tried after the effective date of O.C.G.A. § 17-7-131(c)(3) and (j)" and required Hill to present his intellectual disability claim to the habeas court, subject to a beyond a reasonable doubt standard.¹³ Even though the Georgia...