The Death Penalty Standard That Won't Die: the Georgia Supreme Court Maintains the Highest Possible Standard of Proof for the Mentally Disabled

• Publication year: 2022

The Death Penalty Standard that Won't Die: The Georgia Supreme Court Maintains the Highest Possible Standard of Proof for the Mentally Disabled

Alyssa LeDoux

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The Death Penalty Standard that Won't Die: The Georgia Supreme Court Maintains the Highest Possible Standard of Proof for the Mentally Disabled

Alyssa LeDoux^*

I. Introduction

Several serious issues arise when applying the death penalty to the mentally disabled. First, the social purposes served by the death penalty, retribution and deterrence, are questionable when it comes to the mentally disabled.¹ Retribution by execution is reserved for those at the highest level of culpability or the highest level of conscious and depraved guilt.² Likewise, execution is viewed as an effective deterrent on cold calculus that is not found in individuals with a mental disability.³

Second, challenges the disabled face, such as the tendency to falsely confess, the lesser ability to present a persuasive showing of mitigating factors, the lack of visible remorse, the inability to effectively assist their counsel, and others, compromise effective litigation and expose the

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mentally disabled to a higher risk that the death penalty will be imposed erroneously.⁴

For Georgia, Young v. State⁵ is the most recent case dealing with executing the mentally disabled, adding to what has been a divisive stream of caselaw since the early 70s. Georgia mandated the protection of the mentally disabled early on but imposed the highest standard possible to prove that disability.⁶ Over the decades, jurisprudence from the Supreme Court of the United States has made maintaining this standard difficult, but the divided Georgia Supreme Court has held firm.

II. Factual Background

Rodney Young broke into his ex-girlfriend's home, bound her son, Gary Jones, to a chair and beat him to death with a hammer and butcher knife, leaving his skull fractured, his eye out of socket, and his body lying in a pool of glass and blood.⁷ He was tried and convicted, and in his defense Young claimed guilty but mentally disabled—which would, if found to be true, disqualify him for the death penalty.⁸ The jury, however, was not convinced and convicted Young of murder aggravated by burglary and outrageous, inhumane torture showing Young's depravity of mind.⁹ The jury sentenced Young to death.¹⁰

In Georgia, to be found exempt from the death penalty due to mental disability, the defendant needs to establish that mental disability "beyond a reasonable doubt."¹¹ On appeal to the Georgia Supreme Court, the court reviewed Young's presented testimony from staff at his old high school showing he struggled in high school with academics and sports and attended special education.¹² Young argued in his appeal that the standard of proof, beyond reasonable doubt, is unconstitutionally high and contradicts recent Supreme Court of the United States's decisions meant to protect all mentally disabled from execution.¹³ The Georgia Supreme Court affirmed Young's convictions and reinforced the ruling that currently stands in Georgia: the Georgia Constitution does not

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preclude requiring the mentally disabled to prove their disability beyond reasonable doubt.¹⁴

III. Legal Background

Criminal prosecution always bears a margin of error that risks either letting the guilty go free or the innocent pay for a crime they did not commit.¹⁵ The Fifth¹⁶ and Fourteenth¹⁷ Amendments to the United States Constitution reflect the preference for the former—that no individual should lose their liberty unless the prosecution has convinced the factfinder of the individual's guilt.¹⁸ The risk of convictions relying on error is protected against by the requirement that the government prove guilt "beyond a reasonable doubt," the highest standard of proof, for all criminal proceedings.¹⁹ Beyond a reasonable doubt indicates that the factfinder should feel the highest degree of confidence in the conviction as opposed to feeling it is either more than likely or just possible.²⁰

In addition, the Eighth Amendment²¹ declares that no cruel or unusual punishments shall be inflicted.²² The U.S. Supreme Court in Weems v. United States²³ defined cruel and unusual to include usual punishments dealt out excessively or disproportionately to the offense; the law limits

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cruelties in both degree and kind.²⁴ Specifically, the Court held that the death penalty in itself is not cruel or unusual but can be if applied to inappropriate circumstances.²⁵

A. A Need for Change

In the 1950s, a change in society's views on criminals began to spread nationwide.²⁶ Awareness of biological, social, and environmental influences revealed that criminal activity is sometimes less culpable, which put into question the deterrent and moral value of the death penalty.²⁷ At the same time, racial disparity in those being executed became glaringly evident, which confirmed that the kind of arbitrary error the Constitution is against was indeed occurring.²⁸ The U.S. Supreme Court's decision in Gregg v. Georgia²⁹ held that the death penalty is constitutional so long as states include ways to ensure imposition is never arbitrary or capricious.³⁰ Gregg's qualification for

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states required courts lower the risk by taking mental disability into account when considering the death penalty.³¹

B. Legislative and Judicial Response

A decade later, the public was outraged by the execution of Jerome Bowden, a convict from Georgia with an IQ of sixty-five.³² The jury convicted Bowden of murder aggravated by armed robbery, aggravated assault, and burglary.³³ Bowden's IQ tested at fifty-nine as a teenager and testimony revealed limited mental abilities throughout his life.³⁴ Public backlash demonstrated serious societal discomfort with the state executing someone who appeared so clearly mentally disabled, which caused Georgia to become the first state to outlaw execution of the mentally disabled in 1988.³⁵ Other states followed suit and the Anti-Drug Abuse Act of 1988 (the Act)³⁶ included a national standard barring the death sentence for certain mentally disabled people.

In 1989, the U.S. Supreme Court addressed the death sentence for the mentally disabled for the first time since the Act.³⁷ The defendant, Johnny Penry, had the mental age of a six-year-old and the learning ability of a nine or ten-year-old, and was sentenced to death for beating, raping, and stabbing Pamela Carpenter in Texas.³⁸ Penry was diagnosed as a child with organic brain damage and had an IQ somewhere between fifty and sixty-three, which manifested in substantial difficulty learning as a child.³⁹ Doctors testified that at the time of the crime his mental disability made it virtually impossible for him to understand the

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wrongfulness of his actions or to conform them to the law.⁴⁰ A jury sentenced Penry to death.⁴¹ Despite proof of organic brain damage, the Court held it was not enough to constitute cruel and unusual punishment simply because he was mentally disabled, and affirmed his sentence.⁴²

The same year the U.S. Supreme Court held in Penry v. Lynaugh⁴³ that the U.S. Constitution did not protect the mentally disabled from the death penalty, the Georgia Supreme Court held in Fleming v. Zant⁴⁴ that while the federal Constitution (and caselaw at the time) represented the minimum protection states must afford their citizens, the Georgia Constitution could offer more.⁴⁵ Additionally, the Georgia court stated that the new state legislation in Georgia was the clearest evidence of a consensus in Georgia that executing the mentally disabled does not contribute to the acceptable goals of capital punishment.⁴⁶ Son Fleming had been sentenced to death for murdering a police officer, but Fleming had previously applied for and been granted social security disability benefits for psychosis and organic brain damage.⁴⁷ The Fleming case, the first claim of guilty but mentally disabled death penalty case since the new Georgia legislation, prevented the execution of Fleming, holding that he was protected from cruel and unusual punishment as newly stated under the Georgia Constitution.⁴⁸

C. A New Standard

In 2002, the U.S. Supreme Court tackled the Penry question again—whether execution of a mentally disabled individual qualified as cruel and unusual punishment.⁴⁹ Daryl Atkins was sentenced to death after his conviction for abduction, armed robbery, and capital murder.⁵⁰ Atkins and his associates abducted Eric Nesbitt at gunpoint and forced him to withdraw cash from an automated teller machine before shooting him to

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death.⁵¹ The forensic psychologist found Atkins mildly mentally disabled with an IQ of fifty-nine.⁵² The Court in Atkins v. Virginia fully acknowledged the dramatic social and legislative current that had developed over the years and held that these less culpable individuals neither deserved this serious retribution nor would be effectively deterred by it.⁵³ The Court ruled that due to the "gravity of the concerns expressed by dissenters, and in the light of the dramatic shift in the state legislative landscape[,]" taking the life of mentally disabled person is categorically prohibited.⁵⁴

Georgia courts were heavily involved in the evolution leading up to Atkins while simultaneously wrestling with their own state resolutions. However, upon the prohibition in Atkins, neither the Georgia legislature nor judiciary made any procedural changes regarding the guilty but mentally disabled plea.⁵⁵ Georgia is the only state to set this high of a standard of proof in this context and the only one to have the jury consider mental disability for these purposes in tandem with the consideration of the defendant's guilt.⁵⁶ The law states that the jury should find "beyond a reasonable doubt that the defendant is guilty of the crime charged and is with intellectual disability."⁵⁷ In 2013, advocates demanded a change and presented at an informational hearing to the House Judiciary...