Unacceptable Risk: the Failure of Georgia's "guilty but Intellectually Disabled" Statute and a Call for Change

• Jurisdiction: Georgia,United States,Federal
• Citation: Vol. 57 No. 2
• Publication year: 2023

Unacceptable Risk: The Failure of Georgia's "Guilty but Intellectually Disabled" Statute and a Call for Change

Logan Purvis
University of Georgia School of Law, logan.purvis25@uga.edu

Unacceptable Risk: The Failure of Georgia's "Guilty but Intellectually Disabled" Statute and a Call for Change

Cover Page Footnote

* J.D. Candidate, 2023, University of Georgia School of Law; B.A., 2018, University of Georgia. I would like to express my sincere gratitude to Professor Curtis Nesset for his support and guidance throughout the writing of this Note.

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UNACCEPTABLE RISK: THE FAILURE OF GEORGIA'S "GUILTY BUT INTELLECTUALLY DISABLED" STATUTE AND A CALL FOR CHANGE

Logan Purvis^*

In 1988, Georgia became the first state in the nation to prohibit the execution of intellectually disabled criminal defendants. At the time, this groundbreaking action played a critical role in shaping the national debate surrounding the criminal justice system's treatment of this group of individuals, culminating in the United States Supreme Court's own prohibition in 2002. A drafting error in Georgia's statute, however, created a highly prejudicial process for determining intellectual disability, all but ensuring that the law's protections are unattainable for those who seek it. Despite this error, Georgia's process has remained the same since the statute's enactment with little consideration of reform. This Note sheds light on Georgia's highly prejudicial law and argues for a change that balances the concerns of those favoring the status quo with the rights of intellectually disabled defendants in capital offense cases.

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Table of Contents

I. Introduction....................................................................743

II. Background....................................................................747

A. GEORGIA LEADS THE WAY.........................................747
B. PENRY, ATKINS, AND AN EMERGING NATIONAL CONSENSUS..................................................................752

III. Fulfilling the Court's Mandate...............................755

A. PROPERLY DEFINING "INTELLECTUAL DISABILITY" ... 756

1. Hall v. Florida..................................................758
2. Moore v. Texas...................................................759

B. PROPERLY DETERMINING "INTELLECTUAL DISABILITY" .....................................................................................760

IV. Problems and Arguments............................................762

A. GEORGIA'S LAW IN PRACTICE....................................762

1. Burden of Proof.................................................763
2. Stage of Trial....................................................766
3. The Factfinder...................................................767

B. RETAINING THE STATUS QUO....................................768

V. A Way Forward...............................................................771

VI. Conclusion....................................................................777

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I. Introduction

Rodney Young, Kevin Scott, and Michael Coleman share many similarities. Each has a well-known and well-documented intellectual disability,¹ as evidenced by testimony from specialists, family members, friends, and former teachers.² Their cognitive capabilities are diminished, and their capacities to learn are impaired.³ Young, who has an intelligence quotient (I.Q.) between 60-69, was repeatedly placed in special education classes throughout his time in school, where he was taught at, and never surpassed, a reading level comparable to that of a third or fourth grader.⁴ Scott, who was also enrolled in special education classes, has scored as low as a 48 on I.Q. tests, with more recent administrations returning scores of 78.⁵ Coleman, although placed on a general education track, had a long history of school troubles: he failed the first, second, third, and seventh grades, with teachers describing his eventual advancement as a "social promotion."⁶ Repeated tests placed his I.Q. score at or around 73.⁷ For each, doing

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simple things, tasks easily carried out by typically functioning adults, does not come easy; acting properly in a given scenario, engaging in normal social interactions, and controlling emotions and impulsive behaviors can be difficult endeavors.⁸

Unfortunately, their similarities do not stop there. Each of these men have—at different times and through unrelated events—been charged and convicted of murder: Young in 2008, Scott in 1995, and Coleman in 1979.⁹ While the specific facts of each case vary greatly, the actions carried out share a common thread: all three amounted to capital murder, a charge carrying with it the possibility of execution.¹⁰

Despite all of the similarities and parallels between the lives of these individuals, one key difference has resulted in divergent conclusions to their stories: the individuals' varying state citizenships and those states' respective laws governing intellectually disabled capital defendants. Coleman, a citizen of Tennessee, and Scott, hailing from Mississippi, each received a sentence of life imprisonment, despite prosecutors' insistence on the death penalty.¹¹ Young, a citizen of Georgia, is the only one of these

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three men to receive the highest and ultimate punishment possible in the American criminal justice system—the death sentence.¹² He currently sits on death row, awaiting his execution date.¹³

Given the similarities in each individual's intellectual level and the nature of the crimes carried out, one might find their disparate sentences troubling. After all, the death penalty is and has long been employed as a means of criminal punishment in Georgia, Tennessee, and Mississippi.¹⁴ A look at each state's respective criminal laws provides the source of this disparity.

In Mississippi and Tennessee, when a criminal defendant claims to be intellectually disabled, the court holds a pretrial hearing to determine and rule on the matter.¹⁵ In both states, if the court finds by a preponderance of the evidence that the defendant is intellectually disabled, the trial proceeds as normal, but the death penalty is precluded from being considered during the trial's sentencing phase.¹⁶ In Georgia, the process looks quite different—

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not only different from Mississippi and Tennessee, but also from every other state in the nation that makes use of the death penalty.¹⁷ When a capital defendant in Georgia claims to have an intellectual disability, the trier of fact determines whether the defendant is intellectually disabled at the guilt stage of trial after all evidence pertaining to the underlying criminal act has been presented and reviewed.¹⁸ Furthermore, just as the prosecution must prove to the jury—beyond a reasonable doubt—that the defendant has committed the crime for which he¹⁹ has been charged, the defendant must also prove—beyond a reasonable doubt—that he is intellectually disabled.²⁰ As one might guess, subjecting claims of intellectual disability to the nation's highest and most onerous evidentiary standard and requiring the factfinder to make that determination during the guilt stage of trial has proven insurmountable for defendants.²¹ Rodney Young's case was no exception.²²

This Note proposes much-needed changes to Georgia's current law for determining whether an individual is intellectually disabled and, therefore, ineligible for the death penalty. Part II reviews Georgia's history with regard to disabled criminal defendants and details the Supreme Court's subsequent ban on the execution of

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these individuals, along with the reasoning for that ban. Part III examines the Court's guidance, or lack thereof, for states to follow in ensuring that these defendants are protected and explores the definitional and procedural aspects used to properly identify defendants with intellectual disabilities. Part IV examines how Georgia's chosen procedure is overly prejudicial to this class of defendants and explores the reasons allowing for the law's continuity. Part V proposes changes to the state's current law, which seek to balance the concerns of those opposed to change with the rights of those seeking an intellectual disability determination, ensuring that the process fulfills the statute's original purpose—to prevent the execution of intellectually disabled Georgians.

II. Background

To better understand Georgia's "guilty but intellectually disabled" law and its uniquely burdensome process, it is important first to discuss historical developments in the use of capital punishment as it relates to those with intellectual disabilities, both on a state and national level.

A. GEORGIA LEADS THE WAY

For better and for worse, Georgia's criminal justice system has long been an outlier in its treatment of the intellectually disabled.²³ Despite contemporary criticism for its hardline approach,²⁴ Georgia became the first state in the nation to take legislative action prohibiting the execution of these individuals, doing so years before

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the Supreme Court would hand down its own prohibition.²⁵ This change in Georgia was prompted in large part by the state's controversial execution of Jerome Bowden, a man with a 59 I.Q. score and an inability to count past the number ten.²⁶ Despite Bowden's clear cognitive deficiencies, the Georgia Board of Pardons and Paroles allowed his execution to move forward, declaring that he "knew right from wrong."²⁷

The resulting outcry spurred the Georgia General Assembly into action during its 1988 legislative session,²⁸ resulting in the amendment of Georgia Code Section 17-7-131, which governs pleas of incompetence and insanity.²⁹ At the time, criminal defendants were given four potential pleas from which to choose: (1) guilty; (2) not guilty; (3) not guilty by reason of insanity; or (4) guilty but mentally ill.³⁰ Under the amended statute, the assembly added a fifth option to the list—"[g]uilty but...