Georgia sets legal bar very high to shield intellectually disabled people from death penalty

by Jill Nolin, Georgia Recorder
February 5, 2025

Nearly four decades ago, public outrage over the execution of Jerome Bowden, a man with an IQ of 65, spurred Georgia lawmakers to exempt people who are intellectually disabled from the death penalty.

At the time, Georgia was the first state with the death penalty to ban the execution of intellectually disabled defendants – and the state’s 1988 law passed well ahead of a U.S. Supreme Court ruling at the turn of the century that said executing the intellectually disabled amounted to cruel and unusual punishment.

But since then, Georgia has at times found itself back under the public glare, most recently in 2024 when Willie James Pye was executed despite evidence he may have been intellectually disabled. Pye was convicted in the 1993 abduction, rape and shooting death of a woman he had dated. 

In another case a decade ago, Warren Hill’s looming execution drew widespread and international pleas for mercy from the late President Jimmy Carter, the Vatican, the American Bar Association, the Georgia Council on Developmental Disabilities and others.

All told, in the 37 years that have passed since Georgia first spared defendants with intellectual disabilities from the death penalty, no defendant facing execution for intentional murder has ever successfully cleared the state’s high bar required for proving they are intellectually disabled.

Local prosecutors have argued that what goes unnoticed are the cases where the death penalty is not sought.

But critics of Georgia’s existing law have pointed to the state’s outlier status and concerns the courts have raised about the state’s current law. Georgia is the only state with the death penalty to require defendants to prove beyond a reasonable doubt – which is the highest threshold possible – that they are intellectually disabled.

“Warren Hill’s case is just such a perfect example of why reform is necessary, because in that case, every doctor who examined him, even the state doctors, agreed that he was intellectually disabled, but he was still executed,” said Michael Admirand, staff attorney with the Southern Center for Human Rights. “So, if Hill can’t prove intellectual disability under the current law, then basically nobody can. That’s why every other state does this differently. That’s why we need to fix the law.”

Hill, who had an IQ of 70, was executed in 2015. He had been convicted of bludgeoning another inmate to death at a Lee County prison, where he was serving a life sentence for shooting his 18-year-old girlfriend to death in 1986.

‘Pretty much impossible’

A new bipartisan proposal, sponsored by Glennville Republican state Rep. Bill Werkheiser, would lower the standard of proof to a preponderance of the evidence and create a pre-trial hearing where a judge would focus only on the question of whether the defendant is intellectually disabled. Werkheiser said the proposed changes would not apply to the more than 30 inmates already on death row.

“To say that somebody has an intellectual disability, that’s not black and white, so anything that has any subjectivity to it, when you say ‘beyond a reasonable doubt’ that’s pretty much impossible,” Werkheiser said in a recent interview.

But Werkheiser also argues that the pretrial hearing would be an important change, since Georgia is currently the only state that asks juries to decide whether someone is intellectually disabled at the same time they are determining their guilt or innocence.

“Capital punishment cases are very long and usually very gruesome, and so after hearing weeks of testimony and seeing images that most people wish to unsee, there’s a bias there,” Werkheiser said at a committee hearing Tuesday. “And so then the determination is whether that person has ID or not, when in reality either you have ID or you don’t.”

Werkheiser chairs the House Labor and Industry Committee, but he has developed a special interest in the state’s prison system and the people involved in it, recently visiting all the state’s prisons.

He argues that there is compelling evidence that Georgia has likely executed people with intellectual disabilities in the last couple decades. 

The 1988 law has so far survived court challenges, but Werkheiser said he interpreted a dissenting opinion in a 2021 Georgia Supreme Court ruling as a call to action.

The court rejected a push by Rodney Young’s defense attorneys to spare him from execution because of his intellectual disability, which had qualified him for special education classes in school. Young was convicted of a brutal 2008 murder in Covington. 

“There is a risk of failure in every effort to divine truth through a judicial proceeding. Employing the highest burden of proof in our system of justice, however, significantly increases the risk of an offender with an actual intellectual disability being executed because he or she is unable to meet the high standard of proof,” Justice Charlie Bethel wrote in a dissenting opinion at the time.

District attorneys raise objections  

Werkheiser sponsored a similar bill last year that never made it out of committee. His new bill, filed last week, had an abbreviated hearing Tuesday with no vote taken, though the negotiations continue.

T. Wright Barksdale III, district attorney of the Ocmulgee Judicial Circuit in middle Georgia, told lawmakers Tuesday that prosecutors are on board with changing the standard of proof. But he said they are “adamantly” opposed to a proposal to create the new pretrial hearing.

“The procedural changes to this bill would all but kill the death penalty in the state,” Barksdale said. “If you want to do away with it, do away with it. But if you don’t, this bill would, for all intents and purposes, kill it.” 

Barksdale recently sought the death penalty a few years ago for Ricky Dubose, who was convicted of killing two corrections officers during an escape from a prison bus that made national news. Barksdale said Dubose’s attorneys argued he was intellectually disabled, but he argued at the time that Dubose was “an intelligent, calculated criminal.” 

Barksdale and Sheila Ross, an attorney with the Prosecuting Attorneys’ Council of Georgia who was recently the prosecutor for the trial for Laken Riley’s murder, told lawmakers that adding a pretrial hearing would only serve to drag out capital cases further.

They also argued that district attorneys are selective about when they seek the death penalty, pointing to the decreasing number of death penalty cases in Georgia, and would not pursue the death penalty for a defendant who is intellectually disabled.

“I want to be clear: Nobody with intellectual disabilities has been put to death in the state of Georgia. Nobody,” Barksdale said.

But state Rep. Esther Panitch, a Sandy Springs Democrat who is a defense attorney, said that may not be true of all prosecutors in Georgia. She and other lawmakers serving on the House Judiciary Non-Civil Committee pushed back on the prosecutors’ concerns.  

“I’m not understanding how this is any different from any other pretrial proceeding that might delay an ultimate resolution or an ultimate adjudication,” Panitch said.

“But now we’re dealing with the death penalty, and so I’m okay taking those extra steps to make sure that if you’re going to impose a death penalty that it’s for the right circumstances,” she said.

Admirand with the Southern Center for Human Rights argued that only lowering the bar for proving someone has an intellectual disability would just partially address the law’s failings.

“We would still be an outlier, and we would still have a procedure that just doesn’t make sense for jurors or for litigators,” he said.

‘We’re executing people with IQs of 70’

Supporters of the bill, including the Georgia Council on Developmental Disabilities, are making the case that this is not an anti-death penalty proposal.

“For our community, it’s about getting in line with the national standard of how we treat people with disabilities. Georgia has fallen behind on this front,” said Charlotte Densmore, the council’s public policy director.

“No one in Georgia has been found to have an intellectual disability in a death penalty case in over 20 years,” Densmore said, referring to a 1998 Clarke County case where the defendant was convicted of unintentional murder and able to prove she had an intellectual disability.

“We know that’s not the case. We’re executing people with IQs of 70,” she said. 

Densmore said the death penalty is a hot-button issue that tends to send people to their corners, but for the council, that is not what the proposal is about.

“This is not, do you agree with the death penalty or not? This is, do you agree with the Supreme Court ruling that people with intellectual disabilities do not deserve to be executed?” she said.

Cathy Harmon-Christian, who is the executive director of Georgians for Alternatives to the Death Penalty, says the bill is narrowly focused on ensuring that people with intellectual disabilities are not executed in Georgia.

“This has nothing to do with abolition,” Harmon-Christian said, referring to ending the death penalty.

Harmon-Christian’s group and the Georgia Council on Developmental Disabilities plan to partner up to advocate for Werkheiser’s bill next week.

“We no longer have juveniles executed,” Harmon-Christian said. “Well, some of these folks have the mental capacity of a juvenile, so why are we executing them?” 

Georgia Recorder is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: info@georgiarecorder.com.

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