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Written by: E. George
Published April 3, 2025 @ 8:00 PM ET
FULTON COUNTY, Ga. – Georgia is set to adopt a significant reform in its handling of intellectual disability claims in death penalty cases, as lawmakers passed a bill aimed at easing the burden of proof for defendants seeking to avoid execution due to intellectual disability. The bill, which has garnered strong bipartisan support, is now headed to Governor Brian Kemp’s desk for approval.
House Bill 123, which was approved by the Senate in a 53-1 vote this week, follows the House’s earlier approval with overwhelming support from both Republican and Democratic lawmakers. The bill aims to align Georgia with other states by lowering the standard of proof required for defendants to claim intellectual disability. Under the proposed law, the burden of proof will shift from “beyond a reasonable doubt” to “a preponderance of the evidence,” a standard already used by every other state in the nation.
The revised legislation also introduces procedural changes designed to enhance fairness in capital cases involving intellectually disabled defendants. Among these changes is a provision requiring defendants to provide notice of their intellectual disability claim at least 60 days before a pretrial hearing, allowing prosecutors 30 days to share related discovery materials. Additionally, the bill clarifies that life without parole may be considered a viable sentencing option, offering an alternative to the death penalty.
Sponsored by Republican Representative Bill Werkheiser of Glennville, the bill aims to balance fairness and justice, addressing concerns that Georgia’s existing law—requiring the highest burden of proof in the nation—was excessively stringent. Werkheiser, who championed the bill through a multi-year legislative process, expressed satisfaction with its progress, highlighting its significance in addressing both legal and ethical concerns.
Advocates for reform, including defense attorneys and disability rights groups, argue that the law is essential for protecting vulnerable individuals from wrongful execution. Many point to past cases where defendants, despite presenting compelling evidence of intellectual disability, were unable to meet the stringent standard required under Georgia’s previous law. Some judges in these cases acknowledged that defendants might have succeeded in proving their disability under a less demanding standard.
Representative Esther Panitch, a Democrat from Sandy Springs, emphasized the moral imperative of the reform during a debate in the House. Panitch argued that protecting individuals with intellectual disabilities from the death penalty represents a fundamental test of society’s ethical values, advocating for a shift toward compassion rather than retribution.
However, the bill’s passage has not been without opposition. Some prosecutors argue that instead of altering the standard of proof, the state should consider abolishing the death penalty altogether. T. Wright Barksdale III, district attorney for the Ocmulgee Judicial Circuit, voiced his concerns during legislative hearings, suggesting that the procedural changes—particularly the new pretrial hearing and bifurcated trial process—could make it more difficult to pursue the death penalty in Georgia.
Georgia’s legal landscape concerning intellectual disabilities and the death penalty has long been a focal point of national attention. The state was the first to outlaw the execution of intellectually disabled individuals in 1988, a move later followed by a U.S. Supreme Court ruling in 2002 that declared such executions unconstitutional. However, Georgia remained unique in requiring the highest burden of proof for defendants seeking to prove intellectual disability in capital cases.
The bill’s provisions are set to apply immediately, including to all pending death penalty cases, should Governor Kemp sign it into law. If enacted, the legislation is expected to reshape the state’s approach to intellectual disability claims in capital cases, offering a fairer opportunity for defendants to avoid execution based on their mental capacity.