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

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 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