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

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. Retribution by execution is reserved for those at the highest level of culpability or the highest level of conscious and depraved guilt. Likewise, execution is viewed as an effective deterrent on cold calculus that is not found in individuals with a mental disability. 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 mentally disabled to a higher risk that the death penalty will be imposed erroneously. For Georgia, Young v. State 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. 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