Georgia death penalty bill ‘an important fix,’ supporters say

Most states have a lesser standard: a finding of disability “by a preponderance of the evidence,” meaning more likely than not, said state Rep. Bill Werkheiser, the Glennville Republican who introduced the measure aimed at ensuring those with intellectual disabilities are left off death row.

Under existing law in Georgia, it is left entirely to jurors to determine if a defendant is intellectually disabled. The problem with that, Werkheiser said, is juries are often jaded by the facts presented at trial, which in death penalty cases typically include weeks of “gruesome testimony” and “horrendous photos.”

Under his proposed legislation, the burden of determining whether someone is intellectually disabled would be reduced to a preponderance of the evidence, putting Georgia law in line with the 26 other states that still have the death penalty on the books. House Bill 123 would also allow for the matter to be argued during pretrial hearings, Werkheiser said, meaning a judge could decide that issue.

Werkheiser, who has visited every state prison in Georgia and personally witnessed two executions, said he opposes the death penalty. But his bill wouldn’t curb prosecutors’ ability to pursue the ultimate punishment, he said. Rather, it would make it more difficult to execute those with intellectual disabilities, something he says Georgia has done repeatedly in the past.

He pointed to last year’s execution of Willie James Pye for the 1993 abduction, rape and killing of Alicia Lynn Yarbrough, with whom Pye had a sporadic romantic relationship. Pye’s attorneys argued at his clemency hearing he was intellectually disabled, and that he was represented at trial by a “racist, overworked public defender” who “shrugged off any meaningful investment in the case.”

Werkheiser is hopeful his measure will also prevent future executions of people like Warren Lee Hill, a man with an IQ of 70 who was killed by lethal injection in 2015 despite international protests that Georgia was executing a man with a child’s intellect.

“This is the fix that ensures we don’t do that anymore,” Werkheiser said of his bill, which passed the House 172-0 before heading to the Senate. He’s optimistic his legislation will be met with similar bipartisan support there, and that it will head to Gov. Brian Kemp’s desk unchanged.

Executing intellectually disabled people was outlawed by the Georgia Supreme Court in 1988, and the U.S. Supreme Court followed suit in 2002, ruling in Atkins v. Virginia that executing those with intellectual disabilities violated the Eighth Amendment ban on cruel and unusual punishment.

The U.S. Supreme Court left it up to the states to determine whether someone is intellectually disabled, Werkheiser said. But Georgia’s requirement that someone’s disability be proven beyond a reasonable doubt has been a tough hurdle.

Georgia defense attorneys representing those facing the death penalty applauded the House measure, which they said was long overdue.

“This is a modest bill that’s going to affect a small number of cases, but it’s an important fix to Georgia’s death penalty procedures,” said Michael Admirand, a senior attorney in the capital litigation unit at the Southern Center for Human Rights.

The current law requiring defendants to prove intellectual disability beyond a reasonable doubt is something no other state requires, Admirand said. Jurors are also tasked with simultaneously weighing a defendant’s intellectual capacity and whether or not they’re guilty, something that is unique to Georgia.

“The facts of the crime and the question of intellectual disability are separate questions, and when you put them together like that it creates an unacceptable risk that persons with intellectual disability might be executed,” he said.

States like Alabama, Texas and Florida, all of which are “very active” when it comes pursuing the death penalty, have statutes that are far more protective of defendants with intellectual disabilities, he noted.

Admirand said while Georgia has executed people with intellectual disabilities in the past, the proposed legislation would not retroactively apply to anyone already on death row.

“I think the question going forward for the Senate isn’t whether we have or haven’t (executed intellectually disabled people). It’s whether there’s too high a risk that we will again,” he said. “This bill will make sure that we don’t.”

Werkheiser said he heard from more than 100 faith organizations who backed his legislation, as well as the Georgia Council on Developmental Disabilities.

Even state lawmakers who support the death penalty in certain situations lined up behind the measure, calling it great legislation aimed at preventing “irreversible miscarriages of justice.”

State Rep. Esther Panitch, a defense attorney, gave an impassioned speech in the House chamber Tuesday urging her colleagues to support the bill.

“Executing an intellectually disabled person is not an act of justice, but a moral failure,” the Sandy Springs Democrat said from the well.

Credit: Miguel Martinez for the AJC

Credit: Miguel Martinez for the AJC

Panitch said as a society, we are not defined by “how we treat the the strongest among us, but how we protect the most vulnerable.”

“An intellectually disabled individual facing the death penalty is the ultimate test of our collective moral character,” she said, “and I submit that we must choose compassion over retribution and understanding over punishment.”