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 Assistant Professor, Georgia State University College of Law. For their hard work and perseverance in collecting data on capital cases from across the entire state and tracking such information electronically, I would like to thank graduate research assistants Jobena Hill, Daniel Richardson, and Kaitlyn (Welch) Nigro. Jobena Hill and Darcy Meals also deserve credit for the background research they contributed to this article and their work on the appendix. All of the information included in this article represents the best effort we could make toward painting as clear a picture as possible of how the Georgia statute has applied in practice to capital defendants in jury trials. Gathering that information was a herculean effort spanning multiple years that would not have been possible without the assistance of multiple lawyers, clerks, and court personnel, for which I am incredibly grateful. Last, I would like to thank the editors of the Georgia State University Law Review for their work on the piece, and Dean Steven J. Kaminshine and the Georgia State University College of Law for the resources that made this research possible.