Testimony on SB 185: The Standard of Proof for Intellectual Disability in GA Death Penalty Cases

Caitlin Childs Testimony

Georgia Senate Judiciary Sub-Committee B

March 1, 2017

Good afternoon, Senators. Thank you for allowing me the opportunity to speak to you today in support of Senate Bill 185.

My name is Caitlin Childs. I am the Legislative Consultant and Lobbyist for the Proof to A Preponderance of the Evidence Coalition. This Coalition is made up of a diverse group of stakeholders including Georgians for Alternatives to the Death Penalty, the Georgia Council on Developmental Disabilities, Georgia Catholics Against the Death Penalty, as well as criminal defense lawyers, disability professionals and people with disabilities and their family members. Representatives from all of these stakeholder groups are present with us today.

Since 2006, I have worked with people who have intellectual disability, a condition formerly known as mental retardation. Seven of those years were as a staff member at the Georgia Council on Developmental Disabilities, a federally funded state agency.

Intellectual disability, which is still referred to in Georgia code as mental retardation, originates before the age of 18 and is characterized by significant limitations in both intellectual functioning and adaptive behavior, including everyday social and practical skills. In making a determination that a person is intellectually disabled, clinicinans rely on a number of sources for information including school records, IQ tests and observations of the individual’s behavior in a variety of settings and contexts over time. There is no blood test or universal screening tool that can be used to make this diagnosis.

It was during my time at the Georgia Council on Developmental Disabilities that I first learned about intellectual disability in the context of the death penalty. I learned that in 1986, Georgia executed Jerome Bowden, a man with intellectual disability. His execution caused such a tremendous public outcry that in 1988 Georgia became the very first state to pass a law to voluntarily ban the execution of people with intellectual disability.

It was 14 years later, in 2002, that the U.S. Supreme Court followed suit in Atkins v. Virginia, ruling that the execution of individuals with intellectual disability was a violation of the Eighth Amendment’s protections against cruel and unusual punishment. In Atkins, the Supreme Court did not differentiate those with intellectual disability who are higher functioning from those who are lower functioning, but instead ruled that states have a right to convict and punish those with intellectual disability; however they cannot execute them, regardless of their intellectual disability. This bears repeating. Atkins does not prevent punishing someone with intellectual disability. When we are discussing whether to apply the death penalty it is because someone has been murdered. When a person with intellectual disability is convicted of murder in Georgia, Life in Prison remains a sentencing option.

I am proud that the state I love, grew up in, and still proudly call home set the example for the rest of the country and triggered the legislative advocacy nationwide that made the Atkins decision possible.

Despite being the first state to ban the execution of people with intellectual disability, Georgia is the only state in the country that places the most difficult standard of proof on death penalty defendants: they must prove their intellectual disability “beyond a reasonable doubt” – a nearly impossible legal standard to meet given the nature of how an intellectual disability diagnosis is made, deeply-ingrained stereotypes about what intellectual disability is, and misunderstandings about what people with intellectual disability are capable of doing in their daily lives. This is why Georgia continues to sentence to death and execute people with intellectual disability despite the Atkins prohibition.

In 2015, Georgia executed Warren Hill, a man that every expert – including the State’s experts – ultimately agreed had an intellectual disability. Warren Hill’s execution exposes the urgent need to change the “beyond a reasonable doubt” legal standard to a “preponderance of the evidence.” The preponderance standard would give people a fighting chance of proving their intellectual disability to a jury. A preponderance of the evidence is the standard of proof for intellectual disability currently used in 22 other jurisdictions, including most of our surrounding states. Every single jurisdiction that has revisited the standard of proof in light of the Atkins decision has changed their standard of proof to a preponderance of the evidence.

As Georgia citizens, it is our responsibility to come together to protect our most vulnerable citizens and ensure that our policies are in line with the constitution and Supreme Court rulings. In this context, that means that a defendant with an intellectual disability convicted of capital murder would serve a sentence of life imprisonment rather than face an unconstitutional execution. Let us look to our legacy of being the first state to come out against this travesty of justice back in 1988 and get back on the right side of history today.

Thank you again for your time. I am available to answer any questions you may have.

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