On Wednesday, the state of Georgia plans to execute Willie James Pye even though in any other state his execution would likely be unconstitutional. Georgia is the only state that requires capital defendants to prove their intellectual disability beyond a reasonable doubt to be exempted from the death penalty.
How did we get here? In the 2002 case Atkins v. Virginia, the U.S. Supreme Court held that executing individuals with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. Yet, the court left to the states the critical question of what procedures would be used to identify intellectually disabled defendants.
Credit: Courtesy
Credit: Courtesy
Georgia stands as a national anomaly in requiring capital defendants to prove their intellectual disability beyond a reasonable doubt, yet Georgia was—ironically—the first state to outlaw the execution of people with intellectual disabilities, nearly 15 years before Atkins. Testimony at an off-session 2013 committee hearing revealed this requirement was likely the result of careless drafting. Because the drafters tacked the reference to intellectual disability onto a statutory provision relating to guilt, the standard of proof typically attached to guilt applies to both. In recent years, the Legislature has considered amending the standard of proof on at least three occasions, but such efforts have yet to succeed, leaving Georgia a constitutional outlier.
The standard that Georgia has chosen to adopt to satisfy this constitutional exemption has proven nearly impossible to meet. In 2017, I analyzed Georgia capital cases dating back to 1988—when Georgia’s initial statute was enacted—to assess how this standard has applied in practice. The study revealed that no defendant facing the death penalty in Georgia has ever received a “guilty but mentally retarded” verdict for malice murder from a jury in the statute’s nearly thirty-year existence. Since Atkins, not one capital defendant has been found “guilty but mentally retarded” by a jury at trial.
Although the study I conducted was limited to jury trials, the same standard of proof applies to defendants attempting to prove intellectual disability in post-conviction proceedings. Defendants in that position have not fared much better—only one post-conviction defendant has successfully established his intellectual disability beyond a reasonable doubt, making him ineligible for the death penalty.
The Supreme Court has long held that laws creating an “unacceptable risk” that capital defendants with intellectual disabilities will be executed violate the Eighth Amendment, Mr. Pye’s case clearly presents that “unacceptable risk.” To prove intellectual disability, defendants must demonstrate significantly sub-average intellectual functioning, significant deficits in adaptive behavior, and onset in the developmental period.
The state’s own experts tested Mr. Pye’s IQ at 68, consistent with an earlier IQ test score of 70, both scores firmly in the range of intellectual disability. Assessments by both the state and the defense indicate significantly subaverage adaptive functioning. And school records and family accounts establish that Mr. Pye demonstrated these qualities within the necessary age range.
Although this evidence was available at the time of Mr. Pye’s trial, his trial attorney failed to investigate or present any mental health evidence, including evidence of Mr. Pye’s intellectual disability. When this evidence was presented in post-conviction, the evidence regarding Mr. Pye’s intellectual functioning deficits was undisputed but the court, applying Georgia’s beyond a reasonable doubt standard, found that Mr. Pye could not satisfy this unique burden of proof with regard to his adaptive functioning deficits.
I had the privilege of clerking for Supreme Court Justice John Paul Stevens, the author of the Atkins opinion, just four years after Atkins was decided. In allowing states to implement the decision, I find it hard to imagine—given the data that has now been compiled—that Georgia’s application of the law would be seen as faithful to that decision.
Georgia’s standard has made it nearly impossible for capital defendants to prove intellectual disability, even though a 2014 study showed that more than half (55%) of the relatively small (and thus, likely nonfrivolous) nationwide number of Atkins claims made from 2002-2013 resulted in exemption from the death penalty. If this doesn’t constitute an “unacceptable risk,” I don’t know what does.
Georgia is a unique and beautiful state in so many ways, but its insistence on remaining an outlier when so much is at stake remains a stain on its legacy. Willie Pye’s intellectual disability has been firmly established, yet the procedure set in place to protect individuals like Mr. Pye has failed him. The state should intervene now to correct a long-standing wrong and prevent Mr. Pye from becoming the latest casualty of an inadvertent yet incredibly dangerous legal standard.
Lauren Sudeall is the David Daniels Allen Distinguished Chair of Law and Director of the Vanderbilt Access to Justice Initiative at Vanderbilt Law School. She is the author of “An Empirical Assessment of Georgia’s Beyond A Reasonable Doubt Standard To Determine Intellectual Disability In Capital Cases, 33 GA. ST. U. L. REV. 553(2017).”
