Georgia’s Impossible Standard and the Dangers of Judicial Deference
By Griffin Richie ’25
In Gregg v. Georgia, 428 U.S. 153 (1976), the Supreme Court upheld the constitutionality of newly crafted death penalty statutes and henceforth has committed to death penalty retention with constitutional regulation. One hallmark of the Court’s regulation is the curtailment of the scope of capital punishment. The Court began by curbing the crimes eligible for the death penalty and later transitioned to limiting the classes of offenders who could receive the death penalty. (1) Notably, the Court held in Atkins v. Virginia, 536 U.S. 304 (2002) that the execution of intellectually disabled persons was prohibited by the Eighth Amendment. Since intellectually disabled persons possess lessened culpability, the Court reasoned that the various justifications underpinning the death penalty, viz., retribution and deterrence, do not apply to this class of offenders.
The Atkins decision highlights another feature of the Supreme Court’s death penalty regulation: a commitment to federalism. Since the federal government historically allowed the states to operate their capital schemes with little oversight, the Court has attempted to craft national standards without disrupting traditional spheres of state autonomy. However, in this balancing act, the Court often errs strongly on the side of deference, granting the states enormous discretion over the enforcement of substantive protections. In Atkins, the Supreme Court only required that states “generally conform” to prevailing clinical definitions of intellectual disability and allowed states to craft their burden-of-proof standards. Unfortunately, this discretion has come with a heavy price. Many advocates “expressed concern that [Atkins]… was ambiguous enough to permit death eligibility to vary depending upon the jurisdiction,” according to John Blume and colleagues at the Cornell Law School. (2) Ultimately, their empirical findings confirm these concerns. In the six years following Atkins, “the success rates for Atkins claims vary dramatically between states.”
Georgia’s capital scheme is the epitome of the failures of Atkins and the hazards of the Supreme Court’s deferential approach to the death penalty regulation. Although the state of Georgia systematically executes intellectually disabled persons, the Court has not intervened and thus permits blatantly unconstitutional executions. The Court’s failure to nullify the most deleterious elements of Georgia’s death penalty machinery has not only perpetuated grotesque material harm. It also erodes the efficacy of the Court’s Atkins holding and thus the credibility of the institution itself.
Georgia law requires that capital defendants prove they are intellectually disabled beyond a reasonable doubt to be spared execution. Shockingly, the “beyond reasonable doubt” clause was never intended to define the burden-of-proof standard for intellectual disability. Jack Martin, one of the framers of the original statute, admitted to placing the clause in the wrong part of the law. (4) Martin recalls that “it was sloppy draftsmanship, pure and simple. I don’t think anybody intended that to happen.” (5) This mistake perhaps explains why the “beyond reasonable doubt” standard is wholly inconsistent within Georgia’s larger statutory framework. Curiously, the state “does not impose a comparably high burden on intellectually disabled individuals in assessing their eligibility for social services.” (6) Furthermore, Georgia’s “beyond reasonable doubt” standard is an outlier, not just in comparison to other death penalty statutes, but also vis-à-vis the general body of constitutional law. As the ACLU observes, “nowhere else in… constitutional law does a state require an individual asserting any constitutional right to prove their factual entitlement to the right by such a severe burden.” (7)
Despite its uniqueness, this onerous burden does have a well-known counterpart. The “beyond reasonable doubt” standard is the government’s burden of proof in criminal cases. The high threshold has a very clear purpose in this context: to protect those who do not deserve punishment. Notably, a core principle of our criminal legal system is the presumption of innocence. Since criminal punishment places severe burdens and disabilities on the punished, viz., the deprivation of liberty, property, or even life, our system “tolerate[s] letting some guilty people go free rather than risk sending innocent ones to prison.” (8) However, Georgia inverts this presumption toward the prevention of undue punishment. By adopting the “beyond reasonable doubt” standard for proving intellectual disability, the state is willing to execute intellectually disabled persons, a group that does not deserve the death penalty under current doctrine, to mitigate the risk that people without intellectual disabilities avoid the death penalty. Thus, this provision is antithetical to a cornerstone of our criminal legal system and implicitly endorses unconstitutional executions.
Tragically, Georgia’s brazen disregard of common law principles and constitutional protections has a substantial impact on Georgia’s capital scheme. The “beyond reasonable doubt” standard shuts down petitions that would be successful in other jurisdictions. According to Liptak, “almost every other state requires defendants to prove that they are intellectually disabled by just a preponderance of the evidence- that is, by showing it to be more likely than not.” (9) In these states, successful Atkins petitions are not uncommon. Lawyers with the ACLU note that “approximately one-third of those asserting that they are intellectually disabled succeed.” (10) However, this success is not replicated in Georgia. According to the ACLU, “not a single person convicted of intentional murder has prevailed… in establishing that he is intellectually disabled.” (11)
This astounding reality exists because intellectual disability is particularly difficult to prove beyond a reasonable doubt. Proponents of the “beyond reasonable doubt” standard contend that intellectual disability is easier to prove than other mental states and thus warrants a stricter burden of proof. For example, Christopher Carr, the Attorney General of Georgia, argued that “the testing and information is provided by the defendant and his immediate family, necessarily biased witnesses… these factors… skew in a defendant’s favor.” (12) However, even medical professionals routinely disagree over identifications of intellectual disability. Thus, it is extraordinarily easy to produce an iota of doubt about a person’s intellectual disability for jurors without a medical background. As Judge Adalberto Jordan points out in his dissenting opinion in Raulerson v. Warden, 928 F. 3d 987 (2019), “Intellectual disability is an inherently imprecise and partially subjective diagnosis… given that intellectual disability disputes will always involve conflicting expert testimony, there will always be a basis for rejecting an intellectual disability claim.” (13)
Another common source of doubt is intelligence quotient (IQ) tests. Historically, intellectual disability has been defined by an IQ score below 70. (14) However, as the Internet Special Education Resources points out, “Intelligence tests are… inaccurate, sometimes varying by as much as 15 points from test to test.” (15) This vast variability allows doubt to unjustifiably creep into Georgia’s capital scheme, with intellectually disabled defendants receiving the short end of the stick. Take the case of Billy Raulerson. According to Lauren Sudeall Lucas, a law professor at Georgia State University, “The defense expert administered five different IQ tests to Billy Raulerson… four out of the five results [were] below 70 [and] the one above 70 was a 73.” (16) Under a “preponderance of the evidence” standard, Raulerson indubitably would have avoided execution, since the majority of the IQ tests pointed to an intellectual disability. However, under Georgia’s “beyond reasonable doubt” standard, Raulerson was executed since the one IQ test above 70 generated a modicum of doubt. Georgia’s onerous threshold, when coupled with conflicting expert testimony, unreliable IQ tests, and other misconceptions about intellectual disabilities, provides no avenue for relief.
Unfortunately, the Raulerson case is not an outlier. Intellectually disabled persons have repeatedly faced executions in Georgia because they were unable to prove their disability beyond a reasonable doubt. One such case is Warren Hill. According to Ed Pilkington with the Guardian, “Hill had a lifelong recognized condition of intellectual disability… all seven medical experts who saw him…concluded that he was mentally impaired.” (17) Due to the weight of this evidence, a Georgia state judge twice determined that Warren Hill was intellectually disabled under the “preponderance of the evidence” standard. However, the Georgia State Supreme Court and the U.S. Court of Appeals ruled that the “beyond reasonable doubt” standard must be used and that Hill was unable to meet the threshold. (18) As a result, the state of Georgia executed Hill in 2015.
More recently, Rodney Young was sentenced to death in 2012. According to the Death Penalty Information Center, “Young had been classified as ‘educable mentally retarded’ and placed in special education classes.” (19) However, this evidence was not sufficient to spare Young. The Georgia State Supreme Court upheld Young’s death sentence, and the U.S. Supreme Court has declined to stay Young’s execution. (20) Barring an unforeseen event, Young will soon be executed.
Due to these miscarriages of justice and a recent Supreme Court decision, it is increasingly evident that Georgia's scheme is unconstitutional. In Hall v. Florida, 572 U.S. 701 (2014), the Supreme Court struck down Florida’s definition of intellectual disability. In the majority opinion, Justice Anthony Kennedy noted that this provision created “an unacceptable risk that persons with intellectual disability will be executed,” rendering it incompatible with Atkins. (21) In light of this new constitutional metric, Georgia’s “beyond reasonable doubt” standard is undeniably unconstitutional. Since no defendant, even the aforementioned individuals with exceedingly credible claims has ever established intellectual disability for intentional murder, Georgia’s threshold unacceptably risks that intellectually disabled persons will face execution.
However, the Georgia Supreme Court disagreed with this conclusion in Young v. State of Georgia, 312 Ga. 71 (Ga. 2021). In the majority opinion, Chief Justice Harold Melton contended that the precedent set in Hall did not apply to Georgia’s “beyond reasonable doubt” standard. Citing the prior state case Stripling v. State, 289 Ga. 370 (Ga. 2011), Chief Justice Melton noted that, “Although the [U.S.] Supreme Court… had recognized a constitutional right of [intellectually disabled] defendants to be exempt from the death penalty, it had not directed the states to apply any particular burden of proof.” (22) Thus, Chief Justice Melton concluded that Hall did not apply to Georgia’s provision because it only nullified flawed definitions of intellectual disability. However, the inapplication of Hall is perplexing. If a burden of proof is so onerous that it prevents relief for all intellectually disabled persons, then the resulting capital scheme does not materially differ from one without a definition of, and therefore no protection for, intellectual disability. The latter scheme would be incontrovertibly unconstitutional under Hall because the nonexistent definition of intellectual disability fails to prevent any executions of intellectually disabled persons. Since the former world mirrors the latter, i.e., all intellectually disabled persons are executed, then it should be subjected to the same constitutional prohibition.
Current Supreme Court doctrine also supports the application of Hall’s “unacceptable risk” standard to Georgia’s “beyond reasonable doubt” threshold. In Hill v. Humphrey, 662 F.3d 1335 (11th Cir. 2011), Judge Rosemary Barkett elucidated that the states cannot “procedurally eviscerate substantive constitutional rights” just because the Supreme Court deferred the question of burden of proof to the states in Atkins. (23) Barkett referenced Bailey v. Alabama, 219 U.S. 219 (1911), “which clearly establishes that if a State’s procedures transgress a substantive constitutional right… those procedures are unconstitutional.” Since Georgia’s “beyond reasonable doubt” standard routinely permits the executions of intellectually disabled persons, it substantively nullifies the Eighth Amendment protection guaranteed in Atkins. As a result, Georgia’s provision is unconstitutional under the Bailey test, and the majority opinion in Young thus erred by failing to apply the Hall standard to Georgia’s capital scheme.
Despite the unconstitutional and harmful nature of Georgia’s “beyond reasonable doubt” standard, it will likely remain in place in the near future. The legislative and judicial avenues show little promise for relief. The state legislature is unlikely to act since there has been no momentum in recent years to overturn the provision. Moreover, the U.S. Supreme Court declined to hear Young’s appeal, which indicates that this conservative iteration of the Court has little interest in correcting Georgia’s capital scheme.
Ultimately, Atkins and its progeny reveal the dangers of deference in the capital setting. The Supreme Court erred in Atkins by granting the states broad authority over defining intellectual disability and establishing the requisite burden-of-proof standard. This near carte blanche enabled Georgia to continue operating a woefully deficient scheme that flagrantly violated the substantive aims of Atkins. Instead of correcting course and crafting more stringent standards, the Court then doubled down on this regime of deference by rejecting the opportunity to denounce Georgia’s scheme. Essentially, the Court has allowed Georgia to defy their ruling and thus has rendered Atkins a largely hollow ruling. Hall does reveal that Atkins is not a completely dead letter, but Georgia’s “beyond reasonable doubt” standard provides the playbook for how other states can successfully circumvent Atkins. Thus, the Court finds itself in a perilous predicament. If the states can effectively ignore the Court’s judgments, then the Court loses credibility in its death penalty jurisprudence and its institutional capabilities as a whole. In all, the Supreme Court’s deference has not only led to problematic material outcomes, i.e., the continued execution of intellectually disabled persons in Georgia. It has also undermined the legitimacy of the Court in the long run.
Endnotes
(1) For the former class of cases, see Coker v. Georgia, 433 U.S. 584 (1977) (a death sentence for the crime of rape violates the Eighth Amendment), and Kennedy v. Louisiana, 554 U.S. 407 (2008) (the death penalty for cases of child rape in which the victims lives violates the Eighth Amendment). For the latter class, see Thompson v. Oklahoma, 487 U.S. 815 (1988) (the execution of a person under the age of 16 violates the Eighth Amendment), Roper v. Simmons, 543 U.S. 551 (2005) (the execution of a person under the age of 18 violates the Eighth Amendment), and Ford v. Wainwright (the Eighth Amendment prohibits a state from executing an “insane” prisoner).
(2) John Blume et al., “An Empirical Look at Atkins v. Virginia and its Application in Capital Cases,” Tennessee Law Review 76, no. 3 (Spring 2009): 626.
(3) Blume et al., “An Empirical Look,” 627.
(4) Adam Liptak, “Language Mistake in Georgia Death Penalty Law Creates a Dauting Hurdle,” New York Times, January 3, 2022, https://www.nytimes.com/2022/01/03/us/politics/supreme-court-death-penalty-intellectual-disability.html.
(5) Liptak, “Language Mistake.”
(6) Death Penalty Information Center, “Georgia Supreme Court Asked to Overturn ‘Nearly Impossible’ Evidentiary Burden of Proving Intellectual Disability,” March 26, 2021, https://deathpenaltyinfo.org/news/georgia-supreme-court-asked-to-overturn-nearly-impossible-evidentiary-burden-of-proving-intellectual-disability.
(7) ACLU, “ACLU Asks Supreme Court to Review Georgia Law Permitting Executions of Persons with Intellectual Disability,” November 22, 2021, https://www.aclu.org/press-releases/aclu-asks-supreme-court-review-georgia-law-permitting-executions-persons-intellectual#:~:text=WASHINGTON%20%E2%80%94%20The%20American%20Civil%20Liberties,of%20persons%20with%20intellectual%20disability.
(8) Liptak, “Language Mistake.”
(9) Liptak, “Language Mistake.”
(10) Brian Stull et al., “Petition for a Writ of Certiorari to the Supreme Court of the United States in Young v. State of Georgia,” 2021: 3.
(11) ACLU, “ACLU Asks the Supreme Court.”
(12) Christopher M. Carr, Beth Burton, and Sabrina Graham, “Brief in Opposition in Young v. State of Georgia,” 2021, 23.
(13) Judge Adalberto Jordan, dissenting opinion in Raulerson v. Warden, 928 F. 3d. 987 (2019), 1016. https://casetext.com/case/raulerson-v-warden
(14) Thomas F. Boat and Joel T. Wu, Mental Disorders and Disabilities Among Low-Income Children (Washington, D.C.: National Academies Press, 2015), chap. 9. https://www.ncbi.nlm.nih.gov/books/NBK332877/#:%7E:text=Historically%2C%20intellectual%20disability%20(previously%20termed,100%20in%20the%20population)%E2%80%94and
(15) Internet Special Education Resources, “The History of IQ: One Number that Changed the World.”
www.iser.com/resources/iq-history.html
(16) Lauren Sudeall Lucas, “An Empirical Assessment of Georgia’s Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases” Georgia State University Law Review 33, no. 3 (August 2017): 593.
(17) Ed Pilkington, “Georgia Executes Inmate Warren Hill after Supreme Court Refuses Stay,” The Guardian, January 27, 2015, https://www.theguardian.com/world/2015/jan/27/supreme-court-georgia-execution-warren-hill
(18) Pilkington, “Georgia Executes Inmate.”
(19) Death Penalty Information Center, “Georgia Supreme Court Asked to Overturn.”
(20) Bill Rankin, “U.S. Supreme Court declines to hear Georgia death-penalty appeal,” Atlanta Journal- Constitution, February 28, 2022. https://www.ajc.com/news/crime/us-supreme-court-declines-to-hear-georgia-death-penalty-appeal/CBW7OX53XNB5JKAJ7YP2IX5Q4Y/#:~:text=The%20U.S.%20Supreme%20Court%20on,prove%20they%20are%20intellectually%20disabled
(21) Justice Anthony Kennedy, the majority opinion in Hall v. Florida, 572 U.S. 701 (2014), 1.
https://supreme.justia.com/cases/federal/us/572/701/
(22) Chief Justice Harold Melton, the majority opinion in Young v. State of Georgia, 312 Ga. 71 (Ga. 2021), 42.
https://casetext.com/case/young-v-state-2337
(23) Judge Rosemary Barkett, dissenting opinion in Hill v. Humphrey, 662 F. 3d 1335 (11th Cir. 2011), 1367.
https://casetext.com/case/hill-v-humphrey
(24) Barkett, dissenting opinion in Hill, 1368.
