The Death Penalty Standard that Wonâ•Žt Die: The Georgia Supreme Court Maintains the Highest Possible Standard of Proof for the Mentally Disabled

Mercer Law Review Mercer Law Review

Volume 73

Number 5

MLR Online Companion

Article 9

5-2022

The Death Penalty Standard that Won’t Die: The Georgia Supreme The Death Penalty Standard that Won’t Die: The Georgia Supreme

Court Maintains the Highest Possible Standard of Proof for the Court Maintains the Highest Possible Standard of Proof for the

Mentally Disabled Mentally Disabled

Alyssa LeDoux

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Recommended Citation Recommended Citation

Alyssa LeDoux,

The Death Penalty Standard that Won’t Die: The Georgia Supreme Court Maintains the

Highest Possible Standard of Proof for the Mentally Disabled

, 73 Mercer L. Rev. 1567 (2022).

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1567

The Death Penalty Standard that

Won’t Die: The Georgia Supreme

Court Maintains the Highest

Possible Standard of Proof for the

Mentally Disabled

Alyssa LeDoux

I. INTRODUCTION

Several serious issues arise when applying the death penalty to the

mentally disabled. First, the social purposes served by the death penalty,

retribution and deterrence, are questionable when it comes to the

mentally disabled.

Retribution by execution is reserved for those at the

highest level of culpability or the highest level of conscious and depraved

guilt.

Likewise, execution is viewed as an effective deterrent on cold

calculus that is not found in individuals with a mental disability.

Second, challenges the disabled face, such as the tendency to falsely

confess, the lesser ability to present a persuasive showing of mitigating

factors, the lack of visible remorse, the inability to effectively assist their

counsel, and others, compromise effective litigation and expose the

Thank you, Professor Ted Blumoff, for helping me select this fascinating and important

case and advising me through the writing of this Casenote. Also, thank you to Dougla

Comin, the Student Writing Editor, for answering my million questions and being willing

to give me hard feedback, and Zac Mullinax, my peer reviewer, for voluntarily reviewing

my work multiple times. Finally, thank you to my parents and sister Erin for being right

all along.

. Atkins v. Virginia, 536 U.S. 304, 318-19 (2002).

. Id. at 319.

. Id. at 319-20. The reasoning is that higher severity of punishment will create

reluctance in those considering murderous crimes, which requires certain abilities to

logically reason, process, understand, and control impulses (abilities lacking in the

mentally disabled thereby nullify any deterrent effect). Id.

1568 MERCER LAW REVIEW Vol. 73

mentally disabled to a higher risk that the death penalty will be imposed

erroneously.

For Georgia, Young v. State

is the most recent case dealing with

executing the mentally disabled, adding to what has been a divisive

stream of caselaw since the early 70s. Georgia mandated the protection

of the mentally disabled early on but imposed the highest standard

possible to prove that disability.

Over the decades, jurisprudence from

the Supreme Court of the United States has made maintaining this

standard difficult, but the divided Georgia Supreme Court has held firm.

II. F

ACTUAL BACKGROUND

Rodney Young broke into his ex-girlfriend’s home, bound her son, Gary

Jones, to a chair and beat him to death with a hammer and butcher knife,

leaving his skull fractured, his eye out of socket, and his body lying in a

pool of glass and blood.

He was tried and convicted, and in his defense

Young claimed guilty but mentally disabled—which would, if found to be

true, disqualify him for the death penalty.

The jury, however, was not

convinced and convicted Young of murder aggravated by burglary and

outrageous, inhumane torture showing Young’s depravity of mind.

The

jury sentenced Young to death.

In Georgia, to be found exempt from the death penalty due to mental

disability, the defendant needs to establish that mental disability

“beyond a reasonable doubt.”

On appeal to the Georgia Supreme Court,

the court reviewed Young’s presented testimony from staff at his old high

school showing he struggled in high school with academics and sports

and attended special education.

Young argued in his appeal that the

standard of proof, beyond reasonable doubt, is unconstitutionally high

and contradicts recent Supreme Court of the United States’s decisions

meant to protect all mentally disabled from execution.

The Georgia

Supreme Court affirmed Young’s convictions and reinforced the ruling

that currently stands in Georgia: the Georgia Constitution does not

. Id. at 320–21.

. 312 Ga. 71, 860 S.E.2d 746 (2021).

. Id. at 88, 860 S.E.2d at 768–69.

. Id. at 73, 860 S.E.2d at 759.

. Id.

. Id. at 122, 860 S.E.2d at 790.

. Id. at 71, 860 S.E.2d at 758.

. Id. at 74, 860 S.E.2d at 759.

. Id. at 73, 860 S.E.2d at 759.

. Id. at 90–92, 860 S.E.2d at 770–71.

2022 THE DEATH PENALTY STANDARD 1569

preclude requiring the mentally disabled to prove their disability beyond

reasonable doubt.

III. L

EGAL BACKGROUND

Criminal prosecution always bears a margin of error that risks either

letting the guilty go free or the innocent pay for a crime they did not

commit.

The Fifth

and Fourteenth

Amendments to the United

States Constitution reflect the preference for the former—that no

individual should lose their liberty unless the prosecution has convinced

the factfinder of the individual’s guilt.

The risk of convictions relying on

error is protected against by the requirement that the government prove

guilt “beyond a reasonable doubt,” the highest standard of proof, for all

criminal proceedings.

Beyond a reasonable doubt indicates that the

factfinder should feel the highest degree of confidence in the conviction

as opposed to feeling it is either more than likely or just possible.

In addition, the Eighth Amendment

declares that no cruel or unusual

punishments shall be inflicted.

The U.S. Supreme Court in Weems v.

United States

defined cruel and unusual to include usual punishments

dealt out excessively or disproportionately to the offense; the law limits

. Id. at 100, 860 S.E.2d at 776.

. In re Winship, 397 U.S. 358, 370–71 (1970).

. U.S. CONST. amend. V.

. U.S. CONST. amend. XIV.

. Winship, 397 U.S. at 363–64.

. Id.; Addington v. Texas, 441 U.S. 418, 428 (1979).

. See Winship, 397 U.S. at 363–64. Thus, when evidence indicates criminal guilt it

becomes the State’s burden to prove it beyond a reasonable doubt and not the individual’s

burden to prove their innocence. Cheddersingh v. State, 290 Ga. 680, 681, 724 S.E.2d 366,

368-69 (2012).

. U.S. CONST. amend. VIII.

. Id.

. 217 U.S. 349 (1910). Since Weems, “cruel and unusual” punishment has been

fleshed out to include a California statute that criminalized narcotic addiction, statutes

mandating life in prison for juveniles and denationalization. The Supreme Court ruled that

“in the light of contemporary human knowledge, a law which made a criminal offense of

such a disease would doubtless be universally thought to be an infliction of cruel and

unusual punishment in violation of the Eighth and Fourteenth Amendments.” Robinson v.

California, 370 U.S. 660, 660 n.1, 666 (1962) (referring to California Health and Safety Code

§ 11721, which said, “No person shall . . . be addicted to the use of narcotics . . . . Any person

convicted of violating any provision of this section is guilty of a misdemeanor and shall be

sentenced to serve a term of not less than 90 days . . . in the county jail.”); Miller v. Alabama,

567 U.S. 460, 465 (2012) (holding that mandating life in prison for juveniles “prevents those

meting out punishment from considering a juvenile’s ‘lessened culpability’ and greater

‘capacity for change’”); Trop v. Dulles, 356 U.S. 86, 103 (1958).

1570 MERCER LAW REVIEW Vol. 73

cruelties in both degree and kind.

Specifically, the Court held that the

death penalty in itself is not cruel or unusual but can be if applied to

inappropriate circumstances.

A. A Need for Change

In the 1950s, a change in society’s views on criminals began to

spread

nationwide.

Awareness of biological, social, and environmental

influences revealed that criminal activity is sometimes less culpable,

which put into question the deterrent and moral value of the death

penalty.

At the same time, racial disparity in those being executed

became glaringly evident, which confirmed that the kind of arbitrary

error the Constitution is against was indeed occurring.

The U.S.

Supreme Court’s decision in Gregg v. Georgia

held that the death

penalty is constitutional so long as states include ways to ensure

imposition is never arbitrary or capricious.

Gregg’s qualification for

. Weems, 217 U.S. at 367, 377.

. Weems, 217 U.S. at 370-71.

. STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 208 (Harvard Univ.

Press 2003). As early as the mid-1800s and around the time strange behavior started being

attributed to natural maladies of the brain, there existed discomfort and debate about

executing the mentally disabled. B

ANNER, supra note 26, at 119.

. Id. at 208-09.

. Id. at 228–30; Addington, 441 U.S. at 425; Winship, 397 U.S. at 363–364. Courts

were put under immense pressure from other countries, the National Association for the

Advancement of Colored People, Legal Defense and Education Fund, the American Civil

Liberties Union state legislation, juries refusing to consider execution, and an unusually

high number of habeas corpus petitions. B

ANNER, supra note 26, at 242, 244–48. Capital

punishment was openly opposed by famous intellectuals, politicians, and religious

organizations. Id. at 240, 241–42. Due to the pressure on the courts and public movements,

executions halted and, in Furman v. Georgia, the U.S. Supreme Court finally addressed the

possibility of executions being random, sentenced with inappropriate motives, and violating

the Eighth Amendment. Furman v. Georgia, 408 U.S. 238, 239–40, 256, 305, 310 (1972).

The Court held that the way the death penalty was being carried out constituted cruel and

unusual punishment and invalidated the arbitrary application of forty states’ death penalty

statutes. Id. at 305, 312; The History of the Death Penalty: A Timeline, D

EATH PENALTY

INFORMATION CENTER, https://deathpenaltyinfo.org/stories/history-of-the-death-penalty-

timeline (last visited Nov. 18, 2021). In reaction to the Furman ruling, most states passed

new death penalty statutes laying out factors to be weighed and other more appropriate

criteria to reduce the risk of error. Gregg v. Georgia, 428 U.S. 153, 179–81 (1976). Gregg v.

Georgia eventually put an end to the ten-year moratorium. The History of the Death

Penalty: A Timeline, supra note 28.

. 428 U.S. 153 (1976).

. Id. at 188, 197–98 (upholding a Georgia law that mandated individual

consideration of each crime and criminal’s circumstances before a jury can sentence an

individual to death).

2022 THE DEATH PENALTY STANDARD 1571

states required courts lower the risk by taking mental disability into

account when considering the death penalty.

B. Legislative and Judicial Response

A decade later, the public was outraged by the execution of Jerome

Bowden, a convict from Georgia with an IQ of sixty-five.

The jury

convicted Bowden of murder aggravated by armed robbery, aggravated

assault, and burglary.

Bowden’s IQ tested at fifty-nine as a teenager

and testimony revealed limited mental abilities throughout his life.

Public backlash demonstrated serious societal discomfort with the state

executing someone who appeared so clearly mentally disabled, which

caused Georgia to become the first state to outlaw execution of the

mentally disabled in 1988.

Other states followed suit and the Anti-Drug

Abuse Act of 1988 (the Act)

included a national standard barring the

death sentence for certain mentally disabled people.

In 1989, the U.S. Supreme Court addressed the death sentence for the

mentally disabled for the first time since the Act.

The defendant,

Johnny Penry, had the mental age of a six-year-old and the learning

ability of a nine or ten-year-old, and was sentenced to death for beating,

raping, and stabbing Pamela Carpenter in Texas.

Penry was diagnosed

as a child with organic brain damage and had an IQ somewhere between

fifty and sixty-three, which manifested in substantial difficulty learning

as a child.

Doctors testified that at the time of the crime his mental

disability made it virtually impossible for him to understand the

. Id. at 164, 193–95 n.44.

. Timothy R. Saviello, The Appropriate Standard of Proof for Determining

Intellectual Disability in Capital Cases: How High is Too High?, 20 B

ERKELEY J. CRIM. L.

163, 165, 168 (2015); Bowden v. State, 239 Ga. 821, 238 S.E.2d. 905 (1977).

. Bowden, 239 Ga. at 821, 238 S.E.2d at 907.

. Saviello, supra note 32, at 166.

. Id. at 168, 169 n.35 (citing Bill Montgomery, Who Shall Die? The Death Penalty’s

Last Appal–Retarded Man’s Execution Stirred Protest Worldwide – Case of Jerome Bowden

Discomfits Conscience, ATL.J. AND ATL. CONST., October 13 1986, at A1) (“Virtually all

of the press coverage described Jerome Bowden as ‘retarded’ and the Atlanta Journal

Constitution, Atlanta’s major newspaper, referred to him as ‘retarded’ in virtually every

article they wrote about his case and execution.”); O.C.G.A. § 17-7-131(c)(3) (2017); Lauren

Sudeall Lucas, An Empirical Assessment of Georgia’s Beyond A Reasonable Doubt Standard

to Determine Intellectual Disability in Capital Cases, 33 G

A. ST. U. L. REV. 553, 556 (2017).

. Anti-Drug Abuse Act of 1988, Pub. L. 690, § 7001(l), 102 Stat. 4181 (protecting

individuals who, as a result of mental disability, are unable to understand the proceedings

or cannot recognize the unlawfulness of their act); Atkins, 356 U.S. at 313–14.

. Penry v. Lynaugh, 492 U.S. 302, 307 (1989).

. Id. at 307-08.

. Id.

1572 MERCER LAW REVIEW Vol. 73

wrongfulness of his actions or to conform them to the law.

A jury

sentenced Penry to death.

Despite proof of organic brain damage, the

Court held it was not enough to constitute cruel and unusual punishment

simply because he was mentally disabled, and affirmed his sentence.

The same year the U.S. Supreme Court held in Penry v. Lynaugh

that the U.S. Constitution did not protect the mentally disabled from the

death penalty, the Georgia Supreme Court held in Fleming v. Zant

that

while the federal Constitution (and caselaw at the time) represented the

minimum protection states must afford their citizens, the Georgia

Constitution could offer more.

Additionally, the Georgia court stated

that the new state legislation in Georgia was the clearest evidence of a

consensus in Georgia that executing the mentally disabled does not

contribute to the acceptable goals of capital punishment.

Son Fleming

had been sentenced to death for murdering a police officer, but Fleming

had previously applied for and been granted social security disability

benefits for psychosis and organic brain damage.

The Fleming case, the

first claim of guilty but mentally disabled death penalty case since the

new Georgia legislation, prevented the execution of Fleming, holding that

he was protected from cruel and unusual punishment as newly stated

under the Georgia Constitution.

C. A New Standard

In 2002, the U.S. Supreme Court tackled the Penry question again—

whether execution of a mentally disabled individual qualified as cruel

and unusual punishment.

Daryl Atkins was sentenced to death after

his conviction for abduction, armed robbery, and capital murder.

Atkins

and his associates abducted Eric Nesbitt at gunpoint and forced him to

withdraw cash from an automated teller machine before shooting him to

. Id. at 308–09.

. Id. at 311.

. Id. at 340. Though Penry was not found to have met the criteria, the Court agreed

that a defendant’s background and character are important considerations “because of the

belief, long held by this society, that defendants who commit criminal acts that are

attributable to a disadvantaged background, or to emotional and mental problems, may be

less culpable than defendants who have no such excuse.” Id. at 319.

. 492 U.S. 302 (1989).

. 259 Ga. 687, 386 S.E.2d 339 (1989).

. Young, 312 Ga. at 87, 860 S.E.2d at 768.

. Fleming v. Zant, 259 Ga. 687, 689-90, 386 S.E.2d 339, 341-42 (1989).

. Id. at 687, 386 S.E.2d at 340.

. Id. at 691, 386 S.E.2d at 343.

. Atkins v. Virginia, 536 U.S. 304, 307 (2002).

. Id.

2022 THE DEATH PENALTY STANDARD 1573

death.

The forensic psychologist found Atkins mildly mentally disabled

with an IQ of fifty-nine.

The Court in Atkins v. Virginia fully

acknowledged the dramatic social and legislative current that had

developed over the years and held that these less culpable individuals

neither deserved this serious retribution nor would be effectively

deterred by it.

The Court ruled that due to the “gravity of the concerns

expressed by dissenters, and in the light of the dramatic shift in the state

legislative landscape[,]” taking the life of mentally disabled person is

categorically prohibited.

Georgia courts were heavily involved in the evolution leading up to

Atkins while simultaneously wrestling with their own state resolutions.

However, upon the prohibition in Atkins, neither the Georgia legislature

nor judiciary made any procedural changes regarding the guilty but

mentally disabled plea.

Georgia is the only state to set this high of a

standard of proof in this context and the only one to have the jury

consider mental disability for these purposes in tandem with the

consideration of the defendant’s guilt.

The law states that the jury

should find “beyond a reasonable doubt that the defendant is guilty of the

crime charged and is with intellectual disability.”

In 2013, advocates

demanded a change and presented at an informational hearing to the

House Judiciary Non-Civil Committee of the Georgia General Assembly,

urging that careless drafting—namely, tacking the finding of disability

onto the end of a sentence—resulted in the application of the “beyond a

reasonable doubt” standard to both guilt and a finding of disability.

The Georgia Supreme Court has held firm, despite continual court

splits on the constitutionality of the beyond reasonable doubt threshold

to prove mental disability since its inception in Section 17-7-131 of the

Official Code of Georgia Annotated. But in 2014, the U.S. Supreme Court

made a critical clarification on the categorical prohibition that

compromised the Georgia court’s previous rationale and opened the

question once again, a question the Georgia Supreme Court answered in

Young v. State.

. Id.

. Id. at 308–09.

. Id. at 310, 319–20 (2002).

. Id. at 310, 321.

. Lucas, supra note 35, at 559.

. Id. at 560.

. O.C.G.A. § 17-7-131(c).

. Lucas, supra note 35, at 561; Adam Liptak, Language Mistake in Georgia Death

Penalty Law Creates a Daunting Hurdle, N.Y.

TIMES (Jan. 3, 2021),

https://www.nytimes.com/2022/01/03/us/politics/supreme-court-death-penalty-intellectual-

disability.html.

1574 MERCER LAW REVIEW Vol. 73

IV. COURT’S RATIONALE

Young is one of many unsuccessful death penalty challenges

attempting to strike down the beyond a reasonable doubt standard of

proof, but the Georgia court’s reasoning behind this decision makes this

case more significant to the claim of guilty but mentally disabled in

Georgia than any of the challenges before.

The last time the Georgia

Supreme Court upheld the standard was in Stripling v. State.

Young

argues the standard is unconstitutional and that the Stripling ruling is

therefore an error which should be rectified through his case.

Instead,

the court here overrules key parts of Stripling while introducing new

justifications that reinvent the standard as a new creature, or rather, the

same creature on new legs.

The court acknowledged that while Georgia was the first to pass

legislation barring the execution of the mentally disabled, it has always

been the only state, or one of the very few, to require those prosecuted to

convince the jury of a defendant’s disability beyond a reasonable doubt.

Regardless, the Court determined, Georgia’s early involvement showed

its inclusion in the creation of the national consensus against executing

the mentally disabled, which includes the beyond a reasonable doubt

standard.

The trend towards the national consensus the court referred to

culminated in Atkins with the final termination of executions of any

mentally disabled person because of the “dramatic shift in the state

legislative landscape” since Penry in 1989, the year after Georgia’s

standard was established.

The U.S. Supreme Court established the

prohibition, determining that social and political climates demanded it

given the charge to “draw . . . meaning from the evolving standards of

decency that mark the progress of a maturing society.”

Those evolving standards can be traced towards tighter protection for

death row candidates with mental disabilities.

Policies reducing the

. Young, 312 Ga. at 88, 860 S.E.2d at 769.

. 289 Ga. 370, 371, 711 S.E.2d 665, 667 (2011); Young, 312 Ga. at 88, 860 S.E.2d at

769.

. Young, 312 Ga. at 87, 90, 860 S.E.2d at 768, 790.

. Id. at 88, 860 S.E.2d at 768-69.

. Id. at 90, 860 S.E.2d at 770.

. Atkins, 536 U.S. at 310.

. Trop, 356 U.S. at 101.

. According to Winship, the beyond a reasonable doubt standard protects the party

against whom the proof is offered, which is why it has been an important standard to hold

the state to in criminal proceedings. Winship, 397 U.S. at 362. However, in Georgia mental

disability death penalty cases¾where the defendant is attempting to prove mental

2022 THE DEATH PENALTY STANDARD 1575

risk of execution for the mentally disabled were based completely on the

rise of national awareness and rejection of erroneous death penalty

sentencing.

All the judicial decisions, public movements, and new

legislation on this topic since the ideas started even before Winship

finally rounded out with the recognition that society is no longer

comfortable with the risk of executing any mentally disabled person and

is willing to risk lessened penalties for more deserving criminals in order

to protect that right.

This consensus is what gives ground to Young’s complaint. The court

did not disagree with the current national values of protecting the

mentally disabled, but rather Young’s challenge to the efficaciousness of

Georgia’s implementation.

Young made several attempts to show why

the court’s previous decisions force Georgia out of step with the national

consensus interfering with his constitutional right as a mentally disabled

disability¾the standard is ironically used against the defendant to the benefit the State

instead. This may suggest that while the standard has been in use since before Penry, it is

not in line with other states’ national consensus toward allotting capital defendants with

mental disabilities every possible protection in the law.

. Atkins, 536 U.S. at 321 (deciding the evolving standards of decency compels the

conclusion that the death penalty is excessive for the mentally disabled); Gregg v. Georgia,

428 U.S. 153, 189 (1976) (stating that justice requires consideration of character and

propensities of the offender); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (quoting Woodson v.

North Carolina, 428 U.S. 280, 304 (1976) (stating mandatory death penalty statutes are

invalid because they neglect consideration of particular circumstances)); Moore v. Texas,

137 S. Ct. 1039, 1052 (2014) (quoting Hall v. Florida, 572 U.S. 701, 705 (1990) (stating

“consensus in the States provides ‘objective indicia of society’s standards in the context of

the Eighth Amendment’”)); Addington, 441 U.S. at 428 (stating that the use of the beyond

reasonable doubt standard in criminal proceedings shows society’s concerns to minimize

risk of error in sentencing at the risk of letting someone guilty go free).

. Atkins, 536 U.S. at 321. In 2005, the Supreme Court interpreted the Eighth and

Fourteenth Amendments to forbid imposing the death penalty on children. Roper v.

Simmons, 543 U.S. 551, 578–79 (2005). In the deciding case, Roper v. Simmons, several

teenagers planned to take a life, broke into Shirley Crook’s house, duct taped her hands

and entire face, drove her to a bridge, and pushed her into the Meramec River where she

drowned. Id. at 556–57. The instigating teen was charged with aggravated first-degree

murder that involved depravity of mind and deemed inhumane and outrageously and

wantonly vile. Id. at 557. Relying on Atkins v. Virginia and the Eighth Amendment, the

Court ruled to protect the murderous teen from the death penalty because of the low

likelihood that teenagers engage in the sort of cost-benefit analysis that assures the death

penalty would be an effective means of deterrence. Id. at 571–72. The Roper decision

repealed Stanford v. Kentucky, where the Supreme Court had refused to find a national

consensus that the death penalty for sixteen-year-olds was cruel and unusual. Id. at 574;

Stanford v. Kentucky, 492 U.S. 361, 380 (1989). The Court decided Stanford on the same

day it decided Penry, which denied the mentally disabled categorical exemption from the

death penalty. Roper, 543 U.S. at 562. Both cases were based on the same consensus that

objectively society’s standards did not demand an alternative conclusion. Id. at 574.

. Young, 312 Ga. at 74, 860 S.E.2d at 759–60.

1576 MERCER LAW REVIEW Vol. 73

person.

These arguments are discussed in turn below, as well as the

court’s rationale for its rejection.

A. The Substantive Mistake

Young defended his case first by attacking the substantive aspects of

the court’s decision about the standard in Stripling from 2011 because

more recent cases put those decisions in new light.

Atkins held that

because the mentally disabled face a special risk of wrongful execution,

death is not a suitable sentence to allow a judge or jury to consider for a

mentally disabled criminal.

In Head v. Hill,

the Supreme Court of

Georgia held the special risks and limitations suffered by truly mentally

disabled persons that the Court in Atkins was concerned about do not

need more protection.

Hill also held that those whose mental

deficiencies are significant enough to be provable beyond a reasonable

doubt fit the category protected by Atkins.

In Stripling, the court added

that the beyond a reasonable doubt standard is justified because it

“served to define the category of mental [disability,]” which, at the time,

was determined to be well within the constitutional purposes of the

Atkins decision.

. Id. at 90, 92, 869 S.E.2d at 770–71.

. Id. at 90–91, 860 S.E.2d at 770.

. Atkins, 536 U.S. at 321.

. 277 Ga. 255, 587 S.E.2d 613 (2003).

. Id. at 262, 587 S.E.2d at 622. The risks of the standard, it held, are sufficiently

counterbalanced by Georgia’s procedure for demonstrating incompetency to stand trial,

which require a showing of incompetence only by a preponderance of the evidence. Id. The

Court in Dusky v. United States held that if the individual is capable of consulting with a

lawyer and has a rational understanding of the proceedings, they are competent and the

defense of incompetency to stand trial will not protect them. Dusky v. United States, 362

U.S. 402, 402 (1960).

. Hill, 277 Ga. at 262, 587 S.E.2d at 622; Stripling, 289 Ga. at 374, 711 S.E.2d at

669. The habeas court determined that because Hill was mildly intellectually disabled, the

beyond a reasonable doubt standard created an especially high risk for erroneous executio

because the defendant bore almost all the risk of error. Lucas, supra note 35, at 562-63. On

appeal from a decision to the contrary from the Georgia Supreme Court, the United States

Court of Appeals for the Eleventh Circuit agreed with the habeas court, determining that

the standard would undoubtably result in the execution of mentally disabled individuals.

Id. at 563. An en banc hearing reversed that ruling because of the lack of data to support

that claim. Id. at 563–64. Meanwhile, three of the psychologists who had testified for the

prosecution in earlier proceedings reviewed Hill’s case again and determined they w

ere

wrong about their conclusion of Hill’s lack of mental disability. Id. at 564–65. Warren Hill

was executed January 27, 2015. Id. at 565.

. Stripling, 289 Ga. at 373, 711 S.E.2d at 668 (second emphasis added).

2022 THE DEATH PENALTY STANDARD 1577

However, in 2014, the U.S. Supreme Court clarified the Atkins holding

in response to Texas and Florida’s procedures being too rigid, arbitrary,

and failing to protect the mildly mentally disabled. Moore v. Texas

established that the Atkins decision was meant to shield all the mentally

disabled from the death penalty and that courts could not define mental

disability but rather “must be ‘informed by the medical community’s

diagnostic framework[.]’”

The clarification in Moore meant that courts

using their procedures to define mental disability infringes on

constitutional rights against cruel and unusual punishment.

Young

argued that this clarification undermined the Georgia court’s substantive

use, as stated in Stripling, of the beyond a reasonable doubt standard.

The court in Young acknowledged all these facts and stated, referring to

the offending statements in Stripling and Hill, “[a]ccordingly, we

disapprove anything in our prior decisions suggesting otherwise,

particularly those parts of our prior decisions suggesting that ‘Georgia’s

beyond a reasonable doubt standard further served to define the category

of mental [disability,]’” effectively overruling Hill and Stripling on this

point.

But the court’s analysis of the substantive mistake ends there.

B. Purely Procedural

In regard to procedural problems with the standard, Young nex

argued: (1) that the U.S. Supreme Court decisions in Moore v. Texas and

Hall v. Florida

require the court’s disapproval of more than just how

the standard of proof has been applied substantively but the procedural

standard itself, and (2) that proving mental disability is more

. 137 S. Ct. 1039 (2014).

. Id. at 1048.

. Id. at 1044.

. Young, 312 Ga. at 90–91, 860 S.E.2d at 770.

. Id.

. The court in Young disapproved of using the standard substantively to define

mental disability, which Stripling and Hill showed Georgia has been doing even after the

Atkins decision. Id. at 91, 860 S.E.2d at 770. Instead, the court declared that the standard

should be used procedurally to provide a construct for the jury to determine if an

intellectual disability exists at all, according to the medical community’s definition. Id.

Then, the court stated how procedurally Georgia is in line with Atkins because it has used

the medical community’s definitions in its statutes but neglected mentioning or instructing

any changes that need to happen substantively due to the mistaken use of the standard up

to that point. Id. at 91, 860 S.E.2d at 771. The court therefore determined that the

substantive clarifications in Moore and Hall do not effect Georgia since Georgia

procedurally has followed the medical community’s definitions. Id. at 92, 860 S.E.2d at 771.

. 572 U.S. 701 (2014).

1578 MERCER LAW REVIEW Vol. 73

procedurally analogous to a claim of incompetence to stand trial than

insanity and should be treated as such.

Before Moore, Texas relied on a seven-factor test of the Texas Court of

Criminal Appeals’s own creation.

The U.S. Supreme Court ruled that

findings of mental disability based on the court’s invented tests do not

sufficiently protect the mentally disabled.

Florida law before Hall

prevented those who wished to present evidence for mental disability

unless their IQ tested below seventy, determining that anyone with an

IQ higher than seventy automatically could not be considered mentally

disabled.

The U.S. Supreme Court stated that though the statute

. Young, 312 Ga. at 92–94 860 S.E.2d at 771, 773; Brief for Appellant at 103–04,

Young v. State, 860 S.E.2d 746 (2021) (No. S21P0078).

. Bobby James Moore shot and killed a store clerk during a robbery and was

convicted of murder and sentenced to death. Moore, 137 S. Ct. at 1044. As a youth, Moore

struggled with basic math, measurements, the telling of time, and reading and writing. Id.

at 1045. The Texas Court of Criminal Appeals (TCCA) used the guidelines it had

established in Ex Parte Briseno and determined Moore’s execution would not violate the

Eighth Amendment. Id. at 1044. The TCCA set this Briseno standard as an attempt to

incorporate the prohibition in Atkins. Id. at 1046–47. The definition it set departed from

the American Psychiatric Association Diagnostic and Statistical Manual of Mental

Disorders (DSM) because the clinical definitions include those who are mildly mentally

disabled, though not necessarily beyond improvement with professional assistance. Id. at

1051. The TCCA suggested there was not a “Texas consensus” among its citizenry that

would consider all the same mentally disabled as defined in the DSM as the ones intended

to be protected by Atkins and opted instead to use the American Association on Mental

Retardation (AAMR). Ex parte Briseno, 135 S.W.3d 1, 6–7 (Tex. Crim. App. 2004). The

AAMR characterizes someone with mental disability as someone with (1) “‘significantly

subaverage’ general intellectual functioning; (2) accompanied by ‘related’ limitations in

adaptive functioning; (3) the onset of which occurs prior to age of 18.” Id. at 7. The TCCA

paired that definition with seven factors it does not cite from any source for courts to use

when weighing the evidence, reasoning that it would help courts navigate the divide

between those who are diagnosable and those who are mentally disabled for purposes of the

Eighth Amendment. Id. at 8–9; Moore, 137 S. Ct. at 1046. The Moore court ruled, as in Hall,

that the factors developed in the Briseno case created “an unacceptable risk that persons

with intellectual disability will be executed” because they were drawn from neither the

medical community nor Atkins. Moore, 137 S. Ct. at 1051, 1053.

. Moore, 137 S. Ct. at 1044.

. Freddie Lee Hall kidnapped, beat, raped, and murdered Karol Hurst while she was

pregnant and then killed Lonnie Coburn at a convenience store soon after. Hall, 572 U.S.

at 704. Hall’s teachers had identified him as mentally disabled, previous counsel compared

him to the lawyer’s four-year-old daughter, medical professionals testified that he was

significantly disabled with the understanding of a toddler, and his family recognized early

his slow learning and difficulty talking. Id. at 705–06. Despite those facts, Hall’s IQ tested

at seventy-one and Florida’s threshold for intellectual disability was seventy or below to be

allowed to present additional evidence of mental disability. Id. at 707. On appeal to the U.S.

Supreme Court, the Court acknowledged that the Florida statute on its face could be

interpreted as consistent with Atkins and the views of the medical community. Id. at 711.

2022 THE DEATH PENALTY STANDARD 1579

appeared in line with Atkins on its face, it was being interpreted too

narrowly and rigidly and, thus, missed the logic of Atkins’ Eighth

Amendment protections.

Nevertheless, the court quickly dismissed Young’s first argument in a

single paragraph, stating that Moore and Hall only apply to questions on

substantive definitions of intellectual disability.

The U.S. Supreme

Court in those cases held that courts must substantively define mental

disability in adherence to clinical definitions and the court in Young

states that these cases are, therefore, inapplicable because Georgia

“indisputably does[.]”

It is this point where several justices, in both concurrence and dissent,

expressed doubt about the logic of the lead opinion of Justice Melton.

Presiding Justice Nahmias writes in his concurrence, and on behalf of

Justice Boggs and Justice Peterson, that the Hall and Moore decisions

certainly cast doubts on the standard but recognizes that it is dangerous

to “evolve” the law based on reasoning from the U.S. Supreme Court

rather than its holdings.

Justice Bethel dissents and instead agrees

with Young’s contention that the Hall and Moore decisions show that the

reasoning behind the beyond a reasonable doubt standard in Stripling

and Hill is analogous to the reasoning and procedures that were struck

down in Texas and Florida, which now compel a different conclusion

here.

Justice Melton, however, swiftly disagreed and moved on to the

next point.

However, the way the Florida Supreme Court had interpreted it was too narrow to regard

the IQ score as dispositive and neglected other significant factors contrary to experts’

processes. Id. at 711–12. In response to Florida’s argument that Atkins left to the states the

development of appropriate enforcement, a holding shared by Young, the Court responded

that in fact Atkins provided substantial guidance in its logic. Id. at 720–21. “If the States

were to have complete autonomy to define intellectual disability as they wished, the Court’s

decision in Atkins could become a nullity, and the Eighth Amendment’s protection of human

dignity would not become a reality.” Id. The U.S. Supreme Court, therefore, struck the

Florida statute as unconstitutional in its narrow rigidity. Id. at 723.

. It was not enough of a justification to say that Atkins had left procedural and

substantive guidelines to the states when Florida’s statute threatened to nullify the Eighth

Amendment as defined in Atkins. Hall, 572 U.S. at 711, 720-21.

. Young, 312 Ga. at 92, 860 S.E.2d at 771.

. Id.

. Id. at 126–27, 129, 131, 860 S.E.2d at 793, 795–96 (Nahmias, J., concurring

specially).

. Id. at 131, 860 S.E.2d at 796 (Bethel, J., dissenting). Justice Bethel further notes

that a juror who was probably or clearly convinced that a person was mentally disabled

would still be authorized to join in sentencing them to death. Id. at 133, 860 S.E.2d at 797.

While recognizing that all risk cannot be eliminated, the highest burden of proof greatly

increases the risk and limits the protection to those who suffer profound mental disabilities.

Id. at 132–33, 860 S.E.2d at 797.

1580 MERCER LAW REVIEW Vol. 73

In answer to the second argument, the court maintains its consistency

with its previous decisions—namely, that mental disability is more akin

to insanity than incompetence to stand trial.

The relevant procedural

difference between insanity and incompetence to stand trial is that the

U.S. Supreme Court held that courts could require the insane to prove

their insanity beyond a reasonable doubt without violating the

constitution, but could not require those claiming incompetence to prove

it by more than by a preponderance of the evidence.

The court analyzed these propositions from two U.S. Supreme Court

cases, Leland v. Oregon

containing the holding on insanity, and Cooper

v. Oklahoma

containing the holding on incompetence to stand trial.

The Georgia Supreme Court has held that while both cases are

comparable and neither is a perfect fit to guilty but mentally disabled

Leland was a better guide.

The rights in controversy in both these cases

and Young are established as constitutional rights to some degree; Young

and Cooper involve rights the Court considers fundamental and Leland’s

is not a right secured in the Bill of Rights but was an acceptable definitio

by the Constitution.

Cooper is comparable in that incompetence to

stand trial and guilty but mentally disabled both involve a danger of

potentially erroneous sentencing, but Leland is comparable in that both

insanity and mental disability relieve someone found to be guilty of some

amount of the penalty.

100

Both incompetence and insanity have some historical, though

contrasting, basis: incompetence to stand trial has a history of protecting

defendants from being required to meet the beyond a reasonable doubt

standard; insanity pleas, on the other hand, historically were required to

meet a high standard of proof, to “clearly prove” their insanity; mental

. Id. at 96–97, 860 S.E.2d at 774 (majority opinion). Insanity is a defense that

eliminates culpability as an element of a crime, meaning, if proved, the defendant would

not be found guilty of that crime. Cornell Law School, Insanity Defense, L

EGAL

INFORMATION INSTITUTE, https://www.law.cornell.edu/wex/insanity_defense (last visited

Sept. 23, 2021). Proof of mental disability still admits guilt to the crime but finds less

culpability and so changes a sentence from the death penalty to life in prison. Id. A person

found incompetent to stand trial simply cannot be tried or convicted. Id.

. Young, 312 Ga. at 89, 860 S.E.2d at 769.

. 343 U.S. 790 (1952).

. 517 U.S. 348 (1996); Raulerson v. Warden, 928 F.3d 987, 1013 (11th Cir. 2019).

. Young, 312 Ga. at 92–93, 860 S.E.2d at 771.

. Id.

. Id. at 93, 96, 860 S.E.2d at 772, 773–74; Cooper, 517 U.S. at 355 (holding that trying

someone who is incompetent offends fundamental principles of justice rooted deep in

traditions and the conscience of the people).

100

. Young, 312 Ga. at 93, 96–97, 860 S.E.2d at 772, 774.

2022 THE DEATH PENALTY STANDARD 1581

disability is a relatively new plea without direct historical cues either

way.

101

Another quality all three share is that the number of states

requiring defendants to establish them beyond a reasonable doubt is very

small. Oregon was, at the time of Leland, the only state to require the

highest burden of proof for insanity and Oklahoma is only one of four

states to require the highest burden of proof for incompetence to stand

trial.

102

The difference, however, is that the U.S. Supreme Court found

the near uniformity in standards of proof in incompetence cases to be

indicative of the traditions and conscience of the people and thus did not

allow the Oklahoma courts to depart from them.

103

But in Leland, the

Court held that the low number was perhaps worth considering but not

dispositive and that the mere existence of wiser or fairer methods does

not make Oregon’s method a violation of due process rights.

104

Despite Young’s urging that Cooper is the more appropriate case, the

court in Young determined that Leland is simply more comparable and

persuasive than Cooper and held, as the Court in Leland did, that a

requirement to prove mental disability beyond a reasonable doubt does

not violate nationally accepted concepts of basic standards of justice.

105

C. Left to the States

Superseding the court’s analysis of Cooper and Leland is the

proposition from Atkins that the court intentionally “‘l[eft] to the State(s)

the task of developing appropriate ways to enforce the [federal]

constitutional restriction’” thus the court concludes it is within Georgia’s

101

. Id. at 93–95, 860 S.E.2d at 772-73 (stating “the supervisory authority over the

federal courts, requir[e] an acquittal in federal prosecutions whenever ‘there is reasonable

doubt whether [the defendant] was capable in law of committing the crime’”). Leland relies

on the words “clearly proved” from the M’Naghten case (the seminal M’Naghten case

establishes a widely used insanity test) and language from a supervisory authority which

interprets the standard to mean beyond reasonable doubt. Leland, 343 U.S. at 796 (quoting

M’Naghten 10 Cl. & Fin 200 (H.L.,1843)). The quoted language from M’Naghten goes on to

describe such persons that are to be judged under the standard as being so insane as to not

understand the character or gravity of their actions. Id. The Oregon Supreme Court held

that the test’s purpose is to determine whether the criminal is so diseased that they could

not form a plan or the intent to kill. Id. at 795. These are the same type of criteria described

in the Anti-Drug Abuse Act in 1988, which allowed the death of Johnny Penry. Anti-Drug

Abuse Act of 1988, 102 Stat. 4181, 4390. In contrast, the Atkins case relaxed the criteria of

inclusion in the protected group with mental disabilities and requires states to develop

procedural tests to ensure that every degree of mentally disabled individuals are in fact

protected. Atkins, 536 U.S. at 321.

102

. Young, 312 Ga. at 93, 95, 860 S.E.2d at 772–73; Raulerson, 928 F.3d at 1013–14.

103

. Young, 312 Ga. at 93–94, 860 S.E.2d at 772.

104

. Id. at 95–96, 860 S.E.2d at 773.

105

. Id. at 92–93, 96, 860 S.E.2d at 771, 773.

1582 MERCER LAW REVIEW Vol. 73

discretion to develop procedures that ensure the mentally disabled are

being properly identified and protected from the death penalty.

106

This proposition is quoted in Atkins from Ford v. Wainwright,

107

death penalty case from 1986. Here the court in Young demonstrated

that the beyond a reasonable doubt standard fits into this criterion with,

for the first time since this standard has been in dispute, an in-depth

discussion on Ford.

108

Though the quoted language from Ford, which

Atkins quoted to allow the states to develop procedures themselves, is

only agreed to by a plurality, the court determined the reasoning behind

the statement would still support the conclusion made here.

109

Alvin Ford was examined, per state policy, by three psychiatrists

together for thirty minutes each in front of the Governor, his counsel, and

the State’s counsel; all three psychiatrists gave their analyses to the

Governor, who made the decision on whether Ford was competent.

110

The

Court said this method failed to protect Ford’s constitutional interests by

any stretch.

111

But, even in light of Florida’s failure, the Court still left

the task of developing proper procedures to the states.

112

Because

Georgia’s procedures are not, according to the court in Young, remotely

as grievous and its procedures more restricted, it reasons the U.S.

Supreme Court would still agree here to continue to allow Georgia to

expect the mentally disabled to prove their disability beyond a reasonable

doubt.

113

A standard of proof is not mentioned in Ford, but given that the Court

was aware of the risk to the mentally disabled and the fact that the

Governor was unrestrained in whatever standard they were employing,

the court in Young reasons that the Court in Ford would have included

106

. Id. at 97, 860 S.E.2d at 774.

107

. 477 U.S. 399, 399, 416 (1986). “If the states were to have complete autonomy to

define intellectual disability as they wished, the Court’s decision in Atkins would become a

nullity and the Eighth Amendment’s protection of human dignity would not become a

reality.” Hall, 572 U.S. at 720–21. Ford came at a time ten years after the moratorium

ended and almost two decades before Atkins when death sentencing was at one of its all-

time peaks and no legislation yet existed protecting the mentally disabled from execution

at all. The History of the Death Penalty: A Timeline, D

EATH PENALTY INFORMATION CENTER

https://deathpenaltyinfo.org/stories/history-of-the-death-penalty-timeline (last visited Nov.

18, 2021); The Death Penalty in 2018: Year End Report, DEATH PENALTY INFORMATION

CENTER (Dec. 14, 2018), https://deathpenaltyinfo.org/facts-and-research/dpic-reports/dpic-

year-end-reports/the-death-penalty-in-2018-year-end-report.

108

. Young, 312 Ga. at 97–100, 860 S.E.2d at 774–77.

109

. Id. at 98, 860 S.E.2d at 775 (discussing the difficulties Ford and Atkins pose).

110

. Ford, 477 U.S. at 412–13.

111

. Id. at 413.

112

. Id. at 416–17; Young, 312 Ga. at 99, 860 S.E.2d at 775.

113

. Young, 312 Ga. at 98, 100, 860 S.E.2d at 775–76.

2022 THE DEATH PENALTY STANDARD 1583

restrictions on a standard of proof if it thought it were necessary to avoid

results like Ford.

114

The Ford concurring opinion asserted that the

blanket of freedom was too much and that courts should be bound by

some procedures, for example an impartial board that can receive

evidence and perform their own examinations.

115

Overall, the court in Young concludes that the task at hand is not to

judge the wisdom of the beyond a reasonable doubt standard of proof from

a policy perspective, but to determine if Georgia’s use of the standard is

unconstitutional.

116

Because Young failed to show otherwise, the

judgment below was affirmed and the beyond a reasonable doubt

standard of proof for mentally disabled defendants facing the death

penalty still stands.

117

V. I

MPLICATIONS

Current procedures in Georgia present a similar risk of error to the

mentally disabled as in Texas and Florida before the ruling of Moore and

Hall. And, like both Moore and Hall, when Young appeals to the U.S.

Supreme Court,

118

there is a reasonable chance the Court will overturn

the Georgia Supreme Court’s decision in order to ensure the mandated

protection of the mentally disabled.

If the appeal fails, Georgia will continue to be the most difficult state

for a capital defendant with a mental disability to claim a constitutional

right to not be executed and, therefore, the state most likely to execute

the mentally disabled. Most states set a preponderance of the evidence

standard and a few set the bar at clear and convincing.

119

Georgia is the

only state that has the beyond a reasonable doubt standard imposed on

the defendant to prove mental disability.

120

Throughout the challenges to

Georgia’s standard of proof over the years, the dissents continue to echo

the point that the standard is insurmountable and thus not protecting

114

. Id. at 99–100, 860 S.E.2d at 775–76. As mentioned above, Ford was before any

legislation on the issue at all. Though there would have been plenty of public discussion at

this time no state had yet established any mandate, let alone a standard of proof, to debate

or a consensus on which to use or which standards could have damaging effects.

115

. Ford, 477 U.S. at 427.

116

. Young, 312 Ga. at 100, 860 S.E.2d at 776.

117

. Id.

118

. ACLU Statement on Georgia Supreme Court’s Decision In Rodney Young Case,

AMERICAN CIVIL LIBERTIES UNION (June 1, 2021), https://www.aclu.org/press-releases/aclu-

statement-georgia-supreme-courts-decision-rodney-young-case; Petition for Writ of

Certiorari, Young v. State, 312 Ga. 71, 860 S.E.2d 746 (Nov. 24, 2021).

119

. Raulerson, 928 F.3d at 1013-14.

120

. Id. at 1013; Petition for Writ of Certiorari, supra note 118, at 25.

1584 MERCER LAW REVIEW Vol. 73

anyone and infringing on the categorical prohibition of Atkins.

121

Those

fears have been confirmed.

Since the statute’s enactment and until at least 2019, not one single

capital defendant convicted of intentional murder has successfully

proved their mental disability beyond a reasonable doubt to protect them

from the death penalty.

122

In contrast, 55% of capital defendants

nationally who attempt to prove mental disability under Atkins

succeed.

123

This discrepancy reveals the reality of the standard’s effect on

Georgia’s at-risk population targeted by Atkins.

These results are analogous to the dangers presented in Moore and

Hall, which led to their overruling. After those rulings, the average

number of death sentences per year in both Texas and Florida have been

cut by more than half. Florida sentenced on average fifteen people a year

to death up to 2014, the year Hall was decided. After 2014, that average

dropped to six. In Texas, death sentences fluctuated a bit but averaged

at about nine per year, dropping to four after 2014.

124

While

attributability of the drops to the judicial shields for the mentally

disabled is not conclusive based on available data, there exists a

correlation indicative of a strong, reasonable inference.

125

121

. Stripling, 289 Ga. at 377, 711 S.E.2d at 671 (Benham, J., dissenting); Hill, 277 Ga.

at 272–73, 587 S.E.2d at 629 (Sears, J., dissenting); Young, 312 Ga. at 132, 860 S.E.2d at

797 (Bethel, J., dissenting); Raulerson, 928 F.3d at 1009 (Jordan, J., concurring in part and

dissenting in part).

122

. Lucas, supra note 35, at 582; Raulerson, 928 F.3d at 1009 (Jordan, J., concurring

in part and dissenting in part); Liptak, supra note 58.

123

. Raulerson, 928 F.3d at 1018 (Jordan, J., concurring in part and dissenting in part)

(citing John H. Blume, et al.,

A Tale of Two (and Possibly Three) Atkins: Intellectual

Disability and Capital Punishment Twelve Years After the Supreme Court’s Creation of a

Categorical Bar,

23 WM & MARY BILL RTS. J. 393, 397 (2014)).

124

. Death Sentences in the United States Since 1977, DEATH PENALTY INFORMATION

CENTER https://deathpenaltyinfo.org/facts-and-research/sentencing-data/death-sentences-

in-the-united-states-from-1977-by-state-and-by-year (last visited Nov. 18 2021). There are

likely many factors at play with these declines, but homicides in both Texas and Florida

have only increased since 2014, so it is not likely be attributable to fewer capital crimes.

National Center for Healthcare Statistics, C

ENTERS FOR DISEASE CONTROL (Feb. 16, 2021),

https://www.cdc.gov/nchs/pressroom/sosmap/homicide_mortality/homicide.htm.

125

. Trends in national statistical data unquestionably show the evolving standards of

society about the death penalty generally, but they may also suggest a correlation between

the death penalty and mental disability and possibly, and more disturbingly, that the

mentally disabled have made up a significant portion of those being sentenced to death—

and not just in Texas and Florida. There is a large drop between 1999–2001 and since then

a steady decline nationwide. While it is unclear whether the drops around the time of Atkins

are due to the Atkins decision or other factors, it is likely to at least be a contributor. To

show the comparison in average sentencing and when precisely they trend down or drop,

the numbers below will reflect the number of people sentenced to death for the five years

2022 THE DEATH PENALTY STANDARD 1585

Overruling Young would allow similar effects on Georgia law as Texas

and Florida underwent as they realigned with Atkins.

126

Though

Georgia’s numbers are not as high as either Texas or Florida and its

noncompliance with Atkins more difficult to spot, the inconsistency is still

reflected in the numbers and its legal implications are effectively the

before (1998–2002) verses after (2003–2007) Atkins per state. Illinois: 7, 8, 9, 1, 6 vs. 2, 4,

1, 3, 3. Indiana: 3, 2, 2, 0, 4 vs. 1, 0, 1, 0, 0. Pennsylvania: 12, 15, 12, 6, 9 vs. 6, 5, 7, 4, 6.

Florida: 25, 20, 20, 15, 10 vs. 11, 9, 15, 18, 21. Louisiana: 9, 10, 9, 2, 7 vs. 1, 6, 4, 3, 1.

Arkansas: 4, 5, 3, 2, 0 vs. 0, 2, 2, 0, 2. North Carolina: 20, 24, 18, 14, 7 vs. 6, 4, 6, 5, 3.

Tennessee: 4, 6, 4, 3, 4, vs. 6, 3, 2, 1, 1. Texas: 39, 43, 31, 24, 14 vs. 29, 23, 14, 11, 14.

California: 31, 43, 31, 24, 14 vs. 19, 11, 23, 17, 10. Virginia: 9, 7, 8, 4, 3 vs. 6, 2, 1, 2, 1. New

Mexico has not sentenced anyone since 2002, the year of Atkins, New York since 2003, and

New Jersey and Wyoming since 2004.

After 2014, the year of both Moore and Hall, fourteen of the twenty-nine states that still

had the death penalty appear to have been significantly impacted by those decisions.

Florida, Washington, Oregon, Pennsylvania, Louisiana, Mississippi, North Carolina,

Texas, and Washington all see significant drops in sentencing. This correlation is more

noticeable and suggestive than the declines after Atkins. Again, to show the drops in

average as well as the correlation to the year of Moore and Hall the numbers below will

show averages as well as decisions 2011–2014 verses 2015–2018. Pennsylvania dropped

from sentencing an average of 5 people per year to 1.3 (4, 6, 4, 4, vs. 2, 1, 2, 1.) Louisiana

dropped from 2.75 per year to .3 (5, 2, 0, 3 vs. 1, 0, 0, 1.) Mississippi dropped from 2 per year

to .83 (1, 2, 2, 1, vs. 1, 0, 1, 2.) North Carolina dropped from 3.1 to .6 (3, 0, 1, 3 vs. 0, 1, 0,

0.) Oregon has only sentenced one person since 2014. South Dakota, Kentucky, Indiana,

and Connecticut have not sentenced anyone since that year, Washington since the year

before, and Delaware since the year after. All states drop in sentencing during the 2000s,

though not all appear as clearly correlated with those two decisions.

The national total of those sentenced has decreased almost every year since 1998. Since

Atkins the number of people sentenced per year decreases at an average of thirteen less

each year—in 2015, after Hall and Moore, it dropped by twenty-four. The most significant

drops occurred between 1999 and 2001, right before Atkins, from 279 sentenced in 1999 and

only 153 in 2001. This suggests not only justification for the Court in Atkins taking its cues

from society but also that there were obviously other impactful factors besides society’s

views on mental disability that have taken effect. None the less, the correlations to years

of significant decisions tightening protection for the mentally disabled are hard to ignore.

This data is significant because it suggests that the mentally disabled were indeed being

sentenced to death before and still after Atkins and that changes like Moore and Hall are

actually efficacious in appropriately protecting some from the death penalty. And further,

this data suggests that some states implementation of Atkins still allowed for sentencing

many mentally disabled to death despite their claim to not disturb Atkins’s direction. Thus,

merely applying Atkins without the subsequent clarifications may not be enough to protect

the mentally disabled. It is unnervingly likely that the states whose decline in sentencing

after Moore and Hall were previously sentencing people with mental disabilities; after those

decisions there were simply fewer capital defendants left who were eligible. D

EATH

PENALTY INFORMATION CENTER, supra note 124.

126

. Incidentally, Texas has a “preponderance of the evidence” standard, set by the same

case the seven-factor test originated from, and Florida has a “clear and convincing”

standard. Ex Parte Briseno, 135 S.W.3d 1, 12 (Tex. Crim. App. 2004); Fla. Stat. Ann

§ 921.137(4) (2021).

1586 MERCER LAW REVIEW Vol. 73

same—that is, providing insufficient barriers against executing the

mentally disabled. Even with fewer death sentences, over thirty years

without protecting one capital defendant is telling.

Why does it make a difference if the numbers are all going down

anyways? It goes without saying that to those individuals it matters a

great deal. But beyond that there is no security that if the trend reversed,

as it has in the past, the mentally disabled would still be guaranteed their

constitutional right because the changes in Georgia’s numbers are not

attributable to legislation or caselaw.

127

There are not droves of capital

defendants congesting death row as in the 90s, but as no legal protection

in Georgia has been heightened for them since the 80s, the mentally

disabled cannot rely on state law for protection.

128

Though Georgia’s

sentencing per year has declined steadily with the rest of the country, it

is not because of the protection from the law but in spite of it.

Regardless of how the numbers play out, this burden of proof on capital

defendants is out of line with national consensus and does not reflect the

changes mandated by Atkins. Being rid of the procedural blockade could

encourage more capital defendants who suffer with mental disabilities to

receive the appropriate punishment for their crimes; accuracy will

improve, and Georgia can join the 55% of the rest of the country and the

beyond reasonable doubt standard can instead be retired to function in

the way it was intended.

129

While the Young plurality dismisses this comparison because Georgia

has always relied on prevailing clinical standards to define mental

disability unlike Moore and Hall, this argument is obviously only

partially true, given that it admitted that at one time it was using this

standard of proof to “further served to define” the category.

130

Regardless,

the data shows that the statute is not functioning as Atkins had intended.

Many believe Georgia is almost certainly executing some mentally

disabled in its attempt to ensure 100% proof positive of a diagnosis

experts agree is “exceedingly, [and] perhaps uniquely, ill-suited to proof

127

. The Death Penalty in 2018: Year End Report, DEATH PENALTY INFORMATION

CENTER (Dec. 14, 2018), https://deathpenaltyinfo.org/facts-and-research/dpic-reports/dpic-

year-end-reports/the-death-penalty-in-2018-year-end-report.

128

. Id.

129

. Petition for Writ of Certiorari, supra note 118, at 25–26.

130

. Where previously this court sided with the defense that the beyond reasonable

doubt standard “served to define the category of mental disability” it here rejects that

defense and instead accepts that the standard serves as a “way to enforce” the

constitutional restriction. Either way, there is little evidence to show the standard will not

perform the same function it has since the 80s. Stripling, 289 Ga. at 373, 711 S.E.2d at 668;

Young, 312 Ga. at 91–92, 860 S.E.2d at 771.

2022 THE DEATH PENALTY STANDARD 1587

beyond a reasonable doubt.”

131

And further, that if a higher court does

not overrule the decision in Young, the beyond reasonable doubt standard

will become solidified in law and Georgia will remain in a state of

tortured irony as it easily condemns those it professes to protect with a

standard itself that will never die.

131

. Brief for Appellant at 97, Young v. State, 312 Ga. 71, 860 S.E.2d 746 (2021) (No.

S21P0078). “Given that intellectual disability disputes will always involve conflicting

expert testimony, there will always be a basis for rejecting an intellectual disability claim.”

Raulerson, 928 F.3d at 1016 (Jordan, J., concurring in part and dissenting in part).

The subtleties and nuances of psychiatric diagnosis render certainties virtually

beyond reach in most situations. The reasonable-doubt standard of criminal law

functions in its realm because there the standard is addressed to specific,

knowable facts. Psychiatric diagnosis, in contrast, is to a large extent based on

medical ‘impressions’ drawn from subjective analysis and filtered through the

experience of the diagnostician.

Addington, 441 U.S. at 430. “[T]he highly subjective nature of the inquiry into mental

retardation, mak[es] it even clearer that the reasonable doubt standard unquestionably will

result in the execution of those offenders that Atkins protects.” Hill v. Humphrey, 662 F.3d

1335, 1372 (11th Cir. 2011) (Barkett, J., Marcus, J., and Martin, J., dissenting).