by Jill Nolin, Georgia Recorder
April 1, 2025

Georgia is the only state with the death penalty that requires defendants to prove beyond a reasonable doubt that they are intellectually disabled to be spared execution – a high legal standard that no one charged with intentional murder has cleared.

But that would change under a bill that is now sitting on Gov. Brian Kemp’s desk that would lower the standard of proof. 

Advocates have pushed for the change for two decades, but a south Georgia lawmaker, Glennville Republican state Rep. Bill Werkheiser, was able to convince his colleagues that the state’s law was incompatible with the constitution’s prohibition against executing people who are intellectually disabled.

Werkheiser often pointed to a 2021 Georgia Supreme Court case where a judge wrote in a dissenting opinion that using the highest possible burden of proof increases the risk that someone with an intellectual disability is executed.

House Bill 123 lowers the standard of proof for proving someone has an intellectual disability to a preponderance of the evidence, ending Georgia’s outlier status as the only state that requires beyond a reasonable doubt. 

The measure also creates a pre-trial hearing where a judge would focus only on the question of whether the defendant is intellectually disabled. Today, a jury is determining whether a defendant is intellectually disabled at the same time they are hearing grisly details about the alleged crime and deciding the person’s guilt or innocence.

The bill was changed in the Senate to require 60 days of information sharing between the prosecution and defense before the newly created pretrial hearing. Prosecutors had fought the pretrial hearing, arguing it was adding another step in an already lengthy legal process.

And it also now requires defendants who prove they are intellectually disabled but are found guilty will be sentenced to life in prison or life without the possibility of parole. Defense attorneys and others opposed adding life without the possibility of parole as an option. 

“A life sentence in Georgia must be served for a minimum 30 years before a person can even be considered for parole, and that’s considered, not necessarily released,” Mazie Lynn Guertin, executive director and policy advocate with the Georgia Association of Criminal Defense Lawyers, said to lawmakers last month.

The bill sailed through the Senate Monday and was finalized by the end of the day in the House. The proposal also drew support from Catholic groups and a tag-team advocacy effort from the Georgia Council on Developmental Disabilities and Georgians for Alternatives to the Death Penalty. 

The Southern Center for Human Rights, which has long advocated for changes to Georgia’s law, celebrated the bill’s passage Monday and is already planning the party. 

“This change will put Georgia in line with twenty-six other states that have protections for people with intellectual disability,” said Terrica Redfield Ganzy, the center’s executive director. “We are deeply grateful to Chairman Werkheiser for his compassion and leadership on this issue. It is our honor to partner with him on this effort.”

Werkheiser, who chairs the House Industry and Labor Committee, has developed a special interest in the state’s prison system and the people involved in it, recently visiting all the state’s prisons. He sponsored a version of the bill last year that went nowhere and spent the last year working to work through reservations about the changes. 

He thanked House leadership and the lawmakers in the committees who spent time this session getting the bill done.

“There were so many advocacy groups that joined along the way that were not only encouraging, but provided assistance in so many ways. It was a team effort from so many,” Werkheiser said Monday. 

Georgia Recorder is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: info@georgiarecorder.com.

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