Georgia 2025-2026 Regular Session

Georgia House Bill HB123 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	25 HB 123/AP
2		-	House Bill 123 (AS PASSED HOUSE AND SENATE)
3		-	By: Representatives Werkheiser of the 157
4		-	th
5		-	, Reeves of the 99
6		-	th
7		-	, Silcox of the 53
8		-	rd
9		-	, Holcomb
10		-	of the 101
11		-	st
12		-	, Smith of the 18
13		-	th
14		-	, and others
	1	+	25 LC 49 2386S
	2	+	The Senate Committee on Judiciary offered the following
	3	+	substitute to HB 123:
15	4		A BILL TO BE ENTITLED
16	5		AN ACT
17		-	To amend Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure,
18		-	1
	6	+	To amend Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure,1
19	7		so as to provide for pretrial proceedings in capital offense cases where the death penalty is2
20	8		sought when the accused has an intellectual disability; to provide for a definition; to provide3
21	9		for notice of intent to claim intellectual disability; to provide for pretrial determination of4
22	10		intellectual disability; to provide for verdicts; to provide for capital case procedures; to5
23	11		provide for reports investigating reversible error; to provide for a standard of review; to6
24	12		provide for an effective date; to provide for related matters; to repeal conflicting laws; and7
25	13		for other purposes.8
26	14		BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:9
27	15		SECTION 1.10
28	16		Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure, is11
29	17		amended by adding a new Code section to Part 2 of Article 6 of Chapter 7, relating to12
30	18		insanity and mental incompetency, to read as follows:13
31		-	"17-7-128.
32		-	14
	19	+	"17-7-128.14
33	20		(a) As used in this Code section, the term 'intellectual disability' shall have the same15
34	21		meaning as set forth in Code Section 17-7-131.16
35		-	H. B. 123
36		-	- 1 - 25 HB 123/AP
	22	+	- 1 - 25 LC 49 2386S
37	23		(b) In criminal cases involving a capital offense for which the death penalty is sought, the17
38	24		accused may file a pretrial notice of intent to raise a claim of intellectual disability. Such18
39	25		notice shall state that the accused has an intellectual disability.19
40	26		(c) A pretrial hearing on the issue of whether the defendant has an intellectual disability:20
41	27		(1) May be conducted upon motion of the defendant, at the discretion of the court; or21
42	28		(2) Shall be conducted upon joint consent motion of the defendant and the state to22
43	29		proceed with a pretrial hearing to determine if the accused has an intellectual disability.23
44	30		(d)(1) The defendant shall provide all discovery relating to the claim of intellectual24
45	31		disability, including, but not limited to, reports, names, contact information of any25
46	32		witnesses, and any other information, to the prosecuting attorney no later than 60 days26
47	33		prior to the date of the pretrial hearing, or at such time as the court orders.27
48	34		(2) Within 30 days of the defendant providing discovery, or as otherwise ordered by the28
49	35		court, the prosecuting attorney shall provide all discovery relating to the claim of29
50	36		intellectual disability, including, but not limited to, reports, names, contact information30
51	37		of any witnesses, and any other information, to the defendant.31
52	38		(3) If, prior to the pretrial hearing, a party discovers additional evidence or material32
53	39		previously requested or ordered which is subject to discovery under this subsection, such33
54	40		party shall promptly notify the opposing party of the existence of the additional evidence34
55	41		or material and make the additional evidence or material available to the opposing party.35
56	42		(e) Such pretrial determination of intellectual disability shall be made by the court sitting36
57	43		as the finder of fact.37
58	44		(f) The defendant shall have the burden of production and persuasion to demonstrate38
59	45		intellectual disability by a preponderance of the evidence, and, if such pretrial39
60	46		determination does not find the defendant to have an intellectual disability, he or she shall40
61	47		not be precluded from raising such issue in further proceedings.41
62	48		(g) If the defendant is found to have an intellectual disability, the court shall bar the state42
63	49		from seeking the death penalty. If the court does not find that the defendant has an43
64		-	H. B. 123
65		-	- 2 - 25 HB 123/AP
	50	+	- 2 - 25 LC 49 2386S
66	51		intellectual disability, the defendant may raise the issue of his or her alleged intellectual44
67	52		disability as set forth in paragraph (2) of subsection (b) or paragraph (2) of subsection (c)45
68	53		of Code Section 17-7-131.46
69	54		(h) Either party may seek immediate review of the trial court's determination regarding47
70	55		intellectual disability, pursuant to subsection (b) of Code Section 5-6-34 or to Code48
71	56		Section 5-7-1."49
72	57		SECTION 2.50
73	58		Said title is further amended by revising subsections (b) and (c) and adding a new paragraph51
74	59		to subsection (j) of Code Section 17-7-131, relating to proceedings upon plea of insanity or52
75	60		mental incompetency at time of crime, to read as follows:53
76	61		"(b)(1) In all cases in which the defense of insanity, mental illness, or intellectual54
77	62		disability is interposed, the jury, or the court if tried by it, shall find whether the55
78	63		defendant is:56
79	64		(A) Guilty;57
80	65		(B) Not guilty;58
81	66		(C) Not guilty by reason of insanity at the time of the crime;59
82	67		(D) Guilty but mentally ill at the time of the crime, but the finding of guilty but60
83	68		mentally ill shall be made only in felony cases; or61
84	69		(E) Guilty but with intellectual disability, but the finding of intellectual disability shall62
85	70		be made only in felony cases.63
86	71		(2)(A) A plea of guilty but mentally ill at the time of the crime or a plea of guilty but64
87	72		with intellectual disability shall not be accepted until the defendant has undergone65
88	73		examination by a licensed psychologist or psychiatrist and the court has examined the66
89	74		psychological or psychiatric reports, held a hearing on the issue of the defendant's67
90	75		mental condition, and is satisfied that there is a factual basis that the defendant was68
91		-	H. B. 123
92		-	- 3 - 25 HB 123/AP
93		-	mentally ill at the time of the offense or has intellectual disability to which the plea is
94		-	69
	76	+	- 3 - 25 LC 49 2386S
	77	+	mentally ill at the time of the offense or has intellectual disability to which the plea is69
95	78		entered.70
96		-	(2.1)
97		-	(B) A plea of not guilty by reason of insanity at the time of the crime shall not be71
	79	+	(2.1)(B) A plea of not guilty by reason of insanity at the time of the crime shall not be71
98	80		accepted and the defendant adjudicated not guilty by reason of insanity by the court72
99	81		without a jury until the defendant has undergone examination by a licensed73
100	82		psychologist or psychiatrist and the court has examined the psychological or psychiatric74
101	83		reports, has held a hearing on the issue of the defendant's mental condition, and the75
102	84		court is satisfied that the defendant was insane at the time of the crime according to the76
103	85		criteria of set forth in Code Section 16-3-2 or 16-3-3.77
104	86		(C) In criminal cases involving a capital offense for which the death penalty is sought78
105	87		and a pretrial notice of intent to raise a claim of intellectual disability has been filed, the79
106	88		procedure set forth in Code Section 17-7-128 shall be followed.80
107	89		(3)(D) In all cases and applicable criminal trials in which the defense of insanity,81
108	90		mental illness, or intellectual disability is interposed, the trial judge shall charge the82
109	91		jury, in addition to other appropriate charges, the following:83
110	92		(A)(i) 'I I charge you that should you find the defendant not guilty by reason of84
111	93		insanity at the time of the crime, the defendant will be committed to a state mental85
112	94		health facility until such time, if ever, that the court is satisfied that he or she should86
113	95		be released pursuant to law. law';87
114	96		(B)(ii) 'I I charge you that should you find the defendant guilty but mentally ill at the88
115	97		time of the crime, the defendant will be placed in the custody of the Department of89
116	98		Corrections which will have responsibility for the evaluation and treatment of the90
117	99		mental health needs of the defendant, which may include, at the discretion of the91
118	100		Department of Corrections, referral for temporary hospitalization at a facility operated92
119	101		by the Department of Behavioral Health and Developmental Disabilities. Disabilities';93
120	102		and94
121		-	H. B. 123
122		-	- 4 - 25 HB 123/AP
	103	+	- 4 - 25 LC 49 2386S
123	104		(C)(iii) 'I I charge you that should you find the defendant guilty but with intellectual95
124	105		disability, the defendant will be placed in the custody of the Department of96
125	106		Corrections, which will have responsibility for the evaluation and treatment of the97
126	107		mental health needs of the defendant, which may include, at the discretion of the98
127	108		Department of Corrections, referral for temporary hospitalization at a facility operated99
128	109		by the Department of Behavioral Health and Developmental Disabilities. Disabilities.'100
129	110		(c)(1) Except as provided in paragraph (2) of this subsection, in In all criminal trials in101
130	111		any of the courts of this state wherein an accused shall contend that he or she was insane,102
131	112		mentally ill, or intellectually disabled had an intellectual disability at the time the act or103
132	113		acts charged against him or her were committed, the trial judge shall instruct the jury that104
133	114		they may consider, in addition to verdicts of 'guilty' and 'not guilty,' the additional105
134	115		verdicts of 'not guilty by reason of insanity at the time of the crime,' 'guilty but mentally106
135	116		ill at the time of the crime,' and 'guilty but with intellectual disability.' The defendant107
136	117		may:108
137	118		(1)(A) Be The defendant may be found 'not guilty by reason of insanity at the time of109
138	119		the crime' if he or she meets the criteria of Code Section 16-3-2 or 16-3-3 at the time110
139	120		of the commission of the crime. If the court or jury should make such finding, it shall111
140	121		so specify in its verdict.;112
141	122		(2)(B) Be The defendant may be found 'guilty but mentally ill at the time of the crime'113
142	123		if the jury, or court acting as trier of facts, finds beyond a reasonable doubt that the114
143	124		defendant is guilty of the crime charged and was mentally ill at the time of the115
144	125		commission of the crime. If the court or jury should make such finding, it shall so116
145	126		specify in its verdict.; or117
146	127		(3)(C) Be found 'guilty but with intellectual disability' if the jury, or court acting as118
147	128		trier of facts, both convicts the defendant beyond a reasonable doubt and finds by a119
148	129		preponderance of the evidence that the defendant has an intellectual disability. The120
149	130		defendant may be found 'guilty but with intellectual disability' if the jury, or court121
150		-	H. B. 123
151		-	- 5 - 25 HB 123/AP
	131	+	- 5 - 25 LC 49 2386S
152	132		acting as trier of facts, finds beyond a reasonable doubt that the defendant is guilty of122
153	133		the crime charged and is with intellectual disability. If the court or jury should make123
154	134		such finding, it shall so specify in its verdict.124
155	135		(2) When the death penalty has been sought and the defendant contends he or she has an125
156	136		intellectual disability, the court shall instruct the jury that it shall consider whether it finds126
157	137		beyond a reasonable doubt that the defendant is guilty of the crime charged. If the jury127
158	138		convicts the defendant of such capital crime, the defendant shall then present evidence128
159	139		regarding his or her alleged intellectual disability. The state shall have the opportunity129
160	140		to present evidence in response, and the defendant may offer evidence in rebuttal. 130
161	141		Following the presentation of evidence, the court shall instruct the jury that, if the jury131
162	142		finds by a preponderance of the evidence that the defendant has an intellectual disability,132
163	143		such jury shall enter a separate finding of 'intellectual disability' and so specify in its133
164	144		verdict. If the jury does not find by a preponderance of the evidence that the defendant134
165	145		has an intellectual disability, such jury shall enter a separate finding of 'no intellectual135
166	146		disability.' When the jury returns a finding of 'no intellectual disability,' there shall be a136
167	147		capital sentencing proceeding as provided for in Code Section 17-10-30."137
168	148		"(3) In the trial of any case in which the death penalty is sought, should the judge find138
169	149		in accepting a plea of guilty but with intellectual disability, or the jury or court find in its139
170	150		verdict that the defendant is guilty of the crime charged but with intellectual disability,140
171	151		the death penalty shall not be imposed and the court shall sentence the defendant to141
172	152		imprisonment for life or imprisonment for life without possibility of parole."142
173	153		SECTION 3.143
174	154		Said title is further amended by revising subsection (d) of Code Section 17-7-171, relating144
175	155		to time for a demand for speedy trial in capital cases, discharge and acquittal when no trial145
176	156		held before end of two court terms of demand, counting of terms in cases in which death146
177	157		penalty is sought, and special pleas of incompetency, as follows:147
178		-	H. B. 123
179		-	- 6 - 25 HB 123/AP
	158	+	- 6 - 25 LC 49 2386S
180	159		"(d) If a defendant files a pretrial notice of intent to raise a claim of intellectual disability148
181	160		pursuant to Code Section 17-7-128 or a special plea of incompetency to stand trial pursuant149
182	161		to Code Section 17-7-130 or if the court, pursuant to Code Section 17-7-129, conducts a150
183	162		trial on the competency of the defendant, the period of time during which such matter is151
184	163		pending shall not be included in the computation of determining whether a demand for152
185	164		speedy trial has been satisfied."153
186	165		SECTION 4.154
187	166		Said title is further amended by revising subsection (b) of Code Section 17-10-35.1, relating155
188	167		to the review of pretrial proceedings when death penalty is sought, reports investigating156
189	168		reversible error, transmittal of reports to Supreme Court, orders regarding review, Attorney157
190	169		General assistance, res judicata, applicability, and waiver of rights, as follows:158
191	170		"(b) The reports of the trial judge, prosecutor, prosecuting attorney, and defendant under159
192	171		subsection (a) of this Code section shall be in the form of standard questionnaires prepared160
193	172		and supplied by the Supreme Court. Such questionnaires shall be designed to determine161
194	173		whether there is arguably any existence of reversible error with respect to any of the162
195	174		following matters: 163
196	175		(1) Any proceedings with respect to change of venue; 164
197	176		(2) Any proceedings with respect to recusal of the trial judge; 165
198	177		(3) Any challenge to the jury array; 166
199	178		(4) Any motion to suppress evidence; 167
200	179		(5) Any motion for psychiatric or other medical evaluation; and168
201	180		(6) Any proceedings with respect to a pretrial determination of intellectual disability; and169
202	181		(6)(7) Any other matter deemed appropriate by the Supreme Court."170
203		-	H. B. 123
204		-	- 7 - 25 HB 123/AP
205		-	SECTION 5.
206		-	171
	182	+	- 7 - 25 LC 49 2386S
	183	+	SECTION 5.171
207	184		This Act shall become effective upon its approval by the Governor or upon its becoming law172
208	185		without such approval.173
209	186		SECTION 6.174
210	187		All laws and parts of laws in conflict with this Act are repealed.175
211		-	H. B. 123
212	188		- 8 -