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