| 1 | 1 | | 25 LC 48 1472 |
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| 2 | 2 | | Senate Bill 159 |
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| 3 | 3 | | By: Senators Jackson of the 41st and McLaurin of the 14th |
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| 4 | 4 | | A BILL TO BE ENTITLED |
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| 5 | 5 | | AN ACT |
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| 6 | 6 | | To amend Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure, |
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| 7 | 7 | | 1 |
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| 8 | 8 | | so as to provide for pretrial proceedings in capital offense cases where the death penalty is2 |
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| 9 | 9 | | sought when the accused has intellectual disability; to provide for a definition; to provide for3 |
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| 10 | 10 | | notice of intent to claim intellectual disability; to provide for pretrial determination of4 |
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| 11 | 11 | | intellectual disability; to provide for verdicts; to provide for capital case procedures; to5 |
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| 12 | 12 | | provide for reports investigating reversible error; to provide for a standard of review; to6 |
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| 13 | 13 | | provide for related matters; to repeal conflicting laws; and for other purposes.7 |
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| 14 | 14 | | BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:8 |
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| 15 | 15 | | SECTION 1.9 |
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| 16 | 16 | | Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure, is10 |
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| 17 | 17 | | amended by adding a new Code section to Part 2 of Article 6 of Chapter 7, relating to11 |
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| 18 | 18 | | insanity and mental incompetency, to read as follows:12 |
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| 19 | 19 | | "17-7-128. |
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| 20 | 20 | | 13 |
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| 21 | 21 | | (a) As used in this Code section, the term 'intellectual disability' shall have the same14 |
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| 22 | 22 | | meaning as set forth in Code Section 17-7-131.15 |
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| 23 | 23 | | S. B. 159 |
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| 24 | 24 | | - 1 - 25 LC 48 1472 |
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| 25 | 25 | | (b) In criminal cases involving a capital offense for which the death penalty is sought, the16 |
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| 26 | 26 | | accused may file a pretrial notice of intent to raise a claim of intellectual disability. Such17 |
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| 27 | 27 | | notice shall state that the accused has intellectual disability.18 |
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| 28 | 28 | | (c) A pretrial hearing on the issue of whether the defendant has intellectual disability:19 |
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| 29 | 29 | | (1) May be conducted upon motion of the defendant, at the discretion of the court; or20 |
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| 30 | 30 | | (2) Shall be conducted upon joint consent motion of the defendant and the state to21 |
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| 31 | 31 | | proceed with a pretrial hearing to determine if the accused has intellectual disability.22 |
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| 32 | 32 | | (d) Such pretrial determination of intellectual disability shall be made by the court sitting23 |
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| 33 | 33 | | as the finder of fact.24 |
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| 34 | 34 | | (e) The defendant shall have the burden of production and persuasion to demonstrate25 |
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| 35 | 35 | | intellectual disability by a preponderance of the evidence and if such pretrial determination26 |
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| 36 | 36 | | does not find the defendant to have intellectual disability, he or she shall not be precluded27 |
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| 37 | 37 | | from raising such issue in further proceedings.28 |
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| 38 | 38 | | (f) If the defendant is found to have intellectual disability, the court shall bar the state from 29 |
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| 39 | 39 | | seeking the death penalty. If the court does not find that the defendant has intellectual30 |
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| 40 | 40 | | disability, the defendant may raise the issue of his or her alleged intellectual disability as31 |
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| 41 | 41 | | set forth in paragraph (2) of subsection (b) of Code Section 17-7-131.32 |
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| 42 | 42 | | (g) Either party may seek immediate review of the trial court's determination regarding33 |
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| 43 | 43 | | intellectual disability, as provided in subsection (b) of Code Section 5-6-34."34 |
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| 44 | 44 | | SECTION 2.35 |
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| 45 | 45 | | Said title is further amended by revising subsections (b) and (c) and adding a new paragraph36 |
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| 46 | 46 | | to subsection (j) of Code Section 17-7-131, relating to proceedings upon plea of insanity or37 |
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| 47 | 47 | | mental incompetency at time of crime, to read as follows:38 |
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| 48 | 48 | | "(b)(1) In all cases in which the defense of insanity, mental illness, or intellectual39 |
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| 49 | 49 | | disability is interposed, the jury, or the court if tried by it, shall find whether the40 |
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| 50 | 50 | | defendant is:41 |
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| 51 | 51 | | S. B. 159 |
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| 52 | 52 | | - 2 - 25 LC 48 1472 |
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| 53 | 53 | | (A) Guilty; |
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| 54 | 54 | | 42 |
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| 55 | 55 | | (B) Not guilty;43 |
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| 56 | 56 | | (C) Not guilty by reason of insanity at the time of the crime;44 |
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| 57 | 57 | | (D) Guilty but mentally ill at the time of the crime, but the finding of guilty but45 |
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| 58 | 58 | | mentally ill shall be made only in felony cases; or46 |
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| 59 | 59 | | (E) Guilty but with intellectual disability, but the finding of intellectual disability shall47 |
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| 60 | 60 | | be made only in felony cases.48 |
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| 61 | 61 | | (2)(A) |
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| 62 | 62 | | A plea of guilty but mentally ill at the time of the crime or a plea of guilty but 49 |
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| 63 | 63 | | with intellectual disability shall not be accepted until the defendant has undergone50 |
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| 64 | 64 | | examination by a licensed psychologist or psychiatrist and the court has examined the51 |
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| 65 | 65 | | psychological or psychiatric reports, held a hearing on the issue of the defendant's52 |
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| 66 | 66 | | mental condition, and is satisfied that there is a factual basis that the defendant was53 |
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| 67 | 67 | | mentally ill at the time of the offense or has intellectual disability to which the plea is54 |
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| 68 | 68 | | entered.55 |
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| 69 | 69 | | (2.1)(B) A plea of not guilty by reason of insanity at the time of the crime shall not be56 |
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| 70 | 70 | | accepted and the defendant adjudicated not guilty by reason of insanity by the court57 |
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| 71 | 71 | | without a jury until the defendant has undergone examination by a licensed58 |
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| 72 | 72 | | psychologist or psychiatrist and the court has examined the psychological or psychiatric59 |
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| 73 | 73 | | reports, has held a hearing on the issue of the defendant's mental condition, and the60 |
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| 74 | 74 | | court is satisfied that the defendant was insane at the time of the crime according to the61 |
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| 75 | 75 | | criteria of set forth in Code Section 16-3-2 or 16-3-3.62 |
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| 76 | 76 | | (C) In criminal cases involving a capital offense for which the death penalty is sought63 |
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| 77 | 77 | | and a pretrial notice of intent to raise a claim of intellectual disability has been filed, the64 |
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| 78 | 78 | | procedure set forth in Code Section 17-7-128 shall be followed.65 |
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| 79 | 79 | | (3)(D) In all cases and applicable criminal trials in which the defense of insanity,66 |
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| 80 | 80 | | mental illness, or intellectual disability is interposed, the trial judge shall charge the67 |
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| 81 | 81 | | jury, in addition to other appropriate charges, the following:68 |
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| 82 | 82 | | S. B. 159 |
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| 83 | 83 | | - 3 - 25 LC 48 1472 |
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| 84 | 84 | | (A)(i) 'I I charge you that should you find the defendant not guilty by reason of69 |
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| 85 | 85 | | insanity at the time of the crime, the defendant will be committed to a state mental70 |
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| 86 | 86 | | health facility until such time, if ever, that the court is satisfied that he or she should71 |
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| 87 | 87 | | be released pursuant to law. law';72 |
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| 88 | 88 | | (B)(ii) 'I I charge you that should you find the defendant guilty but mentally ill at the73 |
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| 89 | 89 | | time of the crime, the defendant will be placed in the custody of the Department of74 |
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| 90 | 90 | | Corrections which will have responsibility for the evaluation and treatment of the75 |
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| 91 | 91 | | mental health needs of the defendant, which may include, at the discretion of the76 |
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| 92 | 92 | | Department of Corrections, referral for temporary hospitalization at a facility operated77 |
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| 93 | 93 | | by the Department of Behavioral Health and Developmental Disabilities. Disabilities';78 |
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| 94 | 94 | | and79 |
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| 95 | 95 | | (C)(iii) 'I I charge you that should you find the defendant guilty but with intellectual80 |
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| 96 | 96 | | disability, the defendant will be placed in the custody of the Department of81 |
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| 97 | 97 | | Corrections, which will have responsibility for the evaluation and treatment of the82 |
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| 98 | 98 | | mental health needs of the defendant, which may include, at the discretion of the83 |
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| 99 | 99 | | Department of Corrections, referral for temporary hospitalization at a facility operated84 |
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| 100 | 100 | | by the Department of Behavioral Health and Developmental Disabilities. Disabilities'.85 |
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| 101 | 101 | | (c) Except as provided in paragraph (4) of this subsection, In all criminal trials in any of86 |
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| 102 | 102 | | the courts of this state wherein an accused shall contend that he or she was insane, mentally87 |
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| 103 | 103 | | ill, or intellectually disabled had intellectual disability at the time the act or acts charged88 |
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| 104 | 104 | | against him or her were committed, the trial judge shall instruct the jury that they may89 |
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| 105 | 105 | | consider, in addition to verdicts of 'guilty' and 'not guilty,' the additional verdicts of 'not90 |
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| 106 | 106 | | guilty by reason of insanity at the time of the crime,' 'guilty but mentally ill at the time of91 |
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| 107 | 107 | | the crime,' and 'guilty but with intellectual disability.' The defendant may:92 |
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| 108 | 108 | | (1) The defendant may be Be found 'not guilty by reason of insanity at the time of the93 |
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| 109 | 109 | | crime' if he or she meets the criteria of Code Section 16-3-2 or 16-3-3 at the time of the94 |
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| 110 | 110 | | S. B. 159 |
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| 111 | 111 | | - 4 - 25 LC 48 1472 |
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| 112 | 112 | | commission of the crime. If the court or jury should make such finding, it shall so |
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| 113 | 113 | | 95 |
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| 114 | 114 | | specify in its verdict.96 |
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| 115 | 115 | | (2) The defendant may be |
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| 116 | 116 | | Be found 'guilty but mentally ill at the time of the crime' if the97 |
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| 117 | 117 | | jury, or court acting as trier of facts, finds beyond a reasonable doubt that the defendant98 |
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| 118 | 118 | | is guilty of the crime charged and was mentally ill at the time of the commission of the99 |
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| 119 | 119 | | crime. If the court or jury should make such finding, it shall so specify in its verdict.100 |
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| 120 | 120 | | (3) Be guilty but with intellectual disability if the jury, or court acting as trier of facts,101 |
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| 121 | 121 | | both convicts the defendant beyond a reasonable doubt and finds by a preponderance of102 |
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| 122 | 122 | | the evidence that the defendant has intellectual disability. The defendant may be found103 |
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| 123 | 123 | | 'guilty but with intellectual disability' if the jury, or court acting as trier of facts, finds104 |
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| 124 | 124 | | beyond a reasonable doubt that the defendant is guilty of the crime charged and is with105 |
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| 125 | 125 | | intellectual disability. If the court or jury should make such finding, it shall so specify106 |
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| 126 | 126 | | in its verdict.107 |
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| 127 | 127 | | (4) After July 1, 2025, when the death penalty has been sought and the defendant108 |
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| 128 | 128 | | contends he or she has intellectual disability, the court shall instruct the jury that it shall109 |
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| 129 | 129 | | consider whether it finds beyond a reasonable doubt that the defendant is guilty of the110 |
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| 130 | 130 | | crime charged. If the jury convicts the defendant of such capital crime, the defendant111 |
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| 131 | 131 | | shall then present evidence regarding his or her alleged intellectual disability. The State112 |
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| 132 | 132 | | shall have the opportunity to present evidence in response, and the defendant may offer113 |
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| 133 | 133 | | evidence in rebuttal. Following the presentation of evidence, the court shall instruct the114 |
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| 134 | 134 | | jury that if the jury finds by a preponderance of the evidence that the defendant has115 |
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| 135 | 135 | | intellectual disability, such jury shall enter a separate finding of 'intellectual disability'116 |
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| 136 | 136 | | and so specify in its verdict. If the jury does not find by a preponderance of the evidence117 |
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| 137 | 137 | | that the defendant has intellectual disability, such jury shall enter a separate finding of 'no118 |
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| 138 | 138 | | intellectual disability.' When the jury returns a finding of 'no intellectual disability,' there119 |
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| 139 | 139 | | shall be a capital sentencing proceeding as provided for in Code Section 17-10-30."120 |
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| 140 | 140 | | S. B. 159 |
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| 141 | 141 | | - 5 - 25 LC 48 1472 |
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| 142 | 142 | | "(3) In the trial of any case in which the death penalty is sought which commences on or121 |
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| 143 | 143 | | after July 1, 2025, should the judge find in accepting a plea of guilty but with intellectual122 |
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| 144 | 144 | | disability, or the jury or court find in its verdict that the defendant is guilty of the crime123 |
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| 145 | 145 | | charged but with intellectual disability, the death penalty shall not be imposed and the124 |
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| 146 | 146 | | court shall sentence the defendant to imprisonment for life."125 |
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| 147 | 147 | | SECTION 3.126 |
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| 148 | 148 | | Said title is further amended by revising subsection (d) of Code Section 17-7-171, relating127 |
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| 149 | 149 | | to time for a demand for speedy trial in capital cases, discharge and acquittal when no trial128 |
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| 150 | 150 | | held before end of two court terms of demand, counting of terms in cases in which death129 |
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| 151 | 151 | | penalty is sought, and special pleas of incompetency, as follows:130 |
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| 152 | 152 | | "(d) If a defendant files a pretrial notice of intent to raise a claim of intellectual disability131 |
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| 153 | 153 | | pursuant to Code Section 17-7-128 or a special plea of incompetency to stand trial pursuant132 |
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| 154 | 154 | | to Code Section 17-7-130 or if the court, pursuant to Code Section 17-7-129, conducts a133 |
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| 155 | 155 | | trial on the competency of the defendant, the period of time during which such matter is134 |
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| 156 | 156 | | pending shall not be included in the computation of determining whether a demand for135 |
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| 157 | 157 | | speedy trial has been satisfied."136 |
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| 158 | 158 | | SECTION 4.137 |
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| 159 | 159 | | Said title is further amended by revising subsection (b) of Code Section 17-10-35.1, relating138 |
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| 160 | 160 | | to the review of pretrial proceedings when death penalty is sought, reports investigating139 |
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| 161 | 161 | | reversible error, transmittal of reports to Supreme Court, orders regarding review, Attorney140 |
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| 162 | 162 | | General assistance, res judicata, applicability, and waiver of rights, as follows:141 |
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| 163 | 163 | | "(b) The reports of the trial judge, prosecutor, prosecuting attorney, and defendant under142 |
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| 164 | 164 | | subsection (a) of this Code section shall be in the form of standard questionnaires prepared143 |
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| 165 | 165 | | and supplied by the Supreme Court. Such questionnaires shall be designed to determine144 |
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| 166 | 166 | | S. B. 159 |
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| 167 | 167 | | - 6 - 25 LC 48 1472 |
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| 168 | 168 | | whether there is arguably any existence of reversible error with respect to any of the |
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| 169 | 169 | | 145 |
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| 170 | 170 | | following matters: 146 |
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| 171 | 171 | | (1) Any proceedings with respect to change of venue; 147 |
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| 172 | 172 | | (2) Any proceedings with respect to recusal of the trial judge; 148 |
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| 173 | 173 | | (3) Any challenge to the jury array; 149 |
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| 174 | 174 | | (4) Any motion to suppress evidence; 150 |
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| 175 | 175 | | (5) Any motion for psychiatric or other medical evaluation; and |
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| 176 | 176 | | 151 |
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| 177 | 177 | | (6) Any proceedings with respect to a pretrial determination of intellectual disability; and152 |
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| 178 | 178 | | (6)(7) Any other matter deemed appropriate by the Supreme Court.153 |
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| 179 | 179 | | SECTION 5.154 |
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| 180 | 180 | | All laws and parts of laws in conflict with this Act are repealed.155 |
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| 181 | 181 | | S. B. 159 |
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| 182 | 182 | | - 7 - |
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