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