Catching Up with the Constitution? Georgia Fixes Its Fatal Burden of Proof for Findings of Intellectual Disability in Capital Cases

In 1988, Georgia became the first state to prohibit the execution of individuals with intellectual disability—a landmark reform spurred by the execution of Jerome Bowden, a Black man with an IQ of 59. Yet, due to a drafting error, the statute imposed an insurmountable burden: requiring defendants to prove their intellectual disability beyond a reasonable doubt. For nearly four decades, that fatal flaw rendered Georgia’s protection illusory. Not a single capital defendant facing intentional murder charges prevailed.

While nearly every other jurisdiction adopted the far more workable “preponderance of the evidence” standard, Georgia stood alone, out of step with both national consensus and the Eighth Amendment mandate articulated in Atkins v. Virginia. In 2025, Georgia finally corrected course. With the passage of House Bill 123, the state reduced the burden of proof to a preponderance of the evidence and restructured its procedures to prevent juries from deciding guilt and intellectual disability simultaneously in trial stage cases. This Article situates Georgia’s reform in historical, doctrinal, and policy context.

It argues that House Bill 123 marks a long overdue alignment of Georgia’s law with constitutional and clinical norms, transforming Georgia from an outlier into a jurisdiction that can meaningfully safeguard the lives of the intellectually disabled moving forward. But it does so while leaving behind those already condemned—a reminder that progress without remedial action is justice delayed and justice denied.