Constitutional Prohibition Under Atkins v. Virginia
The United States Supreme Court held in Atkins v. Virginia (2002) that the execution of persons with intellectual disability violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The Court recognized that persons with intellectual disability have diminished personal culpability, that the penological purposes of the death penalty are not served by executing persons with intellectual disability, and that there is a risk of wrongful execution due to the increased vulnerability of persons with intellectual disability during interrogation and trial.
Consider this scenario: A death-sentenced prisoner has an IQ score of 72. Does this constitute intellectual disability that bars execution? Georgia courts must evaluate not just the IQ number but the overall picture of adaptive functioning and developmental history.
Georgia’s Burden of Proof Standard
Georgia is unique among states in requiring the defendant to prove intellectual disability beyond a reasonable doubt. O.C.G.A. Section 17-7-131(j) imposes this heightened standard. The United States Supreme Court has not directly ruled on whether this standard is constitutional, and it remains a subject of active litigation. An experienced defense lawyer can preserve the argument that the beyond-a-reasonable-doubt standard is unconstitutionally high and deprives defendants of the Atkins protection. In 2025, the Georgia General Assembly passed HB 123, which lowered the burden of proof from beyond a reasonable doubt to preponderance of the evidence for intellectual disability claims in capital cases.
The legislation passed with near-unanimous support but is not retroactive, meaning it does not apply to prisoners already on death row who were denied relief under the prior standard. Your defense attorney in new capital cases should invoke HB 123’s preponderance standard, while counsel representing death row inmates must continue to challenge the constitutionality of the prior beyond-a-reasonable-doubt standard as applied to their clients’ pending claims.
Clinical Criteria for Intellectual Disability
The diagnosis of intellectual disability requires proof of three elements: significantly subaverage general intellectual functioning, typically defined as an IQ score approximately two standard deviations below the mean; concurrent deficits or impairments in adaptive functioning in areas such as communication, self-care, social skills, and work; and onset before age eighteen. Building a strong defense record means your attorney retain qualified psychologists or neuropsychologists to conduct comprehensive evaluations addressing all three elements.
IQ Score Considerations
Georgia courts consider IQ scores as part of the overall assessment but do not apply a rigid cutoff. The standard error of measurement in IQ testing means that a single score may not accurately represent the individual’s true intellectual functioning. Multiple test administrations, the Flynn Effect on older test norms, and practice effects from repeated testing all affect the reliability of IQ scores. The key move for your attorney is to present expert testimony explaining these factors and arguing for consideration of the confidence interval rather than the point score. ThThis standard error of measurement for most individually administered IQ tests is approximately 5 points, meaning a score of 73 represents a true score range of approximately 68 to 78.
Georgia courts should consider the confidence interval rather than the point score alone, because rigid reliance on a single number ignores the inherent imprecision of the testing instrument. The Flynn Effect, which documents a gradual increase in population IQ scores over time that inflates results on older test norms, must also be accounted for. A score of 72 on a test normed 15 years ago may reflect a true score several points lower when the Flynn Effect is applied.
Adaptive Functioning Assessment
Adaptive functioning refers to the individual’s ability to meet the standards of personal independence and social responsibility expected for his or her age and cultural group. Assessment of adaptive functioning involves review of school records, employment history, daily living skills, social functioning, and testimony from people who knew the individual during the developmental period. Building a strong defense record means your defense representative conduct a thorough investigation of the client’s developmental history and present evidence from family members, teachers, and other persons who observed the client’s functioning before age eighteen.
Procedural Considerations
The intellectual disability determination may be made at a pretrial hearing or during the penalty phase of trial. When the issue is raised pretrial, the judge makes the determination. When raised during the penalty phase, the jury determines the issue. A strong defense begins when your attorney evaluate the strategic implications of each approach and select the procedure most likely to result in a favorable outcome.
Proving Intellectual Disability
Your defense attorney should retain qualified experts, conduct a comprehensive investigation of the client’s developmental history, present testimony from lay witnesses who can describe the client’s limitations in adaptive functioning, challenge the state’s expert testimony on methodology and conclusions, and preserve the constitutional challenge to Georgia’s beyond-a-reasonable-doubt burden of proof.