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Activists seek to ease retardation proof in capital cases

Posted: September 24, 2013 - 11:03pm

ATLANTA — Georgia was the first state to prohibit the execution of a mentally retarded person, but advocates for the disabled say the state is now lagging behind American society and needs to change its law.

These advocates are on a monthlong campaign to raise awareness of the issue and mobilize public opinion and legislators. They also prefer the term “intellectual disabilities” to the law’s phrase because they don’t like the connotations associated with “retarded.” Of course, they run the risk that folks won’t know what they’re talking about.

Georgia’s reliance on the death penalty has made it the source of many of the precedent-setting cases in the U.S. Supreme Court. Those decisions prompted multiple changes in how capital-punishment cases are handled here and across the country.

However, it wasn’t an appellate court decision that prompted Peach State legislators to end executions of people with limited mental functioning. It was the outcry over the 1986 execution of a Columbus man for a double murder during a burglary.

Jerome Bowden confessed three times, and his 16-year-old co-defendant also implicated him. State and federal courts rejected all of his appeals, including claims he was wrongfully denied funds for a psychiatrist to pursue an insanity defense.

An IQ test when he was 14 had resulted in a score of 59, and one the day before his execution yielded a 65, five points below the common threshold of mental retardation. He was said to have the maturity of a 9-year-old, but the Emory University psychiatrist who examined him for the Board of Pardons and Paroles testified he did not meet the legal definition of diminished mental capacity.

So, the General Assembly changed the law. It requires a defendant to prove mental retardation beyond a reasonable doubt, the same legal standard prosecutors must meet to win a criminal conviction.

When the U.S. Supreme Court ruled two years after Georgia’s law change that the mentally retarded couldn’t be sentenced to death, the other 30 states using capital punishment changed their laws. The legal standard they adopted wasn’t as tough to reach, leaving Georgia as the state with the most difficult hurdle for a defendant.

Now, groups such as the Atlanta-based All About Developmental Disabilities is working to get Georgia legislators to revise the standard here.

“AADD conducted research this summer that clearly showed Georgians are confused about the death penalty issue, but that they don’t want our state to be executing people with intellectual disabilities,” said Kathy Keeley, executive director of AADD. “This campaign will educate our citizens as we work with our legislators to change our state’s death penalty law.”

According to a poll she cites conducted by InsiderAdvantage, 57 percent of Georgians agree on the mental-retardation prohibition, and 41 percent favor a lower standard of proof.

Not exactly overwhelming support in such a conservative, law-and-order state. But the survey also found that 74 percent of those questioned don’t know Georgia has the highest burden of proof for defendants.

Many legislators could be in that 74 percent.

Senate Judiciary Chairman Jesse Stone, R-Waynesboro, has taught criminal-justice courses in college and has accepted appointment as a criminal-defense attorney over his career, though less so in recent years. He hadn’t heard of the advocates’ campaign until questioned by a reporter last week.

“It hasn’t reached me yet,” he said.

The good news for advocates is that, although he considers himself a conservative, he’s keeping an open mind.

“I wouldn’t prejudge it until I’ve heard all the pros and cons,” he said. “... I depend on people who are experts to lay out the arguments.”

AADD is distributing thousands of label buttons, using social media and urging supporters to buttonhole legislators or invite them to seven meetings across the state between now and the next legislative session. It also plans to testify at hearings in the next three months before a temporary legislative committee appointed to consider drafting a bill that would likely wind up in Stone’s standing committee.

It’s likely that by the time lawmakers reconvene Jan. 13, considerably more of them will be aware of the issue.

(Walter Jones is the Atlanta bureau chief for Morris News and has been covering Georgia politics since 1998. Follow him on Twitter @MorrisNews and Facebook or contact him at walter.jones@morris.com and (404) 589-8424.)

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