HB123: HB123 Criminal procedure; pretrial proceedings in capital offense cases where the death penalty is sought when the accused has an intellectual disability; provide

Georgia law already lets juries find a capital defendant 'guilty but with intellectual disability,' which bars the death penalty. This bill adds a new pretrial process (new O.C.G.A. § 17-7-128) letting a defendant facing the death penalty file a notice claiming intellectual disability before trial. A judge can hold a hearing on that claim, either at the defendant's request or automatically if both sides agree, and decides the question as fact-finder using a preponderance of the evidence standard. The bill sets discovery deadlines for both sides, bars the death penalty if the judge finds intellectual disability, and allows either side to immediately appeal that ruling. It also updates jury instructions and verdict forms for insanity, mental illness, and intellectual disability defenses, revises speedy trial rules to pause the clock while an intellectual disability claim is pending, and adds this new pretrial process to the list of issues examined in post-trial reversible error reports for capital cases. The law would take effect as soon as the Governor signs it or it becomes law without his signature.

• Creates a new pretrial procedure (O.C.G.A. § 17-7-128) allowing capital defendants to file notice claiming intellectual disability before trial.
• Lets a judge, rather than a jury, decide the intellectual disability claim at a pretrial hearing, either by the defendant's motion or by joint agreement of both sides.
• Sets discovery deadlines: the defense must share evidence 60 days before the hearing, and prosecutors must respond within 30 days.
• Bars the state from seeking the death penalty if the judge finds the defendant has an intellectual disability, and allows immediate appeal of that ruling.
• Revises jury verdict and instruction rules in O.C.G.A. § 17-7-131 for insanity, mental illness, and intellectual disability defenses, including a required life sentence (with or without parole) if intellectual disability is found.
• Pauses the speedy trial clock in capital cases while an intellectual disability claim is pending and adds this issue to the state's post-trial error review reports.

Defendants charged with capital crimes where prosecutors are seeking the death penalty, especially those who may have an intellectual disability; prosecuting attorneys and trial judges handling capital cases; juries in cases that proceed to trial; and the Georgia Supreme Court, which reviews reports on potential trial errors in death penalty cases.

The bill gives capital defendants a chance to resolve an intellectual disability claim before trial rather than only at the jury verdict stage, potentially removing the death penalty as an option earlier in the process and adding new deadlines, hearings, and appeal rights that both defense and prosecution must follow.

• Section 1 creates O.C.G.A. § 17-7-128, defining intellectual disability by reference to Code Section 17-7-131 and establishing the pretrial notice and hearing process.
• Section 1 places the burden on the defendant to prove intellectual disability by a preponderance of the evidence at the pretrial hearing, with the judge deciding as finder of fact.
• Section 1 allows either party to seek immediate appellate review of the pretrial intellectual disability ruling under O.C.G.A. §§ 5-6-34 or 5-7-1.
• Section 2 revises O.C.G.A. § 17-7-131 jury verdict options and instructions to include 'guilty but with intellectual disability' findings and requires a life sentence, with or without parole, if that finding is made.
• Section 2 sets a separate death penalty trial procedure where the jury first decides guilt, then hears evidence on intellectual disability before any capital sentencing proceeding under O.C.G.A. § 17-10-30.
• Section 3 amends the speedy trial statute (O.C.G.A. § 17-7-171) to exclude time spent on a pending intellectual disability claim from speedy trial calculations.
• Section 4 adds pretrial intellectual disability determinations to the list of issues covered in reversible error reports under O.C.G.A. § 17-10-35.1.
• Section 5 makes the Act effective immediately upon the Governor's signature or upon becoming law without his signature.

1. 2025-05-13Effective Date 2025-05-13
2. 2025-05-13Act 191
3. 2025-05-13House Date Signed by Governor (House)
4. 2025-04-08House Sent to Governor (House)
5. 2025-03-31House Agreed Senate Amend or Sub (House)
6. 2025-03-31Senate Passed/Adopted By Substitute (Senate)
7. 2025-03-31Senate Third Read (Senate)
8. 2025-03-27Senate Read Second Time (Senate)

• William Werkheiser (R, HD-157)Primary sponsor
• Matt Reeves (R, HD-099)
• Deborah Silcox (R, HD-053)
• Scott Holcomb (D, HD-101)
• Tyler Smith (R, HD-018)
• Stan Gunter (R, HD-008)
• Brian Strickland (R, SD-042)

1. PassedHouse voteMarch 4, 2025

   172 yea, 0 nay (3 not voting, 5 absent)

   Passage: House Vote #160

2. PassedSenate voteMarch 31, 2025

   53 yea, 1 nay (0 not voting, 2 absent)

   Passage By Substitute: Senate Vote #354

3. PassedHouse voteMarch 31, 2025

   150 yea, 3 nay (13 not voting, 14 absent)

   Agree To Senate Substitute: House Vote #375

• death penalty
• intellectual disability
• criminal procedure
• capital cases
• jury trials