HB 123: 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 defendant 'guilty but with intellectual disability,' but this bill adds a new pretrial option in death penalty cases. A defendant can file a notice claiming intellectual disability before trial, and either the defendant alone or both sides jointly can ask a judge to hold a hearing to decide the question early, before the trial on guilt happens. The bill sets discovery deadlines (60 days for the defense, 30 more for the prosecution), puts the burden on the defendant to prove intellectual disability by a preponderance of the evidence, and requires the judge, not a jury, to decide at this stage. If the judge finds the defendant has an intellectual disability, the state is barred from seeking the death penalty. If not, the defendant can still raise the issue later at trial under the existing process, where a jury can make the same finding after conviction, followed by a capital sentencing hearing if the jury finds no intellectual disability. The bill also updates jury instructions, excludes this pretrial period from speedy trial deadlines, and adds this new pretrial hearing to the list of issues reviewed for reversible error in capital cases. It takes effect immediately upon the Governor's signature or becoming law without signature.

• Creates a new pretrial hearing process (O.C.G.A. § 17-7-128) where a judge alone decides if a capital defendant has an intellectual disability before trial.
• Bars the state from seeking the death penalty against any defendant a court finds, pretrial, to have an intellectual disability.
• Sets discovery deadlines for intellectual disability claims: defense must share evidence 60 days before the hearing, prosecution has 30 more days to respond.
• Puts the burden on the defendant to prove intellectual disability by a preponderance of the evidence (more likely than not).
• Updates jury verdict and instruction procedures in death penalty cases so a jury can separately find 'intellectual disability' or 'no intellectual disability' after conviction, with a capital sentencing hearing only if the jury finds no disability.
• Adds pretrial intellectual disability hearings to the list of issues Georgia courts review for reversible error in capital cases and excludes the hearing period from speedy trial deadlines.

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 death penalty trials; and the Georgia Supreme Court, which reviews these cases for reversible error.

The bill gives capital defendants a chance to resolve an intellectual disability claim before trial instead of only after conviction, potentially removing the death penalty as an option earlier in the process. It also changes how juries are instructed and how much evidence sharing must happen, affecting how capital trials unfold in Georgia courtrooms.

• Section 1 adds a new Code section, O.C.G.A. § 17-7-128, letting a capital defendant file pretrial notice of an intellectual disability claim and get a hearing decided by the judge alone.
• Section 1 requires the defense to turn over discovery 60 days before the hearing and the prosecution to respond within 30 days after that.
• Section 1 bars the death penalty if the judge finds intellectual disability, but lets the defendant raise the claim again later at trial if the judge does not so find.
• Section 2 revises O.C.G.A. § 17-7-131 to add a jury procedure: after convicting on a capital charge, jurors separately decide by a preponderance of the evidence whether the defendant has an intellectual disability.
• Section 2 states that if a judge or jury finds the defendant guilty but with intellectual disability, the death penalty cannot be imposed and the sentence must be life imprisonment or life without parole.
• Section 3 excludes the time a pretrial intellectual disability hearing is pending from the calculation of speedy trial deadlines under O.C.G.A. § 17-7-171.
• Section 4 adds pretrial intellectual disability determinations to the list of issues reviewed for reversible error in capital cases 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 signature.

1. 2025-05-13Effective Date
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)

• Bill Werkheiser (R, HD-157)Primary sponsor
• Matt Reeves (R, HD-99)
• Deborah Silcox (R, HD-53)
• Scott Holcomb (D, HD-101)
• Tyler Paul Smith (R, HD-18)
• Stan Gunter (R, HD-8)
• Brian Strickland (R, SD-42)

1. PassedHouse voteMarch 4, 2025

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

   PASSAGE: House Vote #160

2. PassedSenate voteMarch 31, 2025

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

   PASSAGE BY SUBSTITUTE: Senate Vote #354

3. PassedHouse voteMarch 31, 2025

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

   Agree to Senate Substitute: House Vote #375

• death penalty
• intellectual disability
• criminal procedure
• capital cases
• pretrial hearings