SB 159: Criminal Procedure; pretrial proceedings in capital offense cases where the death penalty is sought when the accused has intellectual disability; provide

Georgia law already lets juries return a verdict of 'guilty but with intellectual disability' in capital cases, but that finding currently happens only after a full guilt trial. Senate Bill 159 adds an earlier option: a defendant facing the death penalty can file a pretrial notice claiming intellectual disability, and a judge can hold a hearing before trial to decide the question. The defendant must prove intellectual disability by a preponderance of the evidence (meaning more likely than not). If the judge agrees, the state is barred from seeking the death penalty, though the defendant can still raise the issue again later if the pretrial hearing goes against them. The bill also restructures how juries handle the issue when it goes to trial for offenses committed on or after July 1, 2025: juries first decide guilt, then hear separate evidence on intellectual disability before deciding whether to add that finding to the verdict, which would result in a life sentence instead of death. It also updates the standard forms used to check capital cases for legal errors to include this new pretrial process.

• Creates a new pretrial hearing process (O.C.G.A. § 17-7-128) where a death-penalty defendant can ask a judge to decide before trial whether they have intellectual disability.
• Requires the defendant to prove intellectual disability by a preponderance of the evidence (more likely true than not) at that pretrial hearing.
• Bars the state from seeking the death penalty if the judge finds the defendant has intellectual disability at the pretrial stage.
• Restructures jury verdicts in capital trials starting July 1, 2025, so juries decide guilt first, then hear separate evidence on intellectual disability before a capital sentencing hearing.
• Requires that any guilty verdict combined with a finding of intellectual disability results in a life sentence rather than the death penalty.
• Adds pretrial intellectual disability hearings to the list of issues checked in the state's standard post-trial error review questionnaires for capital cases (O.C.G.A. § 17-10-35.1).

The bill affects defendants charged with capital offenses where the death penalty is sought, particularly those who may have intellectual disability, along with prosecutors, trial judges, juries, and the Georgia Supreme Court's review process for capital cases.

For defendants who may have intellectual disability, this bill could resolve that question before a lengthy capital trial, potentially removing the death penalty as an option early on. It also changes how juries evaluate the issue during trial, affecting sentencing outcomes in Georgia capital cases.

• Section 1 adds new Code Section 17-7-128, allowing a pretrial notice and hearing on intellectual disability in death penalty cases, decided by the judge as fact-finder.
• Section 1 sets the defendant's burden of proof at pretrial hearings as a preponderance of the evidence and allows immediate appellate review of the judge's ruling.
• Section 2 revises O.C.G.A. § 17-7-131 to route capital cases with an intellectual disability claim through the new pretrial procedure and adds jury instructions for the 'guilty but with intellectual disability' verdict.
• Section 2 creates a new bifurcated trial procedure effective July 1, 2025, where juries decide guilt first, then hear separate evidence on intellectual disability before any capital sentencing proceeding.
• Section 2 requires a life sentence, not death, whenever a defendant is found guilty but with intellectual disability in a capital case filed on or after July 1, 2025.
• Section 3 excludes time spent on a pretrial intellectual disability claim from the calculation of speedy trial deadlines in capital cases.
• Section 4 adds pretrial intellectual disability proceedings to the standard error-review questionnaires the Georgia Supreme Court uses to check capital cases for reversible error.

1. 2025-02-13Senate Read and Referred (Senate)
2. 2025-02-12Senate Hopper (Senate)

• Kim Jackson (D, SD-041)Primary sponsor
• Josh McLaurin (D, SD-014)

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