Intellectually disabled and on death row in Georgia

After a four-year pause on executions during the pandemic^[1], the state of Georgia plans to execute Willie James Pye, a Black man who has a confirmed IQ score^[2] of 68, on March 20, 2024. A petition has been created by anti-death-penalty activists to halt his execution.

Georgia was the first state to prohibit the execution of intellectually disabled people with a bill introduced in 1988; however, a certain phrase renders the bill almost impossible to be useful. Although the execution of an intellectually disabled person was ruled unconstitutional by the Supreme Court in the 2002 case Atkins v. Virginia, the 1988 bill now functions as an unfortunate loophole by which intellectually disabled capital defendants in Georgia are put to death. Furthermore, there is a statistical majority of Black men on death row in Georgia. “Racial disparities are present at every stage of a capital case and get magnified as a case moves through the legal process,” said Robert Dunham of the Death Penalty Information Center in a statement on its website. “If you don’t understand the history — that the modern death penalty is the direct descendant of slavery, lynching, and Jim Crow-segregation — you won’t understand why.”

The “language mistake” in the Georgia bill requires defendants to prove their intellectual disability “beyond a reasonable doubt.” Other states simply require intellectual disability to be proven to be more likely than not. The Southern Center for Human Rights points out that this requirement is also inconsistent with how Georgia determines intellectual disability when deciding who gets special education or governmental assistance. In the past few years, the Georgia Supreme Court has voted to continue to include the reasonable doubt requirement, and bills introduced to amend the law have died. Whether or not the reasonable doubt phrase was originally a mistake, it’s being upheld now intentionally. In the three decades since the bill was introduced, only one capital defendant in Georgia has successfully been able to prove they were intellectually disabled.

In alignment with the petition made by Georgians For Alternatives to the Death Penalty, it barely takes any investigation at all to find that Johnny Mostiler, Pye’s trial attorney, is clearly and significantly anti-Black. A search just for “Spalding County GA death penalty” immediately pulls up the Wikipedia page for Curtis Osborne, for whom Mostiler was the court-appointed attorney. Mostiler did not notify Osborne that he had been offered a life sentence for a plea bargain, and said “That little n----r deserves the chair.” That case was the subject of a Time article entitled “If Your Lawyer Wants You Executed.” Despite clemency pleas from former president Jimmy Carter and the former deputy U.S. Attorney General, Osborne was executed by lethal injection on June 4, 2008. He had killed two people in 1990 during a dispute regarding $400.

According to the Time article, throughout the 1990s, “Mostiler represented all the indigent inmates in the county for a flat annual fee, hundreds and hundreds of felony cases. His clients often filed into court shackled to one another in rows to enter their guilty pleas, according to a profile in American Prospect magazine.” This would’ve been the same situation Willie Pye was in. The profile also states that the number of clients was “more than seven times the number of indigent cases the American Bar Association (ABA) believes is manageable.”

According to the Death Penalty Information Center, “Pye’s is at least the fourth case in which Mostiler has been the subject of allegations of ineffective representation and/or racial bias against Black clients. Jurors in the case of Kenneth Fults, an intellectually disabled Black defendant executed by Georgia on April 12, 2016, submitted affidavits that Mostiler slept through portions of the trial.”

After “unanimously finding that Mostiler failed to investigate and present a broad range of available mitigating and rebuttal evidence,” the U.S. Appeals Court of the Eleventh Circuit had in fact reversed Pye’s death sentence in May 2021, only for it to be reinstated after the Georgia court requested that the Eleventh Circuit reconvene. These appeals did not even discuss findings about intellectual disability. Because of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), the court was required to defer to the state court’s finding that Mostiler’s performance was not prejudiced, even if the U.S. Appeals Court did acknowledge it was deficient. AEDPA notably makes it harder for criminal defendants to appeal.

For both of these intellectually disabled Black men, Mostiler did not provide the jury with adequate context for their lives or traumatic childhoods. The U.S. Appeals Court said that Pye experienced “near-constant physical and emotional abuse, extreme parental neglect, endangerment, and abject poverty,” and likely has fetal alcohol syndrome. Fults also endured intense childhood abuse and his intellectual functioning was described as being “in the lowest 1 percent of the population.” In Pye’s case, the prosecutor, who was familiar with what Mostiler typically said at trials, said that Mostiler would cite specific quotes from The Merchant of Venice and the Bible. Mostiler did so, proving that he gave Pye a canned argument.

The impossible task that intellectually disabled capital defendants in Georgia are faced with, to “prove beyond a reasonable doubt” their disability, is an extension of the racist and ableist tools that the carceral and policing systems employ daily. The conditions of these systems don’t seem to be improving anytime soon. Poverty, abuse, and systemic racism and classism lead men like Willie Pye, Curtis Osborne, and Kenneth Fults into crime and being incarcerated. According to the ACLU, intellectually disabled students are overrepresented in the school-to-prison pipeline. More than 50% of Black Disabled people have been arrested by the time they are twenty-eight.

Outside of prisons, police target Disabled people. Half of all people killed by police are Disabled. This past weekend, in San Bernardino, California, a cop shot and killed Ryan Gainer, an autistic Black fifteen-year-old.

A week before his scheduled execution date, the petition to save Willie Pye currently sits at a low number of signatures. Please consider signing the petition here.

Thank you to New Disabled South for bringing attention to this case.