Art. 905.5.1.  Intellectual disability

A.  Notwithstanding any other provisions of law to the contrary, no person with an intellectual disability shall be subjected to a sentence of death.

B.  Any capital defendant who claims to have an intellectual disability shall file written notice thereof within the time period for filing of pretrial motions as provided by Article 521 of this Code.

C.(1)  Any defendant in a capital case making a claim of  intellectual disability shall prove the allegation by a preponderance of the evidence.  The jury shall try the issue of intellectual disability of a capital defendant during the capital sentencing hearing unless the state and the defendant agree that the issue is to be tried by the judge.  If the state and the defendant agree, the issue of intellectual disability of a capital defendant may be tried prior to trial by the judge alone.

(2)  Any pretrial determination by the judge that a defendant does not have an intellectual disability shall not preclude the defendant from raising the issue at the penalty phase, nor shall it preclude any instruction to the jury pursuant to this Article.

D.  Once the issue of intellectual disability is raised by the defendant, and upon written motion of the district attorney, the defendant shall provide the state, within time limits set by the court, any and all medical, correctional, educational, and military records, raw data, tests, test scores, notes, behavioral observations, reports, evaluations, and any other information of any kind reviewed by any defense expert in forming the basis of his opinion that the defendant has an intellectual disability.

E.  By filing a notice relative to a claim of intellectual disability under this Article, the defendant waives all claims of confidentiality and privilege to, and is deemed to have consented to the release of, any and all medical, correctional, educational, and military records, raw data, tests, test scores, notes, behavioral observations, reports, evaluations, expert opinions, and any other such information of any kind or other records relevant or necessary to an examination or determination under this Article.

F.  When a defendant makes a claim of intellectual disability under this Article, the state shall have the right to an independent psychological and psychiatric examination of the defendant.  A psychologist or medical psychologist conducting such examination must be licensed by the Louisiana State Board of Examiners of Psychologists or the Louisiana State Board of Medical Examiners, whichever is applicable.  If the state exercises this right, and upon written motion of the defendant, the state shall provide the defendant, within time limits set by the court, any and all medical, correctional, educational, and military records, and all raw data, tests, test scores, notes, behavioral observations, reports, evaluations, and any other information of any kind reviewed by any state expert in forming the basis of his opinion that the defendant does not have an intellectual disability.  If the state fails to comply with any such order, the court may impose sanctions as provided by Article 729.5 of this Code.

G.  If the defendant making a claim of intellectual disability fails to comply with any order issued pursuant to Paragraph D of this Article, or refuses to submit to or fully cooperate in any examination by experts for the state pursuant to either Paragraph D or F of this Article, upon motion by the district attorney, the court shall neither conduct a pretrial hearing concerning the issue of intellectual disability nor instruct the jury of the prohibition of executing defendants with intellectual disabilities.

H.(1)  “Intellectual disability”, formerly referred to as “mental retardation”, is a disability characterized by all of the following deficits, the onset of which must occur during the developmental period:

(a)  Deficits in intellectual functions such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience, confirmed by both clinical assessment and individualized, standardized intelligence testing.

(b)  Deficits in adaptive functioning that result in failure to meet developmental and sociocultural standards for personal independence and social responsibility; and that, without ongoing support, limit functioning in one or more activities of daily life including, without limitation, communication, social participation, and independent living, across multiple environments such as home, school, work, and community.

(2)  A diagnosis of one or more of the following conditions does not necessarily constitute an intellectual disability:

(a)  Autism.

(b)  Behavioral disorders.

(c)  Cerebral palsy and other motor deficits.

(d)  Difficulty in adjusting to school.

(e)  Emotional disturbance.

(f)  Emotional stress in home or school.

(g)  Environmental, cultural, or economic disadvantage.

(h)  Epilepsy and other seizure disorders.

(i)  Lack of educational opportunities.

(j)  Learning disabilities.

(k)  Mental illness.

(l)  Neurological disorders.

(m)  Organic brain damage occurring after age eighteen.

(n)  Other disabling conditions.

(o)  Personality disorders.

(p)  Sensory impairments.

(q)  Speech and language disorders.

(r)  A temporary crisis situation.

(s)  Traumatic brain damage occurring after age eighteen.

Acts 2003, No. 698, §1; Acts 2009, No. 251, §1, eff. Jan. 1, 2010; Acts 2014, No. 811, §31, eff. June 23, 2014.