If Nothing Happens Between Now and Tonight, Missouri Will Execute an Intellectually Disabled Man

UPDATE: Ernest Lee Johnson was granted a temporary stay of execution on Tuesday, November 3, 2015, based on a petition regarding the lethal injection drugs' impact on his partial brain tumor. 

Nine months ago I found myself crushed and crying over a beer on a cool, dark January night in Texas. The state of Texas had just strapped my client’s body to a gurney, pumped poison through his veins, and called it justice despite his well-documented intellectual disability. Hours earlier, the courts had not yet finalized his execution, and Robert whispered misplaced hope through metal bars, telling me he was glad he still “had a chance.”

Decades earlier, the Texas Youth Commission had labeled Robert “fairly obviously retarded.” Yet no courts were moved, and Texas carried out his execution, paying no heed to the Supreme Court’s rulings that disqualify people with intellectual disabilities from the death penalty. Now the state of Missouri is showing the same disregard for the law and morality.

Ernest Johnson, whose intellectual disability is clear, is scheduled to be executed by lethal injection sometime after 6 p.m. on Tuesday.

Ernest has scored under or around 70 on IQ tests throughout his life. He has shown typical signs of intellectual disability since he was a schoolboy: He struggled to speak and walk at the usual age. Young Ernest couldn’t keep himself clean. His school held him back a grade twice and placed him in special education. He was easily led by kids who took advantage of his low intellect, this manipulation often turning to bullying. School officials recorded his intellectual problems and tested his IQ, finding scores on two occasions that placed Ernest in the lowest two percent of intellect for children his age with an IQ under or around 70. As an adult, Ernest consistently scored in this same range on several IQ tests over a 10-year period.

Signs of “intellectual disability” can sometimes stick out to us as lay persons, but the term has a scientific definition and criteria, created by the professionals who regularly diagnose and work with this population. Their criteria require a valid IQ score of around 70 (plus or minus 5 points), significant problems with functioning independently (known by the experts as adaptive functioning), and evidence the condition began before the age of 18.

Ernest Johnson fits all of these criteria.     

But here’s why Ernest still faces execution, instead of life behind bars: The clear science behind intellectual disability criteria too often gets buried under other considerations. For example, in Ernest’s case, when the jury was deciding if he was intellectually disabled, the prosecutor waved around crime scene photos of the victims and argued “to decide it’s more likely than not that this guy is mentally retarded is an insult, an insult to these victims.”

So it was for my client Robert Ladd when the state of Texas insisted upon his execution, arguing that Robert was not intellectually disabled because he didn’t meet the state’s definition — a set of standards taken not from modern science but from the character Lennie Small in John Steinbeck’s “Of Mice and Men.” And only two nights earlier, Georgia executed Warren Hill, whom seven different experts found met the scientific criteria for intellectual disability. As his attorney described, Mr. Hill had “the emotional and cognitive ability of a young boy.”

When states have allowed raw emotion, or prosecutorial zealousness, to trample science, the Supreme Court has sometimes stepped in. In a pair of cases, saving the lives of Freddie Lee Hall in 2014 and Kevan Brumfield in 2015, the court has ruled that, although states have some flexibility in their procedures to determine intellectual disability, those procedures must account for scientific criteria on issues such as how IQ test scores are interpreted. As the Supreme Court said in Hall v. Florida, “The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects.” Only a month ago, in a little noticed summary order, the court again cited  Hall’s follow-the-science opinion to strike similar Alabama procedures resulting in the death sentence of an Alabama man named Anthony Lane.

Governors and the judges of the highest courts carry the ultimate responsibility of deciding when society can impose its most severe and only irreversible criminal sanction. Although they may pass the buck between them, someone must stand up for the Constitution and basic fairness: When the science shows a person has an intellectual disability, the machinery of death must stop and the prisoner must instead remain behind bars until he dies.

This lesson comes too late for Warren Hill and Robert Ladd, but let’s hope we’re in time for Ernest Johnson. 

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Anonymous

Should a mentally incompetent man be punished via incarceration in a more violent maximum security prison, confined to an insane asylum or executed? Not sure what is right, but Missouri is not prone to rational decisions lately. They recently placed a bust in the state house in honor of Limbaugh, the painkiller addict who says drug users should be imprisoned.

Gone are the days of Missouri greats Mark Twain, Harry Truman and T.S. Eliot. Now you get Ashcroft, Ferguson's favorite cop Wilson and rush. If they support something as serious and of such great consequence as ending a life in retaliation for murder, we should probably give serious thought to not doing it. They automatically take the wrong path, as a safe rule of thumb.

Anonymous

Eu sou um annonymo brasileiro e estamos planejando um protesto o maior que já viram

Anonymous

Sick in today's world how the government is stripping us of our rights. I think all mentally incapable people who commit violent crime should be place in a mental health facility.

Anonymous

While I am against the death penalty on moral grounds, I don't think that being mentally handicapped should bar the aggressor from a comparable punishment.

If I got drunk to the point of having an IQ of 70 and committed a quadruple homicide, I would and should be punished the same as if I was sober. Stupidity is not and should not be a defense.

Anonymous

You chose to be stupid, this man didn't. Your argument is invalid.

Anonymous

nothing was mentioned about what he did and whether he did it. that is what is relevant, and the lack of acknowledgement makes the whole article seem like it isn't credible.

Anubis

The big problem here as far as I can see is that absolute IQ is actually a poor way of determining whether or not somebody is mentally disabled.

There are significant differences in IQ scores between` different demographics. (Asiatics score significantly higher than "Whites", African Americans tend to score significantly lower)

I do not accept that this means that there are such dramatic differences in absolute intellectual ability. Simply that (For whatever reason) IQ tests are not reliable for comparing intellectual ability between different demographics.

An African American with an IQ score of 70 is only one standard deviation below the mean score for African Americans. This is nowhere near being retarded. It is the low end of normal admittedly, but it is within the normal range for an African American!

The "Intellectual Disability" plea fails!

Anonymous

Wow that's really racist.

Anonymous

What the person did does not matter when considering the death penalty. When we try to take that into consideration, then we are trying to judge with our emotions whether or not this person "deserves" the death penalty in our eyes. I do not mean to say that all crimes are equal, but rather, no crime, however severe, should warrant killing. To resort to violence to solve our problems makes us no better than those we condemn.

Yinyangiskey

To only use this person's mentel health capability as a sole reason to deny the death penalty (im generally not a supporter of the death penalty btw), is not a valid reason to both deny or approve the result. A comparison, would be someone who is a true psychopath. They cannot Understand normal social queues and knowing what they are doing is wrong, yet they geneally have very high IQs. Does that mean that when they kill/injure someone, that they are less cupable to their crime because they dont know any better?

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