Federal Government Executes Corey Johnson, Who was Likely Intellectually Disabled, Without Any Judicial Review of His Eligibility for the Death Penalty

For the sec­ond time in less than five weeks, the fed­er­al gov­ern­ment has exe­cut­ed a death-row pris­on­er who like­ly was intel­lec­tu­al­ly dis­abled, with­out afford­ing him judi­cial review to deter­mine his eli­gi­bil­i­ty for the death penal­ty. Corey Johnson (pic­tured) was pro­nounced dead from lethal injec­tion at 11:34 p.m. on January 14, 2021, the 12^th fed­er­al pris­on­er exe­cut­ed in six months and the fifth in the tran­si­tion peri­od between Donald Trump’s defeat in the November 2020 pres­i­den­tial elec­tion and the sched­uled inau­gu­ra­tion of Joseph R. Biden on January 20, 2021.

The only oth­er time in U.S. his­to­ry that as many as five tran­si­tion-peri­od exe­cu­tions took place was in 1884 – 1885 dur­ing the tran­si­tion between Chester A. Arthur and the first pres­i­den­cy of Grover Cleveland.

In an order issued at 10:00 p.m., four hours after Johnson was sched­uled to be exe­cut­ed, the U.S. Supreme Court denied Johnson’s emer­gency appli­ca­tion for a stay of exe­cu­tion to per­mit him to present evi­dence that the con­sti­tu­tion pro­hib­it­ed his exe­cu­tion because he has intel­lec­tu­al dis­abil­i­ty. Justices Kagan and Sotomayor dis­sent­ed. The U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that the exe­cu­tion of peo­ple with intel­lec­tu­al dis­abil­i­ty vio­lates the Eighth Amendment pro­scrip­tion against cru­el and unusu­al pun­ish­ments. Johnson also argued that his exe­cu­tion would vio­late a 1988 fed­er­al statute that for­bids apply­ing the fed­er­al death penal­ty to pris­on­ers with intellectual disability. 

Earlier in the evening, in an 8 – 7 vote, the judges of the U.S. Court of Appeals for the Fourth Circuit declined to recon­sid­er a three-judge panel’s rul­ing refus­ing to grant Johnson an evi­den­tiary hear­ing on his claim. In dis­sent, Judge James A. Wynn wrote, sup­ply­ing empha­sis, that ​“Corey Johnson is an intel­lec­tu­al­ly dis­abled death row inmate who is sched­uled to be exe­cut­ed lat­er today.” Newly avail­able evi­dence, he wrote ​“con­vinc­ing­ly demon­strates … that he is intel­lec­tu­al­ly dis­abled under cur­rent diag­nos­tic stan­dards. But no court has ever con­sid­ered such evi­dence. If Johnson’s death sen­tence is car­ried out today, the United States will exe­cute an intel­lec­tu­al­ly dis­abled per­son, which is unconstitutional.”

On December 11, 2020, the fed­er­al gov­ern­ment exe­cut­ed Alfred Bourgeois despite evi­dence that he may have been inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty. During his ear­li­er appeals, a fed­er­al court in Texas denied Bourgeois’ claim of intel­lec­tu­al dis­abil­i­ty, rely­ing on a series of lay stereo­types that had no clin­i­cal valid­i­ty and whose use the Supreme Court lat­er declared uncon­sti­tu­tion­al. When he sought to obtain judi­cial review of his con­di­tion based upon cur­rent clin­i­cal def­i­n­i­tions of the dis­or­der, anoth­er fed­er­al dis­trict court found that he had made a ​“strong show­ing” of intel­lec­tu­al dis­abil­i­ty and grant­ed him per­mis­sion to lit­i­gate that claim. A fed­er­al appeals court reversed, say­ing Bourgeois had already been pro­vid­ed an oppor­tu­ni­ty to lit­i­gate his claim, and the U.S. Supreme Court allowed the exe­cu­tion to go forward.

In December 2020, short­ly after the fed­er­al gov­ern­ment set his exe­cu­tion date, Johnson filed a peti­tion in fed­er­al dis­trict court in Richmond, Virginia seek­ing review of evi­dence of intel­lec­tu­al dis­abil­i­ty that his tri­al lawyer failed to devel­op. His new lawyers pre­sent­ed records and wit­ness affi­davits show­ing that Johnson had ​“remained in the sec­ond grade for three years, and also repeat­ed third and fourth grades. When asked his birth­day at age eight, while in sec­ond grade, he thought it was in March, though he was actu­al­ly born in November. When he was 13 years old, he could bare­ly write his own name. And while he knew there were 12 months in the year, he could recite them only up to August. Corey was not able to tell time or per­form arith­metic beyond a third-grade lev­el …. When he was last test­ed at age 45, Mr. Johnson was still at an ele­men­tary school level ….”

The dis­trict court dis­missed Johnson’s peti­tion with­out prej­u­dice, rul­ing that it was a suc­ces­sive habeas cor­pus peti­tion that, under fed­er­al law, required per­mis­sion from the fed­er­al appeal court before it could be reviewed. Johnson appealed that rul­ing and asked the Fourth Circuit for a stay of exe­cu­tion. Separately, he asked the cir­cuit court for autho­riza­tion to file a sec­ond habeas cor­pus peti­tion if the court believed it was nec­es­sary. On January 12, the Fourth Circuit denied Johnson’s requests to stay his exe­cu­tion. On January 13, Johnson filed a peti­tion for rehear­ing en banc, lead­ing to the appeals court’s 8 – 7 decision.

The Continuing Unconstitutional Execution of Intellectually Disabled Defendants

The exe­cu­tions of Johnson and Bourgeois reflect the con­tin­u­ing inabil­i­ty or refusal of courts to enforce the con­sti­tu­tion­al pro­hi­bi­tion against exe­cut­ing defen­dants with intel­lec­tu­al dis­abil­i­ty, par­tic­u­lar­ly in cas­es involv­ing defen­dants of col­or. DPIC has iden­ti­fied more than 25 pris­on­ers who have been exe­cut­ed since Atkins was decid­ed in 2002, despite sig­nif­i­cant evi­dence that they were intellectually disabled. 

Two more exe­cu­tions of like­ly intel­lec­tu­al­ly dis­abled death-row pris­on­ers are sched­uled with­in the next four weeks. Blaine Milam is sched­uled to be exe­cut­ed January 21, 2021, even though the Texas courts applied sci­en­tif­i­cal­ly invalid cri­te­ria, lat­er declared uncon­sti­tu­tion­al, to reject his intel­lec­tu­al­ly dis­abil­i­ty claim and sub­se­quent­ly refused to afford him an evi­den­tiary hear­ing at which he could receive a clin­i­cal­ly appro­pri­ate assess­ment of his men­tal con­di­tion. Willie B. Smith III faces a February 11, 2021 exe­cu­tion date in Alabama, despite a deter­mi­na­tion by a fed­er­al appeals court that he meets the def­i­n­i­tion of intellectual disability. 

A DPIC review of more than 130 death sen­tences reversed as a result of intel­lec­tu­al dis­abil­i­ty found that intel­lec­tu­al­ly dis­abled defen­dants of col­or are dis­pro­por­tion­al­ly sus­cep­ti­ble to being wrong­ly sen­tenced to death. More than 80% of the death-row pris­on­ers whose death sen­tences have been vacat­ed as a result of intel­lec­tu­al dis­abil­i­ty are per­sons of col­or and two-thirds are African American.