Missouri Moves to Execute Intellectually Disabled Death-Row Prisoner, As Former Governor, Court Justice, and Faith and Rights Leaders Seek Mercy

As the execution date nears for a Missouri man widely regarded to be intellectually disabled, a former Missouri Governor, Supreme Court Justice, and papal envoy have joined faith and civil rights leaders, and the prisoner’s lawyers in efforts to spare his life.

Ernest Johnson (pictured) is scheduled to be executed on October 5, 2021. Despite significant evidence supporting Johnson’s claim that he is ineligible for the death penalty because of intellectual disability, the Missouri Supreme Court rejected his claim and denied a stay of execution on August 31, 2021. Johnson’s lawyers have filed a motion, as yet not ruled upon, seeking rehearing of that issue. If the court does not grant the motion, Johnson’s sole chance of survival rests on the Application for Executive Clemency his lawyers have filed with Governor Michael Parson.

On October 1, former Missouri Governor Bob Holden, who allowed 20 executions to proceed while he was in office, called on Governor Parson to exercise clemency. “Nothing excuses what Johnson did,” Holden wrote in a commentary in the Missouri Independent. “But if our state is to be guided by the rule of law, we must temper our understandable anger with reason and compassion for the most vulnerable among us, including Ernest Johnson.”

“A review of pertinent documents has prompted me to concur with advocates that Johnson is most certainly intellectually and developmentally disabled (IDD), and thus constitutionally barred from execution by the Atkins v. Virginia U.S. Supreme Court decision,” Holden wrote.

In an August 23 op-ed in the Missouri Times, Former Missouri Supreme Court Judge Michael Wolff also called for clemency, noting its purpose as a failsafe when the judicial system fails to correct its mistakes. “When I heard Mr. Johnson’s appeal as one of the seven judges of the Supreme Court of Missouri 13 years ago, the evidence was strong that Mr. Johnson was ineligible for the death penalty on account of intellectual disability …. The trial court process to determine Mr. Johnson’s intellectual disability was unreliable and inconsistent with medical science and legal precedent,” Wolff wrote.

“Mr. Johnson,” Wolff said, “is a person with intellectual deficits so significant that a reasonable jury would not have recommended execution. Under constitutional standards, his execution would constitute cruel and unusual punishment in violation of the Constitution as interpreted for decades in U.S. Supreme Court decisions.”

On October 1, Pope Francis, through Vatican diplomatic representative Archbishop Christophe Pierre, called on Parson to exercise mercy. Halting Johnson execution, Pierre wrote, would be a “courageous recognition of the inalienable dignity of all human life.”

The Evidence of Johnson’s Intellectual Disability

In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that the use of the death penalty against individuals with intellectual disability (then known as mental retardation) violated the Eighth Amendment proscription against cruel and usual punishment. Seeking enforcement of that constitutional protection, Johnson’s lawyers presented the Missouri courts and Governor Parson with evidence that every mental health professional who has applied accepted clinical standards in assessing intellectual disability has diagnosed Johnson with the disorder.

Johnson’s lawyers supported his Atkins claim with evidence of a family history of intellectual disability: Johnson’s mother is intellectually disabled, and his brother is so intellectually impaired he had to be institutionalized. Counsel also presented evidence that Johnson’s mother drank regularly while she was pregnant with him, and that Johnson was born with fetal alcohol spectrum disorder — known to be a major cause of intellectual disability. Johnson, they said, has been assessed as reading at a third-grade level and, since the age of 8, has scored consistently in the intellectually disabled range on standardized intelligence tests.

That evidence notwithstanding, the Missouri Supreme Court ruled against Johnson, crediting the opinion of a prosecution expert who was never called to testify and whose test results contradicted key opinions expressed in his own expert report. The court also repeatedly discounted defense evidence of Johnson’s functional impairments, saying that “Johnson failed to prove a causal connection between his [impairments in day-to-day functioning] and his alleged intellectual impairment.”

Johnson’s lawyers on September 15, 2021 filed a motion seeking rehearing of Johnson’s intellectual disability. In that motion, the defense alerted the court to new language in the diagnostic criteria for intellectual disability that rejected interpretations of the disorder that, as the Missouri court did, required evidence that an individual’s intellectual impairments directly cause his or her adaptive impairments. The motion is still pending before the court. His lawyers also filed an Application for Executive Clemency with Governor Michael Parson detailing the evidence of Johnson’s intellectual disability and seeking to have his death sentence commuted to life without parole.

The Impact of Race

Johnson’s fate is also being determined against the backdrop of significant racial tension in Missouri. The Missouri Attorney General’s office, which is opposing Johnson’s legal claims, has also opposed efforts by local prosecutors to free several African-American prisoners whom they believe were wrongly convicted of murder. Nimrod Chapel, Jr., President of the Missouri Conference of the NAACP, said Johnson’s case must be viewed in its social context: “we must all understand this for what it is — a continuation of violence based primarily on color and social status.”

“As much as this nation proclaims itself as having progressed beyond the oppression and degradation of the chattel slavery and subsequent Jim Crow eras of the past, we are reminded on a daily basis that this is not, in fact, the case,” Chapel wrote in a September 28 column in the St. Louis Post-Dispatch. “As much as society wants to move beyond our past, the vestiges of racial injustice, institutional marginalization and systemic dehumanization linger on through systems like the death penalty. … [T]he barbarism and cruelty of executing a Black man with an intellectual and developmental disability illustrate these horrors clearly.”

In an editorial on September 17, the Kansas City Star expressed doubt that Gov. Mike Parson, who pardoned a white couple who pointed guns at peaceful Black Lives Matters demonstrators, would seriously consider Johnson’s clemency application. “[W]e don’t even dare to hope that the evidence that Johnson today has the awareness of a child might convince our governor to commute his sentence,” the paper wrote.

“But when the state, our state, does kill this man, as it almost certainly will,” the editors said, “it will be yet another indictment of a system so bloodthirsty that it delights in vengeance against those who don’t even know why they’re being punished.”