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.”