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As a result of having fetal alcohol syndrome and a brain tumor, Ernest Lee Johnson has an IQ around 69, according to various tests. But the state of Missouri plans to execute the intellectually disabled Black man Tuesday night anyway, a move that civil rights advocates have decried as a grave abuse of the law.
“Killing those who lack the intellectual ability to conform their behavior to the law is morally and legally unconscionable,” Missouri U.S. Reps. Cori Bush and Emanuel Cleaver wrote in a letter to Missouri Gov. Mike Parson last Friday. “The fact of the matter is that these death sentences are not about justice. They are about who has institutional power and who doesn’t. Like slavery and lynching did before it, the death penalty perpetuates cycles of trauma, violence, and state-sanctioned murder in Black and brown communities.”
Johnson was sentenced to death for the February 1994 murders of three convenience store workers: Mary Bratcher, 46, Fred Jones, 58, and Mable Scruggs, 57. Johnson beat, stabbed, and shot the three employees during a closing-time robbery and hid their bodies in a walk-in cooler.
But as heinous as his crimes are, Johnson’s mental disability should make his execution morally and constitutionally wrong, experts say. The now 61-year-old was born with fetal alcohol syndrome due to his mother’s battle with addiction, which impedes cognitive development in children. And in 2008, Johnson had surgery for a brain tumor that resulted in the removal of 20 percent of his brain tissue, which further impacted his mental capacity. Tests show that his IQ is well below 90, the average for most people, according to the Washington Post.
“This is not a closed case as it relates to Ernest’s intellectual disability,” Johnson’s public defender, Jeremy Weis, told VICE News. “Every expert that has testified, that has done an evaluation for purposes of trying to determine whether he’s intellectually disabled has unequivocally said that he is.”
Experts and advocates say that Johnson’s execution would violate the landmark 2002 Supreme Court decision Atkins v. Virginia, which found that putting an intellectually or developmentally disabled person to death violates the Eighth Amendment’s ban against cruel and unusual punishment.
But the Missouri Supreme Court ruled in August that there’s no basis to believe that Johnson is intellectually disabled because there’s no cut-off to officially diagnose someone with the disability based on IQ scores. The court added that Johnson’s IQ scores from decades ago show that he may not be mentally disabled at all because of the test’s five-point margin of error or that he may have purposefully skewed the results of later tests, although lawyers for the state didn’t offer any evidence.
The court also said that Johnson was mentally capable enough to take several precautions to try and avoid getting caught for the crime. For example, Johnson allegedly told his then-girlfriend’s son that he planned to rob the convenience store a month before the crime and even visited the store several times hours before the murders to ask employees who would be working that night. He also wore two different outfits the night of the crime and asked his then-girlfriend’s son to hide an outfit and weapon that would have connected him to the murders.
The court also denied Johnson’s request to be executed by firing squad over concerns that the lethal injection drug pentobarbital could cause the 61-year-old man seizures.
Those who support staying Johnson’s execution, like Nimrod Chapel, President of the Missouri Conference of the NAACP, also argue that the state’s disregard for the man’s life perpetuates the cycle of the U.S. justice system punishing Black Americans more harshly than their white counterparts. (Two-thirds of intellectually disabled people sentenced to death are Black, according to an analysis published by the Death Penalty Information Center last December.)
“The idea that people are assigned a different value in the legal system simply because of their skin tone is alive and well in Missouri,” Chapel wrote in his op-ed published by the St. Louis Dispatch. “Even though these things are endeavored to be hidden and silenced behind the concrete walls and steel bars of prisons, the barbarism and cruelty of executing a Black man with an intellectual and developmental disability illustrate these horrors clearly.
In Missouri, the governor has the final say whether to execute someone and doesn’t have to wait on a recommendation from a secondary authority such as a parole board. Johnson’s team has already filed for clemency with Gov. Mike Parson’s office. They also met with the governor’s general counsel last week to no avail.
On Monday evening, Gov. Parson’s office said that the state fully intends to move forward with the sentence, adding evidence of Johnson’s plan to commit the crime and destroy evidence tying him to the crime scene proves that he knew what he was going to do.
“The state is prepared to deliver justice and carry out the lawful sentence Mr. Johnson received in accordance with the Missouri Supreme Court's order,” Parson said.
With time quickly running out, the legal team is now turning to one of the few pathways they have left. On Monday at noon, they filed a petition with the U.S. Supreme Court and expect a response by Monday to which they will file an immediate response, according to Weis.
“We're hopeful the [U.S.] Supreme Court will send this case back to the Missouri Supreme Court for reconsideration,” Weis added. “And if not, we certainly hope the governor will make the right moral decision.”
Johnson also hopes that national and international calls to stop this execution will help bolster his case to stay. In addition to members of Congress, the Pope and several other advocacy and faith groups have rallied behind the push to keep Johnson alive.
“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,” former Missouri Supreme Court Judge Michael Wolff, who penned the dissenting opinion when the court voted in favor of upholding Johnson’s death sentence in 2008, wrote in his op-ed published by the Missouri Times. “As a result, I write today to join calls that Gov. Mike Parson exercise his extraordinary power as chief executive and grant Mr. Johnson clemency.”
Johnson is scheduled to be killed by lethal injection at 6 p.m. Central time Tuesday at Bonne Terre State Prison. If Missouri moves forward as planned, his execution will be the first in the state since May 2020.