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October 03, 2021

Calls to Halt Execution of Ernest Johnson Continue in Advance of Execution Date

By Rya E. Fishman, DPRP Intern

Advocates throughout the disability rights and faith-based communities as well as the legal profession have called on Missouri Governor Mike Parson to halt the execution of Ernest Lee Johnson set for October 5. Johnson, who is now 61-years-old suffers from a variety of intellectual and development disabilities.

The upcoming execution has been criticized on a number of grounds, including that it would violate the prohibition on executing individuals with intellectual disabilities, first recognized by the U.S. Supreme Court in 2002 in Atkins v. Virginia.

In Johnson’s case, his lawyers point to evidence “sub-average intellectual functioning” over five decades of IQ testing with results ranging from 67 to 77. They argue that Johnson “meets all statutory and clinical definitions” of intellectual disability and therefore, his execution would be in direct violation of the Eighth Amendment’s cruel and unusual punishment clause. At trial, among other errors, jurors appear to have misunderstood what they were being asked to decide when assessing whether Johnson was intellectually disabled and therefore ineligible for execution. Many legal experts, including the ABA, have called on Governor Parson to halt the execution based on this flawed legal process.

Additionally, Johnson suffers from a unique medical condition that has raised concerns about the constitutionality of the state’s lethal injection protocol. In 2008, Johnson had a benign brain tumor removed. An MRI subsequently revealed that up to 20% of his brain tissue was also removed – leaving a sizable hole. Johnson brought a challenge to the state’s execution protocol, arguing that Missouri’s lethal injection drug, pentobarbital, could trigger painful seizures for Johnson and cause unconstitutional levels of suffering. The U.S. Court of Appeals for the Eighth Circuit initially ordered a hearing on Johnson’s claims to allow for development of evidence that the use of pentobarbital to execute Johnson would be unconstitutional, but it later reversed its own decision following the Supreme Court’s rejection of a different as-applied lethal injection challenge in Bucklew v. Precythe. The U.S. Supreme Court and the Eighth Circuit both subsequently denied Johnson leave to amend his complaint to conform with the pleading requirements announced in Bucklew.

If Johnson is not granted a stay, his execution would mark the second to be carried out by the state of Missouri during the COVID-19 pandemic. Missouri was the first state to put a condemned individual to death at the start of the pandemic in May of 2020. The United States Supreme Court has declined to hear the case – although, three justices dissented, including Justice Sotomayor, who stated in part: “Missouri is now free to execute Johnson in a manner that, at this stage of the litigation, we must assume will be akin to torture given his unique medical condition.” Over 22,000 people have signed an online petition urging the governor to grant clemency, and calls for mercy have also come from a wide variety of notable figures including Pope Francis and former Missouri governor Bob Holden.

The information and views provided in the American Bar Association (“ABA”) Death Penalty Representation Project’s blog do not constitute official statements by the ABA and do not represent official ABA policy. For more information, please visit our policy and statement pages.