In the American courts system, one of the fundamental principles is that all people are treated fairly and justly under the law, whether they are the victim or the accused. This is further solidified in the 8th amendment of the US Constitution, which protects against cruel and unusual punishment. In Atkins v. Virginia, the Supreme Court further expanded these constitutional protections to prevent the execution of people with an intellectual and/or developmental disability (IDD). However, due to the lack of clear guidelines and standards for IDD classification within the criminal justice system, IDD individuals are still executed in the US or currently on death row, including here in Missouri. Ernest Lee Johnson currently sits on death row for the murders of Mary Bratcher, Mable Scruggs, and Fred Jones during a robbery of a Casey’s General Store in 1994. While Johnson’s culpability in this act is not in question, he meets the state statutory and clinical standards to be diagnosed with an IDD and, therefore, should be granted clemency from the death penalty, in accordance with his 8th Amendment rights. However, repeated misrepresentation of his condition during the trial and a noticeable lack of contrary expert testimony and input essentially place Johnson’s life in the hands of a jury of laypeople who lack the expertise to make the proper discernment. On June 29th, 2021, the MO Supreme Court issued an execution warrant for Mr. Johnson. Mr. Johnson is scheduled to be executed on October 5th, 2021, at 6 PM at the Eastern Reception and Diagnostic Correctional Center in Bonne Terre, Missouri. With this in mind, we implore Governor Parson to grant Ernest Johnson clemency and commute his sentence to life.
CALL THE GOVERNOR
MADP has an ongoing Phone Zap to Missouri Governor Mike Parson asking that he grant Ernest Lee Johnson clemency and commute Ernest’s sentence to life. Ernest is a Black man with intellectual disabilities who is scheduled for execution on October 5th, 2021.
Hold up business as usual at the Governor's office as we continue calls for clemency for Ernest.
When to call: Monday-Friday 8AM-4PM CST
Phone: (573) 751-3222
Sample Script: “Hi, my name is _____ and I live in [city and zip code]. I am calling today to ask that Governor Parson grant clemency to Ernest Lee Johnson, who is scheduled to be executed on Oct. 5th, 2021. As a person with an intellectual disability, Ernest should not be eligible for execution. Please stop this execution, grant Ernest clemency, and commute his sentence to life.
Note: if you are leaving a message on an answering machine, make sure to state your name, phone number, or email address clearly and request that they respond to you. Do send those responses to us so we know what kind of impact we’re making. Call or text 816-931-4177.
Your voice is critical in raising awareness about Ernest.
Ernest Lee Johnson was convicted of three counts of first-degree murder in the 1994 deaths of Mary Bratcher, Mable Scruggs, and Fred Jones, three employees of a Casey’s convenience store in Columbia, MO.
In the past 26 years of appeals, courts have upheld his conviction but overturned the death sentences and granted new penalty phases due to errors in presentation of evidence about Johnson’s intellectual/developmental disability (I/DD).
UPBRINGING AND CHILDHOOD
Ernest was born premature in Steele, Missouri in 1960 and he was raised in Charleston, Missouri. His mother had an intellectual disability as well as drug and alcohol addiction, which resulted in Ernest having Fetal Alcohol Spectrum Disorder (FASD). Ernest endured abuse throughout his childhood and was often singled out for more severe abuse assumingly due to his intellectual disability. His father worked as a sharecropper in Pemiscot County and was uneducated and illiterate. Ernest attended a segregated school in the 1960s and completed up to the 9th grade but was held back in several grades due to his intellectual disability. He was raised primarily by his grandmother.
Ernest had three siblings, one of whom was born with “Profound Intellectual Disability” as well as other neurological and neurobiological birth defects.
In 2002, The U.S. Supreme Court decided Atkins v. Virginia, holding that the 8th Amendment prohibits the execution of people with intellectual disabilities. The Supreme Court left to the states how to define intellectual disability in regards to eligibility for a death sentence. Missouri utilizes a three-part test to determine whether someone is intellectually disabled. A person must establish they have significantly subaverage intelligence, continual and extensive related deficits in two or more adaptive functions, and the onset of the intellectual disability prior to the age of 18. Ernest Johnson objectively meets all three categories.
Following the Atkins ruling in 2002 a judge threw out the death sentence and ordered a third penalty phase. Ernest was sentenced to death due to a variety of factors including:
- errors in jury instruction, which is the subject of an amicus brief authored by retired Missouri judges,
errors in the presentation of evidence about his I/DD,
- and errors made by the state's experts and prosecutors which relied on racial stereotypes and stereotypes of people with disabilities.
Learn more at Death Penalty Information Center.
THE 8TH AMENDMENT
In addition to an I/DD Ernest had a brain tumor and in 2008 part of his brain was removed during surgery to remove the tumor. Scar tissue from the removal could cause him painful seizures after he is injected with pentobarbital, a seizure-inducing medication. Johnson's execution was halted in 2015 when a U.S. Supreme Court ruling asked a lower court to review his case. His case has since gone up and down the court system.
During these appeals, Johnson challenged the constitutionality of lethal injection under the 8th Amendment. Mr. Johnson is seeking to hold the State of Missouri to the protections afforded by the 8th Amendment should they proceed with his execution.
RACISM AND THE DEATH PENALTY
The death penalty is the step child of racial terror lynching. In Missouri racial terrorism and terror lynchings were violent public acts of torture meant to traumatize Black people. Both Pemiscot and Mississippi Counties where Ernest Johnson is from have horrific histories of racial terror lynching and a high number of documented lynchings of Black persons between 1877-1950, the period of time between Reconstruction and World War II. Pemiscot County had three known lynchings spanning from 1911-1927, and Mississippi County had four known lynchings spanning from 1910-1924. Our current criminal legal system is tangled with the history of lynching through the application of capitol punishment. As a Black, poor, and intellectually disabled man, Ernest Johnson’s sentence of death is the embodiment of racism within our criminal legal system.
CLEMENCY IN MISSOURI
Ernest Johnson is seeking clemency from the state of Missouri. In Missouri, the only individual who can grant this reprieve is the Governor. Ernest is seeking Governor Parson to issue a Board of Inquiry to determine the evidence of the intellectual disability claim, and to commute his sentence to life.
The Governor's authority to grant reprieves, commutations, and pardons is derived from the Constitution of Missouri, article IV, section 7. The Governor may grant reprieves, commutations and pardons, after conviction, for all offenses except treason and cases of impeachment. The Governor may impose conditions, restrictions and limitations, as deemed proper.
Clemency “is deeply rooted in our Anglo-American tradition of law and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.” Herrera v. Collins, 506 U.S. 390, 411-412 (1993). It is “a matter of grace entirely distinct from judicial proceedings.” Harbison v. Bell, 556 U.S. 180, 192 (2009).(217.800 RSMo)
RETIRED MISSOURI SUPREME COURT JUSTICE MICHAEL WOLFF ISSUED AN OP-ED IN THE MISSOURI TIMES CALLING UPON GOVERNOR PARSON TO GRANT ERNEST JOHNSON CLEMENCY
“As I said, there is no doubt that Mr. Johnson committed a terrible crime. There is also no doubt that serving out the remainder of his days in prison, without the possibility of parole, is sufficiently harsh punishment in this case. The hallmark of a just society is in how we treat the lowest among us. Is justice served by the execution of a 60-year-old seriously brain-damaged man, whom evidence suggests has had intellectual and neurological dysfunction his entire life? Certainly, justice is not served by proceeding with an execution despite evidence suggesting the defendant never received the constitutional consideration of intellectual disability to which he was entitled. It should suffice that Mr. Johnson is condemned to die in prison someday, but not at the hands of the state." -Michael Wolff, Retired Missouri Supreme Court Justice
'JUSTICE HAS GOT TO COME WITH MERCY': PROTESTERS GATHER AGAINST PLANNED EXECUTION OF ERNEST LEE JOHNSON
"Community members opposed to the planned state execution of Ernest Lee Johnson gathered Friday afternoon outside the Boone County Courthouse to rally against the death penalty in Missouri.
Johnson, who was convicted in the killings of three Columbia Casey's General Store employees in 1994, is set be killed by lethal injection at 6 p.m. Oct. 5.
"He didn't receive justice, nor mercy," said Michelle Smith, racial justice coordinator of Missourians for Alternatives to the Death Penalty.
The goal of the gathering was not to get Johnson freed, but to ask he not be executed, said Nimrod Chapel Jr., president of the Missouri State Conference of the NAACP. "It's not in line with our moral code. It's not in line with our religious tenets. And it's not in line with the law," Chapel said of the execution.
A LETTER FROM THE AMERICAN BAR ASSOCIATION PRESIDENT TO MISSOURI GOVERNOR MICHAEL PARSON REGARDING THE CASE OF #ERNESTJOHNSON.
"In Mr. Johnson’s case, we are deeply concerned that a flawed process has failed to properly determine that Mr. Johnson is a person with intellectual disability and thus ineligible for the death penalty, despite significant evidence supporting this diagnosis." - Patricia Lee Refo, President, American Bar Association
OPINION: ERNEST LEE JOHNSON IS CONSTITUTIONALLY INELIGIBLE FOR EXECUTION
"In spite of Johnson’s guilt, we must respect his constitutional rights. The absence of uniform standards for IDD in the legal system and the deficiencies of the state expert’s evaluation and evidence presentation are some of the factors that led to the jury’s uninformed decision to reject Johnson’s claim of IDD. Because of this, it’s clear that proper expert opinion is required, and thus we implore Gov. Parson to consult the necessary experts — not just for Johnson’s sake, but also for the sanctity of the constitution and the law."
- Matthew Rosene, Sneha Chaturvedi, and Anna Fenstermacher are Ph.D., MD/Ph.D., and OTD students respectively at Washington University School of Medicine and are members of LouHealth, a student-led policy and public health advocacy response to COVID-19.