(Jefferson City) --- On June 29th, 2021, the Missouri Supreme Court issued an execution warrant for Ernest Lee Johnson. Johnson is scheduled to be executed on October 5th, 2021 at 6PM at the Eastern Reception and Diagnostic Correctional Center in Bonne Terre, Missouri. Johnson still has an active Habeas petition in which the state is ordered to respond by July 6th. Elyse Max, State Director of Missourians for Alternatives to the Death Penalty said, “ I am not surprised that the Attorney General’s Office is pushing for the execution of an intellectually disabled man but I am very concerned that the Courts would set an execution date when they are waiting for a response from the State regarding the constitutionality of the Intellectual Disability determination.”
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). In 2002 The U.S. Supreme Court decided Atkins v. Virginia, holding that the 8th Amendment prohibits the execution of people with I/DD. The Supreme Court left to the states how to define I/DD 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 sub average 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.
Ernest Johnson’s full-scale IQ tests reveal him to have sub average intellectual functioning. Intellectual functioning is measured using a full-scale IQ test administered by a trained test administrator. These results were all well within the range of sub average intelligence required by Missouri law. Testing of Johnson’s IQ over more than 40 years establishes deficits in intellectual functioning that meet the standards set forth in Atkins and proves the onset of the I/DD was prior to age 18. Two experts, Dr. Keys and Dr. Smith also agreed “he had limitations in four of the nine adaptive behaviors that are identified under Missouri’s definition [of I/DD]... communication, home living, social skills, and functional academics.”
The evidence Ernest’s counsel presented through the testimony of doctors, combined with the historical data, established that he met the statutory definition of I/DD. But in 2006, during his third penalty phase, jurors decided to recommend Ernest be sentenced to death by lethal injection. His attorney, Jeremy Weis, argued the jury was given instructions including a clinical definition of intellectual disability but no guidance on how to apply the clinical definition to the facts. He said that hampered their ability to consider his condition, resulting in a verdict inconsistent with the evidence presented.” Johnson’s Habeas petition asks for the Courts to appoint a special master to call a panel of clinicians and experts to investigate his I/DD claim.
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.
“Not only will Johnson’s execution violate his 8th amendment rights to be free from cruel and unusual punishment, Johnson should not be eligible for execution because he meets the objective standards for having an I/DD,” said Elyse Max, MADP State Director.
Missourians for Alternatives to the Death Penalty is a statewide organization working to repeal the death penalty in Missouri by educating and informing fellow citizens and legislators about the costs and consequences of capital punishment.