Opinion: Ernest Lee Johnson is constitutionally ineligible for execution
BY MATTHEW ROSENE; SNEHA CHATURVEDI; ANNA FENSTERMACHER FIRST PUBLISHED VIA THE MISSOURI TIMES ON JULY 12, 2021
The American justice system guarantees all, whether victim or accused, equal and just treatment under the law. The Eighth Amendment strengthens this by prohibiting cruel and unusual punishment. In Atkins v. Virginia, the U.S. Supreme Court expanded this by deeming execution of people with intellectual and/or developmental disabilities (IDD) unconstitutional. However, a lack of concrete standards for IDD classification within the justice system leads to individuals with IDD being placed on death row.
Ernest Lee Johnson 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 is unquestionable, ample evidence demonstrates his IDD status. Unfortunately, repeated misrepresentation of his condition caused the dismissal of his claims of IDD. To respect Johnson’s constitutional rights, adequate expert opinion is not only necessary but required.
When the Supreme Court ruled in Atkins v Virginia, it employed guidelines outlined by the American Association on Intellectual and Developmental Disabilities (AAID) and the American Psychiatric Association (APA), defining IDD individuals as displaying the following:
Significantly subaverage intellectual functioning, defined by an IQ score at least two standard deviations below the mean (around 70 or below with a 5-point standard error measurement)
Significant limitations in adaptive functioning
Onset of IDD characteristics in the developmental stage of life (or first 18 years)
However, despite the official ruling, states are not required to use these standards and can follow their own discretion (Supreme Court Finds Texas Briseno Factors for Establishing Intellectual Disability Unconstitutional; Crowell). Throughout his trial and sentencing, Johnson’s IDD status was repeatedly misrepresented. From age 8, there have been nine documented evaluations of Johnson’s IQ. Three of these were below the cutoff (70) for IDD classification and two were within the grey area (70-75). These are even lower when adjusted for the Flynn Effect, a phenomenon where IQ scores rise over time.
Although the full-scale IQ submitted for trial was 67 (from when Johnson was 43), meeting the standard for IDD, the Missouri state expert, Dr. Gerald Heisler, dismissed these results based on his belief that Johnson was intentionally trying to lower his score. This was based solely on perception. However, no objective test to measure effort was given. Instead, Dr. Heisler submitted an IQ score of 95 obtained using the Revised Beta exam, which is typically administered in a group setting as a “quick estimate of general intellectual activity.” This is the sole piece of evidence against Johnson’s claim of IDD.
Despite an IDD classification requiring deficits in adaptive functioning, Johnson was not tested for it. Instead, the court and Dr. Heisler relied on witness reports and testimonies from prison guards and other laypeople from the prison. Additionally, no testimony was collected from individuals from Johnson’s childhood or outside the criminal justice system to establish the history of his condition. Furthermore, both the court and Dr. Heisler disregarded Johnson’s family history. His mother and brother both have IDDs, showing a genetic predisposition, and his mother drank alcohol during her pregnancy, increasing the risk of fetal alcohol syndrome, a common cause of IDD. Both were excluded from Dr. Heisler’s evaluation.
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.