Updated 11/4/2015: The Supreme Court granted Ernest Lee Johnson a temporary stay of execution on Tuesday, November 3, 2015, based on a petition regarding the lethal injection drugs' impact on his partial brain tumor.
Nine months ago I found myself crushed and crying over a beer on a cool, dark January night in Texas. The state of Texas had just strapped my client's body to a gurney, pumped poison through his veins and called it justice despite his well-documented intellectual disability. Hours earlier, the courts had not yet finalized his execution, and Robert whispered misplaced hope through metal bars, telling me he was glad he still "had a chance."
Decades earlier, the Texas Youth Commission had labeled Robert "fairly obviously retarded." Yet no courts were moved, and Texas carried out his execution, paying no heed to the Supreme Court's rulings that disqualify people with intellectual disabilities from the death penalty. Now the state of Missouri is showing the same disregard for the law and morality.
Ernest Johnson, whose intellectual disability is clear, is scheduled to be executed by lethal injection sometime after 6 p.m. on Tuesday.
Ernest has scored under or around 70 on IQ tests throughout his life. He has shown typical signs of intellectual disability since he was a schoolboy: He struggled to speak and walk at the usual age. Young Ernest couldn't keep himself clean. His school held him back a grade twice and placed him in special education. He was easily led by kids who took advantage of his low intellect, this manipulation often turning to bullying. School officials recorded his intellectual problems and tested his IQ, finding scores on two occasions that placed Ernest in the lowest two percent of intellect for children his age with an IQ under or around 70. As an adult, Ernest consistently scored in this same range on several IQ tests over a 10-year period.
Signs of "intellectual disability" can sometimes stick out to us as lay persons, but the term has a scientific definition and criteria, created by the professionals who regularly diagnose and work with this population. Their criteria require a valid IQ score of around 70 (plus or minus 5 points), significant problems with functioning independently (known by the experts as adaptive functioning), and evidence the condition began before the age of 18.
Ernest Johnson fits all of these criteria.
But here's why Ernest still faces execution, instead of life behind bars: The clear science behind intellectual disability criteria too often gets buried under other considerations. For example, in Ernest's case, when the jury was deciding if he was intellectually disabled, the prosecutor waved around crime scene photos of the victims and argued "to decide it's more likely than not that this guy is mentally retarded is an insult, an insult to these victims."
So it was for my client Robert Ladd when the state of Texas insisted upon his execution, arguing that Robert was not intellectually disabled because he didn't meet the state's definition -- a set of standards taken not from modern science but from the character Lennie Small in John Steinbeck's "Of Mice and Men." And only two nights earlier, Georgia executed Warren Hill, whom seven different experts found met the scientific criteria for intellectual disability. As his attorney described, Mr. Hill had "the emotional and cognitive ability of a young boy."
When states have allowed raw emotion, or prosecutorial zealousness, to trample science, the Supreme Court has sometimes stepped in. In a pair of cases, saving the lives of Freddie Lee Hall in 2014 and Kevan Brumfield in 2015, the court has ruled that, although states have some flexibility in their procedures to determine intellectual disability, those procedures must account for scientific criteria on issues such as how IQ test scores are interpreted. As the Supreme Court said in Hall v. Florida, "The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects." Only a month ago, in a little noticed summary order, the court again cited Hall's follow-the-science opinion to strike similar Alabama procedures resulting in the death sentence of an Alabama man named Anthony Lane.
Governors and the judges of the highest courts carry the ultimate responsibility of deciding when society can impose its most severe and only irreversible criminal sanction. Although they may pass the buck between them, someone must stand up for the Constitution and basic fairness: When the science shows a person has an intellectual disability, the machinery of death must stop and the prisoner must instead remain behind bars until he dies.
This lesson comes too late for Warren Hill and Robert Ladd, but let's hope we're in time for Ernest Johnson.