The Supreme Court Spared A Man With A Brain Defect From Execution

"Violent and uncontrollable seizures" could result if Ernest Johnson is administered Missouri's drug protocol.

Missouri won't be able to execute a man with a well-documented history of intellectual disability -- not yet, at least.

In a lengthier-than-usual order, the Supreme Court on Tuesday halted the execution by lethal injection of Ernest Johnson, whom court papers described as suffering “from a partial brain tumor, brain scarring, and a brain defect.” 

Lurking in the background of the order was the court's recent decision in Glossip v. Gross, a controversial case that has reignited the debate over the constitutionality of the death penalty.

Because of Johnson's medical condition, the justices granted his request to delay execution “pending appeal” -- which means the execution can’t move forward until an appellate court resolves unrelated procedural issues.

In their petition to the justices, Johnson’s lawyers cited the Supreme Court’s June decision in Glossip -- which upheld the constitutionality of Oklahoma’s lethal injection protocol -- and noted that Missouri’s prospective use of the drug pentobarbital raised “a substantial risk of severe pain.”

Specifically, the lawyers pointed to testimony from a medical expert who thoroughly examined Johnson’s condition, which stemmed from “significant brain damage and defects that resulted from the tumor” that a prior surgery had failed to completely remove. After that procedure, Johnson was missing 15 to 20 percent of his brain. The expert's report concluded that Johnson suffered from a “permanent and disabling neurologic disease.”

That report served as the basis for a civil-rights lawsuit Johnson’s lawyers filed in October, claiming that Missouri’s execution cocktail -- which also includes the sedative midazolam, the drug that was at issue in the Glossip case -- “could trigger violent and uncontrollable seizures” in Johnson, and thus constitute cruel and unusual punishment under the Eighth Amendment.

A lower court and an appellate court disagreed that Johnson had a valid claim and threw the whole case out. And so his lawyers -- invoking the Glossip case -- went to the Supreme Court, asking it to clarify what exactly inmates must do to have standing to bring "method-of-execution" lawsuits. What they want to know, in other words, is how inmates can avoid getting thrown out of court before formal litigation over these issues even begin.

Johnson's lawyers also asked the court the bottom-line question: whether it violates the Eighth Amendment to execute someone when there's a real risk of “uncontrollable seizures."

But they weren't done raising constitutional concerns. In a separate appeal to the justices, Johnson’s lawyers also brought to their attention the "difficult subject" of intellectual disability -- a matter the Supreme Court has confronted a number of times in the context of the death penalty.

Relying in large part in the court's landmark Atkins v. Virginia case, the lawyers said the jurors who voted for a death sentence failed to account for the clinical "hallmarks of an intellectually disabled person" -- very low IQ scores, a history of special education classes, reading comprehension at a young child's level and a "horrific upbringing," among other factors.

Because of that oversight, the lawyers are now arguing before the Supreme Court that Johnson should be granted a hearing before a new jury to establish his "subaverage intellectual functioning." Anything less, they said, would violate the Constitution and prior decisions of the court.

The court hasn’t yet ruled whether to formally accept either of Johnson’s substantive challenges. But at least with respect to Missouri's drug protocol, it did agree that halting his execution would be appropriate while the appeals process runs its course.

Interestingly, no justices felt strongly enough about the case to dissent from Tuesday’s order -- presumably because their decision in Glossip is very recent and they have an interest in seeing how it plays out in the lower courts. It’s a wait-and-see game.

Perhaps in granting this temporary reprieve to Johnson, the Supreme Court is showing that it has learned the real lesson of the Glossip case: that the administration of capital punishment in the states is deeply dysfunctional, and that it pays to let all the real facts about the dysfunction come out before deciding whether to allow an execution to proceed.