The state of Missouri is dead set on killing Ernest Johnson | Opinion

Ernest Johnson is a man with an intellectual disability, but Missouri plans to execute him anyway. 

Johnson was convicted of killing Mable Scruggs, Fred Jones and Mary Bratcher during a botched robbery at a Columbia Casey’s convenience store in 1994. He was under the influence of and severely addicted to crack cocaine at the time.

Over the course of 26 years of appeals, courts have overturned the death sentences three times due to errors in the presentation of evidence about Johnson’s intellectual and developmental disability (I/DD).

In 2002, the U.S. Supreme Court in Atkins v Virginia made it unconstitutional to execute those with intellectual disabilities. It left it up to the states to decide how to assess I/DD. 

Missouri uses a three-part criteria: 

1.  evidence of sub-average intellectual functioning; 
2. deficits in adaptive behavior; and 
3. onset of deficits prior to the age of eighteen. 

Johnson’s IQ scores over five decades consistently show that he is a person with sub-average intellectual functioning. The IQ scores are also consistent with academic achievement tests conducted in his childhood. Experts have found he operates at the equivalent of a 12-year-old for his level of independence and at an age of 4 years and 8 months for his daily living skills. 

In 2015, after receiving a stay of execution, Johnson called his attorneys at 9 am asking if he could go to sleep now. He did not understand the execution had been called off. Every professional that assessed Johnson has found him to be a man with intellectual disability when applying clinical standards. 

He is not an innocent man, but as a society we have determined that killing those who lack the intellectual ability to conform their behavior to the law is wrong from a moral and legal standpoint. Our laws do not give people like Johnson a pass for their conduct, but shield them from the ultimate punishment because of their intellectual disabilities. 

The execution of Ernest Johnson serves to highlight the state’s attitude towards those with disabilities, especially the poor and people of color.

The term “mental retardation” was abandoned long ago by disability advocates, clinical practitioners, the federal government, and SCOTUS. In 2010, President Obama signed Rosa’s Law that changed entries in the United States Code from “mental retardation” to “intellectual disability,” stating that what you call people is how you treat them.  

Yet even today, in 2021, the Missouri Attorney General’s Office uses the term “mental retardation” throughout the filings. Not only is the term offensive, but it also reflects a misunderstanding of intellectual disability and the characteristics of individuals who are constitutionally ineligible for the death penalty. 

It is a conscious choice by the attorney general’s office to use an outdated and offensive term in filings with the court. 

In addition to using incorrect and antiquated language, during the trial prosecutors mocked the “clinical approach” to diagnosing I/DD. They asked the jury of laypeople to rely on “common sense” rather than evidence in determining intellectual disability. 

Prosecutors focused on adaptive strengths and not adaptive deficits and used these to invoke stereotypes of those with disabilities: he had “street smarts,” he “played cards,” he “played basketball.”  Prosecutors relied on reports from corrections officers and disregarded his family history, which is what is required by the clinical approach.

As Johnson’s Oct. 5 execution date rapidly approaches, his attorneys have asked the Missouri Supreme Court to reconsider the lack of reliance on clinical standards set forth by the Diagnostic and Statistical Manual of Mental Disorders 5th Edition (DSM-5) and Intellectual Disability: Definition, Diagnosis, Classification, and Systems of Supports (12th ed. 2021). 

Johnson’s attorneys filed with the Missouri Supreme Court a letter from the chair of the DSM Steering Committee to assist the court in correcting this error. 

Missouri is adamant about executing Ernest Johnson. Despite the attorney general’s office arguing against using clinical standards, states do not have complete autonomy to define intellectual disability as they wish. If the Missouri Supreme Court does not allow Johnson to present evidence of intellectual disability governed by modern diagnostic standards, Gov. Mike Parson must use his clemency powers and commute the death sentence to life without parole.