For the second time in less than five weeks, the federal government has executed a death-row prisoner who likely was intellectually disabled, without affording him judicial review to determine his eligibility for the death penalty. Corey Johnson (pictured) was pronounced dead from lethal injection at 11:34 p.m. on January 14, 2021, the 12th federal prisoner executed in six months and the fifth in the transition period between Donald Trump’s defeat in the November 2020 presidential election and the scheduled inauguration of Joseph R. Biden on January 20, 2021.
The only other time in U.S. history that as many as five transition-period executions took place was in 1884-1885 during the transition between Chester A. Arthur and the first presidency of Grover Cleveland.
In an order issued at 10:00 p.m., four hours after Johnson was scheduled to be executed, the U.S. Supreme Court denied Johnson’s emergency application for a stay of execution to permit him to present evidence that the constitution prohibited his execution because he has intellectual disability. Justices Kagan and Sotomayor dissented. The U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that the execution of people with intellectual disability violates the Eighth Amendment proscription against cruel and unusual punishments. Johnson also argued that his execution would violate a 1988 federal statute that forbids applying the federal death penalty to prisoners with intellectual disability.
Earlier in the evening, in an 8-7 vote, the judges of the U.S. Court of Appeals for the Fourth Circuit declined to reconsider a three-judge panel’s ruling refusing to grant Johnson an evidentiary hearing on his claim. In dissent, Judge James A. Wynn wrote, supplying emphasis, that “Corey Johnson is an intellectually disabled death row inmate who is scheduled to be executed later today.” Newly available evidence, he wrote “convincingly demonstrates … that he is intellectually disabled under current diagnostic standards. But no court has ever considered such evidence. If Johnson’s death sentence is carried out today, the United States will execute an intellectually disabled person, which is unconstitutional.”
On December 11, 2020, the federal government
executed Alfred Bourgeois despite evidence that he may have been ineligible for the death penalty because of intellectual disability. During his earlier appeals, a federal court in Texas denied Bourgeois’ claim of intellectual disability, relying on a series of lay stereotypes that had no clinical validity and whose use the Supreme Court later declared unconstitutional. When he sought to obtain judicial review of his condition based upon current clinical definitions of the disorder, another federal district court found that he had made a “strong showing” of intellectual disability and granted him permission to litigate that claim. A federal appeals court reversed, saying Bourgeois had already been provided an opportunity to litigate his claim, and the U.S. Supreme Court allowed the execution to go forward.
In December 2020, shortly after the federal government set his execution date, Johnson filed a
petition in federal district court in Richmond, Virginia seeking review of evidence of intellectual disability that his trial lawyer failed to develop. His new lawyers presented records and witness affidavits showing that Johnson had “remained in the second grade for three years, and also repeated third and fourth grades. When asked his birthday at age eight, while in second grade, he thought it was in March, though he was actually born in November. When he was 13 years old, he could barely write his own name. And while he knew there were 12 months in the year, he could recite them only up to August. Corey was not able to tell time or perform arithmetic beyond a third-grade level …. When he was last tested at age 45, Mr. Johnson was still at an elementary school level ….”
The district court dismissed Johnson’s petition without prejudice, ruling that it was a successive habeas corpus petition that, under federal law, required permission from the federal appeal court before it could be reviewed. Johnson appealed that ruling and asked the Fourth Circuit for a stay of execution. Separately, he asked the circuit court for authorization to file a second habeas corpus petition if the court believed it was necessary. On January 12, the Fourth Circuit denied Johnson’s requests to stay his execution. On January 13, Johnson filed a petition for rehearing en banc, leading to the appeals court’s 8-7 decision.
Defense Counsel’s Failures at Trial
Johnson’s court-appointed lawyer at trial failed to argue that he was ineligible for the death penalty because of intellectual disability even though counsel was aware that Johnson had been placed in special education classes because of his intellectual deficits and Richard Benedict, an educator who had taught Johnson, had called him a “poster child” for intellectual disability. Instead, defense counsel told the jury, “Now, I’m not intending to suggest at this juncture or any other juncture that Corey Johnson is mentally retarded.”
Counsel attempted to justify his actions by because Dr. Dewey Cornell, a psychologist with no expertise in intellectual disability, administered an outdated IQ test to Johnson and scored his IQ at 77, placing him above the 70-75 range typically defined as indicating intellectual disability. Subsequently, Johnson’s appeal lawyers retained Dr. J. Gregory Olley, a nationally recognized expert in intellectual disability, who discovered that Cornell had failed to account for inflated scores caused by using older IQ tests.
Under this phenomenon, known as the Flynn effect, scores on IQ tests rise an average of 3 points per decade after a test is released, and the raw score obtained on the test must be adjusted to account for this difference. In Johnson’s case, Cornell administered an IQ test that was more than a decade old and failed to account for the inflated results. Adjusted for the Flynn effect, Olley said, Johnson’s IQ score was 72.8, within the range of intellectual disability. That score also was in line with other test scores Johnson had received as a child that were reflected in records trial counsel had failed to obtain. Olley wrote, “the evidence for Corey Johnson’s intellectual disability diagnosis is strong and deep, and it is corroborated by contemporaneous records created by professionals during his childhood and adolescence, by my interviews of a diverse group of people who knew him best from an array of perspectives, by standardized testing.”
Because Johnson’s defense team failed to raise his claim of intellectual disability at trial, he was executed without any court having heard evidence that his execution would be unconstitutional.
Source: deathpenaltyinfo.org, Staff, January 14, 2021
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
