Zero Justice Served: Highest US Court Executes Ernest Johnson

Note: We juxtapose injustices, within the context of jails and prisons, in the United States and on the continent of Africa; specifically South Africa. We seek to highlight similarities versus differences in an attempt to bridge the gap across the Transcontinental divide. It is our intent to increase awareness and promote solidarity in our quest for systemic reform of institutions of incarceration.

It took me a little too long to pen this one down.

Fall/Winter Edition: Issue 3

Missouri executes Ernest Johnson

A rush silenced my writer's voice and shaped it into a hallow lumpy throat.

For the first time, I, not in a fictitious way, had to mourn the main character’s life just after I interacted with it.

"Ernest Johnson died from an injection of pentobarbital at the state prison in Bonne Terre. He silently mouthed words to relatives as the process began. His breathing became labored, he puffed out his cheeks, then swallowed hard. Within seconds, all movement stopped," writes Jim Salter for AP News.

The Ernest Lee Johnson case has forced me to fall back on South African poetess, Lebohang Masango’s Re-enacting October poem. I lean not on Re-enacting October for its romanticism, but for its words that beckon all that I wish I would say in short.

“The moon is in awe of how we rose like a morning at night against a sky that we don’t own”

“A cacophony of questions caught in caress. . . and quietened into a hymn on skin”

“I’m trying to find a goodbye and mean it”

How I met Mr. Johnson

My first knowing Mr. Ernest Johnson —may the Afro-spiritual world integrate his spirit into a collective peace— was through the Justice Beat Talk Show.

It is how his yearning for justice came through; like a slave song in formation, finding its rhythm, from the back. Echoing for action at the front. From back. In 1994. That day; and his ancestors’ days before...

In a ¾ hour on September 24, I remotely heard Michelle Smith, advocate for a hallelujah, and an endless amen; a hope for a better world. A world, “enough with the injustice on Africa-descending folk.”

There will always be pressing factors in Johnson’s case

The BBC News then reported on October 6, 2021, that Ernest Johnson had been executed for killing three people in a 1994 robbery.

Yet, the Columbia Daily Tribune had earlier reported on June 29, that Ernest Lee Johnson was set to be executed in October 2021.

Johnson had been executed despite the advocates’ pleas that cited that Johnson had an intellectual disability.

The United States Supreme Court had refused to consider an execution stay earlier in the day.

Therefore, on October 5, 61-year-old Johnson was lethally injected, despite the support he had from Pope Francis and two Congress members.

Johnson's smile. Photograph by Jeremy S. Weis.

Johnson’s roots and how they sprout to lethal stems

Our host, Elaine Sutton, recognized show guest, Criminal System Impacted Justice Advocate from the Missouri Alternatives to the Death Penalty (MADP), Michelle Smith, and cited her public justice efforts.

“Michelle, I see you all over the place. Meetings; activities you are involved. And the Missouri Alternatives to the Death Penalty is very central in issues involving the death penalty.”

Michelle Smith is a criminal system impacted advocate at the Missourians for Alternatives to the Death Penalty organization. Smith has been incarcerated twice, in Missouri and most recently in the federal system.. Sourced.

Sutton opened the floodgates to more than melanin, blood, and water. A feminine, African Missourian voice for legal reform came through. On the other side was someone who could recognize a crime and call out the injustice sandwiched in between.

“Ernest Johnson is an intellectually disabled man who in 1994 was involved in robbing a convenience store in Columbia, Missouri. At that time, he did kill three people. We uplift the victims and their families. And hold space for them. However, with Ernest’s particular situation, he is intellectually disabled. Due to those circumstances, he is ineligible to be executed. And so, what we’re doing is trying to support and uplift the reality that we should stop executing people period,” Smith said.

There was tangible proof to stop Johnson’s execution

The St Louis, Missouri mayor, Tishara Jones, at a rally in front of a picture of Ernest Johnson's image in St Louis . Photograph: Bill Greenblatt/UPI/Rex/Shutterstock

Much evidence indicated that Johnson was ineligible for the death penalty.

The proof was in multiple IQ test results showed that he had a child’s mental capacity. And he could read at a primary school level. 61-year-old Johnson’s reading level was that of children between ages six and thirteen years old.

Johnson’s mother was a heavy drinker during her pregnancy. As a result, Johnson was born with fetal alcohol syndrome.

Johnson was unlawfully executed without a brain fifth

Johnson, an African-American man, was executed while missing a fifth brain matter. This is because Johnson had undergone brain tumor removal surgery.

Despite Johnson’s attorneys raising their legal voices like fists to the injustice in which the case roots itself, the execution went forth (like a wire comb through texture four Afro coils).

Johnson as a young man. Sourced image.

US’s Eighth Amendment violation

Johnson’s attorneys pointed out the 2002 Supreme Court ruling that holds that executing the death penalty against intellectually disabled Americans violates the US Constitution’s Eighth Amendment. The amendment prohibits cruel and unusual punishments.

“In 2002, the Supreme Court ruled that we should not execute, at that time they used the terminology “mentally retarded”, that is not something that we use today. Basically, people with intellectual and development disabilities”, shared Smith.

Smith carried plenty of light, reflecting on the shadows in the Missouri justice system, and how they could cast away justice on any day.

“This [2002] ruling from the court came down and said, ‘let’s not execute intellectually disabled people’—they didn’t give a lot of guidance in what to determine if they are intellectually disabled.

Now over the years since then, since 2002, there have been several cases litigated and they have come out of more stringent clinical standards.

However, you have to litigate. Something that is not automatic. It should be. But it’s not.”

Ernest Johnson photographed by Jeremy Weis. Sourced image.

Power and reputation carry influences

The state’s Republican governor enabled the carrying out of the sentence by refusing to block the sentence from being carried out.

A village and the Pope vouched for Johnson’s justice

The BBC reports that:

A village filled with “[e]lected officials, racial justice activists, and faith leaders joined the efforts to spare Johnson’s life”. After all, an African proverb has long warned us that it takes a village. This time, the evil suffocated the village.

Even I, in South African constitutional legal comfort, rooted for Johnson

During this show, my body shivered through patches of chicken skin. I felt the inside of my skin boil and then freeze into low degrees. I knew that my body was not content with dealing with a death in the process. This was not the content. But, oh yes it was.

It was no simple metamorphosis.

It was an an-intellectually-disabled-Black-man–killing-moment that he had been wait for almost three decades that I journalistically formed part of. The thought, “What whirled through his mind when he wandered far?”, made me wonder, what Johnson would engage Tata, Nelson Mandela about. In simple terms, Mandela was jailed for 27 years for being African in an African country. And Johnson? Arguably, for being African and intellectually disabled.

On that September 24 day, a turning point in my role as a media intern in justice journalism set alight. I learned that justice was not the same.

“With Ernest, his entire life, when you look through from his birth, growing up to his early adult life — he was just failed. The education system, the social service system, even with his family, they struggled and they suffered a lot coming from the south, being descendants of slaves.”

At this point of the show, I held the assertion that slavery in America is relevant when it sells on the big screen. Because girl, have I watched plenty of slave movies!

Yet, little have I seen being done to reverse the pain it has birthed the Afro-American communities.

Smith further reflected:

“He dealt with all of these things that so many of us deal with that culminated in what became of his life. There are criteria to use, which are clinical definitions to determine if someone is intellectually disabled. However, we know that our government and our courts, they do the most for a lack of a better term right now”.

For me, Smith’s words were fit to be a judge’s. Perhaps then, justice would have been considered if such factors were. You wonder, Reader? So do I.

Would there have been justice?

I recollected from memory, how in legal class, all my legal theory teachers hammered on the right to life and the right to dignity.

I could find neither adherence with those two South African constitutional rights being protected in this matter. Nor could I find justice.

I wondered if dignity and human life mattered in Missouri. Especially like it did in South Africa.

Our guest speaker, A Descending Spiral: Exposing the Death Penalty in 92 Essays author, Mark Bookman, also gave a necessary quick history lesson.

The legal professional, Bookman, reminded us that the death penalty was at its lowest popularity in the late 1960s and 1970s because a lot of social changes were happening during that time.

The Supreme Court later decided that the death penalty was unlawful. However, the public protested for its return.

Philadelphian anti-death-penalty advocate Marc Bookman. Photograph by Linette & Kyle Kielinski.

“The death penalty now is at its lowest popularity since then. Here’s the difference. In the late 60s and 70s, we were against it because it didn’t seem like the right thing to do under the social circumstances.”

Bookman pointed out that the focus was the best set on healing what has already been revealed.

“But we didn’t know much about the death penalty. We didn’t know about wrongful convictions, we didn’t know about DNA, we didn’t know about prosecutors hiding evidence. We didn’t know about attorneys drunk in court or sleeping through trial. Or racist judges. Those things had not permeated the air. Now we know all these things. We have a lot of knowledge we didn’t know then”.

The author highlighted how the death penalty is a legal war that needs one to be legally armed to challenge it.

“When you have exonerations and you have prosecutors caught hiding evidence; that is ammunition for us. You can’t just argue the death penalty is a bad thing. You got to tell the story. That is what it is about.”

Catholic faith Pope Francis protested against Johnson’s death penalty

A Christian Catholic religion voice, Pope Francis, changed the Catholic faith teachings to officially oppose the death penalty in all circumstances in 2008. Pope Francis’s representative wrote to Missouri Governor, Mike Parson, that the pope:

‘wishes to place before [Mike Parson] the simple fact of Mr. Johnson’s humanity and the sacredness of all human life.’

Governor Parson makes his October 4 voice audible

Supporting Johnson’s execution, on October 4, Parson advocated that the state would be delivering justice by carrying out the ‘lawful’ sentence that Mr. Johnson received following the Missouri Supreme Court order.

In South Africa, the death penalty was last, judicially, relevant 26 years ago.

It was in the landmark, constitutional court case, S v Makwanyane, that we saw the now 27-year-old democratic South Africa breathe life into its criminal justice. The case is lengthy yet it is a case I encouraged every activist, and therefore every human being, to read.

The South African death penalty case took into account that the last time someone had been executed was on 14 November 1989.

Perhaps, in that light, it would be safe to say Missouri is a traumatized state whose constitutional relevance is trumped by an African country in the South.

S v Makwanyane in paragraph three touches on a pivotal aspect.

The paragraph cites that the mental anguish suffered by convicted persons awaiting execution is well documented. Constitutional Judge Chaskalson says that a delay in execution may invalidate a death sentence that was lawfully imposed.

S v Makwanyane’s paragraph seven cites relevant constitutional provisions including that it bridges a deeply divided South African history that is represented by strife, untold suffering, injustice, and conflict. The history is, therefore, juxtaposed to human rights recognizing the future. A democracy, and peaceful co-existence for South Africans despite color, race, class, belief, or sex.

Governor Mike Parson advocates for the death penalty as justice

The Columbia Missourian reported an opinion in its Guest Commentary column on South Africa’s Heritage Day, September 24. It is a day that the African country has established in restoring indigenous justice through celebrating cultural heritage.

The date on which the Columbia Missourian opinion was published made me reflective of legal cultural heritage. I wondered if America cared about how much collective trauma it legally feeds the Black American community.

The opinion read that Ernest Lee Johnson’s [then] planned execution raised questions about intellectual disability.

The writer, Laura Schopp asked:

“What happens to a society in which judicial practice becomes unmoored from reasonable standards of evidence? How does a just society treat people with intellectual disabilities? These are among the questions before us in Missouri’s Oct. 5 planned execution of Ernest Johnson”.

Johnson’s crimes and the Eighth Amendment violation

Schopp explains that Johnson was convicted for the brutal 1994-murders. Johnson was hence found guilty for Mabel Scruggs, Fred Jones, and Mary Bratcher’s death in a botched armed robbery in a convenience store, Casey’s General Store in Columbia.

“We remember the suffering of the victims and their families and grieve deeply for the loss of these three members of our Columbia community. Johnson’s guilt is not in question, and it is reasonable that he spends his life in prison for these crimes. But to carry out this execution would violate the Eighth Amendment prohibition on cruel and unusual punishment because of extensive evidence that he has an intellectual disability”, laments Schopp.

The effect of Atkins v Virginia in Johnson’s case

Schopp referenced the U.S. Supreme Court landmark ruling in 2002, Atkins v Virginia. The ruling held that executing a person with an intellectual disability constitutes cruel and unusual punishment.

Since states are allowed to define their standards to determine intellectual disability, Missouri prosecutors employed a process that Schopp writes, “would not pass muster”. Even, in a reasonable intellectual assessment.

Crack cocaine addiction said to be Johnson’s impetus to crimes

The legal opinion noted that on the triple murder night, Johnson had been doing crack cocaine. He [bearing in mind that Johnson was intellectually disabled] planned to rob the convenience store. The intention is said to have been robbing the store to fuel his crack cocaine drug habit.

The day following the murders, Johnson was arrested and found guilty of the murders.

“Trust your gut” was jurors’ impetus to determine Johnson’s execution.

After the Akins 2002 case, his 2005 resentencing trial convened. The jurors were asked to “trust [their] gut” in determining whether Johnson has an intellectual disability. Yep. You heard it right. The jurors determined Johnson’s right to life by using their gut. Not legal theory and fact.

I think that is too much to stomach.

However, the prosecutors suggested that Johnson cannot have an intellectual disability. They referenced that the African-American man-made efforts, albeit clumsy and unsuccessful, to plan and conceal his crime: the store murders.

However, Schopp argues that:

“neither of these strategies meets any reasonable standard to determine intellectual disability, and our community deserves better. Let’s examine the evidence. The standard definition of intellectual disability widely accepted by courts and experts includes three factors:

impaired intellectual functioning as measured by IQ;

impaired adaptive living skills;

and onset before age 18”.

Schopp affirms that Johnson’s history and the best available evidence are consistent with the above factors.

“Johnson has demonstrated lifelong marked intellectual impairment. Eight of nine full-scale IQ tests since age 8 placed him in a range consistent with intellectual disability. One single testing episode yielded a higher outlier low-average range score, but those files are not available for verification.”

Johnson was often accused of malingering.

“Some prosecution witnesses suggest Johnson may have deliberately underperformed on IQ tests to feign intellectual impairment. This claim is not supported by the evidence”, writes Schopp.

Johnson’s 1968 IQ score at age 8 was comparable to his 2009 IQ score of 71 at age 49—a 41-year gap— suggesting consistent intellectual impairment across his lifespan.

Second, there was no licensed professional that delivered scientific data that Johnson underperformed.

Third, there are active resources designed to detect whether a person is deliberately underperforming on cognitive tests, measures that are validated scientifically in thousands of studies. Such was not used or implemented.

Prosecutors fail to take accountability

The US legal system witnesses, unaccountably, did not report use verification free-measures to measure whether Johnson was giving his best effort. This was done despite that these measures are standard in most neuropsychological assessments.

Therefore, Schopp argues that these measures should be standard in any death penalty case.

“IQ Scores alone do not define intellectual disability”

“When Johnson was administered such effort verification measures in an evaluation, it was found that despite a good effort, Johnson still showed cognitive impairment. IQ scores alone do not define intellectual disability, which must also include impairment in adaptive functioning,” writes Schopp.

Bookman spilled some pearls of wisdom during the show.

“If you read the last Missouri opinion, it is a long litigated case and there is a lot to it. But if you read the last opinion, they make Ernest Johnson who is intellectually disabled, try to turn him into some sort of evil genius. A real calculated robber murderer. It is absurd.

They use facts such as, “he went to the store the day he was going to rob the place and asked, who’s going to be on the next shift. And he didn’t buy anything”.

They’re using that as evidence of planning. Whereas, one of us would say, “my guy! Who would be that low functioning as to think that was a good idea to go there twice and ask who is [on the next] shift?”

The 2003 evaluation results established Johnson’s hardships already

The factors that were displayed in a 2003 evaluation that formally assessed the aforementioned abilities, utilizing the top available objective scientific tools, displayed Johnson’s severe communication impairment; impairment in daily living skills, and socialization.

The above were consistent with his lifelong inability to learn new skills, retain jobs, learn public transportation, or live independently.

Bookman said:

“I think of the death penalty as a Star Wars movie. I think of it as the empire striking back. The more we get knowledge, the more we understand bad defense lawyering, racist judges or jurors, the more we learn about that stuff the more the establishment strikes back. Ernest Johnson is a really good example of this [knowledge]."

The system has been failing Johnson from the onset

Schopp concluded the Columbia Missourian published opinion by holding that Johnson met the standard of onset before age 18.

“He had to repeat three grades beginning in second grade, left school while repeating 9th grade, in 2008 demonstrated academic skills in the third to eighth-grade range and teachers testified consistently to Johnson’s inability to learn even basic tasks.”

Combined, the evidence suggests a strong intellectual disability case and warranted Eighth Amendment protection from execution for the late Ernest Johnson.

“We all deserve to be protected from ad-hoc arbitrary definitions and to be judged by scientifically sound standards of evidence. We deserve a legal system grounded in constitutional standards and reliable data.”

Laura Schopp, Ph.D., ABPP is a board-certified clinical neuropsychologist. She recently retired as a Professor. Her scientific publications include studies on standards of intellectual assessment.

On South Africa’s Heritage Day, Schopp—on the flip side of my African world— called on Gov. Mike Parson to respect the Constitution by exercising clemency.

Her call of action was to contact Gov. Parson’s office at 573-751-3222 and urge him to commute Ernest Johnson’s sentence to life in prison. At a minimum, to convene a Board of Inquiry of neutral mental health experts to consider the extent of his disability. This would have changed the judicial culture and heritage judicial trajectories in light of Missouri’s legal history.

But it didn’t.

Bookman affirmed that:

“They are taking facts that most of us would think are evidence of low functioning. And trying to make them seem he’s a calculated murderer. That is the empire striking back. Michelle is right. They cherry-pick a fact here. And a fact there. They overlook the big picture and they say he is eligible. We like to say there are two sides to every story. But not every story has two sides.”

Johnson’s heartbeat was silenced on October 5.

In tarot and numerology—fives are change.

I vow for Ernest Johnson day as a call for justice that will take African elephant leaps in Missourian reforming histories.

“The moon is in awe of how we rose like morning at night against a sky that we don’t own”

“A cacophony of questions caught in caress. . . and quietened into a hymn on skin”

“I’m trying to find a goodbye and mean it”

Watch the full episode on: https://web.facebook.com/justicebeat2day/videos/902014457066573/