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Ernest Johnson eligible for death penalty, Missouri Supreme Court says

  

JEFFERSON CITY, Mo. — The Missouri Supreme Court Tuesday unanimously rejected Ernest Johnson’s request that he’s ineligible for the death penalty because he is intellectually disabled. 

The state’s high court found Johnson failed to prove his ineligibility for the death penalty and denied his motion to be executed by firing squad rather than lethal injection; Johnson said the drug used, pentobarbital, would react with a tumor in his brain and cause painful seizures. He also applied to appear before the court in person, but that petition was denied as well. 

“This Court finds and concludes Johnson has failed to prove he is intellectually disabled; therefore, he is eligible for the death penalty,” the opinion said. “Johnson’s ‘proposal’ does not sufficiently allege death by firing squad ‘would significantly reduce a substantial risk of severe pain’ or that Missouri ‘has refused to adopt [a firing squad] without a legitimate penological reason.’”

Johnson had about one-fifth of his brain tissue removed in 2008 during a surgery to treat a brain tumor. The tumor was not fully removed, and he suffers from epilepsy and “painful seizures.” 

The U.S. Supreme Court refused to review the case in May. The U.S. Court of Appeals for the Eighth Circuit initially held Johnson’s claims were sufficient, but the nation’s highest court issued another ruling in a Missouri death penalty case during its review: Bucklew v. Precythe. The U.S. Supreme Court found Russell Bucklew’s challenge failed to meet the proper requirements, including proving the state should be required to use the “entirely new method” of nitrogen gas that had not proven to be successful and cause less pain. 

After that case, decided in April 2019, the Eighth Circuit denied Johnson’s request to amend his claim to include a firing squad as a means of execution. As Justice Stephen Breyer noted, Johnson asked that “the courts decide between an execution that is ‘cruel’ and one that is ‘unusual.’”

In order to successfully prove his claim, Johnson had to meet two points: prove the method of execution would cause “substantial risk of severe pain” and propose a “feasible” alternative method of execution. 

Former Missouri Supreme Court Judge Michael Wolff recently backed Johnson’s plea, noting his own dissenting opinion when the state’s high court decided the case in 2008. 

I still believe that the trial court made a critical error in the allocation of the burden of proof in this case, but I am also even more convinced today in light of additional evidence that has been developed that Mr. Johnson is a person with intellectual deficits so significant that a reasonable jury would not have recommended execution,” Wolff said. “Under constitutional standards, his execution would constitute cruel and unusual punishment in violation of the constitution as interpreted for decades in U.S. Supreme Court decisions.”

“Missouri can and should do better than the execution of a man with intellectual disabilities. There must be some credence to the concept that individuals being punished understand the finality and purpose of that punishment,” Nimrod Chapel, Jr., President of the State Conference of the NAACP, said in a statement. “Even when faced with the contradiction of rehabilitation rather than retribution through the death penalty, we must all understand this for what it is — a continuation of violence based primarily on color and social status.”

Johnson killed three people during a robbery of a Columbia convenience store in 1994. 

Missouri allows the death penalty — by lethal injection or gas — which is overseen by the Department of Corrections. The death penalty can be imposed on individuals who are at least 18 years old and found to have deliberately committed first-degree murder, a class A felony. The state hasn’t carried out an execution with a firing squad since 1864. 

There are 20 capital punishment offenders within the Missouri Department of Corrections custody. The last person executed in Missouri was Walter Barton in May 2020 — the first in the U.S. amid the COVID-19 pandemic. 

Johnson’s execution is scheduled for Oct. 5. 

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This story has been updated with Chapel’s statement.