We who have served as judges know that judges make mistakes. Missouri is pressing forward with the scheduled execution of one of our mistakes, death row prisoner Ernest Johnson on Oct. 5, despite evidence that the justice system’s harshest penalty may be unconstitutional in his case.
We are justifiably proud of our system’s ability to correct its mistakes, even though it sometimes fails to do so. And when the system fails so to correct, our law contains the centuries-old remedy of clemency — the power of the sovereign, in the person of the state’s governor in modern times, to intervene, as in this case to set aside the execution by granting clemency and letting Mr. Johnson live out his days in prison.
There is no doubt that Mr. Johnson committed a terrible crime for which he deserves to be punished. But not every terrible crime of homicide is eligible for state-imposed death. First-degree murders are all terrible; most do not result in the death penalty.
When I heard Mr. Johnson’s appeal as one of the seven judges of the Supreme Court of Missouri 13 years ago, the evidence was strong that Mr. Johnson was ineligible for the death penalty on account of intellectual disability (once called mental retardation). The trial court process to determine Mr. Johnson’s intellectual disability was unreliable and inconsistent with medical science and legal precedent. As a result, I write today to join calls that Gov. Mike Parson exercise his extraordinary power as chief executive and grant Mr. Johnson clemency.
It is undisputed that Mr. Johnson suffers from a range of physical and mental disabilities, not least of which are significant brain damage and a lifetime of documented subaverage intellectual functioning that various clinicians have concluded constitutes intellectual disability. When the Supreme Court of Missouri decided his case, State v. Johnson, in 2008, I dissented, noting that the “evidence [of intellectual disability in Johnson’s case] could support either conclusion,” but that the trial court made a mistake in requiring the defense — rather than the prosecution — to prove to the jury that Mr. Johnson was intellectually disabled. 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. 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.
The question of whether the State or Mr. Johnson had the burden of proving intellectual disability or lack thereof may seem like a technicality. But in his case, the technicality was a matter of life or death. My longstanding concern has continued in the intervening years. Back then, I pointed out that the Supreme Court had consistently ruled that the State bears the burden of proving every fact that renders a defendant eligible for the death penalty beyond a reasonable doubt, a principle the U.S. Supreme Court re-affirmed five years ago in Hurst v. Florida. Because a person with an intellectual disability is categorically ineligible for the death penalty, this rule suggests that the burden must rest with the State to prove that a defendant is not intellectually disabled. In Mr. Johnson’s case, however, the trial court placed this burden of proof on the defense. The finding that the trial court should have required the jury unanimously to make — and that the State should have had the burden to prove — is that Mr. Johnson is not a person with intellectual disability. Mr. Johnson’s jury was never asked to make this critical finding.
Just as troubling is the evidence suggesting that the jury did not understand the crucial constitutional question they were being asked to resolve. On Aug. 2, the American Bar Association (ABA) sent a letter to Gov. Mike Parson urging him to spare Mr. Johnson’s life on account of the Association’s serious concerns regarding his eligibility for execution. In that letter, the ABA pointed to an affidavit from a trial juror who believed the question on intellectual disability they were being asked to answer was, “Did Mr. Johnson know right from wrong?” The capacity to know right from wrong is categorically different than the question of whether Mr. Johnson is a person with an intellectual disability. The fact that the jury may have determined that Mr. Johnson is not a person with intellectual disability by answering an unrelated question is extremely disturbing and also warrants the governor’s intervention in this case.
As I said, there is no doubt that Mr. Johnson committed a terrible crime. There is also no doubt that serving out the remainder of his days in prison, without the possibility of parole, is sufficiently harsh punishment in this case. The hallmark of a just society is in how we treat the lowest among us. Is justice served by the execution of a 60-year-old seriously brain-damaged man, whom evidence suggests has had intellectual and neurological dysfunction his entire life? Certainly, justice is not served by proceeding with an execution despite evidence suggesting the defendant never received the constitutional consideration of intellectual disability to which he was entitled. It should suffice that Mr. Johnson is condemned to die in prison someday, but not at the hands of the state.
The state gains nothing but mean-spirited retribution, and loses some of its sense of justice, by speeding up his date of death and killing him. Clemency is a remedy that shows the wisdom of centuries-old Anglo-American law and the wisdom of Missouri’s voters who have approved Missouri’s constitutions for 200 years that give our state’s chief executive the power to grant clemency. Gov. Parson should use this power.
Michael A. Wolff served as judge of the Supreme Court of Missouri from 1998-2011 and is professor emeritus and retired dean of Saint Louis University Law School.
