Federal Executions Continue Despite Serious Questions of Fairness

Updated 01.16.21

Last night, the federal government executed Corey Johnson, despite compelling evidence that he was intellectually disabled and therefore ineligible for the death penalty. He was killed by lethal injection at 11:34 p.m. after the Supreme Court refused to allow him to present evidence that he has intellectual disability and denied a stay of execution to permit Mr. Johnson to recover from Covid-19.

In 2002, the Supreme Court in Atkins v. Virginia barred the execution of people with intellectual disability because they “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct” and because “their disabilities in areas of reasoning, judgment, and control of their impulses [can] jeopardize the reliability and fairness of capital proceedings.”1 Atkins v. Virginia, 536 U.S. 304 (2002).

Federal law also bars the execution of people with intellectual disability.

But Mr. Johnson’s trial lawyer failed to present a mountain of evidence of intellectual disability that would have barred Mr. Johnson’s execution.

At age eight, Corey Johnson had the cognitive skills of a four- or five-year-old; he was held back in second grade for three years and placed in special education at age 10. By 13, he was placed in a residential center for children with special needs; at 16, he still needed a chaperone to take him to the bathroom because he would get lost on his way back to class.

In his early 20s, Mr. Johnson’s reading and writing abilities tested at a second-grade level. Multiple IQ tests, when properly scored, support a diagnosis of intellectual disability.

Over dissenting votes from Justices Sonia Sotomayor and Elena Kagan, the Supreme Court refused to delay Mr. Johnson’s execution despite the fact that no court had reviewed this evidence or addressed the merits of his claim under modern medical standards for evaluating intellectual disability.

The execution of Corey Johnson was the second this week and the 12th since the Trump administration resumed federal executions this summer after 17 years without a federal execution.

On Tuesday, the Supreme Court summarily vacated two stays of execution and allowed the U.S. government to execute Lisa Montgomery, the only woman on federal death row and the first woman executed by the federal government in nearly seven decades.

Four separate federal courts ordered that Ms. Montgomery’s execution be stayed to consider questions about her mental competency and whether the government had violated regulations, court orders, and federal law in setting her execution date. But the Supreme Court allowed her to be put to death without addressing the merits of any of the issues she raised.

Tonight, the Trump administration plans to execute Dustin Higgs. Like Corey Johnson, Mr. Higgs contracted Covid-19 after previous executions at the Terre Haute Correctional Complex led to coronavirus outbreaks at the prison. The lung damage caused by Covid-19 can exacerbate pulmonary edema, leading to an unconstitutionally torturous execution, but the Supreme Court denied Mr. Johnson’s request to delay his execution until his symptoms were resolved.

Mr. Higgs was sentenced to death in the killing of three women in a national park even though prosecutors acknowledged that another man shot the victims. The convicted shooter, Willis Mark Haynes, received a life sentence, and he wrote in a 2012 affidavit that, contrary to prosecutors’ assertions, Mr. Higgs did not order him to shoot the victims.

Mr. Higgs’s attorney told HuffPost that it was unjust for Mr. Higgs to get the death penalty when the shooter was sentenced to life, and pointed out that the government’s theory was based almost entirely on an unreliable witness who got a deal from prosecutors in exchange for his testimony.

“The basis for which Mr. Higgs is on death row has been dismantled. He was not the shooter. He didn’t kill anybody,” attorney Shawn Nolan said. “And he shouldn’t be executed.”

Update:  Dustin Higgs was executed early Saturday morning after the Supreme Court vacated a stay and allowed the execution to proceed. Justices Stephen Breyer and Sonia Sotomayor dissented.