Intellectual Disability

5 Georgia Executions Emblematic of Systemic Problems With State's Death Penalty

Georgia is scheduled to execute Marcus Johnson (pictured) on November 19 despite ongoing concerns about his innocence. The execution would be Georgia's fifth since December 2014 - each raising serious questions about systemic problems in Georgia's application of the death penalty. In a commentary for The Marshall Project, Sara Totonchi, executive director of the Southern Center for Human Rights, says these cases "are emblematic" of death sentences imposed before Georgia's statewide capital defense office opened in 2005 and "encapsulate what’s wrong with capital punishment in Georgia." In December 2014, Georgia executed Robert Wayne Holsey, whose drunk lawyer failed to investigate and present mitigating evidence that Holsey had an IQ of 70 and had been seriously abused as a child. The lawyer was later imprisoned and disbarred for misconduct in another case. Andrew Brannan, a decorated Vietnam veteran with bi-polar disorder who was declared 100% disabled by the Veterans Administration as a result of combat-related PTSD, was executed in January, the first U.S. execution in 2015. The jury was never heard details of Brannan's military service or disability. Two weeks later, Georgia executed Warren Hill, a man with intellectual disabilities. A judge found that Hill had proven his disability by a "preponderance of the evidence," the standard of proof required by every other death penalty state, but Georgia requires defendants to prove intellectual disability "beyond a reasonable doubt." Even after the state's doctors admitted that Hill met this higher standard, the state and federal courts refused to consider this evidence on technical procedural grounds and Hill was executed. Kelly Gissendaner's execution in September hghlighted a different type of arbitrariness: she was executed for planning to murder her husband, while her boyfriend, who actually committed the killing, made a deal with prosecutors to serve a life sentence and will be eligible for parole in seven years. Finally, Marcus Johnson's case raises concerns that Georgia may be executing an innocent man. The DNA evidence from the murder scene that was tested was inconclusive, other blood evidence was not tested, and none of Johnson's DNA was found on or in the car where the victim's body was found. The trial judge wrote to the Georgia Supreme Court that the evidence in Johnson's case "does not foreclose all doubt respecting the defendant’s guilt."

Missouri Scheduled to Execute Man Despite Evidence of Intellectual Disability

Ernest Johnson (pictured) is scheduled to be executed in Missouri on November 3, despite strong evidence that he is intellectually disabled and therefore ineligible for execution. Johnson has shown signs of intellectual disability throughout his life: he walked and talked much later than his siblings, he was twice held back a grade in school, academic test scores placed him in the bottom 1-2% in math and reading, and his siblings say he struggled with basic skills like using a knife and fork. His IQ scores have consistently fallen around or below 70, a common IQ marker for individuals with intellectual disability. Despite all this evidence, Johnson faces execution because, in the words of former U.S. Attorney John N. Gallo, "the facts of Johnson’s disability were clouded in court by the prosecutor’s inflammatory rhetoric." A prosecutor argued that Johnson was not “a weak, little skinny, mentally retarded kid” and told his jury, "To decide it's more likely true than not that this guy is mentally retarded is an insult, an insult to these victims." The prosecutor also accused Johnson of intentionally lowering his IQ scores, based upon the opinion of a technician who lacked any training in administering IQ tests or making clinical observations about them. In an op-ed for the St. Louis Post-Dispatch, Gallo urged Missouri Governor Jay Nixon to commute Johnson's sentence to life without parole, saying, "to allow this execution to go forward would be to sanction a gross injustice." [UPDATE: The U.S. Supreme Court stayed Johnson's execution, but not as a result of his intellectual disability. The Court ruled that Johnson was entitled to pursue an appeal to determine whether Missouri's execution protocols are unconstitutionally cruel and unusual as applied to a person with Johnson's particular medical condition. Johnson has a brain tumor, lesions, and scarring that his experts say create a substantial risk of seizures and extreme pain if executed by lethal injection with pentobarbital.]

Spate of Scheduled Executions Highlight Broad Issues in Capital Punishment

An unusually high number of executions are scheduled for late September and early October - five states intend to carry out six executions in nine days. Pieces in the Los Angeles Times and the Washington Post describe the larger issues raised by the cases in this "burst of lethal activity." In the Los Angeles Times, Scott Martelle examined the three executions scheduled for consecutive days in Georgia, Oklahoma, and Virginia, concluding, "So here we have three pending executions: One of a woman who received a harsher penalty than the co-conspirator who committed the murder; one of a man who very possibly is innocent; and one of a man whose intellectual disability should make him ineligible for the death penalty." Mark Berman, of the Washington Post, noted the overall rarity of executions and the small number of states that carry them out. He says "most states have ... not been active participants in the country's capital punishment system" and "executions remain clustered in a small number of states, a dwindling number of locations accounting for an overwhelming majority of lethal injections." Berman notes that the number of executions, the states executing inmates and the number of death sentences have all fallen significantly since the 1990s and the upcoming executions share one common characteristic: "The states planning the executions this week and next — Georgia, Oklahoma, Virginia, Texas and Missouri — are among the country’s most active death-penalty states since the death penalty was reinstated by the U.S. Supreme Court in 1976." 

Virginia Governor Denies Reprieve for Inmate Who May Have Intellectual Disability

Virginia may execute Alfredo Prieto on October 1 despite concerns by disability advocates that he may be intellectually disabled. Governor Terry McAuliffe (pictured) announced on September 28 that he would not grant Prieto a reprieve. Gov. McAuliffe issued a statement saying "It is the Governor’s responsibility to ensure that the laws of the Commonwealth are properly carried out unless circumstances merit a stay or commutation of the sentence. After extensive review and deliberation, I have found no such circumstances, and have thus decided that this execution will move forward." Prieto's attorneys say he is intellectually disabled and therefore ineligible for execution and that an adverse Virginia state court determination of that issue employed a scientifically invalid strict IQ cutoff score. Later, in 2014, the U.S. Supreme Court ruled that the use of strict IQ cutoff for ruling out intellectual disability without considering other factors violated the Eighth Amendment. The Arc of Virginia, an advocacy group for people with intellectual and developmental disabilities, said, "We believe that allowing Mr. Prieto’s execution to go forward on the evidence as it stands is unjustified scientifically and would endorse a misunderstanding of intellectual disabilities that was refuted long ago." 

Supreme Court Rules in Favor of Intellectually Disabled Louisiana Defendant

CORRECTION:  On June 18, the U.S. Supreme Court announced its decision in Brumfield v. Cain, a Louisiana death penalty case dealing with intellectual disability. The Court held that the federal district court was entitled to conduct an evidentiary hearing to determine whether Kevan Brumfield has intellectual disability and is therefore ineligible for execution. It reversed a ruling of the United States Court of Appeals for the Fifth Circuit that would have deferred to a Lousiana state court decision permitting Brumfield to be executed without a hearing on his claim of intellectual disability. After an extensive evidentiary hearing, the district court held that Brumfield was intellectually disabled.  By a vote of 5-4, the Supreme Court ruled that Louisiana had unreasonably determined the facts when it decided that Brumfield had not presented sufficient evidence of intellectual and adaptive impairments to warrant an evidentiary hearing in state court. Writing for the majority, Justice Sotomayor said, "After Atkins was decided, petitioner, a Louisiana death-row inmate, requested an opportunity to prove he was intellectually disabled in state court. Without affording him an evidentiary hearing or granting him time or funding to secure expert evidence, the state court rejected petitioner’s claim. That decision, we hold, was 'based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.' Petitioner was therefore entitled to have his Atkins claim considered on the merits in federal court." The case returns to the Fifth Circuit for consideration of whether the district court's findings are supported by the record.

Supreme Court Grants Review in Three Kansas Cases; Hears Case on Intellectual Disability

On Monday, March 30, the U.S. Supreme Court granted review of three Kansas death penalty cases and heard oral argument in a Louisiana case that presented questions on the role of the federal courts in determining whether a state prisoner who faces the death penalty has intellectual disability. In the cases of Kansas v. Reginald Carr, Kansas v. Jonathan Carr, and Kansas v. Sidney Gleason, the Court granted review of the Kansas Supreme Court's decisions overturning the defendants' death sentences because their sentencing juries were not told that, unlike proof of other facts in the case, the defendant did not have to prove mitigating circumstances (reasons for life) beyond a reasonable doubt. It also granted review in the Carr cases of the state court's decision that the brothers should not have been tried together in the penalty phase of their capital trial because some of their mitigating evidence was mutually antagonistic and the jury should not have considered this evidence against the other brother. In Brumfield v. Cain, the Court heard argument in the case of a Louisiana man, Kevan Brumfield, sentenced to death before the Supreme Court ruling in Atkins v. Virginia banned the execution of defendants with mental retardation (now intellectual disability). (For more on the Brumfield case, click here.)  The Supreme Court will determine whether the federal courts must defer to a decision of the state courts that rejected his claim of intellectual disability based solely upon the evidence presented at his trial or whether to credit the federal district court's finding after a seven-day evidentiary hearing that Mr. Brumfield is intellectually disabled and may not be executed.

Supreme Court to Review Florida's Death Penalty Scheme

On March 9, the U.S. Supreme Court agreed to hear Hurst v. Florida, a challenge to the state's unusual sentencing procedure. In a prior ruling, Ring v. Arizona (2002), the Court held that the question of whether a defendant is eligible for the death penalty is entitled to a jury deteremination. Unlike almost every other state where unanimous juries are required for death eligibility and a death sentence, Florida only requires the jury to make a sentencing recommendation to the judge, who then makes the final decision on the existence of aggravating factors and the actual sentence. Timothy Hurst was sentenced to death by a judge, following a 7-5 recommendation for death by the jury. The jury's recommendation did not make clear which aggravating factors made him eligible for the death penalty or whether they found any aggravating factor beyond a reasonable doubt. The Supreme Court's decision in Hurst v. Florida could affect pending cases and other inmates on the state's death row.

UPCOMING EXECUTIONS: Elderly Man With Low IQ and Brain Damage Facing Imminent Execution

UPDATE: An image of Cecil Clayton's brain obtained via MRI can be viewed here. The image shows the front left part of his brain is physically missing. Cecil Clayton is 74, suffers from dementia, has an IQ of 71, is missing a significant part of his brain due to an accident, and is scheduled for execution on March 17 in Missouri. His attorneys insist he should be spared because he does not understand the punishment to be carried out. Clayton sustained a brain injury in a sawmill accident in 1972, requiring removal of about 20% of his frontal lobe, which is involved in impulse control, problem solving, and social behavior. After the accident, Clayton began experiencing violent impulses, schizophrenia, and extreme paranoia, which became so severe that he checked himself into a mental hospital out of fear he could not control his temper. In 1983, Dr. Douglas Stevens, a psychiatrist, examined Clayton and concluded, “There is presently no way that this man could be expected to function in the world of work. Were he pushed to do so he would become a danger both to himself and to others. He has had both suicidal and homicidal impulses, so far controlled, though under pressure they would be expected to exacerbate.” In the past decade, six psychiatric evaluations have found that Clayton should be exempt from execution because he does not understand that he will be executed, or the reasons for his execution. However, since his execution date has been set, he has not had a competency hearing before a judge that could spare him from execution.