The Trump administration executed 52-year-old Corey Johnson on Thursday night, despite a Supreme Court ruling that executing people with intellectual disabilities like his violates constitutional protections against cruel and unusual punishment.
The government killed Johnson with a lethal injection of pentobarbital, a process that often causes pulmonary edema, a condition in which fluid enters the lungs while the person is still conscious and creates a painful sensation similar to suffocating or drowning. At the time of his execution, Johnson was still experiencing symptoms from his COVID-19 diagnosis last month. Medical experts have warned that receiving an overdose of pentobarbital would likely be even more painful for individuals recovering from COVID-19 because the virus often damages the lungs.
A federal judge found these warnings credible and on Tuesday stayed the executionsof Johnson and another man, Dustin Higgs, who was also diagnosed with COVID-19, until March. But the government appealed and, ultimately, the U.S. Supreme Court allowed Johnson’s killing to proceed.
He was pronounced dead at 11:34 p.m. Eastern time.
Johnson was killed the day after President Trump was impeached, for the second time. He has been accused of inciting violent rioters to storm the Capitol last week. One-third of the justices on the Supreme Court — which has repeatedly overturned decisions by lower courts to delay executions — were appointed by Trump.
Johnson was the 12th person to be killed in the Trump administration’s historically unprecedented execution spree, which began last summer after a 17-year hiatus in federal executions. On Friday, the government plans to kill Higgs, who is also recovering from COVID-19, just five days before the inauguration of President-elect Joe Biden, who has said he will work to end the death penalty. Both Johnson and Higgs are Black, an indication of the disproportionate number of Black Americans sentenced to death.
All of the government’s executions have taken place during the coronavirus pandemic and the killings appear to have caused COVID-19 outbreaks in and around the prison in Terre Haute, Indiana, where federal death row is located. The outbreak endangers the people who live and work in the prison. It also puts the loved ones of those facing execution — and the families of their victims — in a difficult situation. To bear witness to the killing, they are required to risk contracting a disease that could kill them.
Johnson grew up in poverty in New York City. His mother struggled with drug addiction and his father was incarcerated for most of his childhood. He moved often; by the time he was 13, he had attended 10 different schools. He stayed in the second grade for three years and repeated grades three and four. At the age of 13, he couldn’t recite all of the months in the year and struggled to write his own name. He would never progress much more academically: by his early 20s, he was “no higher than second grade” in reading and writing, his lawyers wrote in his clemency petition.
Because Johnson switched schools so frequently, his records didn’t always follow him, making it difficult to diagnose his intellectual disability. And at the time that he grew up, Black students had been overly classified as mentally disabled, which meant teachers and health experts may have been hesitant to apply the label to Johnson, Daniel J. Reschly, an intellectual disability expert, wrote in an evaluation of Johnson.
At home, Johnson was surrounded by violence and instability. His mother’s boyfriends were abusive — one was arrested after trying to set her apartment on fire. Johnson’s mother partied in front of her children and spoke openly about not wanting them around. His aunt worried that he and his brother wouldn’t have enough food to eat.
Johnson wet his bed until he was about 12 and would hide the soiled sheets from his mom to avoid her beatings. When she did find out about the accidents, she would refuse to wash the sheets and leave Johnson to sleep in the urine-soiled sheets, Johnson’s lawyers wrote.
Johnson’s mother also hit him and insulted his intelligence when he did poorly in school. After one beating with a high-heeled shoe, Johnson’s godmother took him in for several months. When Johnson was 13, his mother surrendered him to social services and he was placed in a residential facility in upstate New York.
“Corey presently fears his mother will abandon him, which exacerbates his negative self-image and low self-esteem,” psychologist Ernest Adams said after evaluating Johnson. “He feels a lack of nurturance, support, and feels the circumstances in his life are out of his control, which increases his anxiety and depression.”
Richard Benedict, one of Johnson’s special education teachers at the residential facility, described him as a “likable” kid who “had so many concomitant disabilities that he really did not excel or do well at school.” Johnson was self-conscious about being “stupid,” as he described it to Benedict, and was desperate to be liked. He had such a short attention span, according to Benedict, that when he left class to use the restroom, someone would accompany him so he wouldn’t get lost or distracted on his way back.
“He performed best in structure,” Benedict said. “I knew he’d never make it on his own.”
When he was 16, Johnson aged out of the facility and was moved into a group home with less structure. Odette Noble, a social worker who worked with Johnson at the time, described him in a 2011 affidavit as “a very sweet kid” who “lacked the ability to understand the consequences that his actions could have.”
In his quest to be liked, Johnson could be easily talked into doing what others wanted. In 1986, he helped a resident in the group home rob a paycheck from another teen. Noble thought Johnson may have been chosen as an accomplice because he was known to succumb to peer pressure, she wrote in her affidavit. Johnson spent 20 days at Rikers Island as punishment.
When he returned, he grew frustrated with his lack of progress in school and had trouble following the rules of the group home. Eventually, staff asked him to go home to his mother’s for 10 days to improve his attitude. Some staff doubted whether Johnson was capable of understanding that he was supposed to return. He never came back.
By then, Johnson was 18 and had little family support or ability to get a job. He eventually joined a group of men he knew from Brooklyn who were selling drugs in New Jersey. He came to view them as his family. The guys in charge were aware of Johnson’s limitations but appreciated that he would do what he was told.
“Corey did not refuse to do something once asked,” Darnell Brown, one of the group’s leaders, said in a 2011 affidavit. “Even if he did not seem to want to do something, he would do it.”
After police raided a home used by the group and arrested several members, Johnson followed the remnants of the group to Richmond, Virginia. The group soon became involved in violent territorial disputes with other drug dealers.
Johnson was convicted of murdering seven people: rival drug dealers, a person who owed a drug debt to the group, a person who had a personal dispute with another member of the group, a person the group believed was a police informant, and bystanders. He was charged under the Anti-Drug Abuse Act of 1988, which reinstated the federal death penalty in the modern era.
Federal law at the time prohibited the death sentence for people who were “mentally retarded,” a now-discredited term that was used at the time to describe a range of intellectual disabilities. But courts had little experience dealing with the matter. Johnson’s case was the first federal capital trial of an individual with an intellectual disability, according to his lawyers.
It wasn’t until 2002, nearly a decade after Johnson’s trial, that the Supreme Court ruledexecuting someone with an intellectual disability violated constitutional prohibitions on cruel and unusual punishment. And it wasn’t until 2017 that the Supreme Court ruledthat modern medical standards needed to be applied in determining whether an individual has an intellectual disability.
Johnson’s own court-appointed trial counsel relied on a psychologist with no expertise in intellectual disability to evaluate Johnson’s competence to stand trial. The psychologist concluded that Johnson did not have an intellectual disability, a decision based in part on an interpretation of Johnson’s IQ test that is now considered inaccurate.
As a result, Johnson’s lawyers never asked the jury to consider whether he had an intellectual disability and was therefore ineligible for the death sentence.
Since then, several intellectual disability experts have evaluated Johnson and reviewed records from his childhood and concluded that he is intellectually disabled. But no court has allowed Johnson a hearing to present the extensive evidence of his disability.
“The government is taking advantage of procedural barriers to press forward with the unconstitutional execution of Corey Johnson, a person whose intellectual disability cannot reasonably be disputed,” Donald Salzman, one of Johnson’s lawyers, said.
Up until the night of Johnson’s execution, his lawyers continued to ask the courts for a chance to prove Johnson’s intellectual disability, but they didn’t get the chance.
“People wonder how can this even still be happening almost 20 years after Atkins,” Shira Wakschlag, the legal director at The Arc, said, referring to the 2002 Supreme Court prohibition on executing people with intellectual disabilities. “And there’s so many ways that it can still be happening. I mean, the procedural barriers are one massive issue, where if it’s not raised in a timely way or at the right time and certain appeals are exhausted, then it prevents you from even presenting that evidence once it’s located.”
During his final days, Johnson’s best chance at survival was the fact that he had contracted the coronavirus, a potentially deadly disease. Two days before he was killed, a federal judge stayed his execution until March, citing evidence that lung damage from COVID-19 would make his execution torturous. All Johnson really needed was to make it until Jan. 20, the date of the inauguration of a new president who is expected to immediately halt executions.
But the Trump administration fought to kill Johnson until the very end. Late Wednesday night, a split three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit overturned the stay. Johnson appealed, but the Supreme Court decided Thursday night that the execution could proceed.
