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Zero Justice Served: Highest US Court Executes Ernest Johnson

Note: We juxtapose injustices, within the context of jails and prisons, in the United States and on the continent of Africa; specifically South Africa. We seek to highlight similarities versus differences in an attempt to bridge the gap across the Transcontinental divide. It is our intent to increase awareness and promote solidarity in our quest for systemic reform of institutions of incarceration.

It took me a little too long to pen this one down.

Fall/Winter Edition: Issue 3

Missouri executes Ernest Johnson

A rush silenced my writer's voice and shaped it into a hallow lumpy throat.

For the first time, I, not in a fictitious way, had to mourn the main character’s life just after I interacted with it.

"Ernest Johnson died from an injection of pentobarbital at the state prison in Bonne Terre. He silently mouthed words to relatives as the process began. His breathing became labored, he puffed out his cheeks, then swallowed hard. Within seconds, all movement stopped," writes Jim Salter for AP News.

The Ernest Lee Johnson case has forced me to fall back on South African poetess, Lebohang Masango’s Re-enacting October poem. I lean not on Re-enacting October for its romanticism, but for its words that beckon all that I wish I would say in short.

“The moon is in awe of how we rose like a morning at night against a sky that we don’t own”
“A cacophony of questions caught in caress. . . and quietened into a hymn on skin”
“I’m trying to find a goodbye and mean it”

How I met Mr. Johnson

My first knowing Mr. Ernest Johnson —may the Afro-spiritual world integrate his spirit into a collective peace— was through the Justice Beat Talk Show.

It is how his yearning for justice came through; like a slave song in formation, finding its rhythm, from the back. Echoing for action at the front. From back. In 1994. That day; and his ancestors’ days before...

In a ¾ hour on September 24, I remotely heard Michelle Smith, advocate for a hallelujah, and an endless amen; a hope for a better world. A world, “enough with the injustice on Africa-descending folk.”

There will always be pressing factors in Johnson’s case

The BBC News then reported on October 6, 2021, that Ernest Johnson had been executed for killing three people in a 1994 robbery.

Yet, the Columbia Daily Tribune had earlier reported on June 29, that Ernest Lee Johnson was set to be executed in October 2021.

Johnson had been executed despite the advocates’ pleas that cited that Johnson had an intellectual disability.

The United States Supreme Court had refused to consider an execution stay earlier in the day.

Therefore, on October 5, 61-year-old Johnson was lethally injected, despite the support he had from Pope Francis and two Congress members.

Johnson's smile. Photograph by Jeremy S. Weis.

Johnson’s roots and how they sprout to lethal stems

Our host, Elaine Sutton, recognized show guest, Criminal System Impacted Justice Advocate from the Missouri Alternatives to the Death Penalty (MADP), Michelle Smith, and cited her public justice efforts.

“Michelle, I see you all over the place. Meetings; activities you are involved. And the Missouri Alternatives to the Death Penalty is very central in issues involving the death penalty.”

Michelle Smith is a criminal system impacted advocate at the Missourians for Alternatives to the Death Penalty organization. Smith has been incarcerated twice, in Missouri and most recently in the federal system.. Sourced.

Sutton opened the floodgates to more than melanin, blood, and water. A feminine, African Missourian voice for legal reform came through. On the other side was someone who could recognize a crime and call out the injustice sandwiched in between.

“Ernest Johnson is an intellectually disabled man who in 1994 was involved in robbing a convenience store in Columbia, Missouri. At that time, he did kill three people. We uplift the victims and their families. And hold space for them. However, with Ernest’s particular situation, he is intellectually disabled. Due to those circumstances, he is ineligible to be executed. And so, what we’re doing is trying to support and uplift the reality that we should stop executing people period,” Smith said.

There was tangible proof to stop Johnson’s execution

The St Louis, Missouri mayor, Tishara Jones, at a rally in front of a picture of Ernest Johnson's image in St Louis . Photograph: Bill Greenblatt/UPI/Rex/Shutterstock

Much evidence indicated that Johnson was ineligible for the death penalty.

The proof was in multiple IQ test results showed that he had a child’s mental capacity. And he could read at a primary school level. 61-year-old Johnson’s reading level was that of children between ages six and thirteen years old.

Johnson’s mother was a heavy drinker during her pregnancy. As a result, Johnson was born with fetal alcohol syndrome.

Johnson was unlawfully executed without a brain fifth

Johnson, an African-American man, was executed while missing a fifth brain matter. This is because Johnson had undergone brain tumor removal surgery.

Despite Johnson’s attorneys raising their legal voices like fists to the injustice in which the case roots itself, the execution went forth (like a wire comb through texture four Afro coils).

Johnson as a young man. Sourced image.

US’s Eighth Amendment violation

Johnson’s attorneys pointed out the 2002 Supreme Court ruling that holds that executing the death penalty against intellectually disabled Americans violates the US Constitution’s Eighth Amendment. The amendment prohibits cruel and unusual punishments.

“In 2002, the Supreme Court ruled that we should not execute, at that time they used the terminology “mentally retarded”, that is not something that we use today. Basically, people with intellectual and development disabilities”, shared Smith.

Smith carried plenty of light, reflecting on the shadows in the Missouri justice system, and how they could cast away justice on any day.

“This [2002] ruling from the court came down and said, ‘let’s not execute intellectually disabled people’—they didn’t give a lot of guidance in what to determine if they are intellectually disabled.
Now over the years since then, since 2002, there have been several cases litigated and they have come out of more stringent clinical standards.
However, you have to litigate. Something that is not automatic. It should be. But it’s not.”

Ernest Johnson photographed by Jeremy Weis. Sourced image.

Power and reputation carry influences

The state’s Republican governor enabled the carrying out of the sentence by refusing to block the sentence from being carried out.

A village and the Pope vouched for Johnson’s justice

The BBC reports that:

A village filled with “[e]lected officials, racial justice activists, and faith leaders joined the efforts to spare Johnson’s life”. After all, an African proverb has long warned us that it takes a village. This time, the evil suffocated the village.

Even I, in South African constitutional legal comfort, rooted for Johnson

During this show, my body shivered through patches of chicken skin. I felt the inside of my skin boil and then freeze into low degrees. I knew that my body was not content with dealing with a death in the process. This was not the content. But, oh yes it was.

It was no simple metamorphosis.

It was an an-intellectually-disabled-Black-man–killing-moment that he had been wait for almost three decades that I journalistically formed part of. The thought, “What whirled through his mind when he wandered far?”, made me wonder, what Johnson would engage Tata, Nelson Mandela about. In simple terms, Mandela was jailed for 27 years for being African in an African country. And Johnson? Arguably, for being African and intellectually disabled.

On that September 24 day, a turning point in my role as a media intern in justice journalism set alight. I learned that justice was not the same.

“With Ernest, his entire life, when you look through from his birth, growing up to his early adult life — he was just failed. The education system, the social service system, even with his family, they struggled and they suffered a lot coming from the south, being descendants of slaves.”

At this point of the show, I held the assertion that slavery in America is relevant when it sells on the big screen. Because girl, have I watched plenty of slave movies!

Yet, little have I seen being done to reverse the pain it has birthed the Afro-American communities.

Smith further reflected:

“He dealt with all of these things that so many of us deal with that culminated in what became of his life. There are criteria to use, which are clinical definitions to determine if someone is intellectually disabled. However, we know that our government and our courts, they do the most for a lack of a better term right now”.

For me, Smith’s words were fit to be a judge’s. Perhaps then, justice would have been considered if such factors were. You wonder, Reader? So do I.

Would there have been justice?

I recollected from memory, how in legal class, all my legal theory teachers hammered on the right to life and the right to dignity.

I could find neither adherence with those two South African constitutional rights being protected in this matter. Nor could I find justice.

I wondered if dignity and human life mattered in Missouri. Especially like it did in South Africa.

Our guest speaker, A Descending Spiral: Exposing the Death Penalty in 92 Essays author, Mark Bookman, also gave a necessary quick history lesson.

The legal professional, Bookman, reminded us that the death penalty was at its lowest popularity in the late 1960s and 1970s because a lot of social changes were happening during that time.

The Supreme Court later decided that the death penalty was unlawful. However, the public protested for its return.

Philadelphian anti-death-penalty advocate Marc Bookman. Photograph by Linette & Kyle Kielinski.

“The death penalty now is at its lowest popularity since then. Here’s the difference. In the late 60s and 70s, we were against it because it didn’t seem like the right thing to do under the social circumstances.”

Bookman pointed out that the focus was the best set on healing what has already been revealed.

“But we didn’t know much about the death penalty. We didn’t know about wrongful convictions, we didn’t know about DNA, we didn’t know about prosecutors hiding evidence. We didn’t know about attorneys drunk in court or sleeping through trial. Or racist judges. Those things had not permeated the air. Now we know all these things. We have a lot of knowledge we didn’t know then”.

The author highlighted how the death penalty is a legal war that needs one to be legally armed to challenge it.

“When you have exonerations and you have prosecutors caught hiding evidence; that is ammunition for us. You can’t just argue the death penalty is a bad thing. You got to tell the story. That is what it is about.”

Catholic faith Pope Francis protested against Johnson’s death penalty

A Christian Catholic religion voice, Pope Francis, changed the Catholic faith teachings to officially oppose the death penalty in all circumstances in 2008. Pope Francis’s representative wrote to Missouri Governor, Mike Parson, that the pope:

‘wishes to place before [Mike Parson] the simple fact of Mr. Johnson’s humanity and the sacredness of all human life.’

Governor Parson makes his October 4 voice audible

Supporting Johnson’s execution, on October 4, Parson advocated that the state would be delivering justice by carrying out the ‘lawful’ sentence that Mr. Johnson received following the Missouri Supreme Court order.

In South Africa, the death penalty was last, judicially, relevant 26 years ago.

It was in the landmark, constitutional court case, S v Makwanyane, that we saw the now 27-year-old democratic South Africa breathe life into its criminal justice. The case is lengthy yet it is a case I encouraged every activist, and therefore every human being, to read.

The South African death penalty case took into account that the last time someone had been executed was on 14 November 1989.

Perhaps, in that light, it would be safe to say Missouri is a traumatized state whose constitutional relevance is trumped by an African country in the South.

S v Makwanyane in paragraph three touches on a pivotal aspect.

The paragraph cites that the mental anguish suffered by convicted persons awaiting execution is well documented. Constitutional Judge Chaskalson says that a delay in execution may invalidate a death sentence that was lawfully imposed.

S v Makwanyane’s paragraph seven cites relevant constitutional provisions including that it bridges a deeply divided South African history that is represented by strife, untold suffering, injustice, and conflict. The history is, therefore, juxtaposed to human rights recognizing the future. A democracy, and peaceful co-existence for South Africans despite color, race, class, belief, or sex.

Governor Mike Parson advocates for the death penalty as justice

The Columbia Missourian reported an opinion in its Guest Commentary column on South Africa’s Heritage Day, September 24. It is a day that the African country has established in restoring indigenous justice through celebrating cultural heritage.

The date on which the Columbia Missourian opinion was published made me reflective of legal cultural heritage. I wondered if America cared about how much collective trauma it legally feeds the Black American community.

The opinion read that Ernest Lee Johnson’s [then] planned execution raised questions about intellectual disability.

The writer, Laura Schopp asked:

“What happens to a society in which judicial practice becomes unmoored from reasonable standards of evidence? How does a just society treat people with intellectual disabilities? These are among the questions before us in Missouri’s Oct. 5 planned execution of Ernest Johnson”.

Johnson’s crimes and the Eighth Amendment violation

Schopp explains that Johnson was convicted for the brutal 1994-murders. Johnson was hence found guilty for Mabel Scruggs, Fred Jones, and Mary Bratcher’s death in a botched armed robbery in a convenience store, Casey’s General Store in Columbia.

“We remember the suffering of the victims and their families and grieve deeply for the loss of these three members of our Columbia community. Johnson’s guilt is not in question, and it is reasonable that he spends his life in prison for these crimes. But to carry out this execution would violate the Eighth Amendment prohibition on cruel and unusual punishment because of extensive evidence that he has an intellectual disability”, laments Schopp.

The effect of Atkins v Virginia in Johnson’s case