On Thursday evening, almost three decades after he committed his crimes, Cory Johnson will be put to death for a month-long murder spree that took the lives of seven people in 1992.
Johnson's death sentence, the 12th in outgoing president Donald Trump's spate of executions, has predictably attracted last-minute arguments from opponents of capital punishment. Such critics tend to skirt both the bloody particulars of capital offenders' acts and the moral permissibility of capital punishment itself—avoiding outright condemnation of a punishment a majority of Americans consistently label as moral.
Instead, critics tend to focus on technical objections to any given execution. In this case, Johnson's lawyers have argued that their client is intellectually incompetent to be executed, citing childhood slowness and a revision to his tested IQ score. The view has gained widespread attention, including in a lengthy defense of the killer by Elizabeth Bruenig in Monday's New York Times.
But this argument only serves to highlight the flimsiness of Johnson's claim. The ways in which these arguments operate—by a pedantic parsing of legal distinctions to just barely exclude Johnson from death-sentence eligibility—illuminate the lengths to which opponents of the death penalty must go to defend the unpopular view that cold-blooded, heinous murderers do not sometimes deserve to die.
The ban on executing the mildly mentally disabled is relatively new, dating back only to the Supreme Court's 2002 decision Atkins v. Virginia, which casually overturned another ruling, Penry v. Lynaugh, decided just 13 years earlier. The Atkins majority found a new Eighth Amendment protection based on the actions of a minority of state legislatures, disregarding both history and constitutional principle. As Antonin Scalia wrote in his dissent, "seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members."
In Atkins, the Court judged the mentally incompetent unfit to be executed because they lacked a necessary degree of culpability for their actions. But it left it to the states to determine exactly what mental incompetence meant, noting only that disability implies not only a lack of intelligence, but deficiencies in reasoning and self control, and even a proclivity to be a follower rather than a leader.
Johnson plainly suffered from delayed intellectual development, struggling in school and reading at a second-grade level when he was convicted at age 24. But such struggles do not necessarily make someone mentally incompetent. Expert analysis at the time of his trial measured his IQ at 77, a number which led to the conclusion that he was only learning disabled, and the sentencing jury concluded that he was not fully mentally incompetent.
Johnson's counsel has argued that the original test has been inappropriately analyzed, a claim that others have taken up. That argument rests on the conclusion that the instrument used to assess Johnson's IQ in 1992 was normed for 1978's IQ standards. That means it failed to account for the tendency of a population's mean IQ score to rise over time—the so-called Flynn effect. With the unadjusted test, Johnson scored a 77, just outside of the 70-to-75 threshold Johnson's advocates identify for intellectual disability. Adjusted, he scored a 73—within the range.
Yet this is a strange rock upon which to erect a defense for Johnson. The IQ scores of 89 percent of intellectually disabled people fall below 70. The Atkinscourt focused on convicts whose IQ fell between a score of 50-55 and 70; Daryl Atkins had an IQ of 59. If Johnson is sufficiently intellectually disabled to avoid death, he is only just barely so, and only by strained definition.
Johnson is far from the sort of person we picture when we imagine someone too dim-witted to be executed. Historically, Scalia noted, such people were profoundly or severely mentally disabled—they could not count to 20 or identify their own parents. That a newly revised definition of mental incompetence might be stretched to include Johnson hardly renders his death the moral outrage his defenders claim it to be.
The testing argument also implies that if Johnson had committed his crime in 1978, he would have been eligible for execution. It is nothing about him that renders him incompetent, but merely the fact that others, on average, grew smarter. IQ scores are relative, but it is hard to see how a person's competency to be executed for a series of brutal murders ought to turn on this relativity, especially when the facts indicate his competency.
After all, Johnson was plainly intellectually competent to co-lead an interstate crack cocaine smuggling ring, and competent enough to shoot and kill seven people over what the Department of Justice called "perceived slights or rivalry in the drug trade." He was competent to make a man put his head to his steering wheel before shooting him point blank, competent to kill not only a customer who refused to pay for crack in his own home, but also the customer's sister and a male acquaintance who had committed no offense other than being there.
No incompetent child, Johnson is a serial killer by any definition of the term. He deserves to be treated as such.
Against these crimes, the idea that Johnson is just barely too dumb to be put to death seems thin gruel. Yet it is the sort of argument routinely put forward by the capital defense bar and repeated in the press, eager as both are for any reason, no matter how hair-splitting, to forestall execution.
Cory Johnson and his co-conspirators have sat on federal death row longer than any other current residents. They have already undergone a long process of spurious appeals, one which routinely drags on for 20 years or more.
Enough is enough. No line-drawing exercise can avoid the plain judgement that Johnson is fit to be executed, and the government should carry out its mandate to do so posthaste.
This piece originally appeared at Newsweek
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Charles Fain Lehman is an adjunct fellow at the Manhattan Institute, working primarily on the Policing and Public Safety Initiative, and a staff writer with the Washington Free Beacon, where he covers domestic policy from a data-driven perspective.
This piece originally appeared in Newsweek