The Supreme Court declared it was unconstitutional to execute intellectually disabled people. On Thursday, we’re set to do it anyway.
In January 1993, a psychologist asked Corey Johnson to write a story about a picture of an astronaut crouching on a lunar landscape.
In loops of cursive script, sloping left and then right, Mr. Johnson wrote, “me and my Mom went to the moon, when we got there there was people wroking they look like they was beilling something, but what I like most was when this man show us what they was look for.” The tale meandered for another nine sentences, culminating with a mystery: “but when I saw this man he look like he had found something, what I don’t no.”
Dewey Cornell, the clinician who gave Mr. Johnson the task as part of a psychological evaluation, pored over the scant sentences.
“Corey’s story was 159 words long, with 9 different words misspelled,” he observed in his notes. “Approximately ⅔ of the grammatical phrases were incorrect. The themes and imaginative ideas in his story were extremely immature for his age.” Mr. Johnson’s written language abilities, Dr. Cornell concluded, were those of the average elementary school student.
But Mr. Johnson was 24 years old.
He was being tried in the murders of seven people for a Richmond, Va., drug gang — 27 criminal counts in all. Charged under the Anti-Drug Abuse Act of 1988, which reinstated the federal death penalty, he was convicted less than a week after Dr. Cornell submitted his report. Sent to death row, where Mr. Johnson has spent the past 27 years, he awaits execution on Thursday.
Yet it could have — should have — been otherwise. In the United States, it is illegal to execute intellectually disabled people — a prohibition that was encoded into many statutes before the Supreme Court made it the law of the land. The Anti-Drug Abuse Act, in particular, provided that “death shall not be carried out upon a person who is mentally retarded.” Then, in 2002, the Supreme Court, in Atkins v. Virginia, forbade capital punishment for people with intellectual disabilities.
In Atkins, the court recognized the criteria that clinicians generally use to determine whether someone is mentally disabled — that intellectual disability typically manifests before adulthood, that it presents significant limitations in practical functioning and that it is usually associated with an I.Q. significantly lower than the mean, although by how much was not specified. It left states with latitude to define intellectual disability. Ideally, experts would be brought in to perform evaluations, and then judges and juries would weigh arguments from the prosecution and defense before deciding whether they were convinced of the diagnosis.
In recent years, the Supreme Court has provided more clarity, ruling in 2014’s Hall v. Florida that states cannot decide whether defendants are intellectually eligible for the death penalty based on strict I.Q. thresholds — in that case, a score of 70 — because “intellectual disability is a condition, not a number.” For advocates and defense lawyers aiding people with those limitations, Hall lent much needed authority to what clinicians and social workers had struggled to affirm in courts for years.
Yet barriers to Atkins’ enforcement remain. In particular, judges, juries and perhaps in the case of Mr. Johnson, even defense lawyers can misapprehend the nature of intellectual disability.
People tend to think they know what intellectual disability looks like, and feel erroneously certain that they would recognize it if they saw it. A 2004 opinion by the Texas Court of Criminal Appeals, for instance, supplied the simple-hearted, hapless character Lennie Small from John Steinbeck’s “Of Mice and Men” as an example of a person whom the majority of Texan citizens would agree ought to be exempted from the death penalty, as opposed to less obvious cases, which, the court implied, could be fictitious.
Yet intellectual disability doesn’t necessarily look like Lennie Small, or Forrest Gump, or Charlie Gordon of “Flowers for Algernon." Lawyers, jurors, and judges can overlook it.
By the time Dr. Cornell met Mr. Johnson, the young man had taken no fewer than five I.Q. tests. Born to a single teenage mother who struggled with drug abuse and poverty, Mr. Johnson lived in at least 12 residences between birth and the age of 13 and suffered varying kinds of neglect and abuse at the hands of his mother and her boyfriends. At times he would flee to his godmother, Antoinette Joseph, for refuge.
At one point, Ms. Joseph told me, Mr. Johnson’s mother “hit him in the head with her high heel, and she called me and told me, ‘Come and get this boy before I kill him. He’s just not acting right. He don’t do what I ask him to.’” Ms. Joseph rescued the boy and took him in. While in Ms. Joseph’s care, her daughter Courtney Daniels, would help him with his schoolwork.
“He just couldn’t grasp it,” Ms. Daniels told me. “My godbrother wasn’t like the rest of us.”
“Understanding some things,” she said, “he could not get it. Reading, writing — basically when it came to school, he sucked.”
Educators tried to understand why Mr. Johnson couldn’t keep up with his peers. At the age of 8, tests found he possessed the cognitive skills of a child 4 to 5 years old; he remained in the second grade for three years as a result. He was placed in special education at the age of 10, and by 13, he was placed in the care of the Pleasantville Cottage School, a residential center for children with difficult backgrounds.
Pleasantville sorted Mr. Johnson into its Mount Pleasant School, which focused on children with special needs. There, Richard Benedict, a career special educator, took a shine to him.
“He failed at many places before he came to us,” Mr. Benedict told me. “You just don’t get placed in residential treatment because you had a bad day or a bad week or a bad couple months in school, you know?”
He recalled assigning a chaperone to accompany Mr. Johnson to the bathroom, because he would frequently wander or become lost on his way back to class. When I asked Mr. Benedict if he considered the possibility that Mr. Johnson was intellectually disabled, his response was instantaneous.
“Absolutely,” he said, “He’s a poster child for that. I don’t know who gave testimony at his trial, but it was obviously someone who didn’t have the experience of dealing with the population that Corey came from.”
In an affidavit submitted years after Mr. Johnson’s conviction, his court-appointed defense lawyer Craig Cooley said, “I did not suspect that Corey Johnson might be intellectually disabled” when Dr. Cornell was brought in. He retained Dr. Cornell not to assess Mr. Johnson’s intellectual ability, he said, but to evaluate his competence to stand trial, his criminal responsibility, and general mitigating factors.
Reached for comment, Dr. Cornell declined to speak on the record. But his files show that he administered standardized tests to Mr. Johnson, including the test of written language involving the lunar adventure. He also conducted telephone interviews with a handful of employees from Mr. Johnson’s school — though not Mr. Benedict — as well as a social worker who had spent many hours with him.
Dr. Cornell’s testing found Mr. Johnson’s I.Q. score was 77 — bordering on the 70 to 75 range traditionally considered the threshold for intellectual disability. He concluded that Mr. Johnson was not intellectually disabled.
Instead, he wrote, “Corey Johnson suffered from a severe learning disability which impaired his intellectual development and prevented him from succeeding in school,” as well as emotional disturbance due to the unstable, often abusive upbringing he had endured.
Without an expert’s opinion to affirm their client’s disability, which would have legally excluded him from execution, Mr. Cooley and his co-counsel, John McGarvey, asked jurors to consider his severe mental deficits as mitigating factors in considering whether to sentence him to death.
“Now, I’m not intending to suggest at this juncture or any other juncture that Cory Johnson is mentally retarded,” Mr. McGarvey told the jury.
Dr. Cornell is a gifted and qualified psychologist, and his work on youth aggression and violence in educational settings has been widely praised. But while he has published a range of articles on gifted children, bullying, familial dynamics and depression, a curriculum vitae reviewed by The New York Times did not appear to list any publications or special projects in intellectual disability.
After testing Mr. Johnson, Mr. Cooley recalled, “Dr. Cornell told me that Corey Johnson’s I.Q. is within two points of the borderline for mental retardation” and that he “instead had a severe learning disability.”
But there is reason to believe Mr. Johnson’s I.Q. score was mistakenly inflated.
J. Gregory Olley, a celebrated scholar of intellectual disability, first heard of Mr. Johnson’s case years after his conviction, when his defense team asked Dr. Olley to evaluate their client.
Dr. Olley is a professor of psychiatry and psychology at the University of North Carolina, Chapel Hill, and has spent his career researching and publishing extensively in his area of expertise, including the chapter on intellectual disabilities and the criminal justice system in the latest edition of the American Psychological Association’s Handbook of Intellectual and Developmental Disabilities. His evaluation of Mr. Johnson included an in-depth review of his educational and testing records, and hours of interviews with Mr. Johnson, his friends, family, and associates, many of whom had never been approached by Dr. Cornell.
When Dr. Olley reviewed Mr. Johnson’s files, he spotted a flaw. I.Q. tests measure intelligence relative to an age-based reference group. And because I.Q. scores have risen over time — a curious fact observed by the intelligence researcher James Flynn — older versions of various tests will yield inflated results because they reflect a comparison with population norms from many years ago instead of today. Adjusting for the so-called Flynn effect is common practice among clinicians reviewing I.Q. test results obtained from older tests.
Although Dr. Cornell had administered the WAIS-R, a test released in 1981, based on population data from years prior, he did not adjust for the Flynn effect in 1992. Dr. Olley, on the other hand, observed in his report that, “if corrected for aging norms, the score would be 72.8,” placing Mr. Johnson squarely in the range of scores used to diagnose intellectual disability.
“I have concluded,” Dr. Olley wrote, “based on my thorough examination of a wide and comprehensive array of materials and more than two dozen interviews, that Corey Johnson is intellectually disabled.” In his view, “the evidence for Corey Johnson’s intellectual disability diagnosis is strong and deep, and it is corroborated by contemporaneous records created by professionals during his childhood and adolescence, by my interviews of a diverse group of people who knew him best from an array of perspectives, by standardized testing.”
It’s unclear whether that can save Mr. Johnson now.
Since Mr. Johnson’s trial lawyers did not claim he was intellectually disabled, no court has agreed to hold a hearing to consider the evidence to the contrary in appeals over the past three decades, Mr. Johnson’s current lawyers, Don Salzman and Ron Tabak, told me.
“No court has ever applied modern medical standards, which are critical,” said Mr. Salzman. “No court has ever heard testimony from our three nationally recognized experts in intellectual disability, who have spent their careers, over 40 years each of them, focused on intellectual disability, who have all said that Corey Johnson has a compelling case and is clearly a person with intellectual disability.”
Mr. Salzman and Mr. Tabak have appeals before the U.S. Court of Appeals for the Fourth Circuit and hope that Mr. Johnson’s execution will be stayed until they are granted the opportunity to present evidence of his disability in court. If their efforts fail, Mr. Johnson will — barring some intervention — be killed Thursday without any judge or jury ever having considered the fact that he is intellectually disabled.
Scholars of intellectual disability and criminal justice whom I interviewed wholly agreed on only one thing: Despite Atkins and related statutes, there are still people with intellectual disabilities on America’s death row.
There are several reasons for this, but they all fit under the rubric of courts being poorly equipped to distinguish people with intellectual disabilities from those without.
Juries are only part of the problem. Tess Neal, an assistant professor of psychology at Arizona State University, told me that, based on her research, jurors often struggle to understand complex evidence. “If you have some jurors who are really smart and strong and could follow that information, they’re good with numbers, they’re good with math, they’re good with science or whatever — if they’re in the room, then they may be able to help other people understand the complexity of that evidence,” she said. But if a jury lacks such capable members, it may not be able to take complicated evidence properly into account.
David Shapiro, a forensic psychologist of 50 years, mentioned another disturbing trend: so-called ethnic adjustments.
Because of a variety of social and environmental factors, Dr. Shapiro said, “it’s well known that minority groups do more poorly on standardized tests than nonminority groups,” so practitioners of ethnic adjustments would “just artificially inflate people’s I.Q. scores, with no science behind it.”
In a 2019 paper published in an American Psychological Association journal, Dr. Shapiro and co-authors reported that “some psychologists were testifying that defendants who were from ethnic minority groups had I.Q. scores that were suppressed and that therefore their scores had to be ‘adjusted’ upward to compensate for the suppression.”
Dr. Shapiro told me that at least three inmates whose scores were adjusted have been executed and that the American Civil Liberties Union has filed suits on behalf of inmates awaiting execution. California has also taken action to ban the practice in its courts.
Elsewhere, though, ethnic adjustments continue, clinicians submit testimony and evidence that are complicated, mistakes are made, and errors are missed. The shades of nuance and margins of error that provide clinicians with guidance in treatment can prove lethal in trials.
Time was that this country barred people with intellectual disabilities from crossing its borders, or locked them away in squalid institutions that were little more than prisons, experimented on them, tortured them, sterilized them, executed them.
On Thursday, we will see if we have changed.
Elizabeth Bruenig (@ebruenig) is an Opinion writer.
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