Court docket permits execution of Corey Johnson to proceed after COVID-19 prognosis

Posted Jan 14th 2021 11:54 pm by Kalvis Golde

Thursday night’s judges dismissed two last-minute appeals from Corey Johnson, who tried to postpone his execution so he could recover from COVID-19 he had in prison after spending most of his life on death row had spent. Johnson also argued that he was not eligible for the death penalty due to an intellectual disability and that a 2018 prison reform law should have allowed him to apply for a reduced sentence. By rejecting his appeals, the court has removed the final obstacles between the Justice Department and his 12th execution since July 2020.

The two appeals were the subject of a series of last-minute litigation in multiple federal courts that reached judges minutes before Johnson’s originally scheduled execution time of 6 p.m. Thursday. In two unsigned orders issued around 10 p.m. (available here and here) the court denied both appeals. Judges Stephen Breyer, Sonia Sotomayor and Elena Kagan said they put the execution on hold based on Johnson’s diagnosis of COVID. Sotomayor and Kagan separately stated that they also granted residence based on Johnson’s other legal arguments.

Johnson, 52, was pronounced dead by lethal injection at 11:34 p.m. in a federal prison in Terre Haute, Indiana.

On Friday, the federal government plans to execute another man, Dustin Higgs, who also has COVID-19. Litigation over Higgs’s execution continues.

Johnson, a former member of a crack cocaine ring in Virginia, was sentenced to death for his involvement in a series of murders in his twenties. Apparently seeking revenge on drug trafficking rivals and those who failed to pay their debts, Newtone gang members killed 10 people in the Richmond area in 45 days in 1992. Johnson was convicted of his roles in the murder of seven people: Peyton Johnson Louis Johnson, Bobby Long, Dorothy Armstrong, Anthony Carter, Linwood Chiles and Curtis Thorne.

Two other gang members, Richard Tipton and James Roane, who were convicted of the murders, are also on federal death row, but with no scheduled execution. Roane joined a group of men on federal death row last June who unsuccessfully appealed to the Supreme Court and questioned the legality of the federal government’s fatal injection protocol. The four other men who were part of this appeal – Alfred Bourgeois, Dustin Lee Honken, Daniel Lewis Lee, and Wesley Purkey – were all executed.

Johnson’s lawyers asked the judges to postpone his execution for three reasons.

On their first appeal, Johnson’s attorneys raised two questions: intellectual disability and eligibility for re-conviction. They argued that Johnson was not eligible for the death penalty because severe child abuse and low IQ made him mentally retarded and therefore banned from execution under federal death penalty law. And they argued that Johnson had the right to seek reduction in sentences under the First Step Act, a major criminal justice reform bill passed in 2018. A panel of the U.S. 4th Circuit Court of Appeals on Tuesday declined to postpone execution on these bases, and the full 4th Circle narrowly denied Johnson’s retry motion on Thursday. In a final appeal to the Supreme Court on Thursday afternoon, Johnson asked the judges to suspend his execution so the courts could determine whether he was mentally capable of being killed or re-convicted. In an unsigned one-sentence order, the court refused to intervene over the established differences of opinion between Sotomayor and Kagan.

On the second appeal, Johnson and Higgs attorneys argued that killing their clients by fatal injection while their lungs were still recovering from coronavirus damage would expose them to unconstitutional ailment in violation of the gruesome prohibition of the Eighth Amendment and unusual punishment. On Tuesday, federal district judge Tanya Chutkan agreed to temporarily suspend executions while Johnson and Higgs recovered. The federal government quickly appealed to the U.S. District of Columbia Circuit Court of Appeals, and a panel of that court reinstated the executions 2-1 late Wednesday night. Johnson and Higgs’ request for a rerun on Thursday morning before the full DC Circuit was denied that afternoon. Johnson then asked the Supreme Court to resume Chutkan’s residence. A majority of the judges declined to intervene, this time with Breyer joining Sotomayor and Kagan to note a dissent.

Higgs’ execution, scheduled for Friday night, is currently being blocked by court orders over a legal issue of whether the federal government can conduct the execution under Indiana law despite Higgs being sentenced in Maryland. The government has appealed and asked the judges to continue the execution. If the Supreme Court joins the government, Higgs will be the third person to be executed this week, the fifth during President Donald Trump’s lame duck period and the 13th since the Justice Department announced the executions in July 2019 of the federal government again. Before the Trump administration, the last time the federal government carried out an execution during a lame duck period was in 1889, according to the Death Penalty Information Center.

Posted in Johnson vs US, Johnson vs Rosen, US vs Higgs, Featured, Capital Cases

Recommended citation:
Kalvis Golde, Court Permits Execution of Corey Johnson to Continue After COVID-19 Diagnosis,
SCOTUSblog (January 14, 2021, 11:54 p.m.), / .

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