From [HERE] For the second time in less than five weeks, the federal government has executed a death-row prisoner who likely was intellectually disabled, without affording him judicial review to determine his eligibility for the death penalty. Corey Johnson (pictured) was pronounced dead from lethal injection at 11:34 p.m. on January 14, 2021, the 12th federal prisoner executed in six months and the fifth in the transition period between Donald Trump's defeat in the November 2020 presidential election and the scheduled inauguration of Joseph R. Biden on January 20, 2021.

The only other time in U.S. history that as many as five transition-period executions took place was in 1884-1885 during the transition between Chester A. Arthur and the first presidency of Grover Cleveland.

In an order issued at 10:00 p.m., four hours after Johnson was scheduled to be executed, the U.S. Supreme Court denied Johnson’s emergency application for a stay of execution to permit him to present evidence that the constitution prohibited his execution because he has intellectual disability. Justices Kagan and Sotomayor dissented. The U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that the execution of people with intellectual disability violates the Eighth Amendment proscription against cruel and unusual punishments. Johnson also argued that his execution would violate a 1988 federal statute that forbids applying the federal death penalty to prisoners with intellectual disability. 

Earlier in the evening, in an 8-7 vote, the judges of the U.S. Court of Appeals for the Fourth Circuit declined to reconsider a three-judge panel’s ruling refusing to grant Johnson an evidentiary hearing on his claim. In dissent, Judge James A. Wynn wrote, supplying emphasis, that “Corey Johnson is an intellectually disabled death row inmate who is scheduled to be executed later today.” Newly available evidence, he wrote “convincingly demonstrates … that he is intellectually disabled under current diagnostic standards. But no court has ever considered such evidence. If Johnson’s death sentence is carried out today, the United States will execute an intellectually disabled person, which is unconstitutional.”

On December 11, 2020, the federal government executed Alfred Bourgeois despite evidence that he may have been ineligible for the death penalty because of intellectual disability. During his earlier appeals, a federal court in Texas denied Bourgeois’ claim of intellectual disability, relying on a series of lay stereotypes that had no clinical validity and whose use the Supreme Court later declared unconstitutional. When he sought to obtain judicial review of his condition based upon current clinical definitions of the disorder, another federal district court found that he had made a “strong showing” of intellectual disability and granted him permission to litigate that claim. A federal appeals court reversed, saying Bourgeois had already been provided an opportunity to litigate his claim, and the U.S. Supreme Court allowed the execution to go forward.