Jan. 13 (UPI) -- The Justice Department on Wednesday appealed a stay of execution issued for two men scheduled to die this week, one of whom also sought relief from the punishment because of intellectual disability.
Lawyers for the federal government asked the U.S. Circuit Court of Appeals for the District of Columbia to vacate a stay issued by a lower court Tuesday.
District Judge Tanya Chutkan of the District of Columbia blocked the executions of Corey Johnson on Thursday and Dustin Higgs on Friday because it's unclear how much COVID-19 may have damaged their lungs. Unless a higher court overturns her ruling, Chutkan's injunction is in effect though March 16.
The two men's lawyers said executing them while they recover from the novel coronavirus violates the Eighth Amendment, which protects against cruel and unusual punishment. Chutkan said that since the virus affects people in "drastically different ways," it's "irresponsible at best" to execute Johnson and Higgs less than a month after they contracted it.
The government's motion to vacate the stay described the defense attorneys concerns about the possible effects of pentobarbital on people who've had COVID-19 as "speculative" and "therefore falls far short of the 'exceedingly high bar' for last-minute injunctive relief."
Johnson's lawyers also sought a stay citing his intellectual disability and the fact that no court has heard evidence of that claim. The 4th U.S. Circuit Court of Appeals denied that request Tuesday.
The 52-year-old's attorneys said his initial trial lawyers questioned a psychologist who used outdated standards to conclude that he was not intellectually disabled. New evidence, they said, includes test results showing he had an IQ of 69 at age 16 and expert evaluations to show that the original conclusion was incorrect.
Robert Dunham, executive director of the Death Penalty Information Center, told UPI Wednesday that Johnson's case is part of a trend in which states and the federal government are unconstitutionally executing people with intellectual disability. In 2002, the U.S. Supreme Court ruled that putting to death people who can't understand the punishment violates the Eighth Amendment.
Dunham said prosecutors in some states have successfully argued for intellectually disabled death row inmates to be executed because their cases had been decided before the Supreme Court's ruling.
A DPIC analysis of more than 130 overturned death penalty cases released in September also found that a disproportionate number of persons of color with intellectual disability have been sentenced to death. In those cases, 80% were persons of color, of which two-thirds were Black.
"Our conclusion is that the prohibition against executing intellectually disabled people is being violated almost with impunity and it's also our conclusion that it is tremendously racially discriminatory," Dunham said.
Another execution scheduled for later this month -- that of Blaine Milam in Texas -- has also been challenged on an intellectual disability claim. Dunham said Texas denied his claim based on outdated information -- the state changed how it assesses such disabilities in the past decade.
Milam is set to be executed Jan. 21.
Johnson was sentenced to death in 1993 for 10 murders tied to his participation in a Richmond, Va., drug gang. Accomplices James Roane and Richard Tipton also received the death penalty for their involvement.
Johnson's lawyers said a childhood of abuse and neglect led to intellectual disability, and at age 13, his mother put him in a facility for children with intellectual and emotional impairments.
The lawyers also described Johnson's punishment as "arbitrary" because another accomplice, Vernon Thomas, received a life sentence because of his intellectual disability.
If executed Thursday, Johnson would be the second person put to death in 2021 and 12th person by the Trump administration.