Forgiveness for Those Who Forget
The Eighth Amendment reads, “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This seemingly straightforward sentence is being reexamined by the Supreme Court in Madison v. Alabama. The Court is tasked with deciding if the prohibition against “cruel and unusual punishments” includes executing a man who cannot remember committing the crime.
The State of Alabama is attempting to execute Vernon Madison, a sixty-seven-year-old man who has been on death row for thirty years. Madison was convicted of murder after he shot a police officer twice in the back of the head. Madison was set to be executed in May 2016, but had several strokes, which erased his recollection the crime. He also suffers from dead brain tissue, small vessel ischemia, blindness, and various mobility issues. Madison argued his memory loss rendered him incompetent for execution under an Alabama statute. After the circuit court denied his claim, he filed a writ of habeas corpus. After review, the Eleventh Circuit concluded Madison was incompetent to be executed because he had no memory of the offense. On appeal, the Supreme Court examined his case within the context of Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and, ultimately, reversed the Eleventh Circuit.
After the Supreme Court’s reversal, the State rescheduled Madison’s execution in January 2018. After it was revealed that the medical expert whom the State relied on in denying Madison’s competency lost his license, Madison appealed to the Supreme Court again. On his second appeal, he asked the Court to consider his case “outside of the AEDPA context.” Specifically, he inquired if the Eighth Amendment permits capital punishment if the prisoner has no memory of the offense.
This issue requires the Court to rely on its previous rulings in Ford v. Wainwright and Panetti v. Quarterman. In Ford, the Court concluded the Eighth and Fourteenth Amendments prohibited executing the insane. In the majority opinion, Justice Thurgood Marshall wrote such an execution does not serve a retributory purpose because the insane cannot comprehend the punishment. While the facts of Ford differ, Madison can apply this reasoning because he is similarly unable to understand his crime. Madison also can also cite Panetti. In that case, Scott Louis Panetti was scheduled to be executed, but a psychiatric evaluation found Panetti believed the government was executing him to prevent him from preaching the Gospel. Panetti appealed his death sentence arguing his mental illness prevented him from rationally understanding why he was to be executed. Ultimately, the Court found the Fifth Circuit’s application of Ford was flawed because it failed to consider if Panetti’s mental condition prevented him from understanding his crime. The Court’s holding, narrow as it may be, still is toehold for Madison.
During oral arguments, Bryan Stevenson, Madison’s counsel, noted that Madison is largely unaware what day of the week, season, or even year it is, leaving him in a perpetual state of confusion. Stevenson continued to argue that even if Madison understood the reasoning for capital punishment in an abstract sense, his disability prevents him from understanding his own execution. In response, the State’s counsel said, “The state would still have a strong interest in seeking retribution for a horrible crime even if they can’t remember the crime, that doesn’t somehow lessen their ability to understand.”
This case was argued on October 2, 2018, before Justice Brett Kavanaugh’s confirmation, meaning Madison needs five out of eight possible votes to prevail. While commentators have predicted that Madison has the votes of the four liberal justices, it is unclear how Chief Justice Roberts will vote. In order to prevent deadlock, some commentators have predicted the Court may remand the case with instructions to consider if Madison is incompetent because of his dementia.
Alternatively, if the Court broadly holds Madison is incompetent because of his dementia, it is a slight, but clear, win for those who oppose the death penalty. In 2016, 8%, or 226 prisoners, on death row were over the age of sixty-five. Studies show that starting at age sixty-five, the risk of developing dementia doubles every five years. This means as prisoners age, the probability of developing dementia increases exponentially, which is significant because prisoners can be on death row for decades. In fact, an NIH study predicted the probability of a seventy-year-old male having dementia was 26.9%. If the rates of dementia are similar between the general population and prisoners, then roughly a quarter of prisoners over the age of seventy could potentially claim this defense. Realistically, the rates of dementia are probably higher among prisoners, because prisoners age at faster rates. While this defense would not be available for the majority of death row inmates, for the elderly it may be their best defense.
Regardless of how broad the opinion will be, commentators and activists have good reason to follow this case closely.