Case of 79-Year-Old Ohio Death-Row Prisoner With Dementia Highlights Legal Issues Exacerbated by the Aging of Death Row

Seventy-nine-year-old James Frazier (pic­tured) is Ohio​’s old­est death-row pris­on­er. He has demen­tia, he can­not walk, and he requires the assis­tance of aides to com­plete dai­ly tasks. Because of his spe­cial med­ical needs, he is incar­cer­at­ed at the Franklin Medical Center, rather than on Ohio’s death row at the Chillicothe Correctional Institution. Ohio is sched­uled to exe­cute him on October 20, 2021.

An April 19, 2020 sto­ry in the Cleveland Plain Dealer high­lights Franklin’s case and the grow­ing prob­lems asso­ci­at­ed with the aging of the nation’s death row: how many pris­on­ers are at risk of devel­op­ing phys­i­cal and men­tal health prob­lems that impair their under­stand­ing that they are con­demned to die and why? The lengthy appeals process — nec­es­sary to iden­ti­fy and redress con­sti­tu­tion­al defects com­mon in death-penal­ty tri­als — has result­ed in pris­on­ers aging in soli­tary con­fine­ment on death row and fac­ing the phys­i­cal and men­tal decline that can come from the com­bi­na­tion of old age, oppres­sive phys­i­cal con­di­tions, and the extreme stress of facing execution. 

About one-quar­ter of the nation’s 2,620 death-row pris­on­ers are age 60 or old­er, the same pro­por­tion as in Ohio. And death row is grow­ing old­er with more and more pris­on­ers devel­op­ing demen­tia and oth­er men­tal dis­or­ders that threat­en their com­pe­ten­cy and may ren­der attempts to car­ry out their exe­cu­tions cru­el and unusual punishment.

According to Bureau of Justice Statistics data, 39 pris­on­ers aged 60 and old­er were on death rows across the United States in the mid-1990s, a fig­ure that had risen to 110 by the end of 2003. Between 2007 and 2013, the per­cent­age of death-row pris­on­ers who were 60 or old­er more than dou­bled, increas­ing from 5.8% to 12.2%. It has dou­bled again in the six years since then. 

Frazier’s attor­neys argue that his exe­cu­tion ​“would con­sti­tute cru­el and unusu­al pun­ish­ment because he lacks a ratio­nal under­stand­ing of the state’s ratio­nale for his exe­cu­tion.” Dr. Joette James, a neu­ropsy­chol­o­gist who has exam­ined Frazier since 2016, said his cog­ni­tive abil­i­ties have declined even fur­ther over the last three years. His speech and thought process­es, she wrote in a report, are ​“ram­bling, dis­or­ga­nized and inco­her­ent.” He failed cog­ni­tive tests such as count­ing back­wards from 20 and nam­ing the months of the year in reverse order. His attor­neys believe he may have had a stroke before he was moved to the prison med­ical facil­i­ty in 2018. 

Assuming Frazier lives to his sched­uled exe­cu­tion date, the out­come of his case may depend on the U.S. Supreme Court’s February 2019 deci­sion in Madison v. Alabama. Vernon Madison was an Alabama death-row pris­on­er whose severe demen­tia from a series of strokes left him with no mem­o­ry of the crime for which he was sen­tenced to death and com­pro­mised his under­stand­ing of why he was to be exe­cut­ed. In Madison’s case, the Court ruled that its ear­li­er deci­sion bar­ring the exe­cu­tion of pris­on­ers who lacked ​“a ratio­nal under­stand­ing of the rea­son for [their] exe­cu­tion” was not lim­it­ed to cas­es of psy­chot­ic men­tal ill­ness, but applied equal­ly to those whose under­stand­ing was com­pro­mised by demen­tia. Madison died on death row in February 2020 at the age of 69, before a state court hear­ing could be held to deter­mine his com­pe­ten­cy to be executed. 

“One of the side effects of our death-penal­ty sys­tem is that it takes a long time,” said cap­i­tal appeals defense lawyer Michael Benza, a Case Western Reserve University senior instruc­tor in law. ​“We’re going to see more and more peo­ple like Vernon Madison and James Frazier, and we won’t be able to car­ry out their exe­cu­tions.” Angie Setzer, a lawyer for the Equal Justice Initiative that rep­re­sent­ed Madison, said, ​“What is the puni­tive val­ue of exe­cut­ing some­one like Mr. Madison, whose cog­ni­tive decline pre­vents him from under­stand­ing what is hap­pen­ing to him and why?” 

If Frazier is exe­cut­ed, he would be the sec­ond-old­est per­son exe­cut­ed in the U.S. In 2018, Alabama exe­cut­ed 83-year-old Walter Moody. Ohio has not car­ried out an exe­cu­tion since July 2018. All exe­cu­tions since that time have been resched­uled due to prob­lems with the state’s lethal-injec­tion pro­to­col and the unavail­abil­i­ty of lethal-injec­tion drugs. In November 2017, the state botched the attempt­ed exe­cu­tion of 69-year-old ter­mi­nal­ly ill death-row pris­on­er Alva Campbell (pic­tured, left), whose debil­i­tat­ed phys­i­cal con­di­tion pre­vent­ed exe­cu­tion­ers from find­ing a usable vein to set the exe­cu­tion IV line. Campbell’s exe­cu­tion was resched­uled for June 2019, but he died of his ill­ness­es in March 2018.