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73% of North Carolina's Death Row Sentenced Under Obsolete Laws, New Report Says

Posted: October 16, 2018

Most of the 142 prisoners on North Carolina’s death row were convicted under obsolete and outdated death-penalty laws and would not have been sentenced to death if tried today, according to a new report by the Center for Death Penalty Litigation. The report by the Durham-based defense organization, titled Unequal Justice: How Obsolete Laws and Unfair Trials Created North Carolina’s Outsized Death Row, says that nearly three-quarters of the prisoners on the nation’s sixth-largest death row were tried and sentenced before the state enacted significant reforms in prosecution, defense, and trial practices. “[I]f these people on death row had been tried under modern laws, most of them would be serving life without parole sentences instead of facing execution,” said Gretchen Engel, the Center’s executive director.

Seventy-three percent of the men and women on North Carolina’s death row (103 prisoners) were tried and sentenced to death before July 2001, when North Carolina repealed a 1990s-era law that had required prosecutors to pursue the death penalty in every aggravated murder case, irrespective of reasons that might call for mercy, and created a statewide office to represent indigent defendants in capital trials and appeals. North Carolina was the only state in the country that denied prosecutors the discretion to decide when to seek the death penalty, and as a result, there were more than fifty capital trials in the state each year, including cases involving defendants who were seriously mentally ill or intellectually disabled or were comparatively minor participants in a murder. Capital trials fell to an average of sixteen per year in the decade following the change. The creation of the capital defender office that same year dramatically improved the quality of representation, and further reduced the number of cases in which death verdicts were returned. Since then, North Carolina has enacted additional reforms aimed at ensuring fairer trials in capital cases. In October 2004, the state became the first in the country to require prosecutors to make all witness files, police reports, other investigative records, and physical evidence available to capital defendants prior to trial. In 2008, it adopted a series of eyewitness identification and interrogation protocols designed to prevent mistaken identifications and false or coerced confessions.

The report states that during the 1990s, before the reforms were enacted, “courtrooms were dominated by prosecutors like Ken Honeycutt in Stanly County, who celebrated new death sentences by handing out noose lapel pins to his assistant prosecutors.” “Today,” Engel said, “we are living in a different world .... Public support for the death penalty is at a 50-year low, and North Carolina has stopped executing people. Juries now see life without parole as a harsh and adequate punishment for the worst crimes.” That, however, has produced its own historical inequities. In terms of moral culpability, Engel said, the defendants facing trial in 1995 and 2015 “are equal. And yet, one of them is being subjected to execution and other is not and that is an unfairness that as a fair society, we can not tolerate.”

 

Nebraska County Raises Property Taxes, Seeks State Bailout to Pay Wrongful Conviction Compensation

Posted: October 15, 2018

A Nebraska county has raised property taxes on its residents and asked the state legislature for a bailout to help pay a $28.1 million civil judgment it owes to six men and women wrongly convicted of rape and murder after having been threatened with the death penalty. The so-called Beatrice Six” (pictured) successfully sued Gage County for official misconduct that led to their wrongful convictions in the 1985 rape and murder of Helen Wilson. The large damages award exceeds Gage County's entire annual budget by $1 million. This year, Gage County Supervisors passed a property tax increase of 11.76 cents per $100 of valuation—the maximum increase allowed without putting the issue to voters. The tax increase is expected to generate about $3.8 million next year, but county leaders worry about its impact on residents and have announced plans to ask lawmakers and Governor Pete Ricketts for state funding or a loan to help pay the civil judgment. Greg Lauby, a former attorney who organized residents to seek solutions to the problem, said, “If we continue on the path we’re on with no assistance from the state, it will drive at least some farmers to bankruptcy. We have homeowners who are struggling to put food on their table and clothe their children, and that’s an amount that will make a difference.”

Five of the Beatrice Six exonerees—James Dean, Kathy Gonzalez, Debra Shelden, Ada JoAnn Taylor, and Tom Winslow—agreed to plea bargains or pled no contest after prosecutors threatened them with the death penalty. A sixth, Joseph E. White, maintained his innocence, but was convicted at trial based on false testimony about his alleged involvement in the crime. The six were exonerated by DNA evidence in 2008 after spending a combined 70 years in prison. The damages were awarded by a federal jury in 2016, just months before Nebraska voters passed a referendum to overturn the legislature's 2015 abolition of the death penalty and reinstate capital punishment. The county is responsible for the payment because prosecutors are immune from liability for wrongful convictions, and the sheriff involved in the case died in 2012. State Senator Ernie Chambers—one of the leaders of the death-penalty repeal efforts—said he opposes a state bailout. “This was strictly a county matter,” Chambers said. “They made their bed, now they have to sleep in it.” He added that, despite widespread coverage of the exonerations, Gage County voters overwhelmingly supported the reinstatement of the death penalty in 2016. “They haven’t learned a thing,” he said. Ultimately, as the McCook (Nebraska) Gazette wrote in an October 8, 2018 editorial, “[t]he Beatrice Six case and others like it spotlight the need to elect ethical and competent sheriffs and county attorneys and hold them accountable.”

 

Washington Supreme Court Declares State's Death Penalty Unconstitutional

Posted: October 12, 2018

Finding that the death penalty "is imposed in an arbitrary and racially biased manner," a unanimous Washington Supreme Court has struck down the state's capital-punishment statute as violating Washington's state constitutional prohibition against "cruel punishment." The court's ruling, authored by Chief Justice Mary E. Fairhurst and issued on October 11, 2018, declared: "The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution." The decision also converted the sentences of all eight people on the state's death row (pictured) to life imprisonment without possibility of release. The court's action makes Washington the twentieth U.S. state to have judicially or legislatively abolished the death penalty, and the eighth to have done so this century. Governor Jay Inslee, who imposed a moratorium on all executions in 2014, hailed the ruling, saying, "Today’s decision by the state Supreme Court thankfully ends the death penalty in Washington. ... This is a hugely important moment in our pursuit for equal and fair application of justice.” 

The court issued the ruling in the case of Allen Gregory (pictured, bottom row, second from the right), an African-American man sentenced to death for the rape and murder of a white woman. In declaring the death penalty unconstitutional, the court cited recent research that found Washington juries were more than three times more likely to impose a death sentence on a black defendant than on a white defendant in a similar case. "Given the evidence before this court and our judicial notice of implicit and overt racial bias against black defendants in this state, we are confident that the association between race and the death penalty is not attributed to random chance," the opinion stated. The opinion also cited "arbitrary decision-making, random imposition of the death penalty, unreliability, geographic rarity, and excessive delays" as systemic constitutional flaws supporting the court's decision.

Washington has not carried out an execution since 2010. King County Prosecutor Dan Satterberg said that the court's ruling had finally brought to an end "Washington's four-decade experiment with the death penalty." Satterberg, a Republican, who with Democratic Attorney General Bob Ferguson supported bipartisan legislation to abolish Washington's death penalty, said "I think the criminal justice system will be stronger without capital punishment." The abolition bill, which was the subject of legislative hearings during the 2018 state legislative session, passed the Washington Senate and the House judiciary committee, but did not receive a vote in the full House.

 

On World Day Against the Death Penalty, Malaysia Announces Abolition Plan, European Union Reaffirms Abolitionist Stance

Posted: October 11, 2018

Marking World Day Against the Death Penalty, the government of Malaysia on October 10, 2018 announced its intention to abolish capital punishment in the Muslim nation of 30 million people. A continent away, the Council of Europe and the European Union issued a joint declaration reaffirming Europe's "strong opposition to capital punishment in all circumstances." The European government organizations also urged their members to implement measures to prevent trade in goods that could be used to carry out executions. As worldwide abolitionist organizations marked the occasion to highlight the living conditions of prisoners on death row, Malaysian officials announced that the country plans to end its use of the death penalty in its entirety. "All death penalty will be abolished. Full stop," said Law Minister Datuk Liew Vui Keong. He said the measure has been approved by the cabinet to be considered during the next Parliamentary session, which begins on October 15. Communications Minister Gobind Singh Deo told the Associated Press, "This is part of our election pledge and also in line with the move away from capital punishment in the rest of the world." Malaysia currently holds about 1,200 people on death row, and mandates capital punishment for crimes including murder, drug trafficking, kidnapping, and terrorism. In their joint statement, the Council of Europe and the European Union called the death penalty "an affront to human dignity" that "constitutes cruel, inhuman and degrading treatment and is contrary to the right to life. The death penalty has no established deterrent effect and it makes judicial errors irreversible." A country must have abolished capital punishment as a condition of membership in the European government organizations, and the statement urged Belarus—the only European country that still uses the death penalty—to impose a moratorium on the death penalty "as a decisive step towards aligning the country with pan-European standards." The statement also called on member states to "continue taking effective measures to prevent their involvement, however indirect, in the use of the death penalty by third countries. .... In this context," the statement said, "the Council of Europe and the EU will continue promoting the 'Global Alliance to end trade in goods used for capital punishment and torture'." Europe's trade stance has directly affected executions in the United States, as European countries have blocked the export of lethal-injection drugs to the United States.

 

Texas Courts Rule for Two Death-Row Prisoners on Intellectual Disability, Junk-Science Claims

Posted: October 10, 2018

Two Texas prisoners took steps away from death row as state courts ruled in their favor on issues involving false or faulty scientific evidence and argument. On October 5, 2018, the Texas Court of Criminal Appeals (CCA) granted a stay of execution to Juan Segundo (pictured, left), directing a Tarrant County trial court to reconsider a claim of intellectual disability that the courts had previously rejected based on an unconstitutional, unscientific standard for measuring his functioning. Four days later, an El Paso trial judge found that prosecutors had “presented false and misleading evidence and argument” concerning the cause of death of a 19-month-old whom Rigoberto Robert Avila (pictured, right) had been convicted of killing, and recommended that the CCA grant Avila a new trial.

Texas had been set to execute Segundo on October 10. Segundo’s lawyers had long argued that he is intellectually disabled and therefore exempt from execution under the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia. However, the Texas courts had dismissed that claim, relying on a series of nonclinical factors—some based on the fictional character Lennie Smalls from Of Mice and Men—to say that Segundo was not intellectually disabled under Texas law. In 2017, in the case of Moore v. Texas, the U.S. Supreme Court ruled that intellectual disability determinations must be “informed by the medical community’s diagnostic framework.” The Court struck down Texas’s approach, calling it an “outlier” that created “an unacceptable risk that persons with intellectual disability will be executed.” In Segundo’s case, the CCA wrote, “[i]n light of the Moore decision and the facts presented in applicant’s application, we have determined that applicant’s execution should be stayed pending further order of this Court.”

The CCA stayed Avila’s January 2014 execution based on a new law giving prisoners access to the courts to litigate new evidence that their convictions had been based on false or misleading forensic evidence. His was one of the first cases sent back to a lower court for reconsideration under the 2013 junk-science law. In his 2001 trial, prosecutors argued that Avila had killed his girlfriend’s infant son. “There’s no other way the kid could have died,” they told the jury. New evidence showed, however, that the infant could have died from injuries caused by his four-year-old brother. Judge Annabell Perez wrote that this new evidence “probably would have led jurors to harbor reasonable doubt about [Avila’s] guilt” if it had been available at trial. In a prepared statement, Avila’s lawyers wrote: “The new scientific evidence creates a compelling case for Mr. Avila’s innocence, and a judge has now found that the verdict against him rests on false and misleading testimony. After spending 17 years on death rowand facing four serious execution datesfor a crime he did not commit, Mr. Avila is anxious to present the reliable scientific evidence to a jury.”

 

Governor Rejects Jurors’ Plea for Clemency for Edmund Zagorski as Tennessee Court Allows Lethal Injections to Proceed

Posted: October 9, 2018

Ignoring declarations by six jurors in Edmund Zagorski’s 1984 trial that they would have spared Zagorski (pictured) if they could have sentenced him to life without parole, Tennessee Governor Bill Haslam rejected Zagorski’s petition for clemency on October 5, 2018. In conjunction with the Tennessee Supreme Court's October 8 ruling upholding the constitutionality of the state's lethal-injection protocol, Haslam’s decision moved the state closer to executing Zagorski on October 11. At the time of Zagorski’s trial, Tennessee law required jurors in death-penalty cases to choose between sentencing a defendant to death or risk the possibility that he could later be released on parole. The jurors in Zagorski’s case submitted sworn declarations in support of clemency, saying that they would have sentenced him to life without possibility of parole, rather than the death penalty, if they had been given the no-parole option. Juror Michael Poole told Nashville Scene, “Our concern was that at some point in time maybe this man would be released and could actually be out in society and commit such a crime again. ... [Zagorski] has paid a significant price up to this point, I feel, and the continuation of his imprisonment until he dies of natural causes I think is punishment enough.” Nancy Arnold, another juror, agreed. “[A]s far as the law was concerned, all we could do was what we did. We had no choice of life without parole. I would have definitely done that if it had been available.” Zagorski’s clemency plea was also supported by correctional officials who said he has been a model prisoner and has reformed during his 34 years on death row. Despite those statements, Gov. Haslam denied clemency, writing that “the jury in Zagorski’s case heard the evidence at trial and rendered a unanimous verdict in accordance with the law at the time and their duty as jurors. Ten courts, including the Tennessee Supreme Court and the Supreme Court of the United States, have reviewed and upheld the jury’s verdict and sentence, and the Tennessee Supreme Court has held that the addition of life imprisonment without the possibility of parole as a sentencing option does not affect previous verdicts.” The Tennessee Supreme Court on October 8 also removed a hurdle to Zagorski’s execution, ruling 4-1 that Tennessee's lethal-injection protocol is constitutional, and that prisoners did not prove an alternative was available, as required. In response to that ruling, Zagorski requested that the state execute him with the electric chair, saying, “I do not want to be subjected to the torture of the current lethal injection method.” In a statement, Zagorski’s lawyer, assistant federal defender Kelley Henry, said the Tennessee high court decision had left Zagorski to choose between “two unconstitutional methods of execution.” Describing the prospect of “10-18 minutes of drowning, suffocation, and chemical burning” as “unspeakable,” Henry said Zagorski found the electric chair to be “the lesser of two evils.” Zagorski is appealing the Tennessee Supreme Court’s decision.

 

Law Review: Junk Mental Health Science and the Texas Death Penalty

Posted: October 8, 2018

Junk science is “enabling and perpetuating grave miscarriages of justice” in Texas death-penalty cases. So concludes Professor James Acker in his article, Snake Oil With A Bite: The Lethal Veneer of Science and Texas’s Death Penalty, published in the latest issue of the Albany Law Review. Acker’s article highlights the heightened risks of injustice from pseudo-science and junk science in capital cases in Texas, one of the few states that conditions death eligibility upon a finding of the defendant’s future dangerousness. Acker writes that, “at virtually every ... stage of the state’s capital punishment process,” Texas prosecutors “have alternately enlisted expert witnesses and scientists who have helped move accused and convicted offenders progressively closer to the execution chamber, and ignored or discounted scientific norms and developments inconsistent with securing and carrying out capital sentences. All too often, the determinations made in support of death sentences are of dubious reliability—including opinions and conclusions based on what many would agree to qualify as junk science—thus greatly enhancing the risk of miscarriages of justice ....”

Acker’s article discusses Texas’s long history of abusing expert testimony in support of execution, starting with the case of Estelle v. Smith, in which Dr. James Grigson — later nicknamed “Dr. Death” — evaluated Ernest Smith for his competency to stand trial, did not notify counsel of the evaluation, failed to advise Smith of his right to remain silent, and then testified in the penalty phase “that Smith was a severe sociopath, that his condition could not be treated, and that he ‘is going to go ahead and commit other similar or same criminal acts if given the opportunity to do so.’” The U.S. Supreme Court overturned Smith’s death sentence in 1981 for violations of his right to counsel and his constitutional privilege against compelled self-incrimination. Two years later, in Barefoot v. Estelle, the Court permitted the use of psychiatric predictions of future dangerousness, despite warnings by the American Psychiatric Association that such testimony was speculative and highly unreliable. Grigson went on to testify in 167 capital cases, repeatedly responding to hypothetical questions posed by prosecutors (even after he was expelled from state and national professional associations because of this practice) that defendants whose institutional records he had never reviewed and whom he had never evaluated were certain to commit future acts of violence. Texas has also misused expert mental health testimony in capital cases to falsely argue that capital defendants posed an increased threat to society because of their race or ethnicity, Acker writes. He describes the testimony of Dr. Walter Quijano, a clinical psychologist who testified in seven cases that defendants were more likely to pose a danger to society because they were black or Latino. The Texas Attorney General’s office ultimately conceded error in all but one of those cases. Duane Buck’s case, however, reached the Supreme Court, where Chief Justice Robert condemned Quijano’s testimony as “powerful racial stereotyping.”

The Texas courts also systemically disregarded scientific standards or otherwise abused expert mental health testimony in determinations of intellectual disability and competency to be executed, Acker says. In the case of Moore v. Texas, the Supreme Court declared Texas’s approach to intellectual disability to be unconstitutional and ordered a reconsideration of Bobby Moore’s intellectual disability claim. With the prosecution, the defense, and multiple mental health groups all agreeing that Moore is intellectually disabled, the Texas Court of Criminal Appeals nevertheless upheld his death sentence. Finally, Acker writes, the state’s approach to competency has been an outlier, deeming Scott Panetti — who had been “hospitalized more than a dozen times [for mental illness and] been diagnosed as suffering from schizophrenia, bipolar disorder, auditory hallucinations, and delusions of persecution and grandeur” — competent to stand trial, to represent himself, and to be executed. Texas “has alternatively coopted, disregarded, and subverted science and prevailing disciplinary norms of the mental health professions,” Acker concludes. “The death penalty in Texas, imbued with powerful symbolism and political significance, has succeeded not only in condemning offenders, but also the principled teachings of science. ... Science and politics are a deadly mixture, in the nature of snake oil with a bite.”

 

Tennessee Supreme Court Hears Challenge to Lethal-Injection Protocol

Posted: October 5, 2018

The Tennessee Supreme Court heard oral argument on October 3, 2018 of an appeal brought by 32 death-row prisoners challenging the constitutionality of the state's execution protocol. In a move criticized by one of the court's justices as a “rocket docket,” the court removed the case from a lower court and set argument for one week before Tennessee's scheduled October 11 execution of Edmund Zagorski. Previously, the court denied a stay of execution to Billy Ray Irick, allowing him to be executed before the lethal-injection issues were resolved. Arguing for the prisoners, assistant federal defenders Kelley Henry and Dana Hansen Chavis told the court that “unassailable science” shows that midazolam, the first drug used in Tennessee executions, is insufficient to block the intense pain caused by the second and third drugs. The prisoners asked the court to consider medical evidence from Irick’s execution that Irick had been conscious while experiencing the torturous effects of the vecuronium bromide injected to induce paralysis and the potassium chloride used to stop his heart. Witnesses to Irick’s execution reported that he choked, moved his head, and strained his forearms against restraints while being put to death. The prisoners offered a sworn statement from Dr. David Lubarsky, one of the nation’s leading anesthesiologists, who offered an opinion “to a reasonable degree of medical certainty” that Irick “was aware and sensate during his execution and would have experienced the feeling of choking, drowning in his own fluids, suffocating, being buried alive, and the burning sensation caused by the injection of the potassium chloride.” “If the Eighth Amendment means anything,” Henry argued, “then the court will rule in favor of the plaintiffs.” Much of the argument focused on the requirement imposed by the U.S. Supreme Court that before a state’s chosen execution method can be declared unconstitutionally cruel and unusual, prisoners must prove that some other constitutionally-acceptable method is available to execute them. The Tennessee prisoners proposed that the state could switch to a one-drug protocol using pentobarbital, which both Georgia and Texas have recently used in carrying out executions. Alternatively, they suggested that Tennessee drop the paralytic drug from the execution process, citing testimony that its inclusion causes additional, unnecessary pain. Tennessee’s lawyers argued that the state had made a “diligent effort” to obtain pentobarbital but none of the approximately 100 suppliers the Tennessee Department of Correction contacted would provide the drug for use in executions. Associate Solicitor General Jennifer Smith provided no explanation for why suppliers refused the sale but said that “[t]he state bears no burden at all” to prove that the drug was unavailable. In an admission that countered one of the frequent claims of execution proponents, Smith said there was no evidence death penalty opponents had interfered with the state’s efforts to obtain the drug. In response to questions from Justice Holly Kirby about the prisoners’ burden of proving that the state could obtain pentobarbital, Henry explained that the state’s refusal to provide any information on its efforts created “procedural roadblocks” to proving that point. Justice Sharon Lee appeared to support the prisoners’ position on transparency, asking Smith how the state could fairly demand that the prisoners “prove what they can’t possibly prove because they can’t get the records.” A motion to stay Zagorski execution is pending before the court, and it is unclear whether the court will rule on the merits of the appeal before his execution date. An application for clemency has also been filed and is under review by Governor Bill Haslam.

 

Federal Judge Expresses Frustration at Procedural Constraints in Possible Innocence Case

Posted: October 4, 2018

In a case highlighting congressional limitations on the federal judiciary's ability to redress miscarriages of justice, a Texas federal judge has denied relief to a death-row prisoner who the court believes was denied a fair trial and may well be innocent. U.S. District Judge Keith P. Ellison (pictured) wrote on September 26, 2018, that he “would almost certainly have granted” a new trial to Robert Will, but the “constraints” imposed by 1990’s-era amendments to federal habeas corpus law left the court “powerless to address” what he called “the troubling possibility of [Will’s] actual innocence.” Ellison’s ruling urged the U.S. Court of Appeals for the Fifth Circuit to address Will’s claims, saying that his decision was a “technical ruling” that should not “obscure the extraordinarily significant issues that the Court of Appeals – unlike this Court – can properly consider.” In a trial in a Houston courtroom packed with uniformed police officers, Will was convicted and sentenced to death for the December 1999 murder of Harris County Sheriff's Deputy Barrett Hill. Investigators found no gunshot residue on Will and a footprint at the crime scene didn’t match his; Will claims that he was handcuffed when Deputy Hill was shot. Five witnesses later came forward with information that Will’s co-defendant had confessed to the crime, and additional evidence came to light during the habeas corpus proceedings that raised questions about a prosecution witness. However, Will’s state post-conviction lawyer, whose conduct Ellison said “appears to have been severely compromised by serious health conditions,” failed to investigate and raise those issues. Will’s case is also one of numerous Harris County death-penalty cases in which state judges adopted word for word the fact-findings proposed by the prosecution. Ellison said that, but for the limits on habeas review, he “would almost certainly have granted relief” on Will’s claim that “the presence of numerous uniformed law enforcement officers at his trial created an unconstitutionally coercive environment for the jury.” Ellison added: “The Court is particularly sensitive to the absence of any direct evidence of Will’s guilt, and the number of witnesses who aver that another man confessed to the underlying murder. ... The Court very much wishes it could take up all of these issues without the constraints of habeas review. With fewer constraints, the Court of Appeals can perhaps give these issues the time and attention that they merit. Nevertheless, this Court lacks jurisdiction to explore the troubling concerns that plague Will’s capital conviction.” Patrick McCann, former president of the Harris County Criminal Lawyers Association, said that Will’s case demonstrates that “[e]verything in the state procedure is inadequate and has been inadequate for the last three decades.” He called the requirement that federal judges defer to state court decisions “an absolute joke.” Ellison’s comments echo those of retired Ninth Circuit Judge Alex Kozinski who wrote in 2015 that Congress’s amendments to the habeas corpus law “abruptly dismantled” federal judicial review as a “safety-valve” against injustice and “pretty much shut out the federal courts from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred.” Instead, he wrote, federal courts “now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.”

 

Justices Appear to Favor Prisoner with Dementia in Case Seeking to Block Alabama Execution

Posted: October 3, 2018

The U.S. Supreme Court heard argument in Madison v. Alabama on October 2, 2018 on whether an Alabama death-row prisoner who has vascular dementia, brain damage, cognitive deficits, and memory loss from two near-fatal strokes is competent to be executed. During oral argument, Bryan Stevenson (pictured), the executive director of the Equal Justice Initiative, told the justices that, as a result of severe and progressively worsening dementia, Vernon Madison lacks a rational understanding of why Alabama intends to put him to death and is therefore incompetent to be executed. A majority of the justices appeared sympathetic to Madison's position, including Chief Justice John Roberts who is now regarded as the swing vote in death-penalty cases. The issues before the Court narrowed significantly as a result of concessions made by both sides at the argument. Madison's pleadings had argued that the Court's decisions in 1986 in Ford v. Wainwright and 2007 in Panetti v. Quarterman on competency to be executed applied beyond the limited circumstances of insanity and delusional mental illness at issue in those cases. "For purposes of retribution, there is no moral or constitutional distinction between a person who cannot 'recogni[ze] … the severity of the offence as a result of delusions and a person who is unable to do so as a result of dementia, cognitive decline, and memory deficits," his lawyers wrote. Alabama Deputy Attorney General Thomas Govan conceded that incompetency caused by severe dementia could also qualify. Stevenson, on the other hand, conceded in response to questioning by Justices Samuel Alito and Elena Kagan that merely having no memory of committing the offense does not make a prisoner incompetent to be executed. Rather, Stevenson said, the memory loss must be the product of a medical or physical condition that also affects the prisoner's understanding of why he or she is to be executed. Stevenson said Madison's severe vascular dementia has left him with no memory of having killed a police officer who responded to a domestic disturbance in 1985. An MRI has shown that Madison has suffered substantial brain damage, and psychological testing has documented significant cognitive decline accompanied by IQ-loss that now places him in the borderline range of intellectual functioning. Madison's dementia has also left him disoriented as to date and time and without the ability to rationally comprehend his legal situation. He is legally blind, Stevenson said, has slurred speech, cannot recite the alphabet past the letter G or retain basic information, cannot walk without assistance, and continually soils himself because he does not know how to use the toilet in his five-by-eight cell. Madison's physical disabilities, Stevenson said, provide evidence illustrating the extent to which Madison's vascular dementia has affected all aspects of his life. Stevenson argued that Alabama's courts improperly rejected Madison's evidence of incompetency, focusing only on whether his impairments were caused by insanity, psychosis, or delusions. Govan asserted in response that by reciting the correct legal standard from Ford and Panetti and making reference to the testimony concerning Madison's impairments, Alabama had in fact considered that evidence. He further disputed whether Madison is incompetent at all, stating that Alabama would find him competent to stand trial in his current condition. Stevenson closed the argument by telling the Court that the "awesome power" to execute a person who no longer poses an immediate threat must "be utilized fairly, reliably, and humanely." The Court, Stevenson said, reviews facts and circumstances "through the window of the Constitution ..... But the Eighth Amendment isn't just a window. It's a mirror." Our norms and values "are implicated when we do things to really fragile, really vulnerable people," Stevenson said. "And what we've argued is that dementia in this case renders Mr. Madison frail, bewildered, vulnerable in a way that cannot be reconciled with executing him because of his incompetency."

 

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