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.”

Madison has already spent 33 years on death row. His con­vic­tion has been over­turned twice, first because pros­e­cu­tors uncon­sti­tu­tion­al­ly exclud­ed Black jurors from serv­ing on his case, then because pros­e­cu­tors pre­sent­ed improp­er expert tes­ti­mo­ny. At Madison’s third tri­al, his jury rec­om­mend­ed a life sen­tence, but an Alabama judge over­rode that rec­om­men­da­tion and imposed a death sen­tence, a prac­tice no longer allowed by any state.

(Richard Wolf, Supreme Court appears sym­pa­thet­ic to death row pris­on­er who can­not remem­ber his crime, USA Today, October 2, 2018; Mark Sherman, Supreme Court Could Limit Execution of People With Dementia, Associated Press, October 2, 2018; Adam Liptak, Justices Weigh Case of Condemned Inmate Who Cannot Recall His Crime, New York Times, October 2, 2018; Amy Howe, Argument analy­sis: A nar­row vic­to­ry pos­si­ble for death-row inmate with demen­tia?, SCOTUSblog, October 2, 2018; Mark Joseph Stern, John Roberts, Swing Vote: The chief jus­tice looks poised to join the lib­er­als in a major death-penal­ty case, Slate, October 2, 2018; Robert Barnes, Supreme Court con­tem­plates whether man who can­not remem­ber crime may be exe­cut­ed, Washington Post, October 2, 2018.) Read the tran­script of the oral argu­ment in Madison v. Dunn. See U.S. Supreme Court and Mental Illness.

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