Supreme Court Decides that Executing a Person With Dementia Could Be Unconstitutional
The United States Supreme Court has reversed a decision of the Alabama state courts that would have permitted the execution of Vernon Madison (pictured), a death-row prisoner whose severe dementia has 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. The Alabama courts had narrowly construed the Supreme Court’s past rulings that prohibited the execution of prisoners who had become mentally incompetent, limiting those rulings to cases in which a mentally ill prisoner’s lack of understanding of why he was being executed had been caused by psychosis or delusions. In a 5-3 decision on February 27, the Supreme Court ruled that the Eighth Amendment forbids the execution of a prisoner who does not have “a rational understanding of the reason for [his] execution,” irrespective of its cause. Writing for the Court, Justice Elana Kagan said: “What matters is whether a person has the ‘rational understanding’ [the constitution] requires—not whether he has any particular memory or any particular mental illness.”
In 2015 and 2016, Madison suffered multiple severe strokes that caused him brain damage, vascular dementia, and retrograde amnesia. The strokes also left him with slurred speech, legally blind, incontinent, and unable to walk independently. In addition to having no memory of the offense, he can no longer recite the alphabet past the letter G, soils himself because he does not know there is a toilet in his cell, asks that his mother—who is dead—be informed of his strokes, and plans to move to Florida when he is out of jail. Madison’s lawyers argued that he had become incompetent to be executed. At a hearing in state court, he presented evidence that he had no memory of the crime for which he was sentenced to death. The state’s expert agreed that Madison exhibited cognitive decline but said there was no evidence that his impairments were a product of psychosis or delusions. State prosecutors also argued to the state courts that the Supreme Court’s caselaw limited incompetency to be executed to cases involving psychotic mental illness. Emphasizing the absence of evidence of delusions or psychosis, the Alabama courts denied Madison’s competency claim.
The five-justice majority declared that competency determinations are governed by what a prisoner understands, not by what physical or mental health condition impairs his understanding. Lack of memory of a crime, Justice Kagan wrote, is not in itself proof of incompetence, although it may be evidence of it. “If Alabama is to execute Madison,” the majority said, “the Eighth Amendment requires, and the state must find, that he’ll understand why.” Expressing no opinion on the ultimate question of Madison’s competency, the Court returned the case to the state courts for a new competency determination using the correct legal standard. In a fiery dissent the majority dismissed as “high dudgeon,” Justice Alito, joined by Justices Thomas and Gorsuch, accused the Court of “mak[ing] a mockery of our rules” and rewarding a defense “trick” by deciding the case based on an argument he claimed was not raised in Madison’s petition for certiorari. Kagan responded that Madison’s petition had “presented two questions — the same two we address here.” Justice Kavanaugh did not participate in the case.
Madison’s lawyer, Bryan Stevenson of the Equal Justice Initiative, said he was “thrilled that today the Court recognized that people with dementia like Vernon Madison, who cannot consistently orient to time and place, are protected from execution and cruel and unusual punishment under the Eighth Amendment.” Stevenson said that “[p]risoners with dementia or severe mental illness are extremely vulnerable,” and called the Court’s decision “enormously important if our system is going to function in a humane and just manner.” Alabama Attorney General Steve Marshall derided Madison’s competency claim as an attempt to “evade” justice and predicted that Alabama’s state courts would again rule that Madison is competent to be executed.
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After More Than Three Decades, Two Death-Row Prisoners Freed in California
Two former California death-row prisoners who had spent a combined 70 years in prison are now free men, after federal courts overturned their convictions and local prosecutors agreed to plea deals on non-capital charges. James Hardy (pictured, left) was freed on February 14, 2019 after pleading guilty to two counts of first-degree murder in exchange for a suspended sentence and release on probation. Freddie Lee Taylor (pictured, right) was released on February 20 after pleading guilty to manslaughter and a sentence of time served. Both men have claims of innocence, but their plea deals make them ineligible for DPIC’s Innocence List. Each spent more than 30 years on death row.
James Hardy was convicted and sentenced to death in Los Angeles in 1984 for the murder of Nancy Morgan and her son, Mitchell Morgan. Hardy was tried along with two co-defendants, Mark Reilly and Clifford Morgan, the husband and father of the victims. Clifford was convicted of hiring Reilly and Hardy to kill his family so he could collect insurance money. Prosecutors argued that Hardy was the actual killer and Reilly the middleman in the conspiracy. On appeal, Hardy argued that his trial attorney had been ineffective because he had failed to investigate or present evidence that the prosecution’s key witness was actually the killer. The California Supreme Court overturned Hardy’s death sentence, and a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit later overturned his conviction, writing, “Hardy’s attorney failed him, and the State of California failed Hardy by putting a man on the stand that it should have known committed the crime.” The court said, “there is a substantial likelihood that the jury would not have convicted Hardy had [his trial lawyer] performed effectively.” Rather than retry Hardy, the Los Angeles District Attorney’s office agreed to a plea deal.
Freddie Lee Taylor was convicted and sentenced to death in Contra Costa County in 1986. Taylor had experienced severe trauma and abuse as a child, started using drugs by the age of 10, and was housed from age 13 to 17 in a juvenile detention center that was described in court records as a “gruesome, dehumanizing and frightening world where rape, beatings and fear were constant.” He was arrested in 1984 during a “family dispute” and was sent to a mental institution, where he attempted suicide. Despite doctors’ recommendations that he be placed in a mental hospital because he was a danger to himself or others, he was released by hospital staff. He burglarized the home of 84-year-old Carmen Vasquez, leaving fingerprints in her home. When she was murdered days later, he was identified as a suspect because his fingerprints were at the crime scene. Taylor’s long history of mental illness was ignored at his trial, where his lawyer never requested and the court did not independently order a competency evaluation. His appeal lawyers argued that his conviction was invalid because he was not competent to stand trial. A federal judge reversed Taylor’s conviction in 2016 and the Ninth Circuit upheld that decision in 2018, saying there was insufficient evidence to accurately assess Taylor’s mental health at the time of the crime and his trial. The federal court gave Contra Costa County prosecutors 60 days to decide whether to retry him, but they instead agreed to the plea deal. “Had he not had the benefit of zealous appellate lawyers dedicated to his cause, Freddie Lee Taylor may well have been executed,” Chief Public Defender Robin Lipetzky said. “His is but one case. Others like him who have meritorious claims may not be so fortunate. There are over 700 more people on death row — many waiting for an attorney to be appointed to their case and others still waiting for their cases to be finally resolved by the courts.”
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Virginia Senate Passes Bill to Bar the Death Penalty for Severely Mentally Ill Offenders
By a vote of 23-17, the Virginia State Senate has approved a bill that, if enacted, would ban capital punishment for defendants with severe mental illness. With the support of all nineteen Democratic senators and four Republicans, the bill passed the GOP-controlled Senate on January 17, 2019. It now moves on to the Commonwealth’s House of Delegates, which is comprised of 51 Republicans and 49 Democrats.
SB 1137 defines severe mental illness as “active psychotic symptoms that substantially impair a person’s capacity to (i) appreciate the nature, consequences, or wrongfulness of the person’s conduct; (ii) exercise rational judgment in relation to the person’s conduct; or (iii) conform the person’s conduct to the requirements of the law.”However, the bill excludes disorders that are “manifested primarily by repeated criminal conduct or attributable to the acute effects of voluntary use of alcohol or any drug.”Under the proposal, the determination of severe mental illness would be made in the sentencing phase of trial, after the defendant already has been convicted. The jury (or the judge, if the defendant waives the right to a jury trial) would decide if the defendant has proven “by a preponderance of the evidence” that he or she was severely mentally ill at the time of the offense. A defendant found to be severely mentally ill would be sentenced to life without parole. The bill also provides for indigent defendants with mental illness claims to receive assistance from a mental health expert appointed by the court.
The bill’s sponsor, Sen. Barbara Favola (D – Arlington), called the proposal “a vehicle for us to administer justice in a way that’s humane and, I would say, in a way that reflects the values of Virginians.” Sen. Scott Surovell (D – Fairfax), said the mental illness exemption would have limited impact in Virginia because of the decline in death sentences across the state, but was a necessary mental-health reform. “The reality is we have a broken mental health system in this country,” he said. “We have a broken mental health system in this state. We don’t give it enough money.” Senate Minority Leader Richard Saslaw (D – Fairfax), who called himself “a pretty strong proponent of capital punishment,” supported the bill, saying that, when it comes to defendants who are severely mentally ill, “probably we ought to think twice.”
Virginia is second only to Texas in the number of executions carried out since 1976, but it has had a sharp decline in the use of the death penalty in recent years. No one has been sentenced to death in Virginia since 2011, and just two men remain on the state’s death row. In July 2017, lawyers for William Morva, a seriously mentally ill death-row prisoner suffering from a delusional disorder that his lawyers said left him unable to distinguish his delusions from reality, unsuccessfully sought a commutation from Governor Terry McAuliffe. Previously, Governors James Gilmore and Timothy Kaine commuted the death sentences of Calvin Swann and Percy Walton, citing concerns about serious mental illness. Other states are also considering legislation that would ban the death penalty for seriously mentally ill defendants. In 2017, bills were introduced in seven states, including Virginia, calling for such measures. The American Bar Association in 2016 issued a white paper in support of a mental-illness exemption.
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Supreme Court Lets Death Sentence Stand for Prisoner Whose Attorney Presented No Mitigating Evidence
Over a sharp dissent by three justices, the United States Supreme Court has let stand the death sentence imposed on a Georgia prisoner who was suffering from dementia, brain damage, and borderline intellectual functioning, but whose trial lawyer failed to present any mitigating evidence. On January 7, 2019, the Supreme Court denied the petition for writ of certiorari filed on behalf of death-row prisoner Donnie Cleveland Lance seeking the Court’s review of the Georgia Supreme Court's denial of relief in his case. Justice Sonia Sotomayor – joined by Justices Ruth Bader Ginsburg and Elena Kagan – dissented, writing that “the Court’s refusal to intervene permits an egregious breakdown of basic procedural safeguards to go unremedied.”
Lance was sentenced to death by a Georgia court for the 1997 murder of his ex-wife and her boyfriend. Lance’s trial lawyer – a solo practitioner who was convinced he could persuade the jury of Lance’s innocence – asked the trial court to appoint a second lawyer to handle any potential penalty phase. The court denied that request and also denied a defense motion for funds to retain expert witnesses to challenge the range of experts hired by the prosecution in the case. After the court denied his motions, Lance’s lawyer conducted no penalty-phase investigation and did nothing to prepare for the penalty phase. Following Lance’s conviction, counsel made no penalty-phase opening statement, called no witnesses, and presented no mitigating evidence. In his cursory closing argument, counsel asked the jury to think of Lance’s family and to not seek vengeance.
New counsel represented Lance in his state post-conviction proceedings and presented extensive evidence of Lance’s serious cognitive impairments. Four mental health experts agreed that Lance had brain damage in his frontal lobe, that his IQ was on the borderline for intellectual disability, and that he suffered from clinical dementia. While the three defense experts agreed that Lance’s brain damage significantly impaired his ability to control his impulses and conform his conduct to the law, the state’s expert disagreed about the extent of his impairment. The trial court overturned Lance’s death sentence, ruling that counsel had provided ineffective representation. However, the Georgia Supreme Court reversed, holding that while counsel’s performance was deficient, the presentation of mitigating evidence would have been futile given the facts of the murder. On federal habeas corpus review, the Georgia federal courts ruled that the Georgia Supreme Court had not unreasonably applied Supreme Court precedent when it upheld Lance’s death sentence.
The three-justice dissent from the U.S. Supreme Court’s decision not to intervene argued that the Georgia Supreme Court decision was “an objectively unreasonable application” of U.S. Supreme Court precedent and had “mischaracterized or omitted key facts and improperly weighed the evidence.” The evidence of Lance’s “‘serious’ and ‘significant’” mental impairments, Justice Sotomayor wrote, “reasonably could have affected at least one juror’s assessment of whether Lance deserved to die for his crimes, and Lance should have been given a chance to make the case for his life.” Instead, she said, “Lance may well be executed without any adequately informed jury having decided his fate.”
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