Supreme Court Report

Supreme Court considers whether prisoner with dementia and no memory of his crime should be executed

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Madison was convicted for killing Julius Schulte, a Mobile, Alabama, police officer who was protecting Madison’s ex-girlfriend and her 11-year-old daughter after a domestic dispute. Madison crept up behind Schulte and shot him twice.

The merits brief filed on behalf of Madison by Bryan A. Stevenson, the high-profile author and executive director of the Equal Justice Initiative, documents the death row inmate’s mental decline, including strokes that have left him with vascular dementia and long-term severe memory loss, disorientation and impaired cognitive functioning.

Testing by a defense expert after Madison’s most recent stroke, in 2016, revealed that the prisoner could not recall any of the 25 elements in a brief story vignette that was read to him; he could not remember the alphabet past the letter G; and he could not remember the name of the previous U.S. president.

Ultimately, the defense expert testified in a lower court proceeding that Madison does not “seem to understand the reasoning behind the current proceeding as it applies to him” and does not understand why he was slated for execution.

The 11th U.S. Circuit Court of Appeals at Atlanta granted habeas relief to Madison, holding that a trial court’s finding that the prisoner was competent to be executed was “plainly unreasonable” and could not be reconciled with Panetti v. Quarterman.

In that 2007 decision, the Supreme Court ruled that the retributive purpose of capital punishment was not well served where “the prisoner’s mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole.”

Panetti had built on a 1986 Supreme Court decision, Ford v. Wainwright, which held that the Eighth Amendment bars the death penalty for those who are mentally incompetent at the time of execution.

In Dunn v. Madison, Alabama appealed the 11th Circuit’s habeas decision to the high court. In an unsigned opinion on Nov. 6, 2016, a majority of the court said the Alabama trial court “did not unreasonably apply Panetti and Ford when it determined that Madison was competent to be executed because—notwithstanding his memory loss—he recognizes that he will be put to death as punishment for the murder he was found to have committed.”

The high court held in the per curiam decision in Dunn v. Madison that Madison could get no habeas relief under AEDPA’s deferentialstandard, though it said it was expressing no view on the merits of the underlying question outside the context of AEDPA.

This is the decision in which Ginsburg and Breyer issued their concurrences suggesting, respectively, that a case in an appropriate posture that presented the question about competency would warrant review, and the aging death row population was a cause for concern.

Breyer, however, went on in his concurrence to say that rather than the court developing a “constitutional jurisprudence that focuses upon the special circumstances of the aged,” he thought it wiser to “reconsider the root cause of the problem—the constitutionality of the death penalty,” as he outlined at length in his 2015 dissent in Glossip v. Gross.


Lawyers for Madison, meanwhile, with a looming Jan. 25 execution date for their client, again challenged his competency to be executed, this time before the Mobile County Circuit Court. Along with medical arguments, they presented evidence challenging the credibility of a state court-appointed psychologist.

The trial court rejected the arguments. In his stay application and cert petition to the Supreme Court, Madison was perhaps helped, somewhat ironically, by Alabama’s tough death penalty procedures. State law does not permit any appeal in state courts, and thus the U.S. Supreme Court was the only place Madison could get review of the state trial court’s determination that he was competent to be executed.

On the merits, Stevenson and other EJI lawyers argue that “no penological justification or retributive value can be found in executing a severely impaired and incompetent prisoner, especially where advances in neurological science now make clear the nature of this incompetency. The execution of Vernon Madison consequently is prohibited by the Eighth Amendment’s essential commitment to human dignity.”

The American Psychological Association and American Psychiatric Association filed a joint amicus brief in support of Madison, arguing that it is cruel and unusual punishment to execute an individual with severe vascular dementia. The brief pointed out that mental health experts can help courts in identifying prisoners with severe dementiathrough the use of modern brain imaging, standardized clinical assessments and tests to detect “malingering,” or faking a condition.

“Someone with the advanced vascular dementia that Mr. Madison has really doesn’t have what the court has long required to allow for an execution, which is a rational understanding of the reasons for his execution,” says Daniel S. Volchok, a Wilmer Cutler Pickering Hale and Dorr partner who co-wrote the brief.

The Alabama attorney general’s office argues that Madison understands he is being punished for a murder he committed and for which he has never accepted responsibility.

“He is neither delusional nor psychotic,” Attorney General Steve Marshall stated in the brief. “Although some other dementia patient could be incompetent, the state court was well within reason to hold that Madison is not.”

Also that “the death penalty is justified by the state’s interests in retribution and deterrence, and those interests are not diminished when a convicted murderer cannot remember committing his crime.”

An amicus brief supporting Alabama filed by Texas and 13 other death penalty states argues that courts commonly use the “rational understanding” standard for deciding a defendant’s competence to stand trial, plead guilty or waive counsel, and “it follows that a prisoner’s failure to remember his capital offense does not render him incompetent to be executed.”


This article was published in the October 2018 ABA Journal magazine with the title "Too Old to Execute?"

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