Forgetting the Crime: Death Penalty and Memory

Written by Cynthia Moore

On November 6, 2017, the Supreme Court decided Dunn v. Madison and held that, despite the inability to remember his crime, Vernon Madison was eligible to be executed by the State of Alabama.


More than 30 years ago, Vernon Madison snuck up behind Julius Schulte, a police officer, and shot him twice at close range, killing him. Madison has been awaiting execution since 1985, when a jury convicted him of capital murder. In prison, Madison had a series of strokes, which caused him to suffer from vascular dementia, blindness, slurred speech, incontinence, and an inability to walk on his own. The strokes also caused him to forget the crime he was convicted of.

Procedural History

In 2016, nearing his execution date, Madison petitioned the trial court to suspend his death sentence, arguing that he had become incompetent for execution. The trial court denied his petition, citing two major Supreme Court cases, Ford v. Wainwright and Panetti v. Quarterman. Ford prohibited execution of the insane, and Panetti required prisoners to have a comprehension of the meaning and purpose of the punishment in order to be eligible for execution.

After hearing testimony from two psychologists who examined Madison’s competence, the trial court held that Madison was not entitled to relief because he failed to show that he “suffers from a mental illness which deprives [him] of the mental capacity to rationally understand that he is being executed as a punishment for that crime.” Additionally, the court held that he understood three important facts: (1) he would be executed for the murder he committed; (2) the State sought retribution for this crime; and (3) he would die when executed.

Madison subsequently petitioned the District Court for the Southern District of Alabama for a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996, arguing that his mental condition barred him from execution. This Act entitles state prisoners to relief if they can show that the “state court’s decision was ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement’” —a demanding standard.

The District Court denied his petition, reaffirming the state court’s holding. However, the Eleventh Circuit granted a certificate of appealability and reversed the District Court’s ruling. Alabama appealed and the Supreme Court unanimously reversed the Eleventh’s Circuit’s ruling, holding that Madison could be executed by the State of Alabama because he recognized that he would be executed as punishment for the murder he was convicted for. The Court also held that “[n]either Panetti nor Ford ‘clearly established’ that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case.”

Constitutional Protections

The Eighth Amendment secures the right to be free from cruel and unusual punishment, which courts have interpreted to prohibit states from carrying out the death sentence on individuals who are not able to “rationally understand” why he/she is being punished (a standard applied by the Supreme Court in Panetti v. Quarterman). In Panetti, the Court held that a prisoner must have a rational understanding of the punishment, because without this understanding, it would undermine the purpose of executions. Nonetheless, the Supreme Court refused to set down a broad rule governing all competency determinations.


Justice Ruth Bader Ginsburg, Justice Stephen Breyer, and Justice Sonia Sotomayor all concurred with the majority opinion in Madison, noting that this case stands for a “substantial question not yet addressed by the Court.” They noted that the limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 prevented consideration of whether the death penalty may be imposed on a person who has no memory of the offense.

Justice Breyer wrote a separate concurrence, stating that this case represents the problems with the administration of the death penalty. He argued that rather than focusing on specific circumstances of aging prisoners, it would be better to call into question the constitutionality of the death penalty itself. This is not the first time that Justice Breyer has questioned the constitutionality of the death penalty. He is known for urging reconsideration of the death penalty, opining in 2016 that it is “unreliable, arbitrary and shot through with racism.”

The Death Penalty in the United States

While 16 states do not have the death penalty, as of 2015, there were still 2,881 individuals sentenced to death in 2015. Moreover, there were 26 executions and 82 removals from death sentences by means other than execution in 2015. The Department of Justice has noted, however, that death sentences seem to be on a downward trend, as this is the 15th consecutive year in which the number of inmates sentenced to death decreased.

Aging on Death Row

As of 2013, almost one third of the oldest offenders (age 65 or older) were serving sentences of life imprisonment or were awaiting the death penalty. Aging in prison will likely become a more prominent issue, as the population aged 65-84 in the U.S. will grow from 11.3% in 2010 to an estimated 16.4% in 2050. The percentage of individuals aged 85 and over is estimated to grow from 1.8% in 2010 to 4.5% in 2050.

Alzheimer’s disease, a degenerative brain disease, is common among older adults. It is the most common cause of dementia, which is characterized by decline in memory and other cognitive skills. The projected number of adults age 65 and older with Alzheimer’s disease is estimated to almost triple from 4.7% in 2010 to 13.8% in 2050.

Given these trends, it is likely that this issue will be heard by the Supreme Court again very soon.


Sources Cited

Dunn v. Madison, No. 17-193, 2017 U.S. LEXIS 6630 (2017).

Panetti v. Quarterman, 551 U.S. 930 (2007).

Ford v. Wainwright, 477 U.S. 399 (1986).

Madison v. Comm’r, Ala. Dep’t of Corr., 851 F.3d 1173 (11th Cir. 2017).

Ex Parte Madison, 718 So. 2d 104 (Ala. 1998).

Alzheimer’s Ass’n, 2016 Alzheimer’s Disease Facts and Figures, 5, 23 (2016).

Ann Carson & William J. Sabol, U.S. Dep’t of Just., Aging of the State Prison Population, 1993–2013, at 1, 5 (May 2016).

Sandra L. Colby & Jennifer M. Ortman, U.S. Dep’t of Com., The Baby Boom Cohort in the United States: 2012 to 2060, at 9 (May 2014).

Tracy Snell, U.S. Dep’t of Just., Capital Punishment, 2014–2015, at 1 (May 2017).

Alisa Johnson, SCOTUS Allows Execution of Prisoner with No Memory of Crime, Bloomberg BNA (Nov. 6, 2017).

Adam Liptak, Once Again, Justice Breyer Presses Case Against Death Penalty, N.Y. Times (Dec. 12, 2016).

Adam Liptak, Justices Allow Execution of Inmate Who Cannot Recall His Crime, N.Y. Times (Nov. 6, 2016).

Is Alcohol the New Tobacco?

Written By Jordan J. O’Connor

On October 25, 2017, New York City’s Metropolitan Transportation Authority (MTA) decided to ban all alcohol advertisements on its public transportation, set to take effect January 1, 2018. While this may only be a regional change, New York City’s MTA is the country’s largest transportation authority, and many people are wondering whether this will spark country-wide changes, similar to the ban on tobacco advertisements in the early 1990s.

How are these bans implemented?

Alcohol bans by transit authority have been enforced through three levels of policymaking: (1) contract requirement, (2) agency policy, and (3) government policy. Contract requirements are stated in the contract between the MTA and the advertiser. Agency policies are formally adopted by the administering body of the MTA, i.e., the board of directors. Finally, government policies are codified by the government body that has dominance over the MTA. This decision to ban alcohol advertisement on New York City’s public transportation came from the board of directors of the MTA.

New York City is, by no means, a trailblazer in this arena. Consequently, advocacy groups and opponents alike have been looking to other cities to make their best estimation as to how successful this ban will or will not be.

For example, stemming from a gubernatorial executive order, Maryland sought to prohibit alcohol advertisements on public transportation state-wide. Similarly, big cities such as Los Angeles, Boston, and Philadelphia imposed bans on alcohol advertising.

Though the aforementioned bans remain intact, two different large cities have overturned their bans. Washington D.C. overturned its ban on alcohol advertising in 2015, citing economic necessity as the reasoning. Chicago Transit Authority did the same; however, it chose to keep some restrictions in place, such as continuing to prohibit alcohol advertisements on buses and preventing alcohol advertisements from exceeding 9.99% of total advertising on the Chicago transit system at any one time.

So, is New York City’s ban a good thing?

Advocates of the ban have long compared it to tobacco ads, claiming that the advertisements are encouraging underage drinking. Alcohol ads, like the previous tobacco ads, portray typical users as attractive, young, and healthy people who like to have fun. Advocates have also argued that the ads target minority and lower-income communities, as was previously done by the tobacco companies.

In addition, one of the groups that was pushing for the ban, “Building Alcohol Ad-Free Transit,” found ad placements that it felt had the potential for sending harmful messaging to children who use the MTA as their means of transportation to school. Specifically, the group’s website displays examples, such as one where a poster for the kid-friendly movie “The Lorax” appears next to an ad for Michelob Ultra.

In contrast, opponents of the ban state that the real party affected by the ban is the alcohol industry. “Science and research show that there is no benefit to banning this type of advertising,” Jay Hibbard, vice president of government relations for the Distilled Spirits Council, said in an interview with the New York Times. “This is not advertising on school buses….This is advertising on a public transportation system.”

Opponents also argue that, statistically, New York’s underage drinking has declined by over 20 percent in the last ten years, and binge-drinking has reached an all-time low. Opponents use these and other facts to assert that it is the parents, and not the advertisements, that have the greatest influence on underage drinking.

So, will the New York City MTA ban on alcohol advertising stand the test of time, or will it crumble? Only time will tell.


Sources Cited

Luis Ferré-Sadurní, M.T.A. Will Ban Alcohol Advertising on Buses and Subways, N.Y. Times (Oct. 25, 2017).

Danielle Furfaro, MTA will ban all alcohol advertisements from stations, N.Y. Post (Oct. 25, 2017).

Lyndsey Layton, New FDA rules will greatly restrict tobacco advertising and sales, Wash. Post (Mar. 19, 2010).

Paul Dugan, Metro board clears way for alcohol advertising in transit system, Wash. Post (Nov. 19, 2015).

E.J. Schultz, As alcohol ads sprawl elsewhere, New York buses and trains go dry, AdAge (Oct. 26, 2017).

Alcohol Justice, These Bus Ads Don’t Stop For Children: Alcohol Advertising on Public Transit (Oct. 2013).

Nixon signs legislation banning cigarette ads on TV and radio, History: This Day In History.

Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012).

Family Smoking Prevention and Tobacco Control Act, H.R. 1256, 111th Cong. (2009).

Is There Something Arbitrary about the NFL’s Arbitration Process?

Written By Tessa J. Kajdi


Philadelphia Eagles lineman, Lane Johnson (“Johnson”), served a four-game suspension in 2014 for violating the National Football League’s (“NFL”) Policy on Performance-Enhancing Substances. Subsequently, during the 2016 season, Johnson was issued a 10-game ban by the NFL, which was upheld by the appointed arbitrator. This 2016 arbitration proceeding is the source of conflict between Johnson, the NFL, and the NFL Players Association (“NFLPA”). On January 6, 2017, Johnson sued both the NFL and the NFLPA in the U.S. District Court for the Northern District of Ohio. Upon a motion of the NFLPA, Johnson’s suit was moved to the U.S. District Court for the Southern District of New York in July of 2017. He subsequently filed a memorandum of law in support of his motion to vacate the arbitration award with the Southern District of New York on October 26, 2017.

In his filings, Johnson alleges that the NFLPA “disregarded the policy’s express arbitrator provisions,” and that the NFL as well as the arbitrator failed to disclose a conflict of interest between the arbitrator’s law firm and the league. Johnson alleges this failure to follow policy was a breach of duties under the Collective Bargaining Agreement (“CBA”) of the NFL and a breach of fair representation by the NFLPA. As to the NFL’s alleged breach, Johnson claims that the league failed “to allow an independent toxicologist to review Johnson’s alleged positive ‘B’ sample,” and, among other things, failed “to provide all relevant documents related to the dispute to Johnson’s attorneys for review.”

However, according to the NFLPA, Johnson “waived his objections” to the arbitrator “when consenting to him as the arbitrator.” The union contends that Johnson’s complaint should be dismissed for two additional reasons. One, Johnson knew of the arbitrator’s affiliation with a law firm that previously worked with the NFL. Two, Johnson has not proven that the arbitrator himself “worked on any of the matters the firm has handled for the NFL.”

NFL’s Policy on Performance-Enhancing Substances

The collectively-bargained NFL Policy on Performance-Enhancing Substances sets out clear provisions for “procedures in response to positive tests or other evaluation[s].” Additionally, it discusses “discipline for violations of law and other documented evidence-based violations” and shows a step-by-step process for related disciplinary actions.

Conflicting Precedents

Recently, in the NFL, there have been two methods for players challenging arbitration rulings they find unfair. The first method, evidenced by players like Tom Brady and Ezekiel Elliott, is to sue the NFL to challenge the arbitration process with the NFLPA’s support. The second and rarer method, evidenced by Mike Pennel and Lane Johnson, is to sue both the NFL and NFLPA.

In May 2015, Tom Brady was given a four-game suspension by the NFL for violating league policy. Brady and the NFLPA appealed the suspension, and the NFL agreed to have Commissioner Roger Goodell oversee the appeal. After Goodell upheld the suspension, the NFLPA and Brady sued the NFL in federal court, alleging that Goodell’s oversight was biased and violated Brady’s right for a fair arbitration hearing. The district court overturned Brady’s suspension in September 2015. However, this ruling was overturned by the Court of Appeals, which stated that Goodell was acting within his power under the CBA and, therefore, Brady was not deprived of his right to due process. Brady and the NFLPA did not appeal the decision to the Supreme Court.

Ezekiel Elliott was suspended by the NFL in August 2017 for violating the league’s domestic violence policy. Elliott appealed his suspension, and the NFL upheld it. Elliott and the NFLPA have since sued the NFL, asking for an injunction on Elliott’s suspension until the court has determined whether the NFL properly suspended Elliott. The NFL moved to dismiss the injunction request and decide the issue of whether the NFL has the power to suspend Elliott.

Mike Pennel was suspended for four games by the NFL in February 2016 for violating the NFL’s Policy on Performance-Enhancing Substances. He subsequently appealed the suspension. On November 30, 2016, Pennel sued the NFL and the NFLPA. He alleged that the NFL did not maintain a pool of three arbitrators to hear his appeal as required by the Policy on Performance-Enhancing Substances. At the time of the appeal, the NFL only had two arbitrators on the panel. The NFL added a third arbitrator after Pennel’s complaint. Subsequently, Pennel voluntarily dismissed his complaint against the NFL and the NFLPA.

Potential Impacts of Johnson’s Lawsuit

Although the NFLPA has been sued before by a player it represents, this method of challenging the arbitration process in the NFL is still uncommon. If Johnson is able to prevail on his claims against the NFL and the NFLPA, this may spark a trend in the way players challenge arbitration decisions in the future. Furthermore, Johnson’s lawsuit and its decision may affect future collective bargaining agreements between the NFL and NFLPA, in addition to influencing whether players trust the NFLPA to support them in dispute resolution.


Sources Cited

Zachary Zagger, Union Defends NFL Arbitration In Drug Suspension Suit, Law 360, Oct. 26, 2017.

National Football League, Policy on Performance-Enhancing Substances (2016).

Marc Edelman, Lane Johnson’s New NFL Lawsuit Is Page Out Of A-Rod Playbook, Forbes, Jan. 7, 2017.

Michael McCann, Lane Johnson’s bold move to sue his own union is rare, but not unprecedented, Sports Illustrated, Jan. 11, 2017.

Ben Volin, Tom Brady officially files suit against the NFL, Boston Globe, July 29, 2015.

Zachary Zagger, NFL, Union Add Arbitrator In Drug Row, But Battles Remain, Law 360, Dec. 2, 2016.

Zachary Zagger, Packers Player Drops NFL Drug Suspension Dispute, Law 360, Dec. 19, 2016.

John Breech, Roger Goodell Will Hear Tom Brady’s Appeal; No Neutral Arbitrator, CBS Sports, May 15, 2015.

Photo courtesy of CBS Sports.