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.

Background

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.

Concurrences

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.

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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).

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