Does Memory Matter?  Implications of Dementia on the Imposition of the Death Penalty

*Bridget Mentzer

I.  Vernon Madison’s Crime

In 1985, Vernon Madison was convicted of killing a Mobile, Alabama, police officer.  Matthew Vadum, Supreme Court Considers Whether Dementia Makes Death Penalty Cruel, Epoch Times (Oct. 3, 2018),  The officer was guarding Madison’s then-girlfriend following a domestic dispute, when Madison snuck up behind the officer and shot him twice in the head.  Id.  Madison was convicted of capital murder and sentenced to death.  Id.  Madison and his attorneys filed many appeals in the following years, all unsuccessful.  Id.  Madison’s situation changed, however, in 2015 following a series of debilitating strokes.  Id.  These strokes left Madison with significant brain damage leading to long-term memory loss, as well as other chronic conditions that “have rendered him bewildered and confused most of the time.”  Transcript of Oral Argument at *3, Madison v. Alabama, 2018 WL 4746437 (Oct. 2, 2018) (No.17-7505); see also Vadum, supra.

II.  Legal Overview of Cruel and Unusual Punishment

The Eighth Amendment prohibits the infliction of cruel and unusual punishment.  U.S. Const. amend. VIII.  What constitutes cruel and unusual punishment, specifically accounting for one’s mental state, has taken shape over the years–most notably with Ford v. Wainwright and Panetti v. QuartermanSee generally Ford v. Wainwright, 477 U.S. 399 (1986); Panetti v. Quarterman, 551 U.S. 930 (2007).  In Ford, the Supreme Court held that the Eighth Amendment bars the imposition of the death penalty on those deemed mentally incompetent.  See Ford, 477 U.S. at 406, 409.  Later, in Panetti, the Court held that the retributive purposes of punishment are not served when the prisoner’s mental state “is so distorted by mental illness that his awareness of the crime and punishment has little or no relation to the understanding shared by the community as a whole.”  Panetti, 551 U.S. at 958–59; see also Mark Walsh, Supreme Court Considers Whether Prisoner with Dementia and No Memory of His Crime Should Be Executed, ABA J., Oct. 2018, at 20, 20–21,  In other words, the Eighth Amendment requires a rational understanding by the mentally ill prisoner as to why he is being executed; he must be able to comprehend “the meaning and purpose of the punishment to which he has been sentenced.”  Panetti, 551 U.S. at 960.

III.  Madison v. Alabama

Turning to Madison’s case, the Court heard oral arguments the first week of October 2018 to address two questions.  Transcript of Oral Argument at *4, Madison v. Alabama, 2018 WL 4746437 (Oct. 2, 2018) (No.17-7505).  First, whether someone who does not remember the details of their crime satisfies Ford and Panetti, such that the death penalty cannot be imposed?  Id.  And secondly, whether vascular dementia, as opposed to insanity, meets the Ford standard of incompetency such that the death penalty cannot be imposed?  Id.  The Court as well as the parties quickly addressed the first question, agreeing that lack of memory of a crime is not sufficient to meet the Ford and Panetti standards.  Id. at *8; *22–23; *32.  Addressing the second question presented, Mr. Stevenson, Madison’s attorney, argued that the Ford standard of incompetency is met when the form of dementia or other severe mental illness renders the individual “incapable of orienting to time or place or rationally understanding the circumstances of their offense.”  Id. at *25.  Mr. Govan of the Alabama Attorney General’s Office conceded this point, stating “if someone has vascular dementia or any other mental illness, if it precludes them from having a rational understanding of their punishment, and that they will die when they’re executed, they would meet the Ford and Panetti standard.”  Id. at *36.

The narrower point that the parties truly disagree on is whether or not Madison has a rational understanding of his punishment.  Amy Howe, Argument Analysis: A Narrow Victory Possible for Death-Row Inmate with Dementia, SCOTUSblog (Oct. 2, 2018, 5:27 PM),  Stevenson argued that while Madison is capable of reiterating what he is told of his crime and punishment, he has no actual independent knowledge of it.  Transcript of Oral Argument at *18, Madison v. Alabama, 2018 WL 4746437 (Oct. 2, 2018) (No.17-7505).  Govan then contended that while Madison does have dementia, it is not severe as to render him incompetent, and that he “has an understanding of what matters.”  Id. at *42.  Stevenson countered Govan’s point, arguing that to be able to suffer the death penalty, one must be able to sustain the understanding of and connection between the crime committed and punishment rendered; Madison has no such understanding.  See id. at *29.  Stevenson supported his argument by providing the justices with a harsh example that while Madison can tell people he has a toilet in his cell and that he can use it, he still soils himself frequently because he is unable to retain the knowledge of where the toilet is when he has to use the bathroom.  Id. at *17.  Govan remained steadfast in his claim that Madison is competent enough to suffer the death penalty, because the State still has a strong interest in retribution for the commission of a terrible crime.  Id. at *44.

Stevenson reserved time for a convincing rebuttal, stating that the death penalty is a great power that the State may wield, but that it must be wielded “fairly, reliably, and humanely.”  Id. at *59–60; see also Vadum, supra.  Although the State has an interest in imposing retributive punishment for those that commit terrible crimes, the State’s additional interest of treating people, particularly fragile and vulnerable people, humanely cannot be reconciled with executing an incompetent individual such as Madison.  Transcript of Oral Argument at *8, *60–61, Madison v. Alabama, 2018 WL 4746437 (Oct. 2, 2018) (No.17-7505); see also Vadum, supra.

The Court issued its decision just three weeks ago on February 27, 2019.  Madison v. Alabama, 139 S. Ct. 718 (2019).  The Court’s holding further develops the requisite analysis for what constitutes cruel and unusual punishment, particularly in regard to one’s mental state, under the Eighth Amendment.  See generally Ford, 477 U.S. 399; Panetti, 551 U.S. 930; Madison, 139 S. Ct. 718.   The Court answered the first issue presented, holding that under the Ford and Panetti standard, the Eighth Amendment may allow the execution of a prisoner even if he cannot recall committing the crime.  Madison, 139 S. Ct. at 727, 731.  The Court explained that the key aspect of a proper analysis is whether or not the prisoner has the ability to understand the purpose of the punishment to which he has been sentenced; not whether he can remember the crime for which he was sentenced.  Id. at 727.  An individual’s memory loss, however, may be a consideration in a Panetti analysis in determining whether the prisoner’s memory loss along with other mental defects denies him of the ability to understand why he received the death penalty.  Id. at 727–28.

This lends towards the Court’s second holding: the Eighth Amendment may prohibit imposing the death penalty on a prisoner suffering from a mental illness other than psychotic delusions (the mental state at issue in Panetti).  Id. at 728, 731; Panetti, 551 U.S. at 954–56.  The Court emphasized that the Panetti analysis is not concerned with the specific cause or type of the prisoner’s mental illness.  Madison, 139 S. Ct. at 728.  Rather, the proper analysis hinges on the mental illness’s effect on the prisoner’s ability to comprehend why he is to be executed.  Id. at 728–29.  Finally, the Court held that the opinion rendered by the state court was unclear as to its determination of Madison’s competency under PanettiId. at 731.  The state court’s ruling merely stated that Madison failed to prove insanity such that his execution should be stayed.  Id. at 729.  The opinion did not clearly delineate whether that finding was based on the effects of Madison’s mental illness (the correct analysis) or if that finding was made based on whether Madison had the “right kind” of mental illness (legal error).  Id. at 729–30.  Therefore, the Court remanded the case to determine if Madison’s dementia qualifies him as incompetent under the Panetti standard.  Id.

While the State has an interest in retributive punishment, it will be interesting to see what the state court determines based on the Court’s clarified legal standard of cruel and unusual punishment.  See Vadum, supra.  See generally Madison, 139 S. Ct. 718.  It would be surprising to see a ruling from the state court that Madison is competent enough to proceed with the execution; given that Madison sees that he has a toilet in his five-by-eight cell but cannot comprehend its existence there to actually make use of it.  Transcript of Oral Argument at *6, *17, *44, Madison v. Alabama, 2018 WL 4746437 (Oct. 2, 2018) (No.17-7505).

*Bridget Mentzer is a second-year day student at the University of Baltimore School of Law, where she is a staff editor for Law Review and a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society. This summer, she looks forward to serving as a summer associate with Miles & Stockbridge.

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