But “use of capital punishment is declining in America,” the University of Virginia law professor Brandon Garrett and co-author Ankur Desai wrote in a recent study. “Death sentencing has fallen to a modern low and executions are increasingly rare.” Twenty-six inmates were executed last year, 16 so far in 2018. Meanwhile, courts in 2017 sentenced 39 defendants to death. More than 2,700 defendants wait on death row—and the backlog is growing.
Two cases this fall may require the Supreme Court to tinker further. Madison v. Alabama, to be argued on October 2, asks whether states can execute demented murderers who no longer remember their crimes; Bucklew v. Precythe asks when, if ever, a prisoner’s individual physical condition makes execution by lethal injection “cruel and unusual.”
Vernon Madison murdered an Alabama police officer in 1985. The state twice procured death sentences by using unconstitutional tactics—first, excluding blacks from the jury and, second, sneaking improper evidence into the record. After a third trial, the jury recommended life in prison, but the trial judge imposed a sentence of death. That sentence was affirmed by state courts in 1998; Madison then filed federal challenges, which were finally rejected in 2015.
Meanwhile, Madison’s health collapsed. After a series of strokes, he is now unable to walk, and is also incontinent, legally blind, and so demented that he cannot recite the alphabet or rephrase a simple sentence. Perhaps most important legally, he can no longer remember the crime he committed, though he does understand that the state plans to execute him for murder.
Madison’s legal team—led by Bryan Stevenson of the Equal Justice Initiative—argues that “No penological justification or retributive value can be found in executing a severely impaired and incompetent prisoner.”
Alabama’s response is that the goals of capital punishment—retribution for the wrong and sending a warning to possible future offenders—are served as long as Madison knows why he is being executed, even if he doesn’t remember committing the acts. Madison’s particular condition may have been verified by doctors, the state argues, but dementia has many causes. Future claims of dementia and memory loss will be too easy to fake.
The high court has already held that states may not execute the mentally ill or the intellectually disabled; the leap to the demented would seem inevitable. But Justice Anthony Kennedy, the force behind these limits, has left the court, and death jurisprudence, as of the first Monday of next month, will likely be more volatile than usual.
Will the Supreme Court make an 11th hour intervention in Georgia?
In November, the court will take up the case of Russell Bucklew, whom the state of Missouri seeks to execute for the 1996 murder of Michael Sanders. Sanders had given shelter in his trailer to Stephanie Ray, Bucklew’s former girlfriend, and her children. Bucklew stalked Ray and burst into the trailer with a shotgun. He killed Sanders and abducted Ray; she was freed only after a police chase and shootout in which she was wounded. While Bucklew was awaiting trial, he escaped from a local jail and attacked Ray’s mother and her fiancé with a hammer.