Is It Cruel and Unusual to Execute a Man With Dementia?

“Do you remember your first day of school?” Justice Elena Kagan asked in a death-penalty opinion released Wednesday. “Probably not. But if your mother told you years later that you were sent home for hitting a classmate, you would have no trouble grasping the story. And similarly, if you somehow blacked out a crime you committed, but later learned what you had done, you could well appreciate the State’s desire to impose a penalty.”

That question—when can the state impose the ultimate penalty on a condemned prisoner who, because of dementia, can’t remember the crime?—is at issue in Madison v. Alabama, which the Court decided, 5–3, on Wednesday. It’s also a taste of the death-penalty jurisprudence of the future.

Vernon Madison murdered an Alabama police officer in 1985. After several mistrials on constitutional grounds, he was convicted in 1998 and pursued federal habeas relief until 2015. Meanwhile, Madison’s health collapsed. After a series of strokes, he is now unable to walk, and is also incontinent and legally blind. He cannot recite the alphabet or rephrase a simple sentence. Perhaps most important legally, he can no longer remember the crime he committed.

Madison, represented by the legendary advocate Bryan Stevenson and his Equal Justice Initiative, argued to Alabama state courts that executing a severely demented inmate could violate the Eighth Amendment’s prohibition on “cruel and unusual punishments.” Earlier Supreme Court cases had in fact held that the amendment prohibits executing inmates who are mentally ill and have no “rational understanding” of why they are being punished.

The Alabama courts rejected Madison’s claim, however, because, they said, he was demented, not mentally ill (“delusional or psychotic”), and thus didn’t fit the Supreme Court’s earlier cases. His lawyers petitioned the Supreme Court to decide whether the Eighth Amendment allows the execution of any inmate who has no memory of the crime, and if so, whether it allows execution of a prisoner who has “a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution.”

Wednesday, the Court majority said that lack of memory isn’t and can’t be the test. Nor does the answer turn on the reason for the lack of memory—whether it is mental illness or ordinary age-related dementia. What matters, Kagan wrote, is whether the prisoner has a “rational understanding” of what is happening to him and why, “not whether he has any particular memory or any particular mental illness.”

As Kagan noted, people might have amnesia for a number of reasons. “Is the failure to remember committing a crime alone enough to prevent a State from executing a prisoner?” Here’s where the parable of the first day at school comes in. “Assuming, that is, no other cognitive impairment,” she wrote, “loss of memory of a crime does not prevent rational understanding of the State’s reasons for resorting to punishment.”

On the other hand, “if that loss combines and interacts with other mental shortfalls to deprive a person of the capacity to comprehend why the State is exacting death as punishment,” then previous Eighth Amendment cases bar execution. Whether that incomprehension comes from mental illness or dementia is irrelevant: “The sole inquiry for the court remains whether the prisoner can rationally understand the reasons for his death sentence.”

In Madison’s case, the majority said, the Court simply cannot tell whether the Alabama state court actually asked the right question. The state court’s opinion was laconic, and the state had argued that Madison was required to prove he was mentally ill. So the Supreme Court Wednesday sent the case back, and ordered the lower court to examine whether Madison is competent—using the proper standard.

The vote in the case was 5–3, with Chief Justice John Roberts joining the four moderate liberals to uphold Madison’s claim. Justice Samuel Alito—the Court’s most assiduous defender of the death penalty—wrote a dissent joined by Justices Clarence Thomas and Neil Gorsuch. (Brett Kavanaugh, the newest justice, was not on the bench when Madison was argued.)

Alito’s dissent did not engage the question of whether executing a severely demented inmate violates the Eighth Amendment. Instead, he argued that the Court majority had cheated by hearing the case at all. He argued that Madison’s lawyers had confined their appeal to the question of memory, and had not properly raised the issue of “rational understanding.” That, Alito said, “makes a mockery of our Rules.”

That cavil seems to me clearly wrong. Madison’s petition asked whether the amendment allows execution of an inmate who has forgotten the crime or is not capable of “understanding the circumstances of his scheduled execution.” The quibbling response evinces Alito’s customary grudging attitude toward death-row inmates and their lawyers. In earlier years, he has denounced efforts to forestall executions as “guerrilla warfare,” and his spirit was visible in the Court’s much-reviled decision earlier in February to allow the execution of a Muslim inmate without hearing his religious-freedom claim to the presence of an imam, rather than a Christian preacher, in the death chamber. That unsigned opinion rejected the claim because, it said, the inmate had waited too long to raise it.

The Madison dissent says that Madison should face execution because the questions presented in his petition to the Court don’t meet Alito’s standards. As a reason for signing a death warrant, that seems—to be charitable—a bit strained. That Thomas and Gorsuch joined such an opinion is also troubling.

Dodging the issue would have been particularly egregious because it’s not going away. “America’s death row population is aging significantly,” the Death Penalty Information Center has reported. In 2016, according to the Bureau of Justice Statistics, 8 percent of death-row inmates were 65 or older. As the number of executions falls, that age cohort will grow, encountering the full spectrum of age-related diseases, including Alzheimer’s, vascular disease like Madison’s, and other neurological disorders. The late Justice Harry Blackmun once wrote scornfully of death-penalty jurisprudence as “tinker[ing] with the machinery of death.” Until the death penalty is abolished, or dies of its own unwieldiness, the courts must now tinker with death’s gerontology as well.