“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.