The Supreme Court punted Wednesday in Madison v. Alabama, sending back to state court the case of a man whose vascular dementia has caused him to forget his crime.
Chief Justice John Roberts sided with his four liberal colleagues—over the objections of three more conservative justices—in a move that may signal a sympathy for objections to capital punishment more broadly.
The case of Vernon Madison began in 1985, when he shot and killed officer Julius Schulte in Mobile, Alabama. In 1994, Madison was found guilty and sentenced to death, but since then has languished on death row amid the interminable appeals process which has come to accompany capital convictions.
Madison, now 68, has been in prison for so long that he can now no longer remember his crime. Successive strokes in 2015 and 2016 caused Madison to develop vascular dementia, and he now claims to be unable to recall the actual circumstances of the murder.
This raises an important question: can Alabama legally execute a man who cannot remember what he did? In 1985, the court found in Ford v. Wainwright that it violated the Eighth Amendment's prohibition on cruel and unusual punishment to execute a person who became mentally ill following sentencing.
In 2007's Panetti v. Quarterman, SCOTUS clarified Ford, establishing that the relevant standard was whether a person was sufficiently sane to understand why they were being executed—that is, if they had a rational understanding of the reasons they were being sentenced to death.
Madison's case has been before the court since 2017, when it initially declined to hear his arguments because they came from a federal rather than state court dispute, but expressed interest in considering the underlying question. In February of 2018, SCOTUS agreed to hear the full case, with oral arguments occurring in October.
The majority’s opinion carefully avoids concluding whether or not Madison is actually eligible to be executed.
Instead, Justice Elena Kagan and the four justices concurring with her address two questions. The first is whether Panetti means a person who cannot remember his crime lacks a "rational understanding" of his execution; the second is whether Panetti, which originally concerned a person suffering from psychotic delusions, could also apply to someone suffering from dementia.
The answers, in Kagan's view, are "no" and "yes," respectively. The Eight Amendment does not prohibit the execution of a person who cannot remember his crime, Kagan writes, "because a person lacking such a memory may still be able to form a rational understanding of the reasons for his death sentence." But, she adds, dementia may still be implicated in rational understanding, in much the same way that psychotic delusions were in Panetti, "because either condition may—or, then again, may not—impede the requisite comprehension of his punishment."
However, the majority claims, the state court may not have understood the latter point, i.e. that Panetti can be applied to cases of mental illness other than psychosis. What matters, Kagan writes, is not the mental illness per se, but the effect of it. And, she adds, the failure to understand this actually constitutes a legal error on the part of the lower court: "specifically, the idea that only delusions, and not dementia, can support a finding of mental incompetency."
As such, the majority remanded the case to state court with this clarification in toe, a conclusion that satisfied Roberts and his four liberal colleagues. Justice Alito—with whom Justices Thomas and Gorsuch joined—disagreed. (Justice Kavanaugh took no part in deliberations.)
"What the Court has done in this case makes a mockery of our Rules," Alito wrote.
Specifically, he referred to the fact that Madison’s defense team made no mention of this argument—that the lower court may have erred in its understanding of Panetti—in its filings. According to Alito, they "pivoted" upon realizing that the argument that forgetting a crime rendered a person ineligible for execution was unlikely to hold water.
"Counsel's tactics flagrantly flouted our Rules," Alito writes. "Our Rules make it clear that we grant certiorari to decide the specific question or questions of law set out in a petition for certiorari."
It is unclear how Madison's case will be resolved in state court. However, the expansion of the Panetti precedent indicates a potential majority for other challenges to capital punishment under the Eighth Amendment—a tempting idea for death penalty abolitionists.