The Supreme Court heard oral arguments Tuesday in the case of an Alabama man under sentence of death whose severe dementia means he now can no longer recall the details of his crime.
The court, one man short thanks to the murkiness surrounding the nomination of D.C.-circuit court judge Brett Kavanaugh, heard arguments from both sides in the case of Madison v. Alabama, Reuters reports. The court previously declined to take up Madison's case, before accepting it in a revised form in February of this year.
In 1994 the plaintiff, Vernon Madison, was sentenced to death for the 1985 shooting murder of officer Julius Schulte in Mobile, Alabama. Now 68, Madison has languished on death row for the intervening two-and-a-half decades. In that time, he has suffered multiple strokes, and is now legally blind, unable to walk unassisted, and speaks with a slur. By the account of both his lawyers and the state, the strokes have also rendered him unable to remember the details of his crime.
The court has previously ruled that mental illness or incompetency renders a person unfit to be executed. But the question in Madison's case is a little trickier. What the Justices must determine is: given that he is unable to recall the details of his crime, can Madison understand why he is being executed? In other words, given that he cannot recall killing Schulte, can Madison meaningfully be punished in a way that is not cruel and unusual?
Madison's counsel, Bryan Stevenson, agreed with Chief Justice John Roberts that simply "blacking out" and not remembering a crime does not make someone not responsible for the consequences of their actions. But, Stevenson contended, execution would be cruel and unusual if "someone has a disability that renders them incapable of orienting to time or place."
In the view of the state of Alabama, however, the question is moot, in large part because it retains its right to redress Madison's crime through the form of punishment it has set up for it.
"Nothing about Mr. Madison's conditions impact the state's interest in seeking retribution for a heinous crime," Alabama Deputy Attorney General Thomas Govan said.
Death penalty cases are usually resolved along the court's left-right split, and it is unlikely that Madison will be any different. This may prove problematic for the outcome of the case, however, as the court is one man short pending the possible confirmation of Kavanaugh. Each side would need to convince someone from the other—perhaps the civil-rights-oriented Justice Gorsuch, or the more moderate Justice Kagan—in order to avoid an inconclusive 4-4 vote.
As Justice Stephen Breyer—a prominent death-penalty critic—noted during oral arguments, cases like Madison's will only become more frequent. The endless delays imposed by procedural wrangling mean that America's death rows are rapidly greying. The average time between sentencing and execution, the Death Penalty Information Center concluded based on data through 2013, is now almost 15 and a half years. Many of the 2,800 men now on death row will likely die of natural causes long before their appeals options are finally exhausted.
"This will become a more common problem," Breyer said Tuesday.