The Supreme Court will hear oral arguments tomorrow in Madison v. State of Alabama, the case testing whether the Eighth Amendment prohibits a state from executing a person whose medical condition prevents him from remembering his crime. Here's my preview from the ABA Preview of United States Supreme Court Cases (with permission):
FACTS
In April 1985, Vernon Madison visited the home of his ex-girlfriend, Cheryl Green. Madison, who until a few days earlier had been living with Green, was there to collect some personal items.
At the same time, police officer Julius Schulte came to Green’s home in order to investigate a report that Green’s 11-year-old daughter was missing. Green’s daughter came home before Schulte arrived. Nevertheless, Schulte, at the request of Green’s neighbors, stayed at Green’s home to protect Green and her daughter until Madison left.
Madison at one point left Green’s property. But he returned with a pistol and shot Schulte twice in the head, killing him, as Schulte sat in his car. Madison also shot Green twice in the back.
Madison was convicted of capital murder, and the trial court sentenced him to death. The state appeals court reversed, however, concluding that Madison showed that the prosecutors excluded black veniremembers in violation of Batson v. Kentucky, 476 U.S. 79 (1986). After a second trial, Madison was again convicted of capital murder and again sentenced to death. But the appeals court again reversed his conviction, this time because the prosecutors introduced inadmissible evidence. Finally, after a third trial, Madison was again convicted and sentenced to death, and state appeals courts affirmed.
Madison pursued a series of state and federal post-conviction, collateral challenges. Each of these was ultimately denied. The Supreme Court declined to intervene. Madison v. Thomas, 135 S. Ct. 2346 (2015).
During this period (and while he was in prison), Madison suffered multiple strokes that left him severely impaired. In May 2015, he suffered a basilar artery occlusion, which caused bilateral cerebral and occipital infarctions and resulted in increased brain pressure, white matter attenuation, and possible temporal lobe damage. In January 2016, he suffered a thalamic stroke, which left him disoriented, appearing “very confused,” and with significant memory loss. (Madison suffered other strokes, too, which “negatively impacted his cognitive and body functioning,” but the details are less clear.)
Madison now suffers from encephalomalacia, meaning that there are some areas of his brain where the tissue is dead. He also suffers from vascular dementia, cognitive deficits, severe memory loss, and other chronic conditions that have decreased his capacity to “rationally understand[] his circumstances.”
After the state Attorney General asked the Supreme Court of Alabama to set an execution date, Madison filed state-court post-conviction petitions claiming that he was incompetent to be executed. At a hearing to evaluate his competence, Madison presented evidence of his cognitive injuries, dementia and memory loss, and diminished capacity for understanding his circumstances. In particular, Madison’s expert, Dr. John Goff, a neuropsychologist, testified that Madison’s memory had significantly declined, that he could not remember important events and facts, that he had a borderline-intelligence IQ of 72, and that he could not perform basic cognitive functions. The court-appointed expert, Dr. Karl Kirkland, agreed that Madison suffered physical and cognitive decline as a result of his strokes, but that Madison remembered the details of his court cases and had “a rational understanding that he is to be executed for killing a police officer in 1985.”
The state court found Madison competent to be executed. Under state law, Madison could not appeal this finding. So he brought a federal habeas corpus suit, raising the same claims that he raised in the state-court proceedings. The federal district court denied Madison’s application, but the United States Court of Appeals for the Eleventh Circuit reversed. The Supreme Court summarily reversed in Dunn v. Madison, 138 S. Ct. 9 (2017), although Justice Ruth Bader Ginsburg noted in concurrence that “[t]he issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet addressed by the Court.”
After the state set Madison’s execution date, Madison filed a second state-court petition challenging his competency to be executed. The court rejected Madison’s petition, writing that it “did not provide a substantial threshold showing of insanity . . . sufficient to convince this Court to stay the execution.”
This appeal followed.
CASE ANALYSIS
The Supreme Court ruled in Panetti v. Quarterman, 551 U.S. 930 (2007), that the Eighth Amendment prohibits a state from executing a person whose mental capacity prevents him or her from comprehending the reason for his or her punishment or rationally understanding the punishment. Moreover, the Court held that the state must provide a minimum process for a convicted person to show that he or she lacks this mental capacity. The Court so ruled because important purposes of capital punishment—retribution against a person who recognizes the severity of his or her offense, and “community vindication”—are ill-served by executing a person who lacks this fundamental mental capacity.
At the same time, however, the Court has never said whether Panetti applies to individuals, like Madison, who, because of cognitive impairments, simply cannot remember his or her crime. And it’s never said whether, independent of Panetti, the Eighth Amendment and its “evolving standards of decency” prevent a state from executing a person who cannot remember the crime. These issues are what this case is about.
Madison argues first that his cognitive impairments render him unqualified for the death penalty under Panetti. He claims that because of his impairments he cannot “understand the circumstances surrounding a scheduled execution,” and thus falls squarely within the Panetti rule prohibiting his execution.
Madison argues next that his execution would not serve the penological objectives of the Eighth Amendment. He contends that his impairments—including both his inability to understand why he will be executed and his inability to remember his crime—mean that his execution would not serve any retributive purpose, or any other penological objective, for that matter.
Finally, Madison argues that “advances in neurological science now make clear the nature of this incompetency.” This means that condemned prisoners can’t simply fake a cognitive impairment to cleverly get out from under the death penalty, and that a ruling in his favor will not open the floodgates to false claims of memory loss.
The state counters that the state court’s conclusions satisfy Panetti. It says that Madison’s cognitive impairments do not preclude him from understanding that he is being punished for killing Officer Schulte, “or from sharing the community’s understanding of crime, punishment, retribution, and death.” The state contends that while Madison may not remember his crime, understanding his punishment is different. And the state court properly concluded, under Panetti, that Madison understood his punishment (even if he cannot remember his crime) and thus qualified for the death penalty.
The state argues next that nothing about the Eighth Amendment prohibits a state from executing a person who cannot remember his or her crime. The state asserts that neither the common law, “objective indicia of society” and professional associational standards, nor the retributive and deterrence purposes of the death penalty would counsel against a state executing a person who does not remember the crime. The state writes, “Madison’s mental condition does not preclude him from understanding that he is being punished for murdering a police officer or that such a murder is a grave moral wrong,” and “Madison’s execution will serve as an example to others that the intentional murder of a police officer will be punished.”
Finally, the state argues that Madison’s approach would increase the potential for false claims of cognitive impairment and manipulation of the death-penalty system. The state says that Madison’s argument gives undue weight to a diagnosis of dementia; that Madison’s argument would open the door to incompetence claims due to other cognitive impairments; and that “a person’s assertion that he cannot remember his crime is not objectively verifiable.”
SIGNIFICANCE
This case addresses an important unanswered question in the Court’s Eighth Amendment jurisprudence: Does the Eighth Amendment prohibit a state from executing an individual who cannot remember his or her crime?
The question comes on the heels of a series of rulings in the last couple decades that restrict the application of the death penalty and mandatory lifetime imprisonment. Thus, the Court ruled that the Eighth Amendment forbids imposing the death penalty for nonhomicide crimes, Kennedy v. Louisiana, 554 U.S. 407 (2008), and on mentally retarded defendants. Atkins v. Virginia, 536 U.S. 304 (2002). The Court held that the Amendment bars capital punishment for children, Roper v. Simmons, 543 U.S. 551 (2005), and life sentences without parole for children who commit nonhomicide offenses. Graham v. Florida, 560 U.S. 48 (2010). Most recently, the Court ruled in Miller v. Alabama, 567 U.S. 460 (2012), that the Eighth Amendment prohibits a state from imposing a mandatory life sentence without parole for a juvenile defendant. (Bryan Stevenson, Madison’s attorney, argued that case.)
These were all closely divided, 5-4 rulings along traditional ideological lines (save for Graham and Atkins, which were both 6-3, with Chief Justice John Roberts concurring in Graham). Justice Kennedy not only sided with the majority in each of these cases, he also wrote the majority opinions in Miller, Kennedy, Graham, and Roper. In other words, Justice Kennedy was not only the swing vote on these issues, he was the Court’s leader on them.
Without Justice Kennedy on the Court, there may not be a majority to overturn the state court ruling here. (Among the Court’s conservatives, Chief Justice Roberts is probably the closest to the progressives on these issues, and yet he is probably less willing than Justice Kennedy to restrict the death penalty.) If Chief Justice Roberts joins the conservatives, the state court ruling will stand, whether or not the Senate confirms Judge Brett Kavanaugh in time for this case. (A Justice Kavanaugh seems likely, though not certain, to side with the conservatives, creating a likely 5-4 split against Madison. But even without a Justice Kavanaugh, a 4-4 split (along conventional ideological lines) would uphold the lower court ruling, without producing a precedential opinion.)
More generally, Justice Kennedy’s replacement seems likely to go against Justice Kennedy on any of these cases that carve out categorical exceptions to the death penalty and mandatory life sentences under the Eighth Amendment. If so, a new, conservative 5-4 majority could restrict or even undo much of the work that Justice Kennedy did on these issues.
October 1, 2018 in Cases and Case Materials, News | Permalink
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