Death and dementia
Vernon Madison has a toilet in his five by eight foot cell. He can explain to you that he can use that toilet. But he's had several strokes and suffers from vascular dementia. He can't hold the memory of the location of the toilet next to his bed when it's time to urinate, so he constantly soils himself.
Madison killed a police officer in 1985, which is the reason why he's in a prison cell -- a prison cell on death row, to be specific. He doesn't remember anything about the crime or his trial, either. Last Tuesday, the Supreme Court heard oral argument on whether Madison's condition should preclude Alabama from killing him.
Back in 1986, in Ford v. Wainwright, the Court held that the 8th Amendment barred execution of the insane. But what does insanity mean in this context? The trial standard -- the ability to determine that one's acts are wrongful -- is of no help here. In a concurring opinion, Powell proposed that the test be whether the defendant is aware of his impending execution and the reason for it. A couple of decades later, the Court tackled Panetti v. Quarterman. Everyone agreed that Panetti was nuts, but the doctors found that he was aware of his crime, of the fact that he was to be executed for it, and the State's reasons for executing him.
That was good enough for the lower courts, but not for the Supreme Court. Panetti argued that while he was aware of the State's stated reason for executing him, his mental illness prevented him from having a rational understanding of that reason. The Court agreed that this would meet the Ford standard, found that the lower courts' procedure for determining this issue was inadequate, and remanded it for further hearings.
And so we come to Madison. Roberts began by extracting from Madison's lawyer, Bryan Stevenson, a concession that simply being unable to remember the details of a crime does not prevent a defendant's execution. A necessary concession; the alternative would allow a defendant to prevent a death sentence from being carried out simply by claiming that he didn't remember the crime. But Alabama's attorney, Thomas Govan, also made a concession: incompetency would exist "If someone has vascular dementia or any other mental illness, if it precludes them from having a rational understanding of their punishment, and that they will die when they are executed."
And so we get into the weeds. Did the record show that the lower court judge believed that incompetency required Madison to show that he was insane or delusional, or would dementia suffice? Then there was the question of whether even if the Court did adopt a more expansive definition of incompetency than did the lower court, did Madison qualify? Govan argued that he didn't, because he understood that he's in prison for killing someone. Stevenson countered that understanding that someone can be executed for murder doesn't mean that Madison has a rational understanding of the reason he's going to the chamber, especially in light of his inability to "sustain" that understanding: as with the toilet in his cell, Madison is incapable of retaining that knowledge.
Party Animal Brett Kavanaugh didn't get sworn in until this past Saturday, so he won't be participating in the decision. Alabama won in the lower court's, so a 4-4 tie doesn't do Madison any good. He's got the four liberals in his pocket, but Alito, Thomas, and Gorsuch voted against granting cert, so they're very likely lost causes. That leaves it up to Roberts, and from his questioning, Madison seems to have a shot.
But the surreality of the whole thing is what struck me about the oral argument, and the case itself. As I pointed out on Monday, the other death penalty case on the Court's docket involves a man with a rare condition which causes inoperable, blood-filled tumors to grow in his throat and around his head, face, and neck, and which would make execution by lethal injection gruesomely painful; he wants to be electrocuted instead.
I'm aware of all the pros and cons on capital punishment. But I'm sorry, having to electrocute someone because killing him with drugs would be horrible, or leading a demented man to his death -- and leading is the word; Madison's dementia has progressed to the point where he's blind and cannot walk -- seems the height of barbarity.
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