Bloomberg Law
Feb. 27, 2019, 3:04 PMUpdated: Feb. 27, 2019, 7:36 PM

Roberts Casts Swing Vote for Death Row Inmate With Dementia (3)

Jordan S. Rubin
Jordan S. Rubin

A death row inmate battling dementia won his execution appeal at the U.S. Supreme Court Feb. 27 in a 5-3 decision, with Chief Justice John G. Roberts Jr. joining the four Democratic-appointed justices to rule for the inmate.

It was Roberts’ latest instance of joining his more liberal colleagues, which has put him in the spotlight after the retirement of swing-vote Anthony M. Kennedy last summer.

The death row inmate Vernon Madison argued it would violate the Eighth Amendment’s ban on cruel and unusual punishment to execute him, because he says he can’t remember committing the murder that landed him on death row.

The Constitution “may permit executing Madison even if he cannot remember committing his crime,” Justice Elena Kagan wrote for the majority, noting that a person lacking such a memory can still form a rational understanding of the reasons for their death sentence as required by law.

But Kagan went on to write that the Eighth Amendment might forbid executing prisoners suffering from dementia, just as the high court has found it prohibits executing ones experiencing psychotic delusions.

“Chief Justice Roberts, who provided the fifth vote, is showing fidelity to the court’s prior decisions by making this modest extension of the law,” said Harry Sandick, a partner at Patterson Belknap Webb & Tyler LLP, who is a former assistant U.S. attorney in the Southern District of New York. He said it “suggests that there may be five votes for death penalty advocates in the right case—one that is grounded in prior decisions and that is consistent with human dignity interests.”

Kagan sent Madison’s case back to the Alabama state court that ruled against him. The state court can now rule on his case with the Supreme Court’s latest decision in mind and determine Madison’s competency for execution.

State officials are confident they’ll prevail in the end.

“The U.S. Supreme Court has now held twice that the lack of memory is not alone sufficient to bar execution,” Alabama Attorney General Steve Marshall said. “We expect that when the lower court revisits the matter on remand from the Supreme Court, it will once again find that Madison is competent to finally face the justice that he has so far evaded for nearly 34 years.”

But the decision is cause for celebration in Madison’s camp, at least for now.

“We are thrilled that today the Court recognized that people with dementia like Vernon Madison, who cannot consistently orient to time and place, are protected from execution and cruel and unusual punishment under the Eighth Amendment,” said Madison’s lawyer, Bryan Stevenson of the Equal Justice Initiative.

“Prisoners who become incompetent due to dementia and severe mental illness are vulnerable and should be shielded from abusive and cruel treatment,” Stevenson said. “The Court’s opinion affirming the basic principle of a humane system of justice is a significant victory.”

Justices Samuel A. Alito Jr., Clarence Thomas, and Neil M. Gorsuch dissented. The majority decision “makes a mockery” of the high court’s rules, Alito wrote. He accused Madison’s counsel of procedural gamesmanship that the majority rewarded.

The case was argued before an eight-member court last October before Justice Brett M. Kavanaugh was confirmed. He didn’t participate in the decision.

Madison was convicted of killing a police officer in 1985 and then suffered a series of strokes as recently as 2016, resulting in dementia and other ailments.

The case is Madison v. Alabama, U.S., 17-7505, vacated and remanded 2/27/19.

(adds comments from parties, Sandick )

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at