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The United States Law Week

Verdict Still Out in High Court Memory Battle (1)

Oct. 2, 2018, 4:22 PM

Chief Justice John G. Roberts Jr. could cast the deciding vote for an eight-member court in what he deemed an unusual death penalty case during arguments at the U.S. Supreme Court Oct. 2.

Vernon Madison’s lawyer Bryan A. Stevenson pleaded for the court to save his client from an Alabama death chamber because vascular dementia has robbed Madison of any memory of the murder that landed him on death row. He killed a police officer in 1985 and then suffered a series of strokes as recently as 2016, resulting in severe memory loss and other ailments. Now in his late 60s, he has trouble reciting the alphabet. He urinates himself. He asks when his long-dead mother is coming to visit.

It would violate the Eighth Amendment’s ban on cruel and unusual punishment to execute Madison under these circumstances, Stevenson argued.

Roberts was bemused as he highlighted more than once the apparent concessions made by both sides: Stevenson conceded that lack of memory alone wouldn’t save a defendant from execution, while state deputy attorney general Thomas R. Govan Jr. conceded that serious dementia could potentially save a defendant from the ultimate punishment, just not here.

That raised questions whether the dispute is really just about Madison’s plight—in which case he might have a better chance at attracting Roberts’s vote on narrow grounds—or if the court is being asked to more broadly protect the nation’s aging and ailing death row population.

How a majority of the court approaches the scope of the issue against the backdrop of its mental competency precedents—if a majority can be cobbled together at all—will likely determine the outcome.

Deadly Math

The odds heading into the argument didn’t look great for Madison. It’s unclear whether that equation has changed.

The even-numbered court gives rise to a possible deadlock in the wake of swing vote Anthony M. Kennedy’s retirement and the failure to fill his seat yet due to the ongoing controversy surrounding Brett Kavanaugh’s confirmation.

Kennedy might have sided with Madison’s claim, so his departure is bad news for Madison here. The recently-retired justice authored the high court’s most recent controlling precedent, Panetti v. Quarterman, where the court sided with an inmate’s mental competency claim 5-4. He was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and the two justices whose seats are now occupied by Justices Sonia Sotomayor and Elena Kagan.

Suggesting an even tougher road for Madison is the fact that Justices Clarence Thomas, Samuel A. Alito Jr., and Neil M. Gorsuch dissented from the court’s decision to stay his execution earlier this year. Thomas, Roberts, Alito, and Gorsuch’s predecessor Antonin Scalia dissented in Panetti.

The argument gave no reason to doubt those three stay dissenters will still vote against Madison.

Alito, Stevenson’s most antagonistic interrogator, questioned at one point whether the renowned public interest lawyer accurately represented certain facts in the case.

Gorsuch asked no questions after gamely participating in the first argument of the day, nor did Thomas, as is his practice generally.

So if those three justices still doubt the merits of Madison’s appeal—as Alito almost certainly does—and he picks up the votes of the four Democratic-appointees generally more sympathetic to capital claims, then he’d still need Roberts’s vote to avoid, at best, a 4-4 tie that would simply uphold the Alabama state court judgment against him.

Time and Place

Panetti and an older competency case, Ford v. Wainwright, set the legal backdrop for the argument. Those cases say, in effect, that the government can’t execute a prisoner who doesn’t understand the reason for his execution. Those cases involved inmates with mental illness but not dementia.

Govan argued for the state that those cases are different because Madison, for all his woes, can still understand the reason for his punishment.

But Madison, whose condition leaves him unable to “fully orient time and place,” clearly falls under the scope of Ford and Wainwright, Stevenson argued.

Prompted by questioning from death penalty skeptic Breyer, Stevenson, of the Equal Justice Initiative in Montgomery, Ala., said he was arguing for a rule that “where someone has a disability that renders them incapable of orienting to time or place or rationally understanding the circumstances of their offense, they are incompetent.”

Breyer noted “there are many, many, many prisoners on death row under threat of execution who are in their 40s, 50s, 60s, 70s, possibly 80s, who have been there for 20, 30, 40 years perhaps.” So addressing their health issues “will become a more common problem.”

Responding to repeated questioning from Alito—who conceded that Madison has “serious problems"—Stevenson acknowledged dementia can’t serve as the basis for an Eighth Amendment claim without it being tied to an underlying medical condition. In an apparent criticism of Stevenson’s stance, Alito replied that he couldn’t “think of a situation in which a person would lack memory of the commission of the offense without that being based on a mental condition.”

Roberts spent some of his questions trying to narrow the inquiry—or to figure out what the inquiry is at all. Govan conceded to Roberts that someone with dementia could satisfy the Ford/Panetti standard, so long as that disease causes a lack of understanding of the punishment.

Roberts asked if all they were arguing about is “whether Mr. Madison himself meets the Ford and Panetti standard.” That’s exactly right, Govan said.

New Argument, Humanity

Stevenson pounced on Govan’s concession in rebuttal. The state hadn’t previously admitted that “dementia would be a basis on which a court could find someone incompetent to be executed,” Stevenson claimed.

One of the reasons that’s relevant, he argued, is that the Alabama state court didn’t accept that dementia could be a basis to stave off execution. That echoed concerns about the lower court opinion raised by Ginsburg and Kagan earlier in the argument, suggesting the possibility that the high court could send the case back to Alabama to decide it with dementia in mind.

Stevenson also touched on broader concerns as the hour drew to a close.

Capital punishment gives states “awesome power,” he said. That power “has to be utilized fairly, reliably, and humanely.”

“If someone is disabled and incompetent and fragile and bewildered and confused,” he argued, “it is simply not humane to execute them.”

The case is Madison v. Alabama, U.S., 17-7505, argued 10/2/18.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com