WASHINGTON (CN) – With three votes against, the Supreme Court blocked the execution Thursday of a stroke survivor who no longer remembers killing a police officer decades ago.
Vernon Madison, 67, was set to die by lethal injection at 6 p.m. Thursday before the Supreme Court granted an eleventh-hour stay.
Madison’s execution will be put on hold only for as long as it takes the court to decide whether it will take the case up for arguments by granting a writ of certiorari. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have denied the application, but there is no insight otherwise into the order.
Experts who have testified as to Madison’s competency note Madison suffers significant memory impairment and a decline in cognitive functioning because of early-onset dementia and a series of strokes.
One psychologist told the court that Madison understood that the state was planning to execute him, but lacked the capacity to connect his punishment to a crime.
Madison is on death row for the 1985 killing of Julius Schulte, a police officer in Mobile, Alabama, but he no longer has any memory of Schulte’s murder, telling the expert: “I never went around killing folks.”
Thursday marked the second time a court has blocked Madison’s execution. Madison was seven hours shy of his first lethal-injection appointment last year when the 11th Circuit first granted him relief, but the Supreme Court summarily reversed that order in November 2017.
Citing precedent from the 2007 case Panetti v. Quarterman and the 1986 case Ford v. Wainwright, the justices said neither case “‘clearly established’ that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case.”
“The state court did not unreasonably apply Panetti and Ford when it determined that Madison is competent to be executed because — notwithstanding his memory loss — he recognizes that he will be put to death as punishment for the murder he was found to have committed,” the unsigned opinion continued.
In two concurring opinions filed with the November reversal, several Democratic appointees noted that the issue of executing those with memory-related disabilities is one the court must soon tackle.
Justice Stephen Breyer used his concurrence to underscore what he called “the unconscionably long periods of time that prisoners often spend on death row awaiting execution.”
“Mr. Madison is now 67 years old,” Breyer wrote. “He has lived nearly half of his life on death row. During that time, he has suffered severe strokes, which caused vascular dementia and numerous other significant physical and mental problems. He is legally blind. His speech is slurred. He cannot walk independently. He is incontinent. His disability leaves him without a memory of his commission of a capital offense.”
Breyer noted that Madison is also “one among a growing number of aging prisoners who remain on death row in this country for ever longer periods of time.”
“In 1987, the average period of imprisonment between death sentence and execution was just over seven years,” the opinion states. “A decade later, in 1997, the average delay was about 11 years. In 2007, the average delay rose to a little less than 13 years. In 2017, the 21 individuals who have been executed were on death row on average for more than 19 years.”
Among the three men Alabama executed this year, Breyer noted, 75-year-old Thomas Arthur spent 34 years on death row, Robert Melson spent 21 years on death row, and Torrey McNabb spent nearly two decades on death row.
“Given this trend, we may face ever more instances of state efforts to execute prisoners suffering the diseases and infirmities of old age,” he wrote. “And we may well have to consider the ways in which lengthy periods of imprisonment between death sentence and execution can deepen the cruelty of the death penalty while at the same time undermining its penological rationale.
“Rather than develop a constitutional jurisprudence that focuses upon the special circumstances of the aged, however, I believe it would be wiser to reconsider the root cause of the problem — the constitutionality of the death penalty itself,” the opinion concludes.
Breyer also joined a separate concurrence by Justice Ruth Bader Ginsburg.
“Appropriately presented, the issue would warrant full airing,” Ginsburg wrote, joined by Breyer and Justice Sonia Sotomayor. “But in this case, the restraints imposed by the Antiterrorism and Effective Death Penalty Act of 1996, I agree, preclude consideration of the question. With that understanding, I join the court’s per curiam disposition of this case.”