Justices Weigh Limiting Execution of People With Dementia

WASHINGTON (CN) – The fate of an Alabama man who murdered a police officer 33 years ago - but can no longer remember the crime nor understand why he received the death penalty - was weighed by justices of the Supreme Court on Tuesday.

In 1985, Vernon Madison shot and killed police officer Julius Schulte, firing several shots into Schulte's back and head while the officer sat in his squad car.

After a series of trials, a jury convicted Madison of murder and said his crime warranted the death penalty.

But after decades on death row -- all of it served in solitary confinement -- Madison’s mind has atrophied so severely, attorney Bryan Stevenson said Tuesday, that he cannot even locate the toilet in his 5-by-8 foot cell.

“You can explain he has a toilet, that he can use it, but he routinely urinates on himself because he can’t recall where it is and asks the guards for help,” Stevenson said.

After suffering two life-threatening strokes while imprisoned, Madison’s IQ level is 72. His memory score is even lower, at 58, the attorney said.

Stevenson went on to describe that his client slurs his words, barely speaks and is legally blind. He also said a series of MRI scans show that Madison suffers from encephalomalcia, meaning several areas of his brain tissue are dead.

Tuesday's case wasn't the first to come before the Supreme Court questioning the constitutionality of executing individuals who cannot remember their crimes.

In the 2007 case Panetti v. Quarterman, the justices found the Eighth Amendment bars states from executing individuals whose mental capacities prohibit them from understanding the reasons for their punishment or the punishment itself.

But the ruling failed to answer whether states can execute someone who simply doesn’t remember the crime committed and cannot understand why they are being punished.

According to Stevenson, Madison cannot determine “what season it is,” let alone details around the murder.

Stevenson emphasized Madison’s guilt is not a question the justices need consider - that is undisputed fact.

Rather, he asked them to consider whether “evolving standards of decency” and the explicit language of the Eighth Amendment – which bars cruel and unusual punishment – are given equal weight for Madison.

Madison was not clinically insane nor delusional when he killed Schulte. But his dementia is now so severe, Stevenson said, that the state is morally obligated to consider “the awesome power” it has when deciding whether a man in his condition should live or die,

Justice Stephen Breyer expressed concern that ruling in Madison’s favor might open floodgates to those aging on death row who want to use mental incompetency as a way to escape their sentence.

“I don’t think the age of the offender is a predictor of scale of these phenomena,” Stevenson said. “Ninety three percent of the 1,300 people [receiving] execution dates over the last 30 years did not raise competency [issues to avoid execution] even though many of them were older than Mr. Madison.”

But Justice Ruth Bader Ginsburg asked how one can know whether Madison is incapable of grasping the fact that he is or was subject to execution for killing a police officer?

“If someone goes to see their mother and their mother doesn’t recognize them, it’s heartbreaking," Stevenson said. "Once you can understand the reason why they can’t recognize you is dementia, you have a different relationship to what that means.”

“You can say I’m your daughter and that person will respond to you as their daughter,” the attorney said, but the next day, they won’t have a “rational understanding of who you are.”

Alabama is “essentially arguing, if we can get the patient to say yes, that’s my daughter, we can conclude that they have a rational understanding of their circumstances, of their family,” he said.

Alabama State Attorney General Thomas Govan Jr. said while the state agreed it would be improper to execute someone who is delusional about the punishment for their crimes, Madison’s crime was “so horrible” that even “if [he] can’t remember the crime” it wouldn’t lessen [his] ability to understand why [he's] being punished.

Justice Sonia Sotomayor noted that in Panetti, the inmate understood the state was charging him with a crime and he would be executed.

“He believed they wouldn’t [ultimately succeed] because of his delusions," Sotomayor said. "He understood perfectly well that set of facts."

“We still said that qualified him but here we have a man who knows he’s incarcerated or kept in a cage, because he’s in a bed, can’t move on his own, can’t remember where the bathroom is next to him, can’t see, slurs his words,” she said.

“But he knows someone says he committed a murder and that they’re trying to kill him, but he doesn’t understand why," Sotomayor continued. "He can’t be present enough in time to rationally understand or reflect on what he has done because he can’t retain information for long.”

Govan contended Madison’s memories of time spent in juvenile detention strengthened the state’s argument about his mental capacity, but Justice Ginsburg took issue with the state attorney's logic.

If Madison was tried today, in his current state, what would a jury likely recommend, she asked. “Is there any likelihood that a jury would have recommended death for such a person or that a judge would override the jury’s recommendation for life rather than death?”

“Judge, I don’t know … but what I would say what matters here is that scenario would not impact the constitutionality of seeking a death sentence or the propriety of seeking a death sentence,” Govan said.

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