In January, I released my opinion in Madison v. Alabama, the Eighth Amendment capital case of Alabama death row inmate Vernon Madison, whose dementia and associated mental illnesses called into question his competency to be executed. In February, the Supreme Court published its decision in the case, in which Justice Elena Kagan wrote for a 5:3 majority that the Eighth Amendment’s Cruel and Unusual Punishment Clause may prohibit the execution of someone with a non-psychotic mental illness, if that mental illness impedes their rational understanding of the reasons for their impending execution. Today, I review the Court’s decision in Madison, including Justice Kagan’s majority opinion and Justice Alito’s dissent.
Justice Kagan’s Majority Opinion
Justice Kagan began her majority opinion by recounting the procedural history of the case. Recall that Mr. Madison in 1985 shot and killed a Mobile County, AL police officer and was subsequently convicted of capital murder and sentenced to death. In late 2015 and early 2016, Madison suffered two severe strokes that critically impaired his memory and cognitive functioning. Shortly thereafter, he was diagnosed with vascular dementia and retrograde amnesia, along with myriad other cognitive deficiencies. At a 2016 evidentiary hearing before the Mobile County Circuit Court, a neuropsychologist testified that Madison could no longer recall the 1985 murder due to his memory impairments, and that Madison’s overall cognitive decline prevents him from comprehending why the State of Alabama seeks to execute him. Madison then filed for a stay of execution on the ground that he was incompetent to be executed. In early 2018, the circuit court denied the stay, holding that Madison “did not provide a substantial threshold showing of insanity . . . sufficient to convince this Court to stay the execution.” Madison then appealed directly to the U.S. Supreme Court per Alabama state law, and the Supreme Court granted a stay of execution and later granted certiorari.
Justice Kagan then turned her attention to the two questions of law presented by Madison’s counsel. These questions follow from the Supreme Court’s 2007 decision in Panetti v. Quarterman, in which it held that a simple “awareness” of the reasons for one’s execution is not the same as a “rational understanding” thereof. The first question asks, “does Panetti prohibit Mr. Madison’s execution merely because he cannot remember committing his crime?” And the second question asks, “does Panetti permit Mr. Madison’s execution merely because he suffers from dementia, rather than psychosis or delusions?”
In lower court proceedings, Madison’s counsel and the State of Alabama disagreed on the answer to these two questions. But now, Kagan says, each has conceded to the other’s view on either question. Madison accepts Alabama’s answer to the first question: Under Panetti, a person who does not remember his crime may yet be executed, for amnesia as to one’s crime alone does not necessarily foreclose a rational understanding of the reasons for one’s punishment. For the second question, Alabama accepts Madison’s answer: Under Panetti, a person who does not suffer from psychotic delusions, but rather from dementia, may be incompetent to be executed if his dementia prevents him from rationally understanding the reasons for his execution.
This, Kagan writes, is the distinction that must be made in competency-to-be-executed claims arising from Ford v. Wainwright and Panetti: “What matters is whether a person has the rational understanding [of the reasons for one’s execution] Panetti requires—not whether he has any particular memory or any particular mental illness.”
Kagan deploys two hypothetical scenarios involving capital offenders. First, suppose a capital offender experiences amnesia as to his crime itself but otherwise is of perfect mental health (perhaps he fell and hit his head shortly after the crime, and thus forgets only the last 24 hours but remembers everything else about his life). Further, suppose he is of normal intelligence, can make rational decisions and engage in critical thinking, and can understand the concepts of crime and punishment. Does Panetti spare such a person from execution? Kagan answers “no.” Panetti‘s saving grace hinges on one’s understanding of the reasons for one’s execution, not one’s memory of the capital crime. Kagan asserts that a “loss of memory of a crime does not prevent rational understanding of the State’s reasons for resorting to punishment.” She calls our attention to the Civil War and to each of our first days of school. We cannot remember the former and may not remember the latter—but we still can understand the nature of the events and appreciate their significance and ramifications.
Now consider a capital offender who is not “insane” in the sense of psychosis or delusions, but instead suffers from a memory disorder, such as dementia. Is he spared from execution? Panetti, Kagan argues, has already answered this question: If his dementia prevents him from having a rational understanding of the reasons for his execution, the answer is yes. Panetti looks for an effect, not a cause; that is, Panetti looks for an incapacity to rationally understand the reasons for one’s execution, not the mental illness or defect undergirding that lack of rational understanding. Kagan holds that:
The Panetti standard concerns . . . not the diagnosis of [a prisoner’s specific mental] illness, but a consequence—to wit, the prisoner’s inability to rationally understand his punishment.
Having answered both questions on the merits, the only task left for the Court is to apply those answers to Madison’s case. This means determining whether the Mobile County Circuit Court erred in finding Madison competent to be executed and dismissing his petition for a stay of execution. But, according to Justice Kagan, the Court cannot make a decisive finding one way or other because the record at this stage of the litigation is virtually silent on this point.
Recall that the lower court’s ruling stated only that Madison “did not provide a substantial threshold showing of insanity” to warrant a stay of execution. Kagan asserted that if the circuit court used the word “insanity” to refer only to a psychotic or delusional disorder, then legal error occurred. For using the word “insanity” in such a way necessarily excludes the possibility that a prisoner has a non-psychotic or non-delusional mental disorder which nevertheless prevents him from rationally understanding the circumstances of his execution (a disorder, like Madison’s dementia, that the Court has now recognized as being protected under Ford and Panetti). This would be akin to picking a type of mental disorder rather than looking to the effects thereof—exactly the fallacy against which the Court is protecting here.
However, according to Justice Kagan, there is not enough evidence in the record to determine definitively that this was the way in which the circuit court intended to adjudge Madison’s competency claim. It seems the circuit court’s ruling is open to two interpretations: The circuit court simply used the same term (“insanity”) as it was used in the Alabama state statute under which Madison’s competency claim was to be adjudged, and was unaware that Ford and Panetti may extend to non-psychotic and non-delusional mental disorders; or, the circuit court was aware that Ford and Panetti may extend to non-psychotic and non-delusional mental disorders but ruled that Madison still did not fall into the category of protected capital offenders.
There is scant evidence in the record on this matter. Thus, Kagan holds that it is unclear whether the circuit court committed error. As a result, Kagan remands Madison back to the Alabama state courts for further consideration of Madison’s competency consistent with the application of Panetti‘s protections as laid out here in Madison.
Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor joined Justice Kagan in the opinion.
Justice Brett Kavanaugh took no part in the consideration or decision of the case since he had not yet been confirmed to the bench until after Madison‘s oral argument. Thus, he had no vote.
Analysis: Justice Kagan’s Opinion Versus Mine
Comparing my opinion to Justice Kagan’s, we each discussed the questions of how far Panetti‘s protections extend to non-psychotic prisoners, and how that extension (if any) affects Mr. Madison’s competency to be executed.
Justice Kagan and I agreed on the first question. Her majority opinion on this point held that under Ford and Panetti, the Cruel and Unusual Punishment Clause may prohibit the execution not only of psychotic or delusional defendants but also of mentally ill or demented defendants. The reason for this is because Panetti is not concerned about what a prisoner is afflicted with. Instead, Panetti focuses on whether a prisoner’s affliction impedes his capacity to rationally understand the reasons for his execution. While it may be more likely that a prisoner’s psychotic delusions deprive him of that rational understanding, a non-psychotic or non-delusional mental illness (such as dementia) may yet do the same. Given two capital offenders, one with psychosis and the other with dementia, but both of whom cannot comprehend the reasons for their execution due to their respective mental illnesses, Panetti treats them no differently.
This is exactly what I held in my opinion. After surveying the common law, consulting our modern-day state statutes, and considering the stated objectives of the death penalty (retribution and deterrence), I held that the “Eighth Amendment prohibits the execution of a prisoner who cannot rationally understand the nature of the death penalty and why he is being put to death” (p. 39). I noted that such lack of rational understanding may be due to “outright insanity, a mental disease or defect, or any other factor that so impairs a prisoner’s ability to comprehend the link between his crime and punishment” (ibid.).
Where Justice Kagan and I differed was in the application of that principle to Madison’s case. I drew a nexus between one’s capacity to remember a crime and one’s ability to fully comprehend the reasons for the attendant punishment. Thus, I held that “[s]ince [Madison’s] mental illness so impairs his memory that it wipes clean his recollection of his crime, [he] cannot be said to fully comprehend” why he is being executed. Therefore, I would have reversed the judgment of the circuit court and found Madison incompetent to be executed. Justice Kagan, however, noted the (concededly) thin record on this point, and instead sent the case back to the circuit court so that it could conduct more litigation on whether Madison’s vascular dementia and other assorted mental illnesses sufficiently detract from his comprehension of the reasons for his execution.
In sum, I agreed with the Court that when determining under Panetti whether a prisoner’s mental illness renders him incompetent to be executed, the particular kind of mental illness is irrelevant. What is relevant is the effects that follow from that mental illness—specifically, whether the mental illness prevents the offender from rationally understanding the reasons for which he is being executed. If it does, then he cannot be executed; if it does not, then he can be. I differed with the Court when applying this finding to Madison’s condition. I found that Madison’s mental illnesses, which have virtually wiped his memory clean, prohibit him from comprehending the link between his crime and punishment. The Court, however, concluded there was not enough information in the record to make that determination, and instead returned the case to the Mobile County Circuit Court so that it could gather the requisite information to decide that question.
Justice Alito’s Dissent
Justice Samuel Alito (joined by Justices Clarence Thomas and Neil Gorsuch) penned a thirteen-page dissent in which he argued that the case should have been dismissed as improvidently granted (“DIG’ed”) because Madison’s counsel switched the question on which he asked the Court to decide.
Here’s a bit of background information on the way in which cases come before the Supreme Court. When counsel ask the Supreme Court to decide a case, they must write in their petition for a writ of certiorari the question(s) of law for the Supreme Court to answer. Rule 14.1(a) of the Rules of the Supreme Court governs the process by which a petitioner lays out these questions. 14.1(a) notes that “[o]nly the questions set out in the petition, or fairly included therein, will be considered by the Court.” If the Court grants a case, the petitioner later may not alter the wording of those questions, ask the Court to consider different questions, or argue from the point of view of a new question. (This holds especially true even if the petitioner realizes he is likely to lose the case based on the way in which he worded the questions.) Generally, when a petitioner attempts to have the Court decide the case on a different question than those presented in the petition, the Court DIGs the case—that is, removes it from the docket—for this would be unfair to the respondent.
Let’s return to Madison. Bear in mind that, in his petition for a writ of certiorari, Madison’s counsel presented the Court with two questions: First, may a prisoner be executed if he cannot remember his crime? And second, may a prisoner be executed if a host of mental illnesses prevent him from rationally understanding the reasons for his execution? (Recall that, based on the Court’s holding, Madison conceded the first question to Alabama, and Alabama conceded the second to Madison).
When Madison’s counsel filed for a stay of execution and for a petition for a writ of certiorari, he devoted much of the language of the filings to stressing Madison’s inability to remember his crime. Moreover, the vast majority of Madison’s arguments focused exclusively on whether Madison’s amnesia as to the crime prevented him from being executed. Therefore, Justice Alito saw that Madison, in effect, teed up only the first question for the Court—the one on which Madison conceded defeat. Alito admits that in the petition for a writ of certiorari, the final phrase of the second question includes ” . . . or understanding the circumstances of his scheduled execution.” But, Alito counters, nowhere in the litany of Madison’s arguments did he use that phrase to challenge the Mobile County Circuit Court’s order as incorrectly holding that dementia cannot be a basis for a Ford and Panetti competency-to-be-executed claim.
Therefore, in Justice Alito’s mind, the only question the Court should be considering is the first question: whether Panetti spares a prisoner from execution if he cannot remember his crime. The answer, as Justice Kagan’s majority opinion notes, is “no.” Thus, Alito would have decided the case for Alabama and only on the first question.
But Justice Kagan’s majority opinion grants Madison relief on the second question. This, Alito says, is violating the Court’s own Rule 14.1(a), since Madison’s “petition did not raise—indeed, did not even hint at—the argument on which the Court now grants relief.” Thus, “the Court’s decision is insupportable.” For this reasons (and also that Madison’s counsel, to Alito, “has abandoned the question on which he succeeded in persuading the Court to grant review”), Madison should be dismissed from the docket, and Justice Alito “respectfully dissents.”