Forget Me Not: Exploring American Death Penalty Jurisprudence and Dementia in Light of Madison v. Alabama.

• Author: MacCune, Marie A.

"Moral values do not exempt the simply forgetful from punishment, whatever the neurological reason for their lack of recall." (1)

1. INTRODUCTION

   Vernon Madison, sentenced to die in the State of Alabama, suffered from vascular dementia. (2) He was also blind. (3) While incarcerated, he could not remember there was a toilet in his cell. (4) He could not "move on his own," and he slurred his words. (5) While on death row, Madison could not even remember the murder he was convicted of, however, the Supreme Court held that Madison's condition did not bar Alabama from executing him. (6) Consequently, the Court remanded his case to Alabama where the State needed to prove that while he forgot his crime, Madison still rationally understood why the State would seek the death penalty for the murder he did not remember committing. (7) Alabama never made this determination because Madison died of natural causes in February 2020 while awaiting execution. (8)

   United States death penalty jurisprudence centers on what constitutes cruel and unusual punishment under the Eighth Amendment which states "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (9) Death penalty jurisprudence has not been linear. (10) In 1972, the Court held the death penalty unconstitutional as applied in the cases before it. (11) The Court was primarily concerned with the arbitrary and capricious application of the death penalty--largely to people of color, people who are poor, and people with mental disabilities. (12) Nevertheless, four years later, in Gregg v. Georgia, the Court held that the death penalty is not invariably cruel and unusual when imposed for murder, as long as the jury considers the specific circumstances of both the crime and the defendant. (13) Consistent with Gregg, the Court has since established categories of defendants and prisoners who may not be executed. (14)

   One of these categorical exclusions concerns prisoners who lack competency for execution. (15) In Ford v. Wainwright, the Court prohibited states from executing prisoners experiencing insanity but failed to lay out a precise standard for determining competency. (16) More than twenty years later, in Panetti v. Quarterman, the Court clarified its ruling in Ford and held a prisoner's awareness of the State's rationale for their execution is insufficient to demonstrate competency for execution; instead, in order to be competent, a prisoner must also have a reasonable understanding of the State's rationale behind the punishment. (17) Neither Ford nor Panetti, however, actually establish rules to determine whether an inmate is competent for execution. (18) Instead, the Court tasked states with determining whether a prisoner understands the meaning and purpose of the punishment they seek to impose. (19) Further, the Court decided Panetti and Ford within the context of prisoners making stereotypical, mental-illness-based incompetency claims--both prisoners experienced delusions and hallucinations. (20)

   Madison v. Alabama, decided in early 2019, answered whether such a delusional disorder is a prerequisite for a court to find a person incompetent for execution on the grounds of mental illness, and, if not, whether Panetti prohibited Madison's execution because he could not remember his crime. (21) The Court answered "no" to both questions. (22) This Note will analyze competency for execution in the context of dementia. (23) Part II will lay out the history of American death penalty jurisprudence, paying special attention to the development of categorical competency exclusions for offenders with mental impairments. (24) Part III will analyze the recent Supreme Court case, Madison v. Alabama, which directly addressed the constitutionality of executing a prisoner with dementia. (25) This analysis will explore how the Madison Court's decision fits within the broader history of death penalty competency jurisprudence as well as whether executing someone who does not remember their crime truly serves the Court's historical justification for the death penalty--retribution. (26) Lastly, Section III.C of this Note will identify future consequences of the Madison decision and ultimately, in Part IV, advocate for its reversal. (27)

2. HISTORY

   1. Death Penalty Use in Anglo-American Jurisdictions

      Under early British common law, execution was the punishment for prisoners convicted of any felony offense. (28) The United Kingdom used the death penalty against civilians convicted of murder until the late twentieth century when Parliament abolished the practice by statute in 1965. (29) While the United Kingdom utilized the death penalty, the English Bill of Rights--which prohibited cruel and unusual punishment--constrained its application. (30) The English Bill of Rights served as a limit on "disproportionate penalties, arbitrary judicial power, and otherwise boundless common-law judicial discretion." (31)

      Written records of the death penalty have existed in North America for over 400 years. (32) Nevertheless, the death penalty's use today is rare. (33) In the United States, twenty-two states and Washington, D.C. have abolished the death penalty completely. (34) Additionally, twelve states still imposing death sentences have not actually executed a prisoner since at least 2010. (35) All told, thirty-four U.S. jurisdictions and Washington, D.C. have ceased using the death penalty whether by de facto cessation or outright abolition. (36)

   2. United States Death Penalty Jurisprudence

      1. Evolving Standards of Decency

         American courts analyze constitutional questions regarding the death penalty under the Eighth Amendment. (37) Scholars have described this jurisprudence as "erratic at best, [and] chaotic at worst." (38) The Eighth Amendment prohibits cruel and unusual punishment. (39) The meaning of "cruel and unusual" is ever-evolving, and thus the Court must interpret the Eighth Amendment under an "evolving standard of decency" analysis. (40) This approach attempts to both protect individual rights by prohibiting excessive state punishment and respect democratic values, namely by deferring to legislation passed by elected officials and society's opinion of the death penalty as a punishment generally. (41) Historically, the Court has focused its efforts on respecting democratic values and deferred to the states under this analysis, hesitating to step in and protect individual death row inmates. (42)

         The "evolving standards of decency" analysis is a two-part test involving both objective and subjective indicia. (43) First, the Court determines whether a societal consensus on the issue exists--the objective indicia. (44) The largest body of evidence proving this consensus is statistics regarding the existence and use of the death penalty itself or a specific death penalty practice, which vary by state but indicate the level of society's acceptance of the practice. (45) Second, the Court makes its own determination of the punishment's value, deciding whether execution serves a given theory of punishment. (46) This is the subjective indicia. (47)

         This second part of the test is largely a proportionality analysis, which analyzes whether the punishment and its purpose are excessive given the nature of the offender and their crime. (48) When conducting this subjective analysis, the Supreme Court has taken contradictory stances on the death penalty's constitutionality. (49)

         In 1972, the Supreme Court held the death penalty unconstitutional as applied in the cases before the Court. (50) The Court's decision hinged on the fact that there were no standards to determine which offenders deserved the death penalty and which did not, meaning there was no systematic guarantee that similar cases would be treated similarly. (51) Justice Douglas wrote that the Eighth Amendment requires legislatures to write penal laws and states to apply those laws in an "evenhanded, nonselective, and nonarbitrary" way. (52) Importantly, the Furman Court's decision only addressed the constitutionality of the three death sentences in the case at bar and left open the possibility that the punishment could be constitutional when imposed differently. (53)

         Just four years later, the Court once again examined the death penalty under the Eighth Amendment. (54) In Gregg v. Georgia, the Court held that the death penalty is not "invariably" unconstitutional. (55) Unlike in Furman where the Court addressed the constitutionality of three specific death sentences, the Gregg Court analyzed the overall constitutionality of the death penalty. (56) In Gregg, the Court acknowledged that the death penalty is "unique in its severity and irrevocability." (57) Nevertheless, it concluded that the death penalty, when imposed for intentional murder, is not invariably disproportionate to the offender or their crime. (58) Ultimately, the Court concluded that in order for death sentences to survive an Eighth Amendment analysis, juries can only impose them after considering both the circumstances of the crime itself as well as the offender's character and propensities. (59)

         Taking Furman and Gregg together, the Supreme Court has communicated that proportionality "is the core constitutional proviso that comes with the state's power to put people to death: it is reserved for the worst, most culpable offenders and the worst, most serious crimes." (60) This precedent thus requires juries to consider both mitigating and aggravating factors during the sentencing phase so that people who commit similar crimes, in similar ways, and under similar circumstances are treated relatively equally; thus, creating relative proportionality. (61)

         Since Gregg, the Court has slowly but consistently limited the types of offenders a state may execute under the principles of proportionality and the "evolving standards of decency" analysis. (62) In 1986, the Court held that prisoners experiencing insanity are exempt...