Too Old to Execute?

• Author: Mark Walsh
• Pages: 20-21

Last November, the U.S. Supreme Court summarily rejected the appeal

of an Alabama death row prisoner, principally because the inmate’s habeas

plea could not meet the tough standards for federal relief.

Justice Stephen G. Breyer fi led a separate concurrence, noting that 67-

year-old Vernon Madison, convicted of the murder of a police o cer in 1985, “is one

among a growing number of aging prisoners who remain on death row in this country

for ever longer periods of time.”

The Docket

20 || ABA JOURNAL OCTOBER 2018

PHOTO BY OCSKAY MARK/SHUTTERSTOCK.COM

Supreme

Court

Report

Too Old to Execute?

The court considers whether an aging prisoner with dementia

and no memory of his crime should be put to death

By Mark Walsh

“Given this trend, we may face ever more in stances of

state e orts to execute prisoners su ering the disea ses

and infi rmities of old age,” Breyer continued.

Breyer and Justice Sonia Sotomayor also joine d a sep-

arate concurrence in t he case, by Justice Ruth Bader

Ginsburg, that suggest ed the issue of “whether a state

may administer t he death penalty to a person whose dis-

ability leaves him w ithout memory of his commis sion of a

capital o ense is a substantial question” that would merit

the court’s attention if “appropriately presented .”

Three months later, due to some factual a nd proce-

dural twis ts, just such a case came along—

a separate appeal by Mad ison, this one

unencumbered by the intricat e habeas

restraints impose d by the Antiterrorism

and E ective De ath Penalty Act of 1996.

On Jan. 25, Madison had eaten a la st

meal of two oranges and wa s a half-

hour away from lethal injection when the

Supreme Court intervened w ith a stay of

execution.

“It is undisputed that Mr. Madison suf-

fers from vascula r dementia as a result

of multiple serious strokes in the last t wo

years and no longer has a memory of the

commission of the crime for which he is

to be executed,” said the stay application

fi led by his law yers with the Equal Justice

Initiative in Montgomery, Alabama .

“His mind and body are fai ling,” the fi l-

ing continued. “He su ers from enceph-

alomalacia [dead brain tissue], small vessel ischemia,

speaks in a dysa rthric or slurred manner, is legally blind,

can no longer walk independently, and has urin ary

incontinence as a consequence of dam age to his brain.”

On Feb. 26, over the objections of Alabama stat e o -

cials, the high cour t granted full review of Ma dison’s

case, based on the quest ions of whether the Eighth

Amendment and relevant court pre cedents permit a state

to execute someone who whose mental disabil ity leaves

him without memory of his comm ission of the capital

o ense, and whether evolv ing standards of decency bar

the execution of a prisoner whose competency ha s been

compromised by vascula r dementia and multiple strokes.

Arguments ar e scheduled for Oct. 2, the second day of

the court ’s new term.

“This case i s going to have something to say about dig-

nity, and who we execute and why,” says John H. Blume,

a professor at Cornell Law School and the d irector of the

Cornell Death Penalty P roject.

Blume has represented defendants in ma ny death pen-

alty cases , though he is not involved Madison’s case.

LACK OF UNDERSTANDING

Madison was convic ted for killing Julius Schulte,

a Mobile, Alabama, police o cer who wa s protect-

ing Madison’s ex-girlfriend and her 11-year-old daugh-

ter after a domestic di spute. Madison crept up behind