- The Washington Times - Monday, November 6, 2017

The Supreme Court ruled Monday that a man who committed a vicious murder decades ago can still be executed even though he’s since lost all memory of the crime, in a case that probes the limits of the death penalty.

Vernon Madison was convicted of shooting a police officer in the head in 1985, but has suffered several strokes in recent years, leaving him without memory of the crime.

An appeals court had said Madison’s inability to remember the crime made him incompetent and thus he couldn’t be executed.

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But a unanimous Supreme Court ruled Monday that Madison understands he was convicted of murder and would be punished for it, and that is itself enough to find him competent to receive the death penalty.

“Testimony from each of the psychologists who examined Madison supported the court’s finding that Madison understands both that he was tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime,” the justices said in an unsigned opinion.

They said a prisoner’s memory loss was distinct “from a failure to rationally comprehend the concepts of crime and punishment as applied in his case.”

Courts have long grappled with the point at which a defendant is deemed incompetent to stand trial, and there are instances where the Supreme Court ruled for defendants who couldn’t comprehend the punishment they were facing.

But Bruce Jacob, a professor at Stetson University College of Law, said Madison’s case is different.

“He knows what he was tried for, and he understands what the result of his sentence is going to be,” Mr. Jacob said.

He said the court’s ruling Monday also avoided opening the door to claims by people who would argue they’ve forgotten their crime.

“There would be a lot of claims by inmates on death row who would say they had no memory of the crime.”

Three justices, led by Supreme Court Justice Ruth Bader Ginsburg, wrote to say that while they agreed the state court followed the law in this case, it’s still an open question whether someone whose disability means losing all memory of a capital offense crime should be executed.

Robert Becker, a professor at New York Law School and author of “The Death of Punishment: Searching for Justice Among the Worst of the Worst,” said Justice Ginsburg was respecting federalism in her concurrence by following the habeas corpus review standards.

“She wouldn’t allow it,” he said of the death penalty. “But she is constrained by the standards that the congressional standards dictate in what can be reviewed and reversed.”

Justice Stephen G. Breyer, another of the three, wrote yet another opinion saying the more than 30-year delay from crime to execution was a problem as well — and the case of Madison shows why.

He said the convict has had several strokes, is now legally blind, has slurred speech, is incontinent and cannot walk without assistance.

“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,” Justice Breyer wrote.

He said the best solution, however, isn’t to create a new set of standards for the old but to “reconsider the root cause of the problem — the constitutionality of the death penalty itself.”

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