In the

Supreme Court of the United States

VERNON MADISON,  PETITIONER

v.

STATE OF ALABAMA, RESPONDENT

 

BRIEF OF PETITIONER

QUESTIONS PRESENTED

This Court has granted certiorari to address the following two substantial questions:

1. Consistent with the Eighth Amendment, and this Court's decisions in Ford v. Wainwright (1986), and Panetti v. Quarterman  (2007), may the State execute a prisoner whose vascular dementia and cognitive impairment leaves him without memory of the commission of the capital offense and prevents him from having a rational understanding of the circumstances of his scheduled execution?

2. Do evolving standards of decency and the Eighth Amendment's prohibition of cruel and unusual punishment bar the execu­tion of a prisoner whose competency has been compromised by vascular dementia and multiple strokes, and where scientific and medical advancements confirm severe cognitive dysfunction and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the cir­cumstances of his scheduled execution?

 

INTRODUCTION

Vernon Madison has been on Alabama's death row for over 30 years. As a result of multiple, severe strokes over the last several years, Mr. Madison now suffers from vascular dementia, cognitive impairment, and memory loss. He also suffers from encephalomalacia (dead brain tissue), has small vessel ischemia, speaks in a dysarthric or slurred manner, is legally blind, can no longer walk independently, and has urinary incon­tinence.

Scientific and medical advancements have allowed experts and courts to confirm the extent of his cogni­tive decline, and three federal judges concluded that his impaired condition prevented him from having a rational understanding of the execution that the State of Alabama sought to carry out and that his execution was therefore prohibited by the Eighth Amendment. Prior to his most recent scheduled execution date, how­ever, the state trial court, in an unreviewable judg­ment, concluded that vascular dementia and its attendant cognitive decline and memory loss did not trigger the protections of the Eighth Amendment. This Court has now agreed to resolve the question of whether executing someone with dementia and cogni­tive brain damage, whose mental disability prevents him from having a rational understanding of his exe­cution, is prohibited by the Eighth Amendment.

On January 16, 2018, the Mobile County Circuit Court denied Mr. Madison's petition to suspend his ex­ecution because he is incompetent to be executed, filed pursuant to Alabama Code 15-16-23. Section 15- 16-23 provides that the trial court's decision "shall be exclusive and final and shall not be reviewed or revised by or renewed before any other court or judge." As such, the Mobile County Circuit Court's order is the only order presented for this Court's review.

RELEVANT CONSTITUTIONAL PROVISIONS

The Eighth Amendment to the United States Constitution provides in relevant part:

Excessive bail shall not be required, nor ex­cessive fines imposed, nor cruel and unusual punishments inflicted.

The Fourteenth Amendment to the United States Constitution provides in relevant part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

Following his arrest for the shooting death of off­ duty police officer Julius Schulte on April 18, 1985, Vernon Madison spent the next decade on Alabama's death row illegally convicted. His first conviction by an all-white jury was deemed unconstitutional after state prosecutors were found to have illegally excluded all black venire members. At a second trial, pros­ecutors improperly introduced clearly inadmissible ev­idence to obtain a conviction which necessitated a second reversaL It was not until 1998 that the Alabama appellate courts finally affirmed Mr. Madi­son's conviction for capital murder, and even that affir­mance left unresolved questions about racially biased jury selection and the trial court's override of the death-qualified jury's verdict of life imprisonment without parole.

Collateral appeals to state and federal courts were pursued by Mr. Madison. The United States Court of Appeals for the Eleventh Circuit eventually remanded the case to the district court for further proceedings based on concerns about the prosecutor's racially bi­ased use of peremptory strikes. Ultimately, the federal courts denied Mr. Madison's petition for habeas corpus relief.

During the pendency of this federal court litiga­tion, Mr. Madison began to experience serious medical problems that have now left him severely impaired. As a result of multiple, life-threatening strokes, Mr. Mad­ison has suffered significant brain damage. He now speaks in a dysarthric or slurred manner, is legally blind, can no longer walk independently, and has uri­nary incontinence. More importantly, he now suffers from vascular dementia and corresponding long-term severe memory loss, disorientation and im­paired cognitive functioning.

The most recent of these strokes occurred on Jan­uary 4, 2016, when prison officials found Mr. Madison unresponsive in his prison cell and fecally incontinent after he suffered a thalamic stroke," which necessi­tated transfer from Holman Prison to an outside hos­pital. The thala­mus is a "connection organ" that links the limbic sys­tem in the lower area of the brain to the frontal lobes, and when the thalamus is damaged, "the most common thing" that results is memory loss. After the stroke, Mr. Madison was disoriented, appeared "very confused," and suf­fered significant loss of memory.

Prior to this January stroke, other strokes had contributed to Mr. Madison's cognitive decline. In May 2015, he suffered a basilar artery occlusion, causing bilateral cerebral and occipital in­farctions, and resulting in increased brain pressure, white matter attenuation, and possible temporal lobe damage. As a result, Mr. Madison was taken to the ICU and a neurosurgeon was placed on standby due to a high risk of fatal brain herniation. This stroke, as well as others, compro­mised his memory and ability to recall basic things about his life and personal history. Indeed, since his stroke, he has repeatedly asked for his mother to come and visit him even though she has been dead for years

Mr. Madison's stroke left him in an "altered men­tal status," with a diminished ability to comprehend. He was also unaware of where he was or why he was there and became generally confused, a disorientation that continued well after his hospitali­zation. His speech was slurred, he exhibited signs of an impaired memory, and he could not remember the officers who were guarding him, whom he had known for years. Medical records also document that Mr. Madison suffered strokes prior to the May 2015 incident which negatively impacted his cognitive and bodily functioning.

As a result of these strokes, Mr. Madison now suf­fers from encephalomalacia, which means that there are areas of his brain where the tissue is dead. 

Mr. Madison suffers from additional, chronic med­ical conditions that have led to worsening capacity for rationally understanding his circumstances, including chronic small vessel ischemia which is recognized as a leading cause of cognitive declineHe also suffers from occipital angioma - an abnormal collec­tion of blood vessels - which likely contributed to his strokes and debilitating headaches.  

At the 2016 hearing on his competency-to-be­-executed challenge, Mr. Madison was confined to a wheelchair. The trial court found that he "appeared to be a physically ill individual" and that it was "difficult to tell if Madison was following all of the testimony or not."

At that hearing, unrebutted evidence was pre­sented that Mr. Madison suffers from a major vascular neurocognitive disorder, or vascular dementia, which was caused in part by the thalamic stroke he suffered in January 2016. Dr. John Goff, a licensed neuropsychologist who, at Mr. Madison's re­quest, conducted extensive neuropsychological testing and evaluated Mr. Madison's competence to be exe­cuted, determined that Mr. Madison's cognitive and bodily functioning has declined significantly as a result of multiple strokes suffered over the last several years, and as a result of other medical conditions with which he is afflicted.

Dr. Goff's testimony established that the thalamic stroke that occurred in 2016 is particularly relevant to Mr. Madison's competency because it resulted in sig­nificant cognitive injuries and memory loss as well as a diminished capacity for rationally understanding his circumstance. Dr. Goff diagnosed Mr. Madison with vascular dementia due to the onset of cognitive deficits, including memory loss, that were temporally related to a "hard marker in the medical records ... , on the MRI"; in this case, the thalamic stroke.

Consistent with that diagnosis, Mr. Madison suf­fers from resulting retrograde amnesia which means that his episodic memory - memory related to events that happened to him in the past - has significantly declined. Consequently, Mr. Madison cannot re­member numerous events that have occurred over the past 30 years. Dr. Goff's examination revealed that Mr. Madison cannot independently recall the facts of the offense; the sequence of events from the offense, to his arrest, to his trial or previous legal proceedings in his case; or the name of the victim.

These findings are consistent with Dr. Goff's neuropsychological testing, which revealed that Mr. Madison has an IQ score of 72, placing him in the borderline range of intelligence and confirming a sig­nificant decline from his previous scores. Mr. Mad­ison has a Working Memory Score of 58, demonstrating severe memory deficits. The Working Memory In­dex is scored on a scale that is similar to an IQ test in which 100 is the mean and the standardization is 15. As Dr. Goff explained in his report, Mr. Madison's "memory skills in regard to working memory fall within the severely impaired range with scores comparable to IQ test scores in the 50's," thereby placing him "within the borderline to in­tellectually disabled range".

Testing revealed additional evidence of Mr. Madi­son's memory impairments: Mr. Madison could not re­call any of the 25 elements in a brief story vignette Dr. Goff read him, could not remember the alphabet past the letter G, could not perform serial three additions, and could not remember the name of the previous United States President. Mr. Madison named Guy Hunt, who had left office nearly 25 years earlier, as the governor of Alabama," and could not remember the name of the warden at Holman Prison, where he is in­carcerated. There is also evidence Mr. Madison has difficulty rationally pro­cessing basic information. During the examination, Dr. Goff noted that Mr. Madison was unable to rephrase simple sentences or perform simple mathematical cal­culations. Dr. Goff con­cluded that these deficits likely resulted from the January stroke. Finally, Dr. Goff's administration of the "21-Item Test," as well as his clinical interview, confirmed that he did not see any clinical indications for "malingering or dissimula­tion," and that Mr. Madison "put forth a genuine effort in regard to his attempts to communicate with me and in regard to the psychometrics administered."

Dr. Goff clarified that the memory loss and cogni­tive decline seen in patients with dementia is patho­logical, and therefore is distinct from typical memory loss or forgetfulness many people see as they age; that individuals with dementia will vary in their presenta­tion and can have an inconsistent memory; and that a diagnosis of dementia means Mr. Madison's cognitive functioning will likely continue to decline. 

Focusing on Mr. Madison's understanding of the reason for the execution, Dr. Goff attempted to employ a checklist of interview questions specifically designed to evaluate a prisoner's competency to be executed," although he was unable to complete the outline be­cause of Mr. Madison's "tendency to repeat himself and his tendency to go off on tangents." Ultimately, Dr. Goff concluded that Mr. Madi­son does not "seem to understand the reasoning behind the current proceeding as it applies to him" and does not understand why he is scheduled to be executed by the State. In response to direct question­ing by the state trial judge at the hearing, Dr. Goff tes­tified that while Mr. Madison may understand that the State is seeking retribution, he does not "understand the act that he's being punished for."

The court-appointed expert, Dr. Kirkland," did not dispute the physical and cognitive decline that Mr. Madison experienced as a result of his multiple strokes, nor did he find any indication that Mr. Madison was malingering. Dr. Kirkland reported that Mr. Madison was able to accurately discuss the history of his appeals, but never testified as to whether Mr. Madison could re­member the crime or to his ability to rationally under­stand the connection between the crime and his scheduled execution.

The trial court denied relief based on a view that Mr. Madison's diagnosed vascular dementia and attendant cognitive and memory deficits were not rel­evant to the determination of Mr. Madison's compe­tency-to-be-executed. However, based on this evidence in ha­beas corpus proceedings, all three Eleventh Circuit judges agreed that Mr. Madison did not have a rational understanding of the link between the crime and his scheduled execution, and was therefore incompetent to be executed.

This Court reversed the Eleventh Circuit's grant of habeas corpus relief, but declined to express a view on "the merits of the underlying question" of Mr. Mad­ison's competency-to-be-executed. A second execution date was set for January 25, 2018.

On the basis of new evidence about the credibility, reliability and validity of Dr. Kirkland's prior opinions and his suspension from the practice of psychology, as well as the progressive and degenera­tive nature of his vascular dementia, and his continued mental and physical decline, Mr. Madison once again challenged his competency to be executed in the Mobile County Circuit Court on December 18,2017. At a hear­ing on the petition in the Mobile County Circuit Court, the State did not contradict the allegations regarding Dr. Kirkland and the trial court accepted them as true. Nevertheless, relying on the evidence that had been previously presented, the state trial court denied Mr. Madison's petition.

SUMMARY OF ARGUMENT

In Ford v. Wainwright, this Court concluded that "evolving standards of decency that mark the progress of a maturing society" dictate that the penological jus­tifications for imposing the death penalty are not served by the execution of someone who is incompetent and that it is therefore prohibited by the Eighth Amendment. In Panetti v. Quarterman, the Court reaffirmed the basic premise of Ford, noting that "today, no less than before, we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life."

As a result of several strokes and declining health, Vernon Madison, who has been on Alabama's death row for over 30 years, now suffers from vascular de­mentia, cognitive deficits, severe memory loss and brain damage. He does not remember the crime for which he has been convicted and does not have a ra­tional understanding of why the state of Alabama seeks to execute him.

The lower court rejected Mr. Madison's claim for relief under Ford largely because dementia and neurological disease were seen as outside the scope of protection under the Eighth Amendment. This Court's precedents do not support that conclusion, and instead require that states refrain from executing an individual whose verifiable cognitive impairments render him incompetent to rationally understand the circumstances surrounding a scheduled execution. No penological justification or retributive value can be found in executing a severely impaired and incom­petent prisoner, especially where advances in neuro­logical science now make clear the nature of this incompetency. The execution of Vernon Madison conse­quently is prohibited by the Eighth Amendment's es­sential commitment to human dignity.

The Eighth Amendment Bars the Execution of an Individual Who Lacks the Ability to Understand Why He Is Being Executed.

In 1976, this Court reauthorized application of the death penalty in a series of cases with the express con­dition that any execution must still "comport with the basic concept of human dignity at the core of the Eighth Amendment."

Since that time, this Court has endeavored to "en­force the Constitution's protection of human dignity," by limit­ing the application of capital punishment to those who commit the most serious crimes and those with the most extreme culpability. Thus, the Court has banned the execution of prisoners whose crimes do not meet the penological justification necessary for the extreme punishment of death.

This Court has also banned the execution of pris­oners whose diminished culpability, by virtue of age or intellectual disability, rendered the death penalty ex­cessive and crueL

Ford's and Panetti's commitment to protecting the incompetent from execution under the Eighth Amend­ment is informed by a tragic history of punishment where vulnerable people have sometimes been treated cruelly by state governments. The forcible sterilization of thousands of women deemed "mental defectives," the castration of "confirmed criminals," and the use of lobotomies upon and compulsory institutionaliza­tion of people based on their sexual orientation are clear reminders of why this Court has interpreted the Eighth Amendment as being centrally concerned about human dignity and protection against cruel punish­ment. Consequently, the execution of a prisoner com­promised by dementia and cognitive injury presents a critically important issue. Despite the fact that Ala­bama has by statute made competency-to-be-executed claims a "second class" concern unworthy of appellate review where a trial judge's determination is final, this Court in Ford and Panetti made clear that preventing the execution of the incompetent is a central require­ment of the Eighth Amendment.

This Court's precedent exempts from execution "a category of defendants defined by their mental state," and in both Ford and Panetti, this Court declined to limit the underlying disorders that can give rise to a finding that a prisoner is incompetent.

In Ford, for example, this Court did not specifically define the source of a person's (or "mad man's") "men­tal condition," "sanity," "diagnoses," "non-sane memory," "mental awareness," or "capacity" that could give rise to a competency claim, but sought only to distinguish where a lack of rational understanding would separate those whom society could execute and those for whom death would be cruel and unusuaL In erecting the Eighth Amendment bar, Ford refused to limit what evidence, i.e., what diagnoses, test results, brain scans, or behavior, is required to meet the standard for incompetence.

And in Panetti, this Court reflected that Ford "dis­cussed the substantive standard at a high level of gen­erality." As such, the Panetti opinion likewise speaks variously of "mental state," "mental ill­ness," "mental disorder," and "psychological dysfunc­tion," fully rejecting any call "to amplify the Court's conclusions or to make them more precise." This lack of precision reflects the Court's un­derstanding that there are multiple circumstances that could give rise to a prisoner's incompetency.

Indeed, Panetti presents the only occasion on which this Court has ever commented on what afflic­tion might meet the standard for incompetence, and it did so in a way that would preclude a narrowing of the inquiry. Specifically, in Panetti, the prisoner sought to establish incompetency by demonstrating that his de­lusional belief system obstructed a rational under­standing of the State's reason for his execution. In finding the prisoner competent to be exe­cuted, the Fifth Circuit Court of Appeals treated the prisoner's delusional beliefs as irrelevant because the prisoner was "aware that he committed the murders, ... aware that he will be executed; and ... aware that the reason that the State has given for the execution is his commission of the crimes in question." This Court overturned the lower court, finding no support in Ford for the proposition that "a prisoner is automatically foreclosed from demonstrating incompe­tency once a court has found he can identify the stated reason for his execution." Such a standard is "too restrictive to afford a prisoner the protections granted by the Eighth Amendment" where it rendered certain features of petitioner's mental disorder irrele­vant to the determination of competency once it was determined that the prisoner is "aware the State has identified the link between his crime and the punish­ment to be inflicted."

Panetti thus found that the refusal to consider ev­idence demonstrating incompetency once a court has found that a prisoner is aware of the stated reason for his execution "is to mistake Ford's holding and its logic." Rather, a reviewing court must not limit consideration of mental disorders that "so impair the prisoner's concept of reality that he cannot reach a rational understanding of the reason for the execution." "If anything," this Court found in Panetti, "the Ford majority suggests the opposite."

Despite Panetti's insistence that courts cannot treat evidence of mental impairments or disorders as "irrelevant" to the competency determination once it concludes that the defendant is aware of the stated reason for his execution, the trial court in this case did just that when rejecting Mr. Madison's claim. That is, the court below disregarded the medical and scientific evidence that Mr. Madison suffers from dementia and corresponding memory deficits " because, at the State's continued insistence, the court determined that vascu­lar dementia constitutes a different medical condition than what this Court has recognized as triggering the Eighth Amendment protections of Ford and Panetti." And, when Mr. Madison challenged his most recent ex­ecution date due to his same progressive and degener­ative condition, the lower court again concluded that Mr. Madison's disorder did not implicate the protec­tions of Ford and Panetti.

CONCLUSION

The Eighth Amendment's essential commitment to human dignity, as expressed through the "evolving standards of decency" requires that states refrain from executing an individual whose verifiable cognitive im­pairments render him incompetent to rationally un­derstand the circumstances surrounding a scheduled execution.

This Court should reverse the lower court's judg­ment and conclude that Vernon Madison's execution is prohibited by the Eighth Amendment and the stand­ards set forth by this Court in Ford and Panetti.