US Supreme Court case: can you execute a man who can’t remember his crime?

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by Charlotte PLANTIVE / Agence France-Presse

Vernon Madison killed an Alabama police officer in 1985, and was convicted and sentenced to death nine years later.

But after two debilitating strokes while in prison, his lawyers say he can’t remember the crime he committed or why he is to be executed.

The US Supreme Court heard arguments Tuesday in a case that will likely have much broader meaning than for just one person: it could apply to the large population of aging inmates in American prisons facing execution.

The eight judges of the high court who heard Tuesday’s arguments must weigh whether capital punishment for the 68 year old Madison, already delayed several times, is ethical and legal, based on the US Constitution’s prohibition of “cruel and unusual punishment.”

Critical could be who fills the ninth seat: conservative nominee Brett Kavanaugh’s approval has been stalled as he faces sexual abuse allegations.

– Inmate with dementia faces execution –
Madison shot a policeman in the head twice when the officer tried to intervene in a domestic dispute in 1985 in the city of Mobile. But it took nine years to gain a final verdict, after the initial verdicts in his first two trials were overturned over procedural issues.

In 2015 and 2016, Madison suffered two severe strokes. Today he is almost blind, cannot walk without assistance, and suffers from incontinence.

His memory is so impaired that he can no longer recite the alphabet and frequently requests visits from his mother, who has been dead for years.

He does not remember his crime or the trials he underwent that placed him on death row.

If someone is fragile and confused, under the Constitution’s 8th amendment “it is simply not humane to execute him,” Madison’s attorney Bryan Stevenson told the high court Tuesday.

– Growing problem –
“Not remembering your crime is not enough,” argued Alabama deputy attorney general Thomas Govan.

“He is able to understand the nature of the criminal proceeding,” said Govan.

If the state stops executing people who don’t remember their crimes, he added, “no inmate would ever admit committing a crime.”

The case raises a legal issue the Supreme Court has yet to rule upon.

While the high court has ruled in the past against executing people found insane, it has not considered specifically the issue of lack of memory of the crime or trial.

Justice Sonia Sotomayor questioned what is the meaning of a sentence “if you can’t rationally appreciate why you are put to death.”

Justice Stephen Breyer said it is an important issue beyond Madison’s case, given the number of advanced-age convicts awaiting execution.

In 2011 nearly four percent of the death row population was over 65, around 100 individuals.

“Many detainees are in their 40s, 50s, 60s, 70s and possibly 80s and have been on the death row for 20, 30, 40 years. This will become a more common problem,” Breyer said.

– Kavanaugh could determine ruling –
More broadly, the case could test the court’s longstanding tilt toward protecting criminals from punishments that can be considered “cruel and unusual.”

In several key rulings, former justice Anthony Kennedy, a moderate who retired in July, sided with the court’s four liberals in broad interpretations of the 8th amendment.

Kavanaugh, if approved, is expected to side with the four current conservatives and turn the court solidly to the right. If he votes on the case, Madison might not gain a reprieve.(AFP)

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