ARI SHAPIRO, HOST:
Now to the Supreme Court where today the justices grappled with a difficult death penalty question. Does it violate the Constitution's ban on cruel and unusual punishment to execute a convicted murderer who has such severe dementia that he doesn't remember the crime he committed? NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Vernon Madison committed a terrible crime. In 1985, after leaving his girlfriend's house, he returned and shot and killed a police officer who had remained outside in his car to provide protection. Twice Madison was sentenced to death, but the convictions were overturned because of prosecutorial misconduct. The third time he was convicted, the jury recommended life in prison. But Alabama has a unique law that allows a trial judge to override a jury's recommendation, and the judge did just that.
Madison has been on death row in solitary confinement in Alabama now for more than 30 years. In that time, he's suffered multiple severe strokes. An MRI shows part of his brain is dead, and there is no dispute that he suffers from severe vascular dementia. His lawyer, Bryan Stevenson, says that Madison is so disoriented that he doesn't know what day, month or a year it is. He's legally blind, has difficulty walking and slurs his speech.
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BRYAN STEVENSON: But most critically, he has no memory of the circumstances of this crime, the thing that the state seeks to execute him for.
TOTENBERG: Inside the Supreme Court today, lawyer Stevenson told the justices that executing a man so incompetent would be unconstitutionally cruel and unusual punishment. In the past two decades, in cases like this, barring the death penalty for juveniles and the mentally challenged, the justice who provided the fifth and deciding vote was Anthony Kennedy, and he has just retired.
Inside the courtroom today, the justices appeared closely divided. Chief Justice John Roberts asked whether, for the purposes of the death penalty, dementia is the same as someone who becomes psychotic while in prison. Lawyer Stevenson - there would have to be a memory loss plus something else. Justice Ginsburg - what would the plus be? Answer - brain damage that is the result of an injury so that the brain is incapable of producing memories or creating the kind of rational understanding that this court has required in the past. Justice Sotomayor - so you're not talking about just amnesia? Answer - no, Mr. Madison's dementia is so comprehensive that he can explain to you that he has a toilet in his cell for his use, but he can't hold that memory, and he routinely urinates on himself and asks the guards to take him to the toilet.
The problem in this case, Stevenson said, is that the lower courts have said that since Madison is not delusional or psychotic, it's all right to execute him. The Eighth Amendment, he said, is not like the Constitution's other amendments. It's a mirror of our norms and our values, and what we have argued in this case is that Mr. Madison's dementia renders him so frail, bewildered and vulnerable that executing him cannot be reconciled with the Constitution's ban on cruel and unusual punishment.
Arguing for executing Madison was Alabama Deputy Attorney General Thomas Govan Jr. Justice Breyer, a frequent critic of the death penalty, asked this question. Think of a person in the advanced stages of Alzheimer's. What's the purpose of executing that person if you wouldn't execute a person who's schizophrenic or delusional? Lawyer Govan replied that the state in this case still has an interest in seeking retribution for a horrible crime. And he said that Madison does understand that he's in prison because of a murder. After the argument, Alabama State Attorney General Steve Marshall had this to say.
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STEVE MARSHALL: This involved the literal execution of a police officer with this murder. And at some point in time, the state looks forward to being able to obtain the punishment that the trial judge believed was appropriate in this case.
TOTENBERG: A decision in the case is expected later in the term. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.