SCOTUS Allows Execution of Prisoner with No Memory of Crime

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By Alisa Johnson

The U.S. Supreme Court summarily reversed a block on the execution of a convicted cop-killer whose dementia has erased any memory of his crime.

The court’s precedent hasn’t “clearly established” that “a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case,” it said in a per curiam opinion issued Nov. 6 ( Dunn v. Madison , 2017 BL 397355, U.S., 17-193, 11/6/17 ).

In 1985, Vernon Madison, now 67, “crept up behind police officer Julius Schulte and shot him twice in the head at close range,” the court said. In recent years Madison has suffered a series of strokes.

The court has previously held that the Eighth Amendment prohibits the execution of a person who lacks a “rational understanding” of the reason why he is being punished. In the absence of that understanding, the punishment “can serve no proper purpose,” it said.

Under the Antiterrorim and Effective Death Penalty Act, a state prisoner is entitled to habeas relief if the state’s denial of relief is “contrary to, or an unreasonable application of” clearly established law as defined by the Supreme Court, or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Here, the Alabama court did not unreasonably apply Supreme Court precedent “when it determined that Madison is competent to be executed because—notwithstanding his memory loss—he recognizes that he will be put to death as punishment for the murder he was found to have committed,” the Supreme Court said.

Nor did the state court unreasonably assess the evidence before it, where two psychologists testified that Madison understands both that he was convicted of murder and that he is to be executed as punishment for that crime, the high court said.

Invitation for Petitions?

Lawyers in capital cases on direct review may see an invitation in the two concurring opinions to seek certiorari for defendants with memory impairments or those whose cases have dragged on.

Justice Stephen G. Breyer, concurring, said this case illustrates why the court should reconsider the constitutionality of the death penalty. He pointed to “the unconscionably long periods of time that prisoners often spend on death row awaiting execution.”

In the future, he added, the court may “face ever more instances of state efforts to execute prisoners suffering the diseases and infirmities of old age,” and “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.”

In a similar vein, Justice Ruth Bader Ginsburg, in a concurrence joined by Breyer and Justice Sonia Sotomayor, recognized that the constraints inherent in habeas corpus review precluded the “full airing” of the underlying issue—executing prisoners who have no recollection of their crime.

To contact the reporter on this story: Alisa Johnson in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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