Petitioners Brief — Vernon Madison, Petitioner v. Alabama

Supreme Court briefMay 22, 2018

Ask Donna

What actually matters in this document.

Text

No. 17-7505

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------VERNON MADISON,

Petitioner,

STATE OF ALABAMA,

Respondent.

-----------------------------------------------------------------On Writ Of Certiorari To

The Mobile County Circuit Court

-----------------------------------------------------------------BRIEF OF PETITIONER

-----------------------------------------------------------------BRYAN A. STEVENSON

Counsel of Record

ANGELA L. SETZER

RANDALL S. SUSSKIND

EQUAL JUSTICE INITIATIVE

122 Commerce Street

Montgomery, AL 36104

(334) 269-1803

bstevenson@eji.org

asetzer@eji.org

rsusskind@eji.org

Counsel for Petitioner

May 22, 2018

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED

This Court has granted certiorari to address the

following two substantial questions:

Consistent with the Eighth Amendment,

and this Court’s decisions in Ford v.

Wainwright, 477 U.S. 399 (1986), and

Panetti v. Quarterman, 551 U.S. 930

(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?

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?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

TABLE OF CONTENTS ......................................

TABLE OF AUTHORITIES .................................

INTRODUCTION ................................................

OPINIONS BELOW.............................................

STATEMENT OF JURISDICTION .....................

RELEVANT CONSTITUTIONAL

PROVISIONS ...................................................

STATEMENT OF THE CASE..............................

SUMMARY OF ARGUMENT .............................. 15

ARGUMENT ........................................................ 17

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

Executed .................................................... 17

II.

The Penological Objectives of the Eighth

Amendment Cannot Be Squared with the

Execution of a Prisoner Whose Vascular

Dementia and Associated Cognitive Decline Leave Him Without a Memory of the

Commission of the Crime or a Rational

Understanding of Why He Is to Be Executed .......................................................... 24

iii

TABLE OF CONTENTS – Continued

Page

III.

Medical and Scientific Advancements

Have Allowed for Increased Confidence in

the Diagnosis of Mental Disorders that

Merit Protection Under the Eighth

Amendment ............................................... 29

CONCLUSION..................................................... 36

TABLE OF AUTHORITIES

Page

CASES

Atkins v. Virginia, 536 U.S. 304 (2002)........... 11, 18, 28

Batson v. Kentucky, 476 U.S. 79 (1986) ........................3

Buck v. Bell, 274 U.S. 200 (1927) ................................19

Coker v. Georgia, 433 U.S. 584 (1977) ........................18

Darr v. Billeaudeau, 541 S.W.3d 460 (Ark. Ct.

App. 2018) ................................................................23

Dunn v. Madison, 138 S. Ct. 9 (2017) .........................15

Enmund v. Florida, 458 U.S. 782 (1982) ....................18

Ford v. Wainwright, 477 U.S. 399 (1986) ............ passim

Gregg v. Georgia, 428 U.S. 153 (1976) .................. 17, 27

Hall v. Florida, 134 S. Ct. 1986 (2014) ........... 17, 29, 30

In re Estate of Bragdon, 875 A.2d 697 (Me. 2005) ......23

In re Estate of Flowers, 88 N.E.3d 599 (Ohio Ct.

App. 2017) ................................................................23

In re Estate of Lynch, 350 S.W.3d 130 (Tex. App.

2011) ........................................................................23

Ivie v. Smith, 439 S.W.3d 189 (Mo. 2014) ...................23

Kennedy v. Louisiana, 554 U.S. 407 (2008) ................18

State v. Kirkland, Nos. DC-2016-002143.00, DC2016-002144.00, DC-2016-002145.00, DC-2016002146.00 (Dist. Ct. Montgomery County) ............14

Ex parte Madison, 718 So. 2d 904 (Ala. 1998) .............4

TABLE OF AUTHORITIES – Continued

Page

Madison v. Dunn, No. 1:16-cv-00191-KD-M (S.D.

Ala. 2016)...................................................................5

Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d

1240 (11th Cir. 2014) .................................................4

Madison v. Comm’r, Ala. Dep’t of Corr., 851 F.3d

1173 (11th Cir. 2017) ...............................................14

Madison v. State, 545 So. 2d 94 (Ala. Crim. App.

1987) ..........................................................................3

Madison v. State, 620 So. 2d 62 (Ala. Crim. App.

1992) ..........................................................................3

Madison v. Thomas, 135 S. Ct. 2346 (2015) .................4

Miller v. Alabama, 567 U.S. 460 (2012) ......................30

Moore v. Texas, 137 S. Ct. 1039 (2017) .......................29

Panetti v. Quarterman, 551 U.S. 930 (2007) ....... passim

Riddell v. Edwards, 32 P.3d 4 (Alaska 2001) .............23

Roberts v. Louisiana, 428 U.S. 325 (1976) ..................17

Roper v. Simmons, 543 U.S. 551 (2005) ......................18

Simon v. Fisher, 641 F. App’x 386 (5th Cir.

2016) ........................................................................12

Weeks v. State, 663 So. 2d 1045 (Ala. Crim. App.

1995) ..........................................................................2

Woodson v. North Carolina, 428 U.S. 280 (1976) .......17

TABLE OF AUTHORITIES – Continued

Page

STATUTES AND CONSTITUTIONAL PROVISIONS

28 U.S.C. § 1257(a) ........................................................2

1907 Ind. Acts 377 ......................................................19

Alabama Code § 15-16-23 .............................................2

U.S. Const. amend. VIII ...................................... passim

U.S. Const. amend. XIV .......................................... 3, 19

MISCELLANEOUS

Ala. Bd. of Exam’rs in Psychology, Psychologist

Search or License Verification, www.psychology.

state.al.us/licensee.aspx..........................................13

Alabama Governors, Ala. Dep’t. of Archives and

History, http://www.archives.alabama.gov/

govslist.html (last visited May 22, 2018) ...............11

Am. Psychiatric Ass’n, Diagnostic and Statistical

Manual of Mental Disorders (5th ed. 2013) ... passim

Am. Psychiatric Ass’n, Diagnostic and Statistical

Manual of Mental Disorders (4th ed. text revision 2000) .......................................................... 30, 31

Am. Bar Ass’n, Recommendation and Report on

the Death Penalty and Persons with Mental

Disabilities (2006), reprinted in 30 Mental &

Physical Disability L. Rep. 668 (2006) ...................27

Am. Bar Ass’n, Severe Mental Illness and the

Death Penalty 7 (2016) ............................................27

vii

TABLE OF AUTHORITIES – Continued

Page

Bayanne Olabi et al., Are There Progressive

Brain Changes in Schizophrenia? A MetaAnalysis of Structural Magnetic Resonance

Imaging Studies, 70 Biological Psychiatry 88

(2011) .......................................................................33

Beatrice De Coene et al., MR of the Brain Using

Fluid-Attenuated Inversion Recovery (FLAIR)

Pulse Sequences, 13 Am. J. Neuroradiology

1555 (1992) ..............................................................34

Chiadi U. Onyike, Psychiatric Aspects of Dementia, 22 Continuum 600 (2016) .................................32

Daniel Lindqvist et al., Psychiatric Disorders

and Leukocyte Telomere Length: Underlying

Mechanisms Linking Mental Illness With Cellular Aging, 55 Neuroscience & Biobehavioral

Rev. 333 (2015) ........................................................33

Darrel Regier et al., The DSM-5: Classification

and Criteria Changes, 12 World Psychiatry 92

(2013) ................................................................. 31, 32

David C. Good, Cerebrovascular Disease, in

Clinical Methods: The History, Physical, and

Laboratory Examinations 288 (H. Kenneth

Walker, W. Dallas Hall, & J. Willis Hurst,

eds.1990) ....................................................................5

Geoffrey D. Rubin et al., CT Angiography After

20 Years: A Transformation in Cardiovascular

Disease Characterization Continues to Advance, 271 Radiology 633 (2014) .............................34

viii

TABLE OF AUTHORITIES – Continued

Page

Gregory M. Herek, Sexual Orientation Differences as Deficits: Science and Stigma in the

History of American Psychology, 5 Persp. on

Psych. Sci. 693 (2010)..............................................20

Jessica Lohrke et al., 25 Years of ContrastEnhanced MRI: Developments, Current Challenges and Future Perspectives, 33 Advances

in Therapy 1 (2016) .................................................35

John G. Baker et al., Cerebral Small Vessel Disease: Cognition, Mood, Daily Functioning, and

Imaging Findings from a Small Pilot Sample,

2 Dementia & Geriatric Cognitive Disorders

Extra 169 (2012)........................................................8

John H. Blume, Sheri Lynn Johnson, & Katherine E. Ensler, Killing the Oblivious: An Empirical Study of Competency To Be Executed

Litigation, 82 UMKC L. Rev. 335 (2014) ................21

Kenji Yoshino, Covering, 111 Yale L. J. 769

(2002) .......................................................................19

Kim Severson, Thousands Sterilized, a State

Weighs Restitution, N.Y. Times, Dec. 9, 2011,

https://www.nytimes.com/2011/12/10/us/redressweighed-for-forced-sterilizations-in-northcarolina.html ...........................................................19

Laura S. Khoshbin & Shahram Khoshbin, Imaging the Mind, Minding the Image: An Historical Introduction to Brain Imaging and the

Law, 33 Am. J. L. & Med. 171 (2007) ......................32

TABLE OF AUTHORITIES – Continued

Page

Martin Dichgans & Didier Leys, Vascular Cognitive Impairment, 120 Circulation Research

573 (2017) ................................................................33

Narinder Kapur & Michael Kopelman, Advanced

Brain Imaging Procedures and Human Memory

Disorder, 65 Brit. Med. Bull. 61 (2003) ..................33

Note, Regulating Eugenics, 121 Harv. L. Rev.

1578 (2008) ..............................................................19

Nitin Williams & Richard Henson, Recent Advances in Functional Neuroimaging Analysis

for Cognitive Neuroscience, 2 Brain & Neuroscience Advances 1 (2018) .......................................32

Patricia A. Zapf, Marcus T. Boccaccini, & Stanley

L. Brodsky, Assessment of Competency for Execution: Professional Guidelines and an Evaluation Checklist, 21 Behav. Sci. & L. 103 (2003) ........13

Perminder S. Sachdev et al., Classifying Neurocognitive Disorders: The DSM-5 Approach,

10 Nature Reviews Neurology 634 (2014) ............... 30

Susan L. Mitchell, Advanced Dementia, 372 New

Eng. J. Med. 2533 (2015) .........................................12

Susumu Mori & Peter B. Barker, Diffusion Magnetic Resonance Imaging: Its Principle and

Applications, 257 Anatomical Rec. 102 (1999) .......34

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.

------------------------------------------------------------------

OPINIONS BELOW

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. (Attached to Petition for Writ of Certiorari as Appendix A.) Section 1516-23 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.” See also

Weeks v. State, 663 So. 2d 1045, 1046 (Ala. Crim. App.

1995) (dismissing appeal of competency-to-be-executed

determination because “[t]he statute clearly states

that a finding by the trial court on the issue of insanity,

as it relates to this statute, is not reviewable by any

other court”). As such, the Mobile County Circuit

Court’s order is the only order presented for this

Court’s review.

------------------------------------------------------------------

STATEMENT OF JURISDICTION

Mr. Madison’s petition for writ of certiorari was

filed on January 18, 2018, and review was granted on

February 26, 2018. Jurisdiction is appropriate because

the Mobile County Circuit Court is the “highest court

of [Alabama] in which a decision could be had.” 28

U.S.C. § 1257(a).

------------------------------------------------------------------

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 offduty 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 veniremembers in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Madison v. State, 545 So. 2d

94, 95-99 (Ala. Crim. App. 1987). At a second trial, prosecutors improperly introduced clearly inadmissible evidence to obtain a conviction which necessitated a

second reversal. Madison v. State, 620 So. 2d 62, 73

(Ala. Crim. App. 1992). 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. Ex parte Madison, 718 So. 2d 904 (Ala.

1998).

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.1 Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d

1240 (11th Cir. 2014). This Court denied certiorari review and subsequently denied Mr. Madison’s petition

for rehearing on May 18, 2015. Madison v. Thomas, 135

S. Ct. 2346 (2015).

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

In denying habeas corpus relief on Mr. Madison’s Batson

claim, the Eleventh Circuit found that “[t]he history of racial discrimination at the Mobile County District Attorney’s Office that

prosecuted Mr. Madison is significant.” Madison, 761 F.3d at 1252.

blind, can no longer walk independently, and has urinary incontinence. (See, e.g., Doc. 11-34 at 59 (Holman

Prison medical records); Doc. 11-23 at 47 (same); Doc.

8-3 at 16 (expert report of Dr. Goff ); Doc. 8-1 at 73-74,

92-93, 104-05 (4/14/16 hearing).)2 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,3 which necessitated transfer from Holman Prison to an outside hospital. (Doc. 11-32 at 25 (Holman medical records); Doc.

The pertinent facts relevant to Mr. Madison’s multiple

strokes and medical condition were developed in prior litigation

and explicitly incorporated into this proceeding. These facts, along

with filings and orders of that prior litigation, are all contained in

the habeas corpus record and available on PACER. Madison v.

Dunn, No. 1:16-cv-00191-KD-M (S.D. Ala. 2016). Thus, citations to

these facts will be to the document number of the relevant habeas

corpus record material, as for example “Doc. 8-3 at 19.” Any cites

to the hearing held in the Mobile County Circuit Court in 2018

will be as follows: “Hr’g R. at 12.”

An MRI confirmed that Mr. Madison suffered a “very small

acute CVA,” (Doc. 11-60 at 11 (Mobile Infirmary Medical records)),

and a “[t]iny focal acute to subacute infarct in the right thalamus,”

(Doc. 11-60 at 13 (same); see also Doc. 8-3 at 19 (Goff report); Doc.

8-1 at 101 (hearing)). “A neurologic symptom or symptom complex

caused by cerebral ischemia or hemorrhage is commonly called a

cerebrovascular accident (CVA), or stroke.” David C. Good, Cerebrovascular Disease, in Clinical Methods: The History, Physical,

and Laboratory Examinations 288, 288 (H. Kenneth Walker, W.

Dallas Hall, & J. Willis Hurst, eds. 1990). An “infarct” is, “in lay

words, a stroke[.]” (Doc. 8-1 at 101 (hearing).)

11-60 at 11-13 (Mobile Infirmary records).) The thalamus is a “connection organ” that links the limbic system in the lower area of the brain to the frontal lobes,

(Doc. 8-1 at 101-02 (hearing)), and when the thalamus

is damaged, “the most common thing” that results is

memory loss. (Doc. 8-1 at 102 (hearing); see also Doc. 83 at 19 (Goff report).) After the stroke, Mr. Madison

was disoriented, appeared “very confused,” and suffered significant loss of memory. (Doc. 8-1 at 101 (hearing); Doc. 8-3 at 19 (Goff report); Doc. 11-52 at 17

(Atmore Hospital medical records); see also Doc. 11-60

at 18, 25, 44, 80 (Mobile Infirmary records); Doc. 11-61

at 47 (same).)

Prior to this January stroke, other strokes had

contributed to Mr. Madison’s cognitive decline. (Doc. 81 at 74-75, 104-07 (hearing); Doc. 8-3 at 19 (Goff report).) 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. (See, e.g., Doc. 11-28 at 43, 46, 50, 52 (Holman

medical records); Doc. 11-58 at 10, 12 (USA medical

records).) 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. (Doc. 11-28 at 46

(Holman medical records); Doc. 11-56 at 13 (USA Medical records).) This stroke, as well as others, compromised his memory and ability to recall basic things

about his life and personal history. (Doc. 8-3 at 13 (Goff

report); Doc. 8-1 at 104-05 (hearing); Doc. 11-55 at 48

(USA medical records); Doc. 11-56 at 12 (same); Doc.

11-28 at 39-41, 45 (Holman medical records); Doc.

11-34 at 36 (same).) Indeed, since his stroke, he has

repeatedly asked for his mother to come and visit him

even though she has been dead for years. (Doc. 8-3 at

15, 19 (Goff report); Doc. 8-1 at 101 (hearing).)

Mr. Madison’s stroke left him in an “altered mental status,” (Doc. 8-3 at 13 (Goff report); Doc. 11-23 at

48-49 (Holman medical records); Doc. 11-28 at 43

(same); Doc. 11-38 at 32 (Atmore Hospital records);

Doc. 11-39 at 2 (same); Doc. 11-56 at 13 (USA medical

records); Doc. 11-58 at 16 (same)), with a diminished

ability to comprehend, (Doc. 11-30 at 14 (Holman medical records)). 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. (Doc. 11-30 at 32, 36 (Holman medical records);

Doc. 11-31 at 3, 7, 10 (same); Doc. 11-56 at 12, 15 (USA

medical records); Doc. 11-58 at 59 (same).) 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. (Doc. 1130 at 31-32, 36, 39 (Holman medical records); see also

Doc. 8-3 at 16, 19 (Goff report).) Medical records also

document that Mr. Madison suffered strokes prior to

the May 2015 incident which negatively impacted his

cognitive and bodily functioning. (Doc. 8-3 at 19 (Goff

report); Doc. 8-1 at 104 (hearing); Doc. 11-28 at 2 (Holman medical records documenting 2014 infarct in

pons); Doc. 11-29 at 36 (same); Doc. 11-30 at 3 (same);

Doc. 11-40 at 10 (Atmore Hospital records noting “old”

infarcts); Doc. 11-49 at 14 (same); Doc. 11-35 at 3, 8

(Holman medical records documenting vision deterioration due to 2014 stroke).)

As a result of these strokes, Mr. Madison now suffers from encephalomalacia, (Doc. 11-60 at 41, 49, 141

(Mobile Infirmary records); Doc. 11-27 at 30 (Holman

medical records); Doc. 11-52 at 5 (Atmore Hospital records); Doc. 8-1 at 106 (hearing)), which means that

there are areas of his brain where the tissue is dead.

(Doc. 8-1 at 105-06 (hearing)). An MRI in January 2016

depicted encephalomalicia in the occipital lobes and

cerebellar hemispheres, and indicated that the size of

the dead tissue had increased since the last stroke occurred in May 2015. (Doc. 11-60 at 12-13 (Mobile Infirmary records); Doc. 8-1 at 106-07 (hearing); Doc. 11-52

at 5 (Atmore Hospital records).)

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 decline.4 (Doc. 8-3 at 19 (Goff

report); Doc. 8-1 at 73-74, 105-06 (hearing).) He also

suffers from occipital angioma – an abnormal collection of blood vessels – which likely contributed to his

strokes and debilitating headaches. (Doc. 11-23 at 18

(Holman medical records); Doc. 11-27 at 35 (same);

Doc. 11-29 at 36 (same).)

At the 2016 hearing on his competency-to-beexecuted challenge, Mr. Madison was confined to a

wheelchair. The trial court found that he “appeared to

See John G. Baker et al., Cerebral Small Vessel Disease:

Cognition, Mood, Daily Functioning, and Imaging Findings from

a Small Pilot Sample, 2 Dementia & Geriatric Cognitive Disorders Extra 169, 169 (2012).

be a physically ill individual” and that it was “difficult

to tell if Madison was following all of the testimony or

not.” (Doc. 8-2 at 157 (trial court order of 4/29/16).)

At that hearing, unrebutted evidence was presented that Mr. Madison suffers from a major vascular

neurocognitive disorder, see Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders

621 (5th ed. 2013) [hereinafter “DSM-5”], or vascular

dementia, which was caused in part by the thalamic

stroke he suffered in January 2016. (Doc. 8-3 at 19

(Goff report); Doc. 8-1 at 101-02, 107 (hearing); Doc. 1160 at 13 (Mobile Infirmary records).) 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. (Doc. 8-1 at 105, 108-09 (hearing); Doc.

8-3 at 16-19 (Goff report).)

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. (Doc. 8-3 at 19 (Goff report); Doc. 8-1 at

101-04 (hearing).) 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. (Doc. 8-1 at

107-08 (hearing)); DSM-5 at 621-22 (“Neuroimaging

(magnetic resonance imaging [MRI] or computed tomography [CT]) evidence of cerebrovascular disease

comprises one or more of the following . . . a strategically placed single infarct or hemorrhage (e.g., in agular gyrus, thalamus, basal forebrain). . . .”).

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. (Doc. 8-3 at 19 (Goff report); Doc. 8-1 at 102,

107 (hearing).) 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. (Doc. 8-3 at 18-19 (Goff

report); Doc. 8-1 at 101, 107, 110, 119-20 (hearing).)

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. (Doc. 8-3 at

17, 20 (Goff report); Doc. 8-1 at 97 (hearing).) Mr. Madison has a Working Memory Score of 58, demonstrating

severe memory deficits. (Doc. 8-3 at 17 (Goff report);

Doc. 8-1 at 97-98 (hearing).) 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.

(Doc. 8-1 at 98 (hearing).) 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.”5 (Doc. 8-3 at 19 (Goff report)).

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,6 and could not remember the

name of the warden at Holman Prison, where he is incarcerated. (Doc. 8-3 at 16 (Goff report).) 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. (Doc. 8-3 at 18 (Goff report).) Dr. Goff concluded that these deficits likely resulted from the

His functioning is thus akin to the functioning of an individual for whom the death penalty has been held to be categorically unavailable under the Eighth Amendment. See Atkins v.

Virginia, 536 U.S. 304, 316 (2002).

Guy Hunt was governor of Alabama from 1987-1993. Alabama Governors, Ala. Dep’t of Archives and History, http://

www.archives.alabama.gov/govslist.html (last visited May 22,

2018).

January stroke. (Doc. 8-3 at 19 (Goff report).) 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.” (Doc. 83 at 17 (Goff report).)7

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. (Doc. 8-1 at

108-09 (hearing)); see also Susan L. Mitchell, Advanced

Dementia, 372 New Eng. J. Med. 2533, 2533 (2015)

(“Dementia is a progressive, incurable illness.”).

Focusing on Mr. Madison’s understanding of the

reason for the execution, Dr. Goff attempted to employ

a checklist of interview questions specifically designed

Dr. Goff was previously involved in a competency-to-beexecuted challenge in Mississippi where the petitioner claimed

incompetency due to global amnesia as a result of a head injury.

In that case, however, Dr. Goff found that “Simon was either malingering memory deficits or, generously stated, that he could not

rule out malingering as an explanation for Simon’s behavior.” Simon v. Fisher, 641 F. App’x 386, 389 (5th Cir. 2016). Habeas corpus

relief was ultimately denied, in part due to Dr. Goff ’s report.

to evaluate a prisoner’s competency to be executed,8

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.” (Doc. 8-3 at 16 (Goff

report).) 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. (Doc. 8-3 at 19-20 (Goff report); Doc. 8-1 at

110, 119-20 (hearing).) 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 – that he’s being punished for.”

(Doc. 8-1 at 120 (hearing).)

The court-appointed expert, Dr. Kirkland,9 did not

dispute the physical and cognitive decline that Mr.

As noted in his evaluation, (Doc. 8-3 at 16, 18 (Goff report)),

Dr. Goff utilized a checklist published in the journal Behavioral

Sciences and the Law. See Patricia A. Zapf, Marcus T. Boccaccini,

& Stanley L. Brodsky, Assessment of Competency for Execution:

Professional Guidelines and an Evaluation Checklist, 21 Behav.

Sci. & L. 103 (2003).

At the time of the hearing, Dr. Kirkland had a long-standing

contract with the State of Alabama. (Doc. 8-1 at 68 (hearing).) Dr.

Kirkland has since been suspended from the practice of psychology, see Ala. Bd. of Exam’rs in Psychology, Psychologist Search or

License Verification, www.psychology.state.al.us/licensee.aspx

(search “Karl Kirkland”) (last visited May 22, 2018), after being

arrested and charged with four felony counts of Unlawful Possession or Receipt of a Controlled Substance. These charges arose

from his use of forged prescriptions to illegally obtain narcotics on

four separate occasions, including on April 18, 2016, just four days

after the competency hearing in this case and less than two weeks

Madison experienced as a result of his multiple

strokes, (Doc. 8-1 at 74 (hearing)), nor did he find any

indication that Mr. Madison was malingering. (Doc. 83 at 9 (Kirkland report).) Dr. Kirkland reported that

Mr. Madison was able to accurately discuss the history

of his appeals, (Doc. 8-1 at 71, 78-79, 123-24 (hearing)),

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. Madison v. Comm’r, Ala. Dep’t of

Corr., 851 F.3d 1173, 1185-86, 1187 (11th Cir. 2017),

rev’d sub nom. Dunn v. Madison, 138 S. Ct. 9 (2017).

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. Id. at 1188 (“The court never

considered the impact of Mr. Madison’s memory loss or

his belief that he never killed anyone on his ability to

make the required connection between his crime and

execution.”). 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. Id. at 1189-90; id. at 1190 (Jordan, J., dissenting) (“After reviewing the record, I believe that

after his evaluation of Mr. Madison. See State v. Kirkland, Nos.

DC-2016-002143.00 (April 18, 2016), DC-2016-002144.00 (June 6,

2016), DC-2016-002145.00 (June 22, 2016), DC-2016-002146.00

(June 27, 2016) (Dist. Ct. Montgomery County).

Vernon Madison is currently incompetent. I therefore

do not think that Alabama can, consistent with the

Constitution, execute him at this time . . . .”).

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. Dunn v. Madison,

138 S. Ct. 9, 12 (2017). 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, see

supra note 9, 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.

Hr’g R. at 32. Nevertheless, relying on the evidence

that had been previously presented, the state trial

court denied Mr. Madison’s petition. Cert. Pet. App. A.

------------------------------------------------------------------

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. 477 U.S. 399, 409-10 (1986). 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.” 551 U.S. 930, 957 (2007) (quoting Ford, 477 U.S.

at 409-10).

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.

------------------------------------------------------------------

ARGUMENT

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.” Gregg v. Georgia, 428 U.S. 153,

183 (1976) (plurality opinion) (upholding Georgia’s

death penalty scheme); see also Woodson v. North Carolina, 428 U.S. 280, 303 (1976) (North Carolina’s mandatory death penalty scheme violated Eighth and

Fourteenth Amendments); Roberts v. Louisiana, 428

U.S. 325, 334 (1976) (Louisiana’s mandatory death

penalty statute failed to comply with “requirement

that standardless jury discretion be replaced by procedures that safeguard against the arbitrary and capricious imposition of death sentences”).

Since that time, this Court has endeavored to “enforce the Constitution’s protection of human dignity,”

Hall v. Florida, 134 S. Ct. 1986, 1992 (2014), 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. See, e.g., Kennedy v. Louisiana,

554 U.S. 407 (2008) (death penalty disproportionate for

nonhomicide offense of rape of child); Coker v. Georgia,

433 U.S. 584 (1977) (death penalty disproportionate for

crime of rape of adult woman); Enmund v. Florida, 458

U.S. 782 (1982) (death penalty disproportionate for

person who aids and abets but does not kill, attempt to

kill, or intend to kill).

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. See Roper v. Simmons, 543 U.S. 551

(2005) (Eighth Amendment forbids execution of juvenile offenders under 18 at time of crime); Atkins v. Virginia, 536 U.S. 304 (2002) (execution of intellectually

disabled violates Eighth Amendment’s prohibition on

cruel and unusual punishment).

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. 477 U.S. 399, 409-10 (1986). Subsequently, in Panetti v. Quarterman, this 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.” 551 U.S. 930, 957 (2007)

(quoting Ford, 477 U.S. at 409-10).10

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,”11 and the use

of lobotomies upon and compulsory institutionalization of people based on their sexual orientation12 are

All relevant opinions decided prior to Ford concerned only

procedural questions presented related to competency-to-beexecuted claims under the Fourteenth Amendment. 477 U.S. at

405 (distinguishing prior cases on “adequacy of procedures” from

“substantive restriction” held to apply).

In 1907, Indiana was the first state to enact a compulsory

sterilization law, in order to “prevent procreation of confirmed

criminals, idiots, imbeciles and rapists.” 1907 Ind. Acts 377;

Note, Regulating Eugenics, 121 Harv. L. Rev. 1578, 1580 (2008)

(“Starting with Indiana in 1907, twenty-nine states enacted

compulsory sterilization laws[.]”) In 1927, this Court upheld a

Virginia law permitting the forcible sterilization of women

deemed to be “mental defectives,” finding that “[i]t is better for all

the world, if . . . society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles

are enough.” Buck v. Bell, 274 U.S. 200, 207 (1927) (citation omitted). Between the 1920s and the 1970s, over 60,000 Americans

with mental illness or developmental disabilities were

forcibly sterilized. Kim Severson, Thousands Sterilized, a State

Weighs Restitution, N.Y. Times, Dec. 9, 2011, https://www.nytimes.

com/2011/12/10/us/redress-weighed-for-forced-sterilizations-in-northcarolina.html.

See Kenji Yoshino, Covering, 111 Yale L.J. 769, 787-89

(2002) (discussing use of castration, lobotomy, clitoridectomy,

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,”

Ford, 477 U.S. at 419 (Powell, J., concurring), 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,” “nonsane 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

electroshock therapy, and more “medical conversion treatments

for homosexuality”); Gregory M. Herek, Sexual Orientation Differences as Deficits: Science and Stigma in the History of American

Psychology, 5 Persp. on Psych. Sci. 693, 695 (2010) (discussing “indefinite confinement in a psychiatric institution until they were

declared cured”).

death would be cruel and unusual. Id. at 404, 407, 409,

419, 421. 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.” 551 U.S. at 957. 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.” Id. at

959-61 (emphasis added); see also id. 551 U.S. at 953

(recognizing “the standard is stated in general

terms”).13 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

Although the test articulated by Panetti is seemingly

broad, in practice it has rarely disrupted the State’s ability to execute condemned prisoners. Indeed, of the 1,308 death-sentenced

inmates who were eligible to file a Ford claim between 1986 and

July 2013 – many of whom have been estimated to have some

form of mental illness – 93% did not even raise a competency-tobe-executed challenge. John H. Blume, Sheri Lynn Johnson, &

Katherine E. Ensler, Killing the Oblivious: An Empirical Study of

Competency To Be Executed Litigation, 82 UMKC L. Rev. 335,

343-44 (2014). In only twenty-one of these cases was the prisoner

found incompetent to be executed. Id.

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. Id. at

956-58. 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.” Id. at 956.

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.” Id. at 959. 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.” Id. at 956-57, 960.

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.” Id. at 960. 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.” Id. at 958. “If anything,” this Court found

in Panetti, “the Ford majority suggests the opposite.”

Id.14

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

In other contexts, courts have increasingly found that people with dementia and neurological disorders may require legal

protection due to diminished capacity similar to other bases for

incompetency. See, e.g., In re Estate of Bragdon, 875 A.2d 697, 700

(Me. 2005) (appointment of full guardian necessary due to individual’s dementia); Ivie v. Smith, 439 S.W.3d 189, 194, 201, 207

(Mo. 2014) (en banc) (finding lack of capacity where testator exhibited memory loss and brain testing consistent with diagnosis

of vascular dementia); Riddell v. Edwards, 32 P.3d 4, 9-10

(Alaska 2001) (court required to protect individual diagnosed

with dementia and attendant confusion and inability to manage

financial affairs); Darr v. Billeaudeau, 541 S.W.3d 460, 466 (Ark.

Ct. App. 2018) (protection required where medical records documented diagnosis of dementia and individual demonstrated

“memory loss, confusion, . . . decreased judgment, [and] cognitive

decline”); In re Estate of Flowers, 88 N.E.3d 599, 611, 622-23 (Ohio

Ct. App. 2017) (incompetency declared where evidence from medical experts demonstrated significant memory loss and impairment of executive functioning as result of dementia); In re Estate

of Lynch, 350 S.W.3d 130, 137-40 (Tex. App. 2011) (affirming jury

finding of incapacity because individual had “irreversible strokes

that led to a diagnosis by his neurologist that he had dementia”

and exhibited “memory loss” and “impaired executive function”).

corresponding memory deficits15 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.16

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.

II.

The Penological Objectives of the Eighth

Amendment Cannot Be Squared with the

Execution of a Prisoner Whose Vascular Dementia and Associated Cognitive Decline

Leave Him Without a Memory of the Commission of the Crime or a Rational Understanding of Why He Is to Be Executed.

Vernon Madison suffers from vascular dementia,

which has resulted in a brain injury, a decline in cognitive functioning and significant memory impairment. (Doc. 8-1 at 107-08 (hearing).) Consequently, Mr.

At no point in the initial order denying relief did the state

trial judge even mention Mr. Madison’s diagnosed dementia, (Doc.

8-2 at 149-58), even though this diagnosis was never disputed by

the court’s own expert, Dr. Kirkland. (Doc. 8-1 at 123-24 (hearing).)

Throughout this litigation, the State has consistently argued that Mr. Madison’s claim should fail because vascular dementia, and associated cognitive and memory impairments, is not

considered a mental illness and thus does not implicate Ford and

Panetti. See, e.g., Br. in Opp’n 14-16; Hr’g R. at 17-18; (Doc. 8-2 at

140-41, 143-44 (State’s brief after 2016 hearing)).

Madison cannot remember numerous events that have

occurred over the past thirty years or more. (Doc. 8-3

at 19 (Goff report).) He 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, and as

a result he does not have a rational understanding of

why he faces execution. (Doc. 8-3 at 18-19 (Goff report);

Doc. 8-1 at 101, 107, 110, 119-20 (hearing).) He similarly cannot rationally understand a range of relevant

features connected to his death sentence and confinement.

In evaluating Mr. Madison’s competency to be executed, Dr. Goff testified that he was attempting to find

the answer to two questions: “One is there[ ] something

wrong with him, and the other thing is does what’s

wrong with him cause him to be incompetent.” (Doc. 81 at 117 (hearing).) In this framework, whether an individual “forgets particular phrasing” or “begin[s] to

forget certain things” does not invariably indicate that

the person is incompetent; rather, it means that

“there’s something is wrong with him.” (Doc. 8-1 at 117

(hearing).) And, in Dr. Goff ’s reasoned professional

opinion based on his evaluation of Mr. Madison, the review of significant medical records, and numerous neuropsychological tests, the “thing” that was wrong with

Mr. Madison was that his brain had been traumatized,

leading to a DSM-5 diagnosis of vascular dementia and

corresponding cognitive and memory decline. (Doc. 8-1

at 107 (hearing); Doc. 8-3 at 20 (Goff report).)

Neuropsychological testing confirmed Mr. Madison’s significant cognitive and memory deficits. (Doc. 83 at 16-17 (Goff report); Doc. 8-1 at 96-100 (hearing).)

Specifically, Dr. Goff ’s testing established that Mr.

Madison has a Working Memory Score of 58. (Doc. 8-3

at 17 (Goff report); Doc. 8-1 at 98 (hearing).) 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. (Doc. 8-1 at 98 (hearing).) 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.” (Doc. 8-3 at 19 (Goff report).) Consistent with these findings, testing demonstrated that

Mr. Madison has an IQ of 72, in the borderline range of

intelligence and a considerable decline from the past.

(Doc. 8-3 at 17, 20 (Goff report); Doc. 8-1 at 97 (hearing).)

Ultimately, Dr. Goff concluded that as a result of

his deteriorating medical condition, 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. (Doc. 8-3 at 18-20 (Goff report); Doc. 8-1 at 110,

119-20 (hearing).) In response to direct questioning by

the trial judge at the state court 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 – that he’s being punished for.”

(Doc. 8-1 at 120 (hearing).) See Panetti v. Quarterman,

551 U.S. 930, 959 (2007) (determination of competency

requires inquiry into “prisoner’s ability to ‘comprehen[d] the reasons’ for his punishment” or “a determination into whether he is ‘unaware of . . . why [he is] to

suffer it’ ”).

As such, Mr. Madison fits into the category of prisoners for whom an execution would serve no retributive or deterrent purpose. Ford v. Wainwright, 477 U.S.

399, 417 (1986); Panetti, 551 U.S. at 959. Retribution is

served where an offense is offset by a punishment expressing society’s “moral outrage,” see Gregg v. Georgia, 428 U.S. 153, 183 (1976) (plurality opinion), but

where, as a result of a deteriorating medical condition,

the person being punished has no memory of the commission of the offense for which he is to be executed,

the “moral quality” of that punishment is lessened and

unable to match outrage over the offense, Ford, 477

U.S. at 408. As this Court has explained, retribution is

not achieved where “a prisoner’s recognition of the severity of the offense” does not match “the objective of

community vindication.” Panetti, 551 U.S. at 958. For

purposes of retribution, there is no moral or constitutional distinction between a person who cannot

“recogni[ze] . . . the severity of the offense” as a result

of delusions and a person who is unable to do so as a

result of dementia, cognitive decline, and memory deficits.17

This lack of moral difference is all the more clear considering that the American Bar Association, American Psychiatric Association, American Psychological Association, and the National

Alliance of the Mentally Ill support a bar on executing those with

dementia. See Am. Bar Ass’n, Recommendation and Report on the

Nor can executing Mr. Madison be justified on

grounds of deterrence. This Court made it plain in

Ford: the execution of an incompetent person “provides

no example to others and thus contributes nothing to

whatever deterrence value is intended by capital punishment.” 477 U.S. at 407; Panetti, 551 U.S. at 958

(same). Whether by delusion or dementia, a lack of rational understanding undermines any potential deterrence objective of capital punishment. Most obvious,

with incapacity by virtue of dementia, specific deterrence is already achieved. Panetti, 477 U.S. at 958.

Finally, executing Mr. Madison would implicate society’s and the Eighth Amendment’s aversion to grotesque and obscene punishments. In failing to find

retributive and deterrent justifications for executing

an incompetent person, this Court recognized the “natural abhorrence civilized societies feel at killing one

who has no capacity to come to grips with his own conscience or deity.” Ford, 477 U.S. at 409-10. “Whether its

aim be to protect the condemned from fear and pain

without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting

Death Penalty and Persons with Mental Disabilities (2006), reprinted in 30 Mental & Physical Disability L. Rep. 668, 668 (2006).

These groups have recognized that age of onset is the only difference between an individual who is intellectually disabled, and

therefore ineligible for the death penalty, Atkins v. Virginia, 536

U.S. 304 (2002), and an individual who suffers from dementia. Am.

Bar Ass’n, Severe Mental Illness and the Death Penalty 7 (2016).

In this case, the evidence demonstrated that Mr. Madison has an

unrebutted IQ of 72 as a result of his multiple strokes and cognitive decline. (Doc. 8-3 at 17 (Goff report).)

mindless vengeance,” the Eighth Amendment bars executing someone lacking “capacity” and “understanding.” Id. And this should be true regardless of whether

the deficiency is due to delusions, as with Mr. Ford, or

dementia, as with Mr. Madison.

III. Medical and Scientific Advancements Have

Allowed for Increased Confidence in the

Diagnosis of Mental Disorders that Merit

Protection Under the Eighth Amendment.

Since Ford and Panetti, scientific and medical advancements have led to a greater understanding of

how neurocognitive disorders manifest in individuals

who suffer from cognitive decline, and reliance on such

advancements to inform an Eighth Amendment analysis is well-established in this Court’s jurisprudence.

See Panetti, 551 U.S. at 962 (“conclusions of physicians,

psychiatrists, and other experts in the field will bear

upon the proper analysis”); see also Moore v. Texas, 137

S. Ct. 1039, 1053 (2017) (“The medical community’s

current standards supply one constraint on States’ leeway [to determine intellectual disability]. Reflecting

improved understanding over time, [the DSM-5 and

American Association on Intellectual and Developmental Disabilities Manual] offer ‘the best available

description of how mental disorders are expressed and

can be recognized by trained clinicians.’ ” (citations

omitted)); Hall v. Florida, 134 S. Ct. 1986, 2000 (2014)

(“The legal determination of intellectual disability is

distinct from a medical diagnosis, but it is informed by

the medical community’s diagnostic framework.”);

Miller v. Alabama, 567 U.S. 460, 471 (2012) (“Our decisions rested not only on common sense . . . but on science and social science as well.”).18

Over the past several decades, scientific and medical advancements have provided not just a deeper insight into the physical presentation of conditions of the

brain, but the ability to document and confirm the existence of neurological conditions that clearly impact

cognitive functioning in a way that may trigger Eighth

Amendment protections. The DSM-5 reflects these advances in neuroscience by including expanded criteria

for the diagnosis of dementia, now referred to as “major neurocognitive disorder.” DSM-5 at 621. See Perminder S. Sachdev et al., Classifying Neurocognitive

Disorders: The DSM-5 Approach, 10 Nature Reviews

Neurology 634, 634 (2014) (“The DSM-IV approach to

classifying neurocognitive disorders also contained a

number of limitations, which prompted a major revision in the fifth edition (DSM-5).”).

These recently expanded diagnostic criteria for

vascular neurocognitive disorder, which reflect a more

advanced standard of practice than in the DSM-IV,19

“giv[e] clinicians more guidance in determining

Reliance on advances in medical standards is particularly

appropriate in the context of Eighth Amendment categorical exemptions involving individuals with mental disabilities and disorders, in part because society “relies upon medical and

professional expertise to define and explain how to diagnose the

mental condition at issue.” Hall, 134 S. Ct. at 1993.

Am. Psychiatric Ass’n, Diagnostic and Statistical Manual

of Mental Disorders 161 (4th ed. text revision 2000) [hereinafter

“DSM-IV”].

possible etiology,” Darrel Regier et al., The DSM-5:

Classification and Criteria Changes, 12 World Psychiatry 92, 96 (2013), and allow for a more precise understanding of Mr. Madison’s limited capacity than was

previously accessible. Whereas before, the DSM-IV’s

diagnostic criteria for vascular dementia directed practitioners to focus primarily on patients’ observable cognitive deficits while taking into account any associated

neurological symptoms or relevant “laboratory evidence,”20 the DSM-5 now specifically incorporates the

use of neuroimaging as a basis for reaching a more conclusive diagnosis of vascular neurocognitive disorder.21

DSM-IV at 161 (DSM-IV diagnostic criteria for vascular

dementia included (A) “[D]evelopment of multiple cognitive deficits manifested by both . . . memory impairment” and disturbances in one or more following areas: “aphasia,” “apraxia,”

“agnosia,” and “executive functioning,” (B) The cognitive deficits

cause “significant impairment in social and occupational functioning and represent significant decline from a previous level of functioning,” (C) “Focal neurological signs and symptoms . . . or

laboratory evidence indicative of cerebrovascular disease . . . that

are judged to be etiologically related to the disturbance,” and (D)

“The deficits do not occur exclusively during course of delirium.”).

DSM-5 at 621 (DSM-5 diagnostic criteria for vascular neurocognitive disorder include (A) “[C]riteria are met for major or

mild neurocognitive disorder,” (B) “[C]linical features are consistent with vascular etiology,” as suggested by temporal link to

one or more cerebrovascular events or “evidence for decline is

prominent in complex attention . . . and frontal-executive function,” (C) “There is evidence of the presence of cerebrovascular

disease from history, physical examination, and/or neuroimaging,”

and (D) “[S]ymptoms are not better explained by another brain

disease or systemic disorder.”). See also, e.g., DSM-5 at 622 (“Etiological certainty requires the demonstration of abnormalities on

neuroimaging.”).

These criteria, updated to encompass the “greater information on post-mortem laboratory correlations and

clinical progression [that has] become available over

the past two decades,” Regier, The DSM-5: Classification and Criteria Changes at 96, allow clinicians to arrive at more accurate diagnoses that better grasp the

particular cognitive consequences of a patient’s condition, including patients who suffer from cognitive decline due to formerly undefined reasons.

Technological advances in brain imaging such

as magnetic resonance imaging (MRI), the supplementation of brain volumetrics with new technology,

and resulting improvements in brain mapping have

revolutionized medical and psychiatric researchers’

conception of the brain, resulting in an increasingly

complex awareness of how and why disorders of the

brain originate.22 Not only have these advances allowed for more precise diagnoses and improved awareness of resulting impairments, they have also revealed

the extent to which disorders of the brain are multifaceted.23 Significantly, improvements in brain science

have allowed researchers to more accurately trace the

physical etiology of psychiatric disorders, neurological

See Laura S. Khoshbin & Shahram Khoshbin, Imaging the

Mind, Minding the Image: An Historical Introduction to Brain Imaging and the Law, 33 Am. J. L. & Med. 171, 180-81 (2007); Nitin

Williams & Richard Henson, Recent Advances in Functional Neuroimaging Analysis for Cognitive Neuroscience, 2 Brain & Neuroscience Advances 1 (2018).

See, e.g., Chiadi U. Onyike, Psychiatric Aspects of Dementia,

22 Continuum 600 (2016) (explaining the “complexity of the relationship between psychiatric disorders and dementia”).

conditions, and other sources of cognitive impairment,

highlighting the range of physical dysfunction that can

result in a compromised mental state.24

These scientific advancements have had a particularly meaningful impact in the study of neurocognitive disorders.25 With the benefit of recent technology,

lesions on the brain can now be more readily detected,

“allowing for links to be drawn between the presence

of lesions and the pattern and severity of memory disorder.”26

Here, brain imaging and testing played a critical

role in documenting and confirming Mr. Madison’s

brain injuries and cognitive decline. Advanced imaging technologies provided a precise location of the

See, e.g., Bayanne Olabi et al., Are There Progressive Brain

Changes in Schizophrenia? A Meta-Analysis of Structural Magnetic Resonance Imaging Studies, 70 Biological Psychiatry 88

(2011); Daniel Lindqvist et al., Psychiatric Disorders and Leukocyte Telomere Length: Underlying Mechanisms Linking Mental

Illness With Cellular Aging, 55 Neuroscience & Biobehavioral Rev.

333 (2015).

See Martin Dichgans & Didier Leys, Vascular Cognitive

Impairment, 120 Circulation Research 573, 573 (2017) (“Recent

advances in neuroimaging, neuropathology, epidemiology, and genetics have led to a deeper understanding of how vascular disease

affects cognition.”).

Narinder Kapur & Michael Kopelman, Advanced Brain

Imaging Procedures and Human Memory Disorder, 65 Brit. Med.

Bull. 61, 63 (2003) (“The ability to form three-dimensional images

of lesions . . . and to visualize their location in relation to key anatomical structures and in relation to critical white matter tracts,

may provide the physician and the neurosurgeon with a clearer

idea of the size of a lesion and of its location vis-à-vis critical anatomical regions that have a role in memory functioning.”).

cerebrovascular accidents Mr. Madison has experienced over the last few years and revealed the progression of cerebral atrophy and encephelomalacia with

greater certainty. For example, to discern the “[t]iny focal acute to subacute infarct in the right thalamus”

that Mr. Madison experienced in January 2016, doctors

utilized “[m]ultiple sequence MRI images of the brain

including DWI.” (Doc. 11-60 at 13 (Mobile Infirmary

records).) After Mr. Madison’s May 2015 stroke, a CT

angiogram was used to identify occlusion of the basilar

artery, the event giving rise to the stroke, (Doc. 11-56

at 13 (USA medical records)). Use of both DWI, or diffusion weighted imaging, and CT angiograms only became

widespread in clinical practice in the mid-1990s.27

In 2014, Mr. Madison underwent an MRI using a

“fluid-attenuated inversion recovery” sequence, or

FLAIR sequence, which identified “a chronic infarct in

the inferior left side of the pons.” (Doc. 11-28 at 2 (Holman medical records).) As with the DWI and a CT angiogram, use of a FLAIR sequence in brain imaging

was only devised in the early 1990s.28 The same MRI

in 2014 also used a gadolinium-based contrast agent to

enhance the resulting images taken of Mr. Madison’s

See, e.g., Susumu Mori & Peter B. Barker, Diffusion Magnetic Resonance Imaging: Its Principle and Applications, 257 Anatomical Rec. 102, 108 (1999); Geoffrey D. Rubin et al., CT

Angiography After 20 Years: A Transformation in Cardiovascular

Disease Characterization Continues to Advance, 271 Radiology

633, 634 (2014).

Beatrice De Coene et al., MR of the Brain Using FluidAttenuated Inversion Recovery (FLAIR) Pulse Sequences, 13 Am.

J. Neuroradiology 1555, 1563 (1992).

brain (Doc. 11-28 at 2 (Holman medical records)), yet

such a contrast enhancement agent did not become

fully available until after Ford.29

Consistent with this new technology and knowledge, it is now undisputed that Mr. Madison is severely

compromised by vascular dementia, brain injury, cognitive decline, memory loss and a diminished capacity

to rationally understand what he is experiencing. After

reviewing an imaging report following Mr. Madison’s

2016 stroke, which showed an infarct in the right thalamus (Doc. 11-60 at 11, 13 (Mobile Infirmary records)),

Dr. Goff was then able to explain Mr. Madison’s significant memory loss in light of the damage to this portion

of his brain. (Doc. 8-3 at 19 (Goff report); Doc. 8-1 at

101-04 (hearing).) Thus, the technologies that permitted Dr. Goff to conclude that Mr. Madison is incompetent to be executed demonstrate the evolving

landscape of evidence allowing courts to adequately review maladies that could give rise to incompetence. Advances in knowledge and new insights about dementia,

cognitive decline and competency are not just relevant

to the evolving standards of decency that define the

Eighth Amendment’s core values, but essential to prevent cruel and unusual punishment.

------------------------------------------------------------------

See Jessica Lohrke et al., 25 Years of Contrast-Enhanced

MRI: Developments, Current Challenges and Future Perspectives,

33 Advances in Therapy 1, 2 (2016).

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.

Respectfully submitted,

BRYAN A. STEVENSON

Counsel of Record

ANGELA L. SETZER

RANDALL S. SUSSKIND

EQUAL JUSTICE INITIATIVE

122 Commerce Street

Montgomery, AL 36104

(334) 269-1803

bstevenson@eji.org

asetzer@eji.org

rsusskind@eji.org

Counsel for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.