Respondents Brief — Madison v. Alabama, 138 S. Ct. 943 (2018) (No. 17-7505)

No. 17-7505

In the

Supreme Court of the United States

r

VERNON MADISON,

Petitioner,

Vv.

STATE OF ALABAMA,

Respondent.

e

On Writ of Certiorari to the

the Mobile County Circuit Court

e

BRIEF OF RESPONDENT

°

Steve Marshall

Alabama Attorney General

*Counsel of Record

Clay Crenshaw

Chief Deputy Att'y Gen

Eric Palmer

Assistant Solicitor Gen'l

James R. Houts

Deputy Att'y Gen

OFFICE OF THE ALABAMA

ATTORNEY GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

smarshall@ago.state.al.us

July 31, 2018 Counsel for Respondent

AE aaa

QUESTIONS PRESENTED

(Capital Case)

Although the Court granted certiorari on these

two questions, Madison’s brief changes the first

question presented. The following are the questions

on which the Court granted certiorari, not the

questions as rephrased in Madison’s brief.

(1) 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

mental disability leaves him without memory of his

commission of the capital offense?

(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 causing

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

QUESTIONS PRESENTED. ..........--.000-cecseeseeeeeeseeceenensnseees i

PAE GP GI vcccccncccsssoccccnssccscccscssessesscncscscconsness ii

TABLE OF AUTHORITIES .............-0c0-ccccereeeeeeeeeeseseeeeeennnes iv

PDITTROMIC TIONS... cccccccccccccccceccccccccccccccscescccocoscsccsocososeoesees 1

PATTI occcccccccccccccceccccccccccccescncsscccscecesscessosocccoceooseses 3

A. Trial and post-conviction proceedings. ............ 3

B. The first state court competency

III cccecscccssscesssesnstnansnnterpeomnennesssernsennessoncens 5

corpus, and this Court summarily

II, ccccevesntasesasncstsnssssnsanssntonsstebeienaeumeanecsse 10

D. Madison's second state court

competency petition. .............-----..cccceeeeeneennes 12

SUMMARY OF ARGUMENT. .......22200-cccccecceccecoecssceseesesseeee 13

DEIIIGIG En ccccccccccccccccccccccccccccccccscccescececcccocsssccsccccscoosee 17

|. The lower court’s decision is consistent

wits Fiend ered Pama, .nccccccccccccsecsccscsssccscscsncscosces 17

A. Madison can rationally understand his

SPUMIINIIIEE, 2200cccececsecscecescsocsscosovsssossncssossnsseeees 18

B. Madison’s arguments for reversal are

UMPOTSURGIVE. ..........0.-cccererccrscecseccrosnccsssnecsssese 22

{l. The Eighth Amendment allows a State to

punish a murderer whose mental! disability

leaves him without memory of his

commission of the capital offense.....................--- 27

A. The common law supports the

punishment of murderers who cannot

remember committing a crime. ................... 28

8. Madison’s position finds no support in

state legislation or sentencing

I iailenstesinintinniaaciensiinapacspiiieasiniemietniscdipaetiiness 32

C. The State has valid penological

interests in punishing a murderer who

cannot remember committing a crime. ....... 34

III. Madison’s proposed extension of Ford and

Panetti will lead to false claims,

manipulation, and abuse. .........00000000000000.......... 41

ES EERE RE ee Se NEL 47

iv

TABLE OF AUTHORITIES

Cases

Addington v. Texas, 441 U.S. 418 (1979).................. 42

Ake v. Oklahoma, 470 U.S. 68 (1985) ........0.00000...02... 41

Atkins v. Virginia, 536 U.S. 304 (2002)............ passim

Baird v. Davis, 388 F.3d 1110 (7th Cir.

Si csnighiadidesniainicbeiaendininiesianiimsastemiieineeecncemamcus 34

Bedford v. Bobby, 645 F.3d 372 (6th Cir.

iii eecedsicsnichncetabecisinvenalantinsenhitininsiainnanmssineiunintiees 21

Clark v. Arizona, 548 U.S. 735 (2006) ...................... 26

Coker v. Georgia, 433 U.S. 584 (1977) ...00....00.2.00000. 32

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

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

Graham v. Florida, 560 US. 48 (2010) .................... 35

Gregg v. Georgia, 428 U.S. 153 (1976)........... 17, 32, 39

Hall v. Brannan, 670 S.E.2d 87 (Ga. 2008).............. 34

Harris v. Alabama, 513 U.S. 504 (1995) .................... 4

In re Neville, 440 F.3d 220 (5th Cir. 2006)............... 34

Johnston v. State, 27 So.3d 11 (Fla. 2010) ............... 34

Kennedy v. Louisiana, 554 U.S. 407 (2008)............... 35

Madison v. Allen, 2011 WI, 1004885 (S.D.

RES Le ee 5

Madison v. Allen, 2013 WL, 1776073 (S.D.

ge I nicniaedininenthictiptinisetnenisorctatnencceseneced 5

Madison v. Comm’r, Alabama Dep't of

Corr., 851 F.3d 1173 (11th Cir. 2017) ..........00....... 11

v

Madison v. Dunn, 2016 WL 2732193 (S.D.

Pe EE eee 10, 24

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

|) EEE ee 3

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

Ee ee ailacnnniccndensieinepibennnnieeiamddumrnmenmncsceenes 3,4

Madison v. State, 718 So.2d 90 (Ala. Crim.

EE TTT aiecineenichasentaniantictineratiepusepeninanantennacensoeneconte 3,4

Madison v. State, 999 So. 2d 561 (Ala.

ners aseereileciescinibaniiiaenimeveieonidonidas 4

Madison v. Thomas, 135 S. Ct. 1562 (2015)............... 5

Malone v. State, 293 P.3d 198 (Okla. Crim

i cdidkinindeisneiaieniatientuapintaniiqunnidinasarnpeormoncsosnenss 34

Matheney v. State, 833 N.E.2d 454 (ind.

a SE Ee nee eee 34

Mays v. State, 318 S.W.3d 368 (Tex. Crim.

FE iiceaniischsanminnctiinnnsveimidentinnisinensinnieescepcarenees 34

Miller v. Alabama, 567 U.S. 460 (2012) ................... 39

Panetti v. Quarterman, 2008 WL 2338498

ft & 2 4 25

Panetti v. Quarterman, 551 U.S. 930

SE ihiieitiae ntateissiatinididliniaisdisimbetpnpaindniensceian passim

Panetti v. Stephens, 727 F.3d 398 (5th Cir.

2013), cert. denied, 135 S. Ct. 47 (2014)................ 25

Penry v. Lynaugh, 492 U.S. 302 (1989) .................... 32

Price v. Thurmer, 637 F.3d 831 (7th Cir.

SERN A Tae ES 45

R. v. Podola, [1959] 43 Crim. App. 220 .................... 29

Roberts v. Louisiana, 431 U.S. 633 (1977) ........ passim

vi

Roper v. Simmons, 543 U.S. 551 (2005) ........ 27, 33, 40

Russell v. H.M. Advocate, 1946 8.C.(J.) 37............... 29

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

EES SE SRST Se ee Re 21

Solem v. Helm, 463 U.S. 277 (1983) .0000.02222220000000000- 27

Solesbee v. Balkcom, 339 U.S. 9 (1950).................... Al

State ex rel. Clayton v. Griffith, 457

eisai ctennstiinnncensentevesinnes 21

State v. Irick, 320 S.W.3d 284 (Tenn. 2010)....... 22, 34

State v. Johnson, 207 S.W.3d 24 (Mo.

ee ey nS 34

State v. Ketterer, 855 N.E.2d 48 (Ohio

EE RTE EE TE ee TS Oe eS re 34

Tison v. Arizona, 481 U.S. 137 (1987) ....................-. 35

Trop v. Dulles, 356 U.S. 86 (1958) ...0000000000.0cceccceeees 27

Statutes

ERE ee en REE 10

pS 3

ie ee iaiitinsitecnindentedibivnsedanensensetascmtets 10, 23

Other Authorities

1 Matthew Hale, Pleas of the Crown 37

Sn siadidbennisinhidiebssnciinapniinhinitnidininninictiniannementeingtnl 29

3 Edward Coke, Institutes 6 (6th ed. 1680) ....... 28, 31

vii

Alexander M. Burrill, A Law Dictionary

and Glossary 192 (2d ed. 1859)...................

Am. Bar Assoc. Crim. Just. Mental Health

ig Gy SPREE ccnreccvscenennsergsenssvecsveescccees

Am. Psychiatric Ass'n, Diagnostic and

Statistical Manual of Mental Disorders

Elana Rusconi & Timothy Mitchener-

Nissen, Prospects of Functional

Magnetic Resonance Imaging as Lie

Detector, 7 Frontiers in Human

Hawles, Remarks on the Trial of Mr.

Charles Bateman, 11 How. St. Tr. 474,

EG Gee ircttinstevcsessnstsesesancccnnsessqecczncseaneesoses

Is Mississippi Death Row Inmate Robert

Simon Faking Amnesia?, AL.com (The

Associated Press) (June 10, 2015)...............

John Cowell, A Law Dictionary or The

Interpreter of Words and Terms (1777)......

Kennet. tockwood et al., Diagnosis of

Vascular Dementia, 21 Can. J. Neurol.

SR, Se Ge cesanncenscesecessanessecsnnsccrsscccorecs

Marko Jelicic, Harald Merckelbach &

Saskia van Bergen, Symptom Validity

Testing of Feigned Amnesia for a Mock

Crime, 19 Archives of Clinical

Neuropsychology 525 (2004)...0000000000.0000.....

Martin Prince, Tenata Bryce, et al, The

Global Prevalence of Dementia: A

Systematic Review and Metaanalysis, 9

Alzheimer’s & Dementia 63 (2013).............

—-

25

—

seicneuietied 42

siwavenved 45

vill

Michael D. Kopelman, What Does A

Comparison of The Alcoholic Korsakoff

Syndrome And Thalamic Infarction Tell

Us About Thalamic Amnesia?, 54

Neuroscience & Behavioral Rev. 46

Michael S. Moore, Justifying

Retributivism, 27 Isr. L. Rev. 15 (1993).........

Missouri Executes Cecil Clayton, Killer

who had Brain Injury, LA Times (March

£7, BBE -cccccccscssosossccsocsvessoosnssosenssssnessesstessessees

Mohamad E] Haj et al, Autobiographical

Memory Decline in Alzheimer’s Disease,

27 Ageing Res. Rev. 15 (2016)................00006

Note, Amnesia: A Case Study in the Limits

of Particular Justice, 71 Yale L. J. 109

Ohio Man Executed for Double Murder He

Doesn't Remember, Daily Mail (May 17,

BIBT). nccccccsceascscevenestovsoscssescenstasseoenssqooousneeeoeeees

Pascale Piolino, Béatrice Desgranges,

Liliane Manning, Pierre North, Corinne

Jokic, & Francis Eustache,

Autobiographical Memory, the Sense of

Recollection and Executive Functions

After Severe Traumatic Brain Injury, 43

Recommendation and Report on the Death

Penalty and Persons with Mental

Disabilities, 30 Mental & Physical

Disability L. Rep. 668 (2006).....................-

Richard Moran, The Origin of Insanity as

a Special Verdict: The Trial for Treason

—

—

— 43

—

—

ix

of James Hadfield, 19 Law & Society

EEE 29

Robert F. Schopp, Wake Up and Die Right:

The Rationale, Standard, and

Jurisprudential Significance of the

Competency to Face Execution

Requirement, 51 La. L. Rev. 995 (1991)................ 31

Sarah J. Smith, Celine Souchay, Martin A.

Conway, Overgeneral Autobiographical

Memory in Parkinson’s Disease, 46

EE 44

Scott Y.H. Kim, Jason H.T. Karlawish, &

Eric D. Caine, Current State of Research

on Decision-Making Competence of

Cognitively Impaired Elderly Persons,

10 Am. J. Geriatric Psychiatry 151

Soumya Hegde & Ratnavalli Ellajosyula,

Capacity Issues and Decision-Making in

Dementia, 19 Ann. Indian Acad. Neurol.

Xue Sun et al., Does Feigning Amnesia

Impair Subsequent Recall?, 37 Memory

l

INTRODUCTION

This case is about the State’s sovereign power to

impose a just and constitutional punishment on a vi-

olent criminal who murdered one of the State’s own

law enforcement officers. From the State’s perspec-

tive, the question is not just whether Madison may

be punished for violating the State’s criminal laws. It

is whether the State can “assure that there will be a

police force to see that the criminal laws are enforced

at all.” Roberts v. Louisiana, 431 U.S. 633, 647 (1977)

(Rehnquist, J., dissenting).

For his part, Madison clearly intends to “claim

that he has become insane” no matter “the number of

prior adjudications of the issue, until the very mo-

ment of execution.” Ford v. Wainwright, 477 U.S.

399, 429 (1986) (O’Connor, J., concurring in part and

dissenting in part). Madison first claimed that he

could not remember murdering Officer Schulte in

1990, long before he purportedly suffered from de-

mentia-related amnesia. On the eve of his scheduled

execution in 2016, he asserted incompetence for the

same memory failure but blamed it on two recent

strokes. After the Court rejected his position last

year, see Dunn v. Madison, 138 S. Ct. 9 (2017), Madi-

son filed a new petition in the same state court under

the same case number to make the same allegations

based on the same evidence.

The Court granted certiorari again to address the

question Justice Ginsburg noted last year: “whether

a State may administer the death penalty to a person

whose disability leaves him without memory of his

commission of a capital offense.” /d. at 12 (Ginsburg,

J., concurring). But Madison’s brief expressly chang-

es the question presented from the one he posed in

his certiorari petition. Compare Cert. Pet. at i with

2

Pet. Br. at i. And that brief proposes no cogent theory

for why the Constitution would bar the execution of a

prisoner “without memory” of his capital offense.

Despite Madison’s arguments to the contrary, the

trial court did not hold that dementia-related infir-

mities can never render a person incompetent to be

executed. Instead, the trial court held that Madison's

dementia does not render him incompetent to be exe-

cuted. As we explained the last time we came before

this Court, Madison understands that he is being

punished for a murder he committed and for which

he has never accepted responsibility. He is “neither

delusional [njor psychotic.” Doc. 8-1 at 111.' Madi-

son’s own expert confirmed that he “is able to under-

stand the nature of the pending proceeding,” Doc. 8-3

at 19, understands that “the reason he was in prison

was because of ‘murder,” understands that the State

is “seeking retribution” for that crime, Doc. 8-3 at 18,

and “understands the sentence . . . specifically the

meaning of a death sentence,” Doc. 8-3 at 18. Alt-

hough some other dementia patient could be incom-

petent, the state court was well within reason to hold

that Madison is not.

Like he did in 1990, Madison asserts that he can-

not remember murdering Officer Julius Schulte. But

Madison’s ability to recall the killing has no bearing

on the State’s interest in punishing him for it. The

community remembers Officer Schulte. His family

remembers. The eyewitnesses who saw the murder—

they remember. Although Madison may not recall

committing this crime, the Eighth Amendment does

not bar the State from punishing him for it.

' Our citations to the record follow the format established in

Madison's brief. See Pet. Br. at 5 n. 2.

3

STATEMENT

In April 1985, Vernon Madison killed Officer Jul-

ius Schulte during a domestic dispute. At the request

of Madison’s neighbors, Officer Schulte was protect-

ing Madison’s ex-girlfriend and her 11-year-old

daughter while Madison moved out of their house.

After pretending to leave, Madison retrieved a pistol,

crept behind the car where Schulte was sitting, and

fired two shots into the back of Schulte’s head. Madi-

son v. State, 620 So. 2d 62, 64 (Ala. Crim. App. 1992).

After shooting Officer Schulte, Madison shot his ex-

girlfriend in the back as she tried to run away. /d.

Three eye witnesses—including the 11-year-old

girl—watched as Madison murdered Officer Schulte

and tried to murder his girlfriend. /d.

A. Trial and post-conviction proceedings.

Madison was charged with capital murder be-

cause he had murdered an on-duty police officer. See

Ala. Code § 13A—5—40(a)(5). The government has “a

special interest in affording protection to these public

servants who regularly must risk their lives in order

to guard the safety of other persons and property.”

Roberts v. Louisiana, 431 U.S. 633, 636 (1977). Be-

cause of procedural errors, Madison was tried and

convicted three times. See Madison v. State, 545

So.2d 94, 99 (Ala. Crim. App.1987); Madison v. State,

620 So.2d 62, 63 (Ala. Crim. App. 1992); Madison v.

State, 718 So.2d 90 (Ala. Crim. App. 1997).

Although there has never been any doubt about

Madison’s guilt, he never accepted responsibility for

murdering Officer Schulte. Instead, he has always

concocted various theories to excuse his crime. For

example, before his second trial in 1990, Madison

was already telling psychologists that “he could not

4

remember the shooting.” Madison, 620 So. 2d at 66.

By the time of his third trial, he was claiming self-

defense. Madison, 718 So. 2d at 97.

After each trial, Madison was sentenced to death

because of his lifetime of violent crime.? Madison had

previously been convicted of robbery, assault and

battery with intent to kill, aggravated assault, and

other violent offenses. See Sentencing Order at 4-5,

State v. Madison, CC85-1385.80 (Mobile Cty. Cir. Ct.

July 7, 1994). He was on parole from his most recent

conviction when he murdered Officer Schulte. Jd. at

5. After his third conviction and sentence were af-

firmed on direct review, Madison spent twenty years

pursuing every conceivable avenue of state and fed-

eral post-conviction relief.

Madison’s state post-conviction petition “lan-

guished in the [state] court for years with little ac-

tion.” Madison v. State, 999 So. 2d 561, 567 (Ala.

Crim. App. 2006). “An evidentiary hearing was

scheduled for February 23, 2000, but was continued

on Madison’s motion.” Jd. One year later, “[t)he cir-

cuit court issued an order notifying Madison that the

[post-conviction] petition would be dismissed if coun-

sel did not contact the court within 30 days.” /d.

Madison requested that a hearing be delayed for at

least a year. Id. When that time came, he replaced

his counsel. Jd. Eventually, the trial court “concluded

2 Madison's first two juries recommended a death sentence. See

Madison, 545 So. 2d at 95 (the jury's vote was 11-1); Madison,

620 So. 2d at 63 (10-2). The third death sentence was imposed

by a judge after this Court had affirmed the conatitutionality of

judicial sentencing in capital cases. See Harris v. Alabama, 513

U.S. 504 (1995) . Madison waived any objection to the judge's

sentencing authority. See Madison, 718 So. 2d at 104.

5

the long-delayed postconviction proceedings” by

granting the State’s motion to dismiss. /d.

Madison filed his first federal habeas petition in

2009. Madison v. Allen, 2011 WL 1004885, at *1

(S.D. Ala. Mar. 21, 2011). The federal habeas court

held an evidentiary hearing on Madison’s claim that

the prosecutor exercised six of his eighteen strikes

against black jurors because of their race. The court

noted that Madison’s final “jury was seven (7) blacks

and seven (7) whites,” even though the jury pool was

75% white. Madison v. Allen, 2013 WL 1776073, at

*6 (S.D. Ala. Apr. 25, 2013). The prosecutor who

tried Madison eventually became the “Chief of the

criminal division for the U.S. Attorney’s Office in the

Southern District of Alabama.” Jd. Based on contem-

poraneous notes, he testified that he struck these six

jurors for specific race-neutral reasons. Id. The fed-

eral habeas court denied the petition, and this Court

denied certiorari. See Madison v. Thomas, 135 S. Ct.

1562 (2015).

B. The first state court competency petition

After the Attorney General asked the Supreme

Court of Alabama to set an execution date, Madison

filed a successive state-court post-conviction petition

claiming he was incompetent to be executed. Doc. 8-

1. The petition asserted that Madison was incompe-

tent because he had suffered “both short-term and

long-term memory loss.” Doc. 8-1 at 2.

The state court set a hearing to evaluate Madi-

son’s claims of incompetence and gave Madison the

opportunity to submit evidence, including from his

own psychological expert. Doc. 8-1 at 55. Before the

hearing, Madison was evaluated by Dr. Karl Kirk-

land, a court-appointed psychologist, and Dr. John

6

Goff, a neuropsychologist retained by Madison. At

the hearing, the state court admitted Dr. Kirkland’s

report, Dr. Goffs report, and Madison’s medical rec-

ords. The state court also heard testimony from Dr.

Kirkland, Dr. Goff, and the warden of the prison

where Madison lived.

1. Dr. Kirkland’s testimony. The state court ap-

pointed Dr. Kirkland to examine Madison’s claims as

a neutral expert on behalf of the court. Dr. Kirkland

concluded that Madison has had physical and cogni-

tive decline as a result of strokes. Doc. 8-1 at 74

(hearing). Even so, Dr. Kirkland concluded that Mad-

ison has a rational understanding that he is to be ex-

ecuted for killing a police officer in 1985. Doc. 8-1 at

78-79 (hearing); Doc. 8-3 at 9-10 (expert report). Dr.

Kirkland determined that Madison has a “rational

understanding of the sentence, [and] the results or

effects of the sentence ... .” Doc. 8-3 at 10 (report).

Dr. Kirkland also found that Madison had normal

thought content and showed no symptoms of psycho-

sis, paranoia, or delusion. Doc. 8-3 at 8 (report).

Dr. Kirkland learned from Madison’s treating

physicians that Madison did not suffer from psycho-

sis or delusions. Doc. 8-1 at 77 (hearing). They also

reported that Madison was asked for, and able to

give, consent for medical procedures. Jd. at 76. Mad-

ison “refuses some of his medications because of side

effects” but his treating physicians “felt that he knew

what he was doing” in making that choice. /d. at 78.

At his evaluation, Madison gave Dr. Kirkland a

detailed history of his life, his criminal record, and

his conviction for murder. For instance, Madison said

he was the son of Willie Seale and Aldonnia Madi-

son, was “born in an old Mobile Hospital for African

Americans that no longer exists,” and that he is the

7

“oldest of 11 children, seven boys and four girls,” four

of whom have died. Doc. 8-3 at 3-4 (expert report).

Madison said he was raised “on the end of Old Stan-

ton Road in Mobile, where Stanton Street runs into

Stanton Road.” /d. at 4. Madison remembers his

multiple juvenile arrests and the details of these

crimes, including shooting a man in Mississippi, and

the time he escaped from the Mt. Meigs Department

of Youth Services Camp, hitching “rides all the way

back home.” /d. at 3. Madison remembered trying to

join the Army during the Vietnam War because he

“knew they would draft him one way or the other,”

and he remembers being “excluded from the Army by

the physical due to be[ing] rated 4F.” Jd. at 4.

Madison also remembered details of his multiple

trials, convictions, and appeals. Madison discussed

each appeal and “marveled each time with the fact

that the whole process would end up being back in

Judge McCray’s court.” /d. at 8. Dr. Kirkland testi-

fied that “[Madison]| was able to talk with me about

very specific things that would indicate that he could

remember specific things about the time of the of-

fense even, as well as each trial.” Doc. 8-1 at 123

(hearing).

Dr. Kirkland determined that although Madison

had physical and mental limitations, Madison “clear-

ly was able to discuss his case in a very accurate

manner, including being able to accurately tell this

examiner legal theories about why Judge McCray

should have recused himself and why he refused to

do so.” Doc. 8-3 at 9 (expert report). When asked if

Madison had a rational understanding of the reason

for his execution, Kirkland replied, “Certainly. He

talked specifically about death sentence versus life

8

without in the original trial and the first retrial and

in the second.” Doc. 8-1 at 124 (hearing).

2. Dr. Goffs testimony. Madison’s expert, Dr.

Goff, agreed with Dr. Kirkland that Madison experi-

enced cognitive decline after suffering a stroke. He

also diagnosed Madison with dementia or major neu-

rological disorder. Even so, Dr. Goff concluded that

Madison understands “the meaning of a death sen-

tence.” Doc 8-3 at 18 (expert report). Dr. Goff also

concluded that Madison said his crime “must have

been a murder,” that he had three trials, and that he

felt his “conviction was unjust.” Doc. 8-3 at 18 (expert

report). Dr. Goff concluded that Madison “is able to

understand the nature of the pending proceeding and

he has an understanding of what he was tried for.”

Doc. 8-3 at 19 (expert report). Similarly, Dr. Goff tes-

tified that Madison was not delusional or psychotic.

Doc. 8-1 at 111 (testimony of Dr. Goff).

But, based on his interview with Madison, Dr.

Goff opined that Madison had no independent recol-

lection of the murder. According to Dr. Goff, Madi-

son could not remember the name of the victim, and

he did not think he killed anyone because he pur-

portedly “never went around killing folks.” Doc. 8-3

at 18 (report). Because Madison purportedly could

not remember the murder, Dr. Goff concluded that

Madison did not understand the rationale of the cur-

rent proceeding as it applied to him. Doc. 8-3 at 19-

20. Dr. Goff remarked, “I think he understands that

he’s being executed, but I don’t think that he under-

stands why, because I don’t think he has those--those

memories.” Doc. 8-1 at 110 (hearing). Similarly, Dr.

Goff concluded that “I think he understands that [the

State is] seeking retribution” but “I don’t think he

understands the act that he’s being -- that he’s being

9

punished for.” Jd. at 120. When Dr. Goff formed

that conclusion, he was unaware that Madison had

always denied responsibility for the murder. /d. at

120.

Dr. Goff gave three reasons for believing that

Madison cannot remember killing Officer Schulte.

First, Dr. Goff concluded that Madison had experi-

enced a thalamic stroke. Doc. 8-3 at 19 (expert re-

port). Second, Dr. Goff relied on Madison’s state-

ments that he does not recall the murder and that he

“never went around killing folks.” /d. at 18 (report);

Doc. 8-1 at 115-16 (hearing). Third, Dr. Goff relied on

his evaluation of Madison, including a test he admin-

istered showing Madison's trouble completing basic

tasks and remembering basic information and Madi-

son’s tendency to speak in a rambling vague manner,

which suggested to Dr. Goff that Madison “can’t re-

member what it is that he’s told me.” Doc. 8-3 at 18

(expert report); Doc. 8-1 at 114 (hearing).

3. The Warden's testimony. The warden testified

that when Madison received the death warrant set-

ting his execution date, Madison expressed no confu-

sion or lack of understanding of what it meant, com-

menting, “[Mly lawyers are supposed to be handling

that.” Doc. 8-1 at 130 (hearing). The warden also tes-

tified that Madison was not receiving treatment for a

mental condition in prison. Doc. 8-1 at 131 (hearing).

4. The state court’s first decision. The state court

issued a detailed order, finding Madison competent

to be executed. Doc. 8-2 at 149. The state court ex-

pressly found that Madison is not delusional. Doc. 8-

2 at 158. The state court also found that “Madison

has a rational[] understanding, as required by Panet-

ti, that he is going to be executed because of the

murder he committed and a rational[{] understanding

10

that the State is seeking retribution and that he will

die when he is executed. ... . ” Doc. 8-2 at 158.

Alabama law provides no right to appeal this de-

termination in the state court system. See Ala. Code

§ 15-16-23. This is presumably because of the expe-

dited nature of last-minute litigation about execu-

tions and because the Supreme Court of Alabama is

the body that sets an execution date in the first

place.

C. The court of appeals grants habeas cor-

pus, and this Court summarily reverses.

Madison filed a habeas petition in federal court,

raising the same claims he raised in the state court

proceeding. See Doc. 1. Under the Anti-Terrorism

and Effective Death Penalty Act, a habeas petitioner

cannot obtain relief without showing that a state

court’s adjudication is “contrary to, or an unreasona-

ble application of, clearly established law,” or “based

on an unreasonable determination of the facts in

light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d). The district court

denied Madison’s application after concluding that

“liJt is apparent that the state court adjudication of

these claims applied the relevant Panetti/Ford

standard for determining competency to be executed,

considered all of Madison’s factual averments, and

found that any dementia, and the alleged deficits in

memory associated with that condition, did not pre-

vent Madison from having a rational understanding

of his execution and the reasons for his execution.”

Madison v. Dunn, 2016 WL 2732193, at *9 (S.D. Ala.

May 10, 2016).

The court of appeals reversed the district court

and granted Madison’s petition for writ of habeas

11

corpus. Madison v. Comm’r, Alabama Dep't of Corr.,

851 F.3d 1173 (11th Cir. 2017). That court explained

that the “mental conditions relevant here” are “de-

mentia and related memory loss,” not psychosis or

delusions. The court adopted a bright-line rule that

“a man with no memory of what he did wrong” can-

not be “put to death.” Jd. at 1188. The court held that

a person cannot be executed if he “doesn’t remember

the crime and he believes, to the best of his ability,

he has never killed anyone.” /d. at 1189.

This Court summarily reversed the court of ap-

peals. See Dunn v. Madison, 138 S. Ct. 9 (2017). The

Court held that “the state court did not unreasonably

apply Panetti and Ford 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.” Jd. at 12.

The Court recognized that “[tjestimony from each of

the psychologists who examined Madison supported

the court’s finding that Madison understands both

that he was tried and imprisoned for murder and

that Alabama will put him to death as punishment

for that crime.” /d. The Court explained that

“[njeither Panetti nor Ford ‘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.” Id. at 11-12.

Justice Ginsburg concurred. She noted that “[t]}he

issue whether a State may administer the death

penalty to a person whose disability leaves him with-

out memory of his commission of a capital offense is

12

a substantial question not yet addressed by the

Court.” Jd. at 12 (Ginsburg, J., concurring).

D. Madison’s second state court competency

petition.

After the State again set Madison’s execution

date, Madison filed a second petition challenging his

competency to be executed. It was filed under the

same case number and assigned to the same judge as

his first petition. Madison’s petition relied on the

“previously established evidence of Mr. Madison's

significant mental impairments” and asserted un-

specified “continued decline.” The petition also as-

serted that the court should discard its neutral ex-

pert’s previous testimony because he was accused of

self-prescribing medications.

The State responded with three main arguments.

First, the State asserted collateral estoppel and res

judicata, noting that Madison was merely seeking to

relitigate decided issues. Second, the State noted

that Madison had alleged no new evidence to war-

rant relitigating his competency—such as a new di-

agnosis or new expert opinion. Third, the State ex-

plained that the neutral expert’s legal problems were

irrelevant because they had nothing to do with his

methodology or conclusions and his testimony

matched the testimony of Madison’s own expert.

The court held oral argument limited to whether

the court should vary from its previous order denying

Madison’s competency petition. The judge recalled

from the prior hearing that there was “nothing in

[Dr. Kirkland’s] demeanor, his testimony, his ap-

proach to how he evaluated the case to be [|signifi-

cantly different from Dr. Goffs” and “[t|hey pretty

much came down the same except for a very few

13

matters.” Hr’g R. at 29:6-12. After the hearing, the

court orally denied Madison’s petition from the

bench. Hr’g R. at 32:23-25; 33:1. The court later en-

tered a written order denying Madison’s second peti-

tion because it “did not provide a substantial thresh-

old showing of insanity . . . sufficient to convince this

Court to stay the execution.” Cert. Pet. App. A.

SUMMARY OF ARGUMENT

The Eighth Amendment does not prohibit the

State from executing a convicted murderer because

he cannot independently recall committing a crime.

The death penalty is justified by the State’s interests

in retribution and deterrence, and those interests are

not diminished when a convicted murderer cannot

remember committing his crime.

1. The lower court correctly applied this Court's

Eighth Amendment precedents to deny Madison's

competency claim.

A. Although the Eighth Amendment prohibits the

State from executing someone who is insane and

lacks a rational understanding of the reasons for his

execution, the lower court correctly held that Madi-

son does not meet that standard. Madison’s mental

uisorder does not render him incompetent. Although

his dementia purportedly precludes him from re-

membering his capital offense, it does not preclude

him from understanding that he is being punished

for murdering Officer Schulte or from sharing the

community's understanding of crime, punishment,

retribution, and death.

Under this Court's precedents, a State may exe-

cute a prisoner whose mental disability leaves him

14

without memory of his commission of the capital of-

fense. A failure to recall committing a crime is dis-

tinct from a failure to understand why one is being

punished for a crime. An inmate’s personal recollec-

tion of the crime is irrelevant to whether the inmate

shares the community’s understanding of the crime,

has a moral responsibility for committing the crime,

or understands why he is being punished for the

crime.

B. Madison incorrectly argues that the lower

court misapplied this Court’s precedents. Although

Madison suggests that the mere diagnosis of demen-

tia means that he is incompetent to be executed, this

Court has made clear that a prisoner's mental condi-

tion does not establish incompetence unless that

mental condition precludes the inmate from under-

standing why he is being executed.

Nothing about dementia necessarily precludes a

rational understanding of crime and punishment.

Cognitive disorders like dementia exist on a spec-

trum of cognitive and functional impairment and are

accompanied by a wide variety of symptoms. Alt-

hough another prisoner may be rendered incompe-

tent by dementia, the lower court appropriately held

that Madison has not been.

Il. No part of this Court’s Eighth Amendment

doctrine suggests that the Constitution eliminates

the sovereign power of the State to punish a

convicted murderer who cannot remember

committing a capital offense.

A. The common law supports the punishment of

criminals who do not remember committing a crime.

The common law prohibition on executing the insane

narrowly applied to prisoners who lacked the

15

capacity to reason or understand. Common law

courts have held that amnesia does not constitute

insanity.

Moreover, the rationales offered by common law

authorities do not preclude punishing a murderer

who lacks an independent recollection of his crime.

The loss of memory does not undermine a prisoner's

ability to appreciate the religious and moral

significance of his crime. Nor does it affect his ability

to participate in court proceedings after his guilt has

been established.

B. There are no objective indicia that society has

determined that it is inhumane to execute an inmate

who cannot recall his crime. Despite several recent

highly-publicized amnesia claims by death row

inmates, no state has enacted legislation to preclude

the execution of an inmate who cannot recall

committing a crime. Standards promulgated by

professional associations likewise suggest that an

inmate’s recollection is irrelevant to his competency

to be executed.

C. Lastly, the State has two penological interests

in punishing a murderer who cannot remember

committing a crime: retribution and deterrence.

Retribution is concerned with whether a person is

culpable for an offense that warrants punishment.

The Court has recognized that the murder of a police

officer is a grievous offense that warrants the

harshest punishment. And, unlike the young or

intellectually disabled, Madison is fully culpable for

murdering Officer Schulte. Madison’s mental

condition does not preclude him from understanding

that he is being punished for murdering a police

officer or that such a murder is a grave moral wrong.

16

Deterrence also justifies the execution of an

inmate, regardless whether he can recall his crime.

Madison’s execution will serve as an example to

others that the intentional murder of a police officer

will be punished. And an inmate suffering from

amnesia is no less subject to deterrence than an

inmate who remembers the crime that put him in

prison.

Ill. Madison’s proposed rule would increase the

potential for false claims and manipulation.

First, Madison’s argument would preclude the

execution of any inmate with dementia, giving that

of cognitive disorders is not straightforward, and the

difference between a minor disorder and a major

disorder is essentially arbitrary.

Second, Madison’s rule would allow many more

inmates to assert incompetence claims. Many

medical conditions can arguably result in the loss of

memory. And few convicted capital murderers are

willing to concede the facts of their crime or their

moral responsibility for it.

Third, a prisoners assertion that he cannot

remember his crime is not objectively verifiable.

Although there are ways to test cognitive decline and

memory loss, the only person who can know for sure

whether an inmate remembers his crime is the

inme te himself.

The Eighth Amendment forbids the execution of a

murderer who has lost his sanity, not his memory.

This Court should affirm.

17

ARGUMENT

I. The lower court’s decision is consistent with

Ford and Panetti.

The Constitution affirms the sovereign power of

the States to execute the worst murderers as a

deterrent to themselves and others and as

retribution for the community's loss. See Gregg v.

Georgia, 428 U.S. 153, 176 (1976). This Court has

recognized that the imposition of the “death penalty

undoubtedly is a significant deterrent” to “many”

murders and that retribution “is essential in an

ordered society that asks its citizens to rely on legal

processes rather than self-help to vindicate their

wrongs.” Jd. at 183, 185 (joint opinion of Stewart,

Powell, and Stevens, JJ.).

Nowhere are these state interests more apparent

than where, as here, the State’s own agent was the

victim of premeditated murder. See Roberts v.

Louisiana, 431 U.S. 633, 636 (1977). “Policemen are

both symbols and outriders of our ordered society,

and they literally risk their lives in an effort to

preserve it.” Jd. at 647 (Rehnquist, J., dissenting).

For that reason, the State has an especially strong

interest “in making unmistakably clear that those

who are convicted of deliberately killing police

officers acting in the line of duty” know that

punishment “will be inexorable.” /d. (Rehnquist, J.,

dissenting).

In light of these principles, Madison must carry

an especially heavy burden to justify an exception to

the constitutionality of capital punishment for his

unique circumstances. He cannot do so. When he

murdered Officer Schulte, Madison was not part of a

class with any characteristic tending to make him

less culpable or less subject to deterrence. He was

18

not, for example, intellectually disabled or a juvenile.

Instead, he was a thrice-convicted violent felon on

parole. Today, Madison is older. But he knows that

he is being punished for a crime he committed, and

he shares the community's understanding of that

crime and the punishment. It is neither cruel nor

unusual for the State to carry out his senterce.

A. Madison can rationally understand his

punishment.

The lower court correctly determined that

Madison’s allegations in his second petition did not

establish that he was incompetent to be executed.

Madison’s second petition in the state court merely

reasserted the allegations in his first petition, with

the addition of unrelated charges against the court’s

appointed expert. Because of these _ identical

allegations, there was no reason for the lower court

to vary from its prior fact-finding that “Madison has

a rational[] understanding, as required by Panetti,

that he is going to be executed because of the murder

he committed and a rational[] understanding that

the State is seeking retribution and that he will die

when he is executed. . . . . ” Doc. 8-2 at 158.

This fact-finding is neither clearly erroneous nor

a misapplication of this Court’s case law. The Eighth

Amendment prohibits a state “from inflicting the

penalty of death upon a prisoner who is insane,”

Ford v. Wainwright, 477 U.S. 399, 410 (1986),

including one who “suffers from a_ severe,

documented mental illness that is the source of gross

delusions preventing him from comprehending the

meaning and purpose of the punishment to which he

has been sentenced,” Panetti v. Quarterman, 551

U.S. 930, 960 (2007). The upshot is that an inmate

19

may “establish|] incompetency by . . . a showing that

his mental illness obstructs a rational understanding

of the State’s reason for his execution.” Jd. at 956.

But an inmate cannot meet his burden under

Ford and Panetti merely by showing that he has

been diagnosed with a mental disorder. Instead, the

inmate must show that his diagnosed mental

disorder actually prevents him from a factual or

rational understanding of the reasons for his

execution. Panetti, 551 U.S. at 959. See also Ford,

477 U.S. at 422 (Powell, J., concurring). The

prisoner's “awareness of the crime and punishment”

must have “little or no relation to the understanding

of those concepts shared by the community as a

whole.” Panetti, 551 U.S. at 959. Accordingly, the

inquiry is whether the diagnosed mental disorder

“render[s} a subject’s perception of reality so

distorted that he should be deemed incompetent.” /d.

at 962.

The lower court correctly applied this Court’s

precedents to the facts of Madison’s case. It is

undisputed that Madison has suffered cognitive

decline over the years. But it is also undisputed that

Madison has not experienced delusions, psychosis, or

confusion avout the meaning of crime, punishment,

or death. Moreover, as this Court has already

explained, “|tjestimony from each of _ the

psychologists who examined Madison supported the

court’s finding that Madison understands both that

he was tried and imprisoned for murder and that

Alabama will put him to death as punishment for

that crime.” Dunn, 138 S. Ct. at 12. Despite

Madison’s cognitive decline, Madison’s own expert,

Dr. Goff, “found that Madison ‘is able to understand

the nature of the pending proceeding and he has an

20

understanding of what he was tried for; that he

knows he is ‘in prison ... because of murder; that he

‘understands that .. [Alabama _ is] seeking

retribution’ for that crime, and that he ‘understands

the sentence, specifically the meaning of a death

sentence.” /d. at 10-11. Even Madison's

responsibility-denying statements that he never

“went around killing folks” and that his sentence is

“unjust” proves that he understands the crime he

committed and the retributive nature of his sentence.

Doc. 8-3 at 18 (expert report).

Madison’s dementia purportedly means that he

does not remember—and will not acknowledge—

murdering Officer Schulte. See Pet. Br. at 9

(‘memory loss”), 10 (“retrograde amnesia”), 11

(“memory impairments”), 25 (“cannot independently

recall the facts of the offense”). But the Court has

already recognized that an inmate’s “failure to

remember his commission of the crime” is “distinct

from a failure to rationally comprehend the concepts

of crime and punishment as applied in his case.”

Dunn, 138 S. Ct. at 12. A history major may have no

independent memory of the Vietnam War, but still

understand the conflict; a Vietnam veteran may

remember the war in vivid detail, but have

delusional beliefs about it. “[E]veryone is amnesic to

some degree” because “every individual’s memory

process is marked by some distortion.” Note,

Amnesia: A Case Study in the Limits of Particular

Justice, 71 Yale L. J. 109, 109-111 (1961). But such

memory problems do not stop us from having a

rational understanding of our past. They do not

make us less culpable or deserving of punishment.

They do not render our punishment any less of a

deterrent to ourselves or others.

21

Panetti itself compels the common-sense

conclusion that an inmate’s “failure to remember his

commission of the crime” is “distinct from a failure to

rationally comprehend the concepts of crime and

punishment as applied in his case.” Dunn, 138 S. Ct.

at 12. In Panetti, the Court made clear that the

rational understanding it required was an

“awareness of the crime and punishment” !ike that

“shared by the community as a whole.” Panetti, 551

U.S. at 958-59. But no one in the broader community

(except, perhaps, an eyewitness) will understand an

inmate’s execution based on his or her own

independent recollection of the facts of a murder.

Rather, the community's understanding will be

based on the facts as adduced in the trial, press

reports, or other third party accounts. Independent

recollection of a crime has nothing to do with the

community's understanding of the punishment.

This self-evident distinction between memory

and rational understanding is why the lower courts

are unanimous in their opinion that a murderer's

inability to remember his crime does not render him

incompetent to be executed." The only lower court

® See Bedford v. Bobby, 645 F.3d 372, 374-76, 378 (6th Cir.

2011) (although inmate's “condition hajd] ... deteriorated ...

with the onset of... dementia,” his “memory [wa]s severely im-

paired,” and he “lack{ed] intact memories of events and easily

confuse|d] memories he does have or that others attempt to re-

mind him about,” court held that these conditions “do not es-

tablish that [he] does not understand the reasons for his convic-

tion or the nature of his punishment.”); Simon v. Fisher, 641 F.

App'x 386, 389 (5th Cir. 2016) (agreed with Sixth Circuit); State

ex rel. Clayton v. Griffith, 457 S.W.3d 735, 750 (Mo. 2015) (alt-

hough inmate has “several disorders,” including “dementia,”

“traumatic brain injury,” “a small stroke,” and “possible age-

related decline,” he has a rational understanding under

Ford/Panetti because he “understands that he is under the

threat of execution, that this will result in his death”); State v.

22

that has held dementia-induced memory problems to

bar execution is the one this Court summarily

reversed in the last iteration of this case. See Dunn,

138 S. Ct. at 12.

Ultimately, Madison’s legal position extends the

prohibition on executing the insane far beyond Ford

and Panetti. Madison may not independently re-

member his crime. But he shares the community's

understanding of crime and punishment, can appre-

ciate the morality of murder, and knows he is being

executed because he was convicted of that crime. He

understands these concepts so well that he continues

to deny responsibility for murdering Officer Schulte

and to assert that his sentence is “unjust.” Doc 8-3 at

18 (Goff expert report). Madison’s dementia-induced

amnesia is insufficient to establish incompetence to

be executed.

B. Madison’s arguments for reversal are un-

persuasive.

Madison’s brief does not explain how his inability

to recall his crime makes his understanding of “crime

and punishment” any different than the understand-

ing “shared by the community as a whole.” Panetti,

959. Instead, the brief makes two unpersuasive ar-

guments that do not meaningfully grapple with the

actual question presented.

First, Madison argues against a strawman, sug-

gesting that the lower court denied his successive

cut-and-paste petition because dementia is not a

Trick, 320 S.W.3d 284, 295-96 (Tenn. 2010) (although inmate

“has no memory of the events surrounding the murder,” inmate

was competent to be executed because he understood “that he

has been convicted of murdering the victim” that that he was

“acheduled to be executed for this crime”).

23

mental disorder. In the fantasy world imagined by

Madison’s brief, the lower court “rejected Mr. Madi-

son’s claim for relief under Ford largely because de-

mentia and neurological disease were seen as outside

the scope of protection under the Eighth Amend-

ment.” Pet. Br. at 16. The lower court also supposed-

ly denied Madison’s claim because “vascular demen-

tia constitutes a different medical condition than

what this Court has recognized as triggering the

Kighth Amendment protections of Ford and Panetti.”

Pet. Br. at 24.

But in the real world, the lower court found—and

the State argued below—that Madison has a rational

understanding of the death penalty despite his de-

mentia and purported memory problems.‘ As we told

the Court the last time we were here, the problem for

Madison’s legal position is that he can rationally un-

derstand why he is being punished, “not that [he]

suffers from a delusion that is different than the one

at issue in Panetti or that his ‘DSM diagnosis dif-

fer[s]’ from the diagnosis in Ford.” State’s Reply Br.,

‘In a footnote, Madison's bref asserts that “the State has con-

sistently argued that Mr. Madison's claim should fail because

vascular dementia, and associated cognitive and memory im-

pairments, is not considered a mental illness.” Pet. Br. 24 n. 16.

This is incorrect. As a matter of state law, the State has argued

that Madison's condition is not “insanity” under Ala. Code § 15-

16-23, such that his petition should have been filed under Rule

32 of the Alabama Rules of Criminal Procedure. But, as a mat-

ter of federal law, the State has consistently argued that Madi-

son does not meet the Ford/Panetti standard because his men-

tal disorder does not prevent him from understanding why he is

being punished. See, e.g., State Br. in Opp'n 14 (noting that

Madison's “own expert agreed that he understands he was tried

for [murder], that he is in prison and will be executed because

of that offense, and the finality of death if his sentence is car-

ried out”).

24

Madison v. Dunn, No. 17-193. at 7 (Sept. 14, 2017).

In the words of the federal habeas court, the state

court “found that any dementia, and the alleged defi-

cits in memory associated with that condition, did

not prevent Madison from having a rational under-

standing of his execution and the reasons for his exe-

cution.” Madison v. Dunn, 2016 WL 2732193, at *9

(S.D. Ala. May 10, 2016). As we have explained

above, supra pp. 18-22, the lower court’s decision on

this point faithfully applied this Court’s precedents.

Second, Madison's brief simply begs the question

by assuming without any argument that he meets

the Ford/Panetti standard. This error starts at the

very beginning of his brief. Madison’s certiorari peti-

tion asked the Court to determine whether the State

could execute a “prisoner whose mental disability

leaves him without memory.” Cert. Pet. at i. This is

the question we have answered. But Madison's brief

alters the question presented so that it also asks

whether the State may execute a prisoner whose

mental condition “leaves him without memory of the

commission of the capital offense and prevents him

from having a rational understanding of the circum-

stances of his scheduled execution.” Pet. Br. at i (em-

phasis added). This formulation builds the assump-

tion that Madison meets the Ford/Panetti standard

(and thus cannot be executed) into the question pre-

sented, even though the Court granted certiorari to

resolve the question whether his impairments meet

that standard and even though the lower court held

as a matter of fact that he did not.

Madison’s question-begging argument assumes

that the bare fact that he suffers from dementia

necessarily establishes that he is incompetent to be

executed. But this argument finds no support in Ford

25

or Panetti. |n both cases, the Court made clear that

an inmate could not establish incompetence merely

by having a mental disorder. The central question in

both cases was whether an inmate’s diagnosed

mental disorder actually eliminated his ability to

understand his punishment. Under Ford and

Panetti, it is not enough for Madison to suffer from a

diagnosed mental disorder. He must establish that

his “mental illness obstructs a_ rational

understanding of the State’s reason for his

execution.” Panetti, 551 U.S. at 956.

The rational understanding step in_ the

competency analysis is especially important with a

diagnosis like dementia. The DSM-5 recognizes that

cognitive disorders like dementia “exist on a

spectrum of cognitive and functional impairment”

that varies considerably from person to person. Am.

Psychiatric Ass’n, Diagnostic and Statistical Manual

of Mental Disorders 607 (5th Ed. 2013) [hereinafter

“DSM-5”]. Because the key diagnostic criteria is

“cognitive decline from a _ previous level of

performance,” a “high-functioning individual” may be

properly diagnosed with dementia even if his

abilities register as “normal.” DSM-5 at 602, 607.

Moreover, a major neurocognitive disorder like

dementia may be accompanied by a wide variety of

symptoms. One person who suffers from dementia

® The district court on remand in Panetti expressly found the

inmate to be “mentally ill,” but, like the state court in this case,

still found that the innate had “a factual and rational under-

standing of his crime, his impending death, and the causal re-

tributive connection between the two.” See Panetti v. Quarter-

man, 2008 WL, 2338498, at *37 (W.D. Tex. Mar. 26, 2008). The

court of appeals affirmed, and this Court denied certiorari. See

Panetti v. Stephens, 727 F.3d 398 (5th Cir. 2013), cert. denied,

135 S. Ct. 47 (2014).

26

might merely “requireje] assistance with .. . paying

bills.” DSM-5 at 602. Another might have “delusions”

and “paranoia.” DSM-5 at 606. As the Court has

observed, the medical definitions of mental disorders

“are subject to flux and disagreement,” and

diagnoses “may mask vigorous debate within the

profession about the very contours of the mental

disease itself.” Clark v. Arizona, 548 U.S. 735, 752,

772 (2006). “[T]he consequence of this professional

ferment,” the Court has noted, “is a general caution

in treating psychological classifications as predicates

for excusing otherwise criminal conduct.” Jd. at 775

Although it is possible that some other inmate

with dementia could establish that his condition has

eliminated his rational understanding of crime and

punishment, Madison has not met that burden. Even

though Madison was already asserting 28 years ago

that he could not remember the murder, he now says

a recently diagnosed disorder has caused him not to

recall “the facts of the offense” or “the name of the

victim.” Pet. Br. at 10. But Madison’s lack of

independent recollection does not eliminate his

ability to understand death, appreciate the gravity of

murdering a police officer, or otherwise share the

communitys understanding of crime and

punishment. Madison’s own expert testified that he

“is able to understand the nature of the pending

proceeding,” Doc. 8-3 at 19 (report), understands that

“the reason he was in prison was because of

‘murder,” understands that the State is “seeking

retribution” for that crime, Doc. 8-1 at 120 (hearing),

and “understands the sentence . . . specifically the

meaning of a death sentence,” Doc. 8-3 at 18 (report).

Madison’s disorder does not make him any less

deserving of punishment nor does it render his

27

punishment less of a deterrent to himself or to

others.

Il. The Eighth Amendment allows a State to

punish a murderer whose mental disability

leaves him w’ Sout memory of his commis-

sion of the capital offense.

Just as Madison’s claims are inconsistent with

Ford and Panetti, no other part of this Court’s

Kighth Amendment doctrine supports his position.

In determining whether the Eighth Amendment

bars a particular punishment as “cruel and unusual,”

the Court has followed a well-established analytical

path. First, the Court examines whether the pun-

ishment was among “those modes or acts of punish-

ment that had been considered cruel and unusual at

the time that the Bill of Rights was adopted” in

1791. Ford, 477 U.S., at 405; see also Solem v. Helm,

463 U.S. 277, 285-86 (1983). Second, the Court con-

siders whether the punishment is deemed cruel and

unusual according to modern “standards of decen-

cy.” Roper v. Simmons, 543 U.S. 551, 560-61 (2005)

(quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plu-

rality op.)). Those standards derive principally from

“objective evidence of contemporary values,” the

“clearest and most reliable” of which is “the legisla-

tion enacted by the country’s legislatures.” Atkins v.

Virginia, 536 U.S. 304, 312 (2002) (citation and quo-

tation marks omitted). Finally, the Court applies its

“independent judgment” to evaluate “the acceptabil-

ity of a particular punishment under the Eighth

Amendment.” Roper, 543 U.S., at 563-64. In capital

cases, the Court has made this assessment primarily

by reference to “the penological justifications for the

28

death penalty.” See id., at 571; Atkins, 536 U-S., at

317.

A. The common law supports the punish-

ment of murderers who cannot remember

committing a crime.

The constitutional prohibition on executing the

insane comes from the common law. See Ford, 477

U.S. at 406-07 (citing Blackstone and Coker). But

there is no similar common law prohibition on the

punishment of someone who cannot recall commit-

ting a crime.

The historical sources uniformly attest that the

common law prohibition on the execution of the in-

sane came into play only if a prisoner suffered a

comprehensive deprivation of his intellectual powers.

Blackstone formulates the prohibition on the execu-

tion of the insane in terms of the concept of “nonsane

memory.” As he puts it, if a man “in his sound

memory commits a capital offence” and later “be-

comes of nonsane memory, execution shall be

stayed.” 4 William Blackstone, Commentaries, *24-

*25. But in the Law French of Blackstone’s time, the

expression “nonsane memory” did not denote amne-

sia. It was defined as a condition in which a party

“was Mad or not within his wits.” John Cowell, A

Law Dictionary or The Interpreter of Words and

Terms (1777)(definition of “non sane memory”). See

also Alexander M. Burrill, A Law Dictionary and

Glossary 192 (2d ed. 1859)(definition of “memory’”).

Indeed, Edward Coke’s discussion of the same prohi-

bition requires that the inmate be “totally deprived

of all compassings, and imaginations.” 3 Edward

Coke, Institutes 6 (6th ed. 1680). Matthew Hale also

stressed that the requisite mental condition “must be

29

an absolute madness.” 1 Matthew Hale, Pleas of the

Crown 37 (1736). And Blackstone’s own discussion

uses the term “nonsane memory” interchangeably

with “madness.” 4 Blackstone, Commentaries, *24-

*25.

It is thus entirely unsurprising that common law

courts confronted with the question whether this

prohibition extends to amnesia have answered with a

resounding “no.” Contra APA Br. at 11. Parliament

codified the common law prohibition in the Criminal

Lunatics Act of 1800 shortly after our country rati-

fied the Eighth Amendment. See Richard Moran, The

Origin of Insanity as a Special Verdict: The Trial for

Treason of James Hadfield, 19 Law & Society Rev.

487, 513-15 (1985). By the middle of the 20“ century

both English and Scottish courts had firmly conclud-

ed that “amnesia causing the disappearance of all

memory of the events surrounding the alleged crime

cannot of itself constitute insanity for the purposes of

that Act.” R. v. Podola, [1959] 43 Crim. App. 220, 238

(England) (recognizing that term “memory” as used

in Blackstone “does not relate to recollection, but to a

state of mind”). See also Russell v. H.M. Advocate,

1946 S.C.(J.) 37 (Scotland) (same).

Thus, the common law itself supplies no support

for Madison’s position. Nor do the rationales for the

prohibition on the execution of the insane offered by

common law authorities, and Madison makes little

attempt to argue otherwise.

First, Justice Powell observed in Ford that some

authorities contended that it is “against christian

charity to send a great offender quick ... into another

world, when he is not of a capacity to fit himself for

it.” 477 U.S. at 419-20 (Powell, J., concurring) (quot-

ing Hawles, Remarks on the Trial of Mr. Charles

30

Bateman, 11 How. St. Tr. 474, 477 (1685)). Drawing

on this rationale, Madison suggests that his execu-

tion would “implicate society's and the Eighth

Amendment's aversion to grotesque and obscene

punishment.” Pet. Br. at 28. But there is no sense

in which Madison’s alleged memory loss could impli-

cate 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.

Madison’s amnesia does not affect his capacity to

know that he murdered Officer Schulte or to under-

stand that murdering a police officer is morally

wrong. This is enough for Madison to reckon with the

gravity of his crime and seek reconciliation based on

whatever religious or moral beliefs he may hold.

Second, Ford indicates that some common law au-

thorities took the justification for the prohibition to

be that a prisoner who has lost his sanity cannot ad-

equately participate in his defense and thus may for-

feit an opportunity to obtain a stay of execution that

he otherwise might have realized. 477 U.S. at 406-

407. But as Justice Powell’s concurrence rightly not-

ed, this “justification{] has slight merit today” be-

cause “[mJodern practice provides far more extensive

review of convictions and sentences than did the

common law, including not only direct appeal but or-

dinarily both state and federal collateral review.” /d.

at 420 (Powell, J., concurring in part and concurring

in the judgment). Factual issues are contested pri-

marily at the trial court level where the defendant's

opportunity to participate and advise defense counsel

is protected by the requirement of trial competency.

And appeals that occur late in the process leading to

execution tend to address legal rather than factual

issues, emphasizing the competency of appellate

counsel rather than that of the condemned.

31

Third, Ford notes that another common law ra-

tionale for the prohibition on the execution of the in-

sane was that “madness is its own punishment: /uri-

osus solo furore punitur.” 477 U.S. at 407-08. But see

Robert F. Schopp, Wake Up and Die Right: The Ra-

tionale, Standard, and Jurisprudential Significance

of the Competency to Face Execution Requirement, 51

La. L. Rev. 995, 1002 (1991) (‘[Mjadness cannot con-

stitute punishment comparable to execution simply

because it is not punishment at all”). Madison

makes no attempt to rely on this rationale, and with

good reason, because it is difficult to see how this ra-

tionale makes any sense as applied to Madison's

condition. Dementia is a common disorder that af.-

flicts roughly 3.9 million Americans, including

roughly 7% of all Americans over 60 years old. See

Martin Prince, Tenata Bryce, et al, The Global Prev-

alence of Dementia: A Systematic Review and Metaa-

nalysis, 9 Alzheimers & Dementia 63, 69 (2013).

Madison’s dementia-based amnesia is not equivalent

to state-imposed punishment for murder.

Fourth, Ford mentions one other traditional justi-

fication for the prohibition: that the execution of a

prisoner who has lost his mind is simply “savage and

inhuman.” 477 U.S. at 406 (quoting Blackstone); see

also 3 Edward Coke, Institutes 6 (6th ed. 1680). This

“intuition that such an execution simply offends hu-

manity” may supply a satisfactory explanation of the

common law rule, but it does nothing to support the

extension of that doctrine to cases of amnesia. Ford,

477 U.S. at 409. As Ford itself suggests, this intui-

tion’s legal significance derives from the fact that it

“is evidently shared across this Nation.” /d. at 409.

Nothing similar can be said about the execution of

prisoners who cannot recall the facts of their crime.

See infra pp. 32-34 (discussing present standards of

32

decency). Moreover, the factual predicate undergird-

ing this intuition is absent in cases like Madison’s.

The traditional common law prohibition “protect|s]

the condemned from fear and pain without comfort of

understanding” and thus avoids the brutal spectacle

of the execution of a person with no comprehension

of his predicament. Ford, 477 U.S. at 410. But Mad-

ison’s condition does not deprive him of the relevant

mode of understanding, and thus presents no such

risk.

B. Madison’s position finds no support in

state legislation or sentencing practice.

The Court’s Eighth Amendment analysis also re-

lies on “objective indicia that reflect the public atti-

tude toward a given sanction.” Gregg, 428 U.S at

173. Indeed, Eighth Amendment cases “should be in-

formed by objective factors to the maximum possible

extent.” Coker v. Georgia, 433 U.S. 584, 592 (1977)

(plurality opinion) (emphasis added). See also Ford,

477 U.S. at 406 (pointing to the “objective evidence of

contemporary values” as the touchstone of any

“standards of decency” analysis).

There is not a shred of legislative evidence that

Madison’s execution would flout contemporary

“standards of decency.” In the death penalty context,

the “clearest and most reliable objective evidence of

contemporary values” are the laws passed by the

people’s elected representatives. Atkins, 536 U.S. at

312 (quoting Penry v. Lynaugh, 492 U.S. 302, 331

(1989)). But not one State has proscribed the use of

capital punishment against prisoners with dementia-

induced memory loss. This legislative silence is all

the more striking given the recent, highly-publicized

claims of death-row inmates with medical conditions

33

like Madison’s in Ohio, © Missouri, ’ and Mississippi.*

Were the public widely opposed to execution in such

cases, one would expect a swift legislative response—

a groundswell like the ones that preceded Atkins and

Roper. See Atkins, 536 U.S. at 313-18; Roper, 543

U.S. at 564-67. But no such response has material-

ized.

For their part, the relevant professional associa-

tions have adopted standards that focus on psycho-

sis, not memory. The American Bar Association does

not address “memory” in its standard for competence

to be executed. That standard instead provides that

a “convict is incompetent to be executed if, as a result

of mental illness or mental retardation, the convict

cannot understand the nature of the pending pro-

ceeding, what he or she was tried for, the reason for

the punishment or the nature of the punishment.”

Am. Bar Assoc. Crim. Just. Mental Health Stds., Std.

7-5.6(b).2 Like the ABA, the American Psychiatric

Association and the American Psychological Associa-

tion are concerned about inmates with “profound de-

® Ohio Man Executed for Double Murder He Doesn't Remember,

Daily Mail (May 17, and

remember. html (last visited June 29, 2018).

’ Missouri Executes Cecil Clayton, Killer who had Brain Injury,

LA vam Bsn 17, ton

cuumtionansicimaennnaaaaatatemn hems Gast visled Suns

29, 2018).

5 Is Mississippi Death Row Inmate Robert Simon Faking Amne-

sia?, —— (The Associated — (June 10,

zhane (last visited — 29, 2018)

® http://www.americanbar.org/publications/criminal_ justice _

section_archive/crimjust_standards mentalhealth blk. htm!

(last visited July 26, 2018).

34

ficiencies in understanding” that are “associated with

mental retardation and with delusional beliefs.”

Recommendation and Report on the Death Penalty

and Persons with Mental Disabilities, 30 Mental &

Physical Disability L. Rep. 668, 676 (2006). These or-

ganizations believe an inmate is competent to be exe-

cuted if he has “a meaningful understanding that the

state is taking his life in order to hold him accounta-

ble for taking the life of one or more people.” /d.

We recognize that twelve years ago these organi-

zations adopted a policy resolution that any signifi-

cant mental disorder should bar the imposition of the

death penalty. See id.; Pet. Br. at 27 n.17. That ex-

treme position explains the amicus brief two of these

organizations filed here. See APA Br. at 2. But no

state legislature has adopted this position. Nor has it

persuaded any lower court.'° Because there is no ba-

sis in the evolving standards of decency to hold that

any mental illness precludes execution, neither Mad-

ison nor his amici expressly argue for such a rule.

C. The State has valid penological interests

in punishing a murderer who cannot re-

member committing a crime.

Finally, a prisoner’s ability to recall his crime is

irrelevant to whether his execution would advance

the penological interests the Court has singled out as

"© See In re Neville, 440 F.3d 220, 221 (5th Cir. 2006); ; Baird v.

Davis, 388 F.3d 1110, 1114-15 (7th Cir. 2004); State v. Irick,

320 S.W.3d 284 (Tenn. 2010); Mays v. State, 318 S.W.3d 368,

379-80 (Tex. Crim. App. 2010); Johnston v. State, 27 So.3d 11,

26-27 (Fla. 2010); Hall v. Brannan, 670 S.E.2d 87, 96-97 (Ga.

2008); State v. Ketterer, 855 N.E.2d 48, 77 (Ohio 2006); State v.

Johnson, 207 S.W.3d 24, 50-51 (Mo. 2006); Matheney v. State,

833 N.E.2d 454, 458 (Ind. 2005); Malone v. State, 293 P.3d 198,

216 (Okla. Crim. App. 2013).

35

“the two distinct social purposes served by the death

penalty: retribution and deterrence of capital

crimes.” Kennedy v. Louisiana, 554 U.S. 407, 441

(2008). The retributive value of punishment depends

on an offender's culpability at the time of the offense,

not at the time when his sentence wil! be executed.

There is likewise no reason to believe that Madison's

execution will not have the same deterrent effect as

any other execution.

1. Retribution. From a retributive perspective,

amnesia developed after the commission of a capital

offense has no bearing on whether the offender de-

serves to be executed for his crime. Retributive jus-

tice requires the punishment of offenders because

they have engaged in culpable wrongdoing and thus

deserve to be punished. See Atkins, 536 U.S. at 319;

Tison v. Arizona, 481 U.S. 137, 149 (1987); Michael

S. Moore, Justifying Retributivism, 27 Isr. L. Rev. 15,

30 (1993). The object of retributive justice is the can-

cellation of a wrong committed against an individual

and the State through the elimination “of the moral

imbalance caused by the offense.” Graham v. Flori-

da, 560 U.S. 48, 71 (2010). This imbalance arises

when an offender engages in culpable wrongdoing

and cannot be corrected until he receives the pun-

ishment he deserves.

Put otherwise, retributive justice is backward-

looking and concerned only with the offender's cul-

pability at the time when he committed the offense

in question. See Stephen P. Garvey, “As the Gentle

Rain from Heaven”: Mercy in Capital Sentencing, 81

Cornell L. Rev. 989, 1029 (1996). “From a retributive

perspective, the punishment a defendant deserves is

.. . fully congealed at the time of the crime. The fu-

ture is neither here nor there. Only the past mat-

36

ters.” Id. at 1029-1030. Only the offender's state of

mind at the time when he committed the offense in

question is relevant to retribution.

To be sure, Panetti suggests that retribution has

a communicative function that is compromised when

a prisoner's “mental illness obstructs a rational un-

derstanding of the State’s reason for his execution,”

even if he were fully culpable for his offense. 551

U.S. at 956. As this Court put the point, “it might be

said that capital punishment is imposed because it

has the potential to make the offender recognize at

last the gravity of his crime and to allow the commu-

nity as a whole, including the surviving family and

friends of the victim, to affirm its own judgment that

the culpability of the prisoner is so serious that the

ultimate penalty must be sought and imposed.” /d.

at 958. When “the prisoner's mental state is so dis-

torted by a mental illness that his awareness of the

crime and punishment has little or no relation to the

understanding of those concepts shared by the com-

munity as a whole,” however, “[t]he potential for a

prisoner's recornition of the severity of the offense

and the objective of community vindication are called

in question.” /d. at 958-59.

But these concerns are not implicated here. A

prisoner's failure to independently recall committing

a crime does not prevent him from possessing an un-

derstanding of his crime and sentence that corre-

sponds to the conception of the community as a

whole. The facts of this case provide an apt illustra-

tion. Apart from the three eye witnesses who saw

Madison murder Officer Schulte, no member of the

community’s grasp of the gravity of Madison’s crime

and the justification for his sentence will derive from

introspectively-accessible memories of the murder.

37

Instead, their understanding will be based on the ev-

idence adduced at Madison’s murder trials—the

same evidence that led three juries to convict him of

capital murder. That Madison allegedly cannot recall

murdering Officer Schulte in no way undercuts his

capacity to form the same understanding of his crime

and sentence based on the same evidence.

For analogous reasons, the fact that Madison's

vascular dementia allegedly prevents him from re-

memberine that he murdered Officer Schulte does

nothing to obstruct his potential “recognition of the

severity of the offense.” Jd. at 958. Nothing in the

record so much as suggests that Madison has lost the

capacity to recognize that murdering a police officer

is a grave legal and moral offense. See Roberts, 431

U.S. at 649 (Rehnquist, J., dissenting) (“the premedi-

tated murder of a peace officer is so heinous and in-

tolerable a crime that no combination of mitigating

factors can overcome”). And any reasonably mature

human being can feel guilt and remorse for a wrong

they have committed against another person even if

they cannot personally recall committing the act in

question. Thus, to the extent the political communi-

ty’s decision to impose a capital sentence communi-

cates “its own judgment that the culpability of the

prisoner is so serious that the ultimate penalty must

be sought and imposed,” Madison can receive and

understand this message. Panetti, 551 U.S. at 958.

Finally, Madison’s argument finds no purchase in

precedents that “ban|] the execution of prisoners

whose diminished culpability, by virtue of age or in-

tellectual disability, rendered the death penalty ex-

cessive and cruel.” Pet. Br. at 18. Unlike the young

or the intellectually disabled, Madison does not have

“lesser culpability” for his crimes. Atkins, 536 U.S. at

38

319.'! Madison was a violent felon on parole when he

murdered Officer Schulte and tried to murder his es-

tranged girlfriend. He is fully culpable for his ac-

tions.

2. Deterrence. Deterrence also justifies the

execution of a capital sentence even where the

prisoner has purportedly forgotten committing his

crime. “The theory of deterrence in _ capital

sentencing is predicated upon the notion that the

increased severity of the punishment will inhibit

criminal actors from carrying out murderous

conduct.” Atkins, 536 U.S. at 320. The general

deterrent effect of capital punishment is diminished

for offenders who suffer from “the same cognitive and

behavioral impairments that make . . . defendants

less morally culpable.” Jd. Impairments of this kind

“also make it less likely that they can process the

information of the possibility of execution as a

penalty, and as a result, control their conduct based

upon that information.” /d.

But this logic applies only to cognitive

impairments that have taken hold before an offender

has committed a capital crime. Just as _ the

subsequent development of a memory impairment

has no impact on an offender's moral culpability at

the time when he committed his offense, it can have

no effect on an offender's ability to incorporate the

expected cost of a capital sentence into the “cold

'! Madison argues that “age of onset is the only difference be-

tween an individual who is intellectually disabled .. . and an

individual who suffers from dementia.” Pet. Br. 28 at 17.

Though Mr. Madison's cognitive faculties have slipped in the

wake of his recent strokes, he has an IQ of 72—above the cogni-

tive threshold required to stand trial, to be held criminally re-

sponsible for one’s actions, or to be eligible for execution under

Atkins. See Pet. Br. at 26.

39

calculus that precedes the decision” to commit a

capital crime. Gregg v. Georgia, 428 U.S. 153, 186

(1976). Unlike the intellectually disabled or

juveniles, offenders like Madison do not form a class

of persons who are “less likely to consider potential

punishment” when deciding whether to commit a

capital offense. Miller v. Alabama, 567 U.S. 460, 472

(2012).

If anything, extending the doctrine of Ford and

Panetti to Madison’s amnesia claim would diminish

the general deterrent value of capital punishment by

interposing between conviction and execution a

requirement that a _ prisoner’ independently

remember committing their crime. This would make

it less likely that any given offender will be executed

for his crime, since there is a nontrivial chance that

anyone can develop a memory-impairing health

condition. Madison’s proposed rule would also

effectively condition the execution of a death

sentence on the offender's assent to the proposition

that he remembers committing his crime. This

development would undermine the threat of

punishment upon which general deterrence depends.

Madison’s attempts to demonstrate that his

condition would compromise the deterrent value of

his sentence come up short.

First, he argues that because the Ford plurality

suggested that 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,

his execution would not serve the ends of deterrence.

Pet. Br. at 28. But this argument begs the question

by assuming—with no further argument—that

Madison’s condition renders him incompetent to be

executed. As argued above, supra pp. 18-27,

40

Madison’s amnesia in no way prevents him from

forming the requisite “rational understanding of the

reasons for the execution.” Panetti, 551 U.S. at 958.

Thus, Ford supplies no cause for skepticism about

whether Madison’s execution would provide an

example to others. And common sense suggests that

it will. His execution will send a message that

murdering a police officer is a crime grave enough to

warrant “the law’s most severe penalty.” Roper, 543

U.S. at 571. See also Roberts, 431 U.S. at 636 & n.3.

Second, Madison asserts—with no apparent

justification—that “with incapacity by virtue of

dementia, specific deterrence is already achieved.”

Pet. Br. at 28. But this assertion is contradicted by a

wealth of evidence suggesting that, in all but the

most severe cases, persons who suffer from dementia

can respond rationally to incentives.'* While it is

true that a mentally ill prisoner who has no

awareness that he will be executed if he commits a

capital offense is not specifically deterrable, this logic

plainly does not extend to those who, like Madison,

do not suffer from that impairment.

" See, e.g., Soumya Hegde & Ratnavalli Ellajosyula, Capacity

Issues and Decision-Making in Dementia, 19 Ann. Indian Acad.

Neurol 34 (2016) (summarizing research on reasoning and ca-

pacity in dementia patients); J. Karlawish, Measuring Decision-

Making Capacity in Cognitively Impaired Individuals, 16 Neu-

rosignals 91 (2008) (decisional impairment is on a spectrum in

dementia patients); Scott Y.H. Kim, Jason H.T. Karlawish, &

Eric D. Caine, Current State of Research on Decision-Making

Competence of Cognitively Impaired Elderly Persons, 10 Am. J.

Geriatric Psychiatry 151 (2002) (noting that many dementia

patients do not suffer from decisional impairment).

41

Ill. Madison’s proposed extension of Ford and

Panetti will lead to false claims,

manipulation, and abuse.

Madison’s proposal to extend Ford and Panetti

will heighten the already existing problem of false

claims, manipulation, and abuse in this area. Justice

O’Connor warned in Ford that “the potential for false

claims and deliberate delayin this context

is obviously enormous.” 477 U.S. at 429 (O’Connor,

J., concurring in part and dissenting in part). Be-

cause every death row inmate has an incentive to de-

lay his execution, she predicted that an inmate will

continue to “claim that he has become insane” no

matter “the number of prior adjudications of the is-

sue, until the very moment of execution.” /d. Madi-

son’s position, if accepted, would only make these

problems worse.

First, Madison’s position would give talismanic

importance to an inmate’s mental disorder diagnosis,

even though precise mental health diagnoses are

shifting, debatable, and subjective. “[P|sychiatrists

disagree widely and frequently on what constitutes

mental illness [and] on the appropriate diagnosis to

be attached to given behavior and symptoms.” Ake v.

Oklahoma, 470 U.S. 68, 81 (1985). For that reason,

“a particularly acute need for guarding against error

inheres in a determination that ‘in the present state

of the mental sciences is at best a hazardous guess

however conscientious.” Ford, 477 U.S. at 412 (quot-

ing Solesbee v. Balkcom, 339 U.S. 9, 23 (1950)

(Frankfurter, J., dissenting)). As Justice Powell ex-

plained,

Unlike issues of historical fact, the question of

petitioner's sanity calls for a basically subjec-

tive judgment. And unlike a determination of

42

whether the death penalty is appropriate in

a particular case, the competency determina-

tion depends substantially on expert analysis

in a discipline fraught with ‘subtleties and nu-

ances.’

Ford, 477 U.S. at 425 at 426 (Powell, J., concurring

in the judgment) (quoting Addington v. Texas, 441

U.S. 418, 430 (1979)) (citations omitted).

The diagnosis of cognitive disorders, in particular,

is not nearly as straightforward as Madison claims.

The DSM-5 classifies vascular dementia as a “major

neurocognitive disorder” characterized by progres-

sive memory loss, general cognitive decline, and di-

minished executive functioning. DSM-5 at 621. While

earlier editions of the DSM relied exclusively on clin-

ical observation to establish these four factors, the

DSM-5 incorporates neurological imaging—primarily

MRIs and CT scans—as a way to confirm a patient's

cognitive decline. Specifically, it directs physicians to

find abnormalities in these brain scans, and to corre-

late them to clinically-observable cognitive deficien-

cies. See id. at 622 (“Etiological certainty requires

the demonstration of abnormalities on neuroimag-

ing.”). But, despite these changes in the DSM-5, de-

mentia remains a necessarily vague diagnosis. The

DSM-5 recognizes that the “distinction between ma-

jor and mild” neurocognitive disorders “is inherently

arbitrary” without any “[pjrecise thresholds.” /d. at

608. Stripped to its essentials, dementia refers to ab-

normal cognitive decline, corroborated by brain im-

aging, for which no superior explanation is available.

“Vascular dementia is s syndrome, not a disease.”

Kenneth Rockwood et al., Diagnosis of Vascular De-

mentia, 21 Can. J. Neurol. Sci. 358, 361 (1994). .See

43

also APA Br. at 8. The use of brain imaging does not

render a dementia diagnosis any less subjective.

Second, under Madison’s rule, many more

prisoners will be able to claim that their mental

disorders prohibit their execution. Because few

people who commit capital murder are “normal” or

“rational” in the conventional sense, the Court has

rightly imposed a high bar for an inmate to “show[]

that his current mental state would bar his

execution.” Panetti, 551 U.S. at 934, 959. Lowering

that bar as Madison suggests would leave a blurry

line between the small class of capital murderers

who are “insane” and the very many who are

“unrepentant” and “lack all sense of guilt.” Jd. at 960.

There are also many neurological conditions that

could deprive a capital murderer of an independent

memory of committing his crime. The range of

prisoners eligible to assert such claims would not be

confined to those suffering from stroke-induced

dementia like Madison. Recognized medical

conditions that can result in the loss of

autobiographical memory include traumatic brain

injuries," Alzheimer’s’ disease,‘ Parkinson's

'S Pascale Piolino, Béatrice Desgranges, Liliane Manning,

Pierre North, Corinne Jokic, & Francis Eustache, Autobio-

graphical Memory, the Sense of Recollection and Executive

Functions After Severe Traumatic Brain Injury, 43 Medical |m-

age Analysis 172 (2007) (traumatic brain injury patients, com-

pared with healthy controls, were significantly impaired in re-

cal. ng epwsodic autobiographical memories).

'4 Mohamad FE] Haj et al., Autobiographical Memory Decline in

Alzheimer’s Disease, 27 Ageing Res. Rev. 15 (2016) (autobio-

graphical recall in Alzheimer's disease is characterized by loss

of episodic information).

44

disease," and Wernicke-Korsakoff syndrome."

Apart from these disorders, the generic effects of

aging, stress, and depression can aiso induce episodic

memory loss.'’ There is even evidence suggesting

that otherwise heaithy, high-functioning individuals

can suffer from severe autobiographical memory

deficiencies even when they do not suffer from any

medical disorder recognized under _ existing

diagnostic criteria.'*

These concerns are not speculative or marginal.

Over the past few decades, as this Court has

expanded the range of state and federal appeals

'® Sarah J. Smith, Celine Souchay, Martin A. Conway, Overgen-

eral Autobiographical Memory in Parkinson's Disease, 46 Cor-

tex 787 (2010).

'® Michael D. Kopelman, What Does A Comparison of The Alco-

holic Korsakoff Syndrome And Thalamic Infarction Tell Us

About Thalamic Amnesia’, 54 Neuroscience & Behavioral Rev.

46 (2015).

'? See, e.g., Brian Levine, Eva Svoboda, Jannine F. Hay, Gordon

Winocur, & Morris Moscovitch, Aging and Autobiographical

Memory: Dissociating Episodic from Semantic Retrieval, 17

Psychology and Aging 677 (2002) (older adults manifested di-

minished personal remote memory); Mark A. Smith, Hippo-

campal Vulnerability to Stress and Aging: Possible Role of Neu-

rotrophic Factors, 78 Behavioral Brain Research 25 (1996) (anx-

1ety and stress can result in hippocampal damage and loss of

memory); B.M. Elzinga & J.D. Bremner, Are the Neural Sub-

strates of Memory the Final Common Pathway in Posttraumatic

Stress Disorder?, 70 J. Affective Disorders 1 (2002) (by influenc-

ing the hippocampus, amygdala, and prefrontal cortex, post-

traumatic stress disorder can result in autobiographical

memory disturbances); Cristiano A. Kohler et al., Autobiograph-

ical Memory Disturbances in Depression, 2015 Neural Plast.

759139 (2015) (major depressive disorder is characterized by

dysfunctional! processing of autobiographical memory).

'® Damela J. Palombo, Claude Alain, Hedvig Séderlund, Wayne

Khuu, & Brian Levine, Severely Deficient Autobiographical

Memory (SDAM) in Healthy Adults: A New Mnemonic Syn-

drome, 72 Neuropsychologia 105 (2015).

45

afforded to prisoners facing capital punishment, the

average age of death row inmates has been steadily

rising. At the same time, dementia is expected to

become increasingly common in advanced societies:

by 2030, demographers predict, 11.25% of North

Americans over 60 will have dementia. This figure is

expected to reach 17.32% by 2050. See Martin Prince,

Tenata Bryce, et al, The Global Prevalence of

Dementia: A Systematic Review and Metaanalysis, 9

Alzheimer’s & Dementia 63, 70 tbl.4 (2013). Given

these two trends, we can expect to see a sharp

increase in the number of death row inmates

invoking real or feigned age-related health problems

to evade execution.

Third, a rule prohibiting the execution of those

who cannot remember committing their crime would

create new opportunities for malingering and

evasion. “False pleas of amnesia by criminal

defendants are both common and difficult to detect.”

Price v. Thurmer, 637 F.3d 831, 834 (7th Cir. 2011)

(citing Marko Jelicic, Harald Merckelbach & Saskia

van Bergen, Symptom Validity Testing of Feigned

Amnesia for a Mock Crime, 19 Archives of Clinical

Neuropsychology 525 (2004)). Although there are

tests for detecting false claims of amnesia, “there is

still ... no “gold standard” measure for distinguishing

between cases of genuine and feigned amnesia.” /d.

(quoting Xue Sun et al., Does Feigning Amnesia

Impair Subsequent Recall?, 37 Memory & Cognition

81 (2009)).

Although Madison points to the possibility of neu-

roimaging to verify false claims of amnesia, neu-

roimaging cannot establish the precise extent of a

patient’s cognitive decline or memory loss. Techno-

logical advances in brain imaging have made detec-

tion of the physiological correlates of dementia-

46

induced memory loss easier to recognize by objective

means. But verifying that a prisoner’s condition has

resulted in the loss of the specific memories associat-

ed with the commission of a capital offense will ulti-

mately turn on the prisoner’s say-so. The existing

scientific consensus is that functional magnetic reso-

nance imaging “research, processes, and technology

are insufficiently developed and understood for gate-

keepers to even consider introducing these neuroim-

aging measures into criminal courts as they stand

today for the purpose of determining the veracity of

statements made.” Elena Rusconi & Timothy Mitch-

ener-Nissen, Prospects of Functional Magnetic Reso-

nance Imaging as Lie Detector, 7 Frontiers in Human

Neuroscience, Art. 594 at 1 (2013). Ultimately, the

only person who can know with any certainty wheth-

er a person remembers a particular event is the per-

son himself.

47

CONCLUSION

The Court should hold the line it established in

Ford, Panetti, and its 2017 decision in this case.

Sanity and recollection are two distinct concepts.

Although the Constitution bars the execution of an

inmate who has lost his sanity, it does not bar the

execution of an inmate who has lost his memory. The

Court should affirm.

Respectfully submitted,

Steve Marshall

Alabama Attorney General

*Counsel of Record

Clay Crenshaw

Chief Deputy Att'y Gen'l

Eric Palmer

Deputy Solicitor Gen'l

James R. Houts

Deputy Att'y Gen

OFFICE OF THE ALABAMA

ATTORNEY GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

smarshall@ago.state.al.us

July 31, 2018 Counsel for Respondent