This morning, in Dunn v. Madison, No. 17-193, the Supreme Court issued a per curiam opinion that reversed an Eleventh Circuit decision that had found Alabama death row prisoner Vernon Madison incompetent to be exectuted. Justice Breyer's concurring opinion succintly described Vernon Madison's current condition: "He is legally blind. His speech is slurred. He cannot walk independently. He is incontinent. His disability leaves him without memory of his commission of a capital offense."
It is well-settled that the Eighth Amendment forbids the execution of a person who is incompetent—“those who are unaware of the punishment they are about to suffer and why they are to suffer it” and requires that prisoners “know the fact of their impending execution and the reason for it.” Ford v. Wainwright, 447 U.S. 477 U.S. 399, (1986) (Powell, J., concurring); see also Panetti v. Quarterman, 551 U.S. 930, 959 (2007) (clarifying that “[a] prisoner's awareness of the State’s rationale for an execution is not the same as a rational understanding of it”). Since Madison’s capital offense in 1985, he suffered a number of strokes that impaired his cognitive functioning, characterized by retrograde amnesia, and has no memory of his capital offense and no belief that he ever killed anyone. On these facts, a divided Eleventh Circuit held that Madison lacked the requisite “rational understanding of the link between his crime and his execution,” and that the state’s inapposite conclusion was an unreasonable application of federal law and an unreasonable determination of the facts.
Reversing, the Supreme Court emphasized that federal habeas relief under the Antiterroism and Effective Death Penalty Act (AEDPA) is only available if a state court’s adjudication “was contrary to, or involved an unreasonable application of, clearly established Federal law.” Since “[n]either 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,” the Court held that the state court did not unreasonably apply Supreme Court precedent. Nor did the state court unreasonable determine the facts based on the evidence before it. Moreover, the Court concluded Madison’s habeas claim must fail because “the state court’s determination of law and fact were not ‘so lacking in justification’ as to give rise to error ‘beyond any possibility for fairminded disagreement,’” which is required to overcome AEDPA’s deferential standard.
Importantly, the per curiam majority “exrpress[ed] no view on the merits of the underlying question outside of the AEDPA context.” Justice Ginsuburg concurred separately, joined by Justices Breyer and Sotomayor, recognizing: “The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet addressed by this Court. Appropriately presented, the issue would warrant full airing.” In other words, the reversal in this case was driven by AEDPA’s restraints on federal review. In a separate concurring opinion, Justice Breyer emphasized how Madison’s case illustrates one of the basic problems with the administration of the death penalty—“the unconscionably long periods of time that prisoners often spend on death row awaiting execution.” Justice Breyer’s concurrence echoed his previously stated concern that “lengthy periods of imprisonment between death sentence and execution can deepen the cruelty of the death penalty while at the same time undermining its penological justification.” "Rather than develop a constitutional jurisprudence that focuses upon the special circumstances of the aged, however," Justice Breyer wrote, "I believe it would be wiser to reconsider the root cause of the problem--the constitutionality of the death penalty itself."
The per curiam opinion of the Court is set forth in the last 8 pages of the courts orders issued today. The Training Division provides resource materials to federal capital trial and federal habeas counsel through the Capital Defense Network.