Supreme Court upholds death penalty for man who does not remember committing the crime

The Supreme Court resolved this death penalty case without hearing oral argument. It decides the case on the briefs. The Court holds that the State of Alabama can apply the death penalty to a man who no longer remembers killing his victim.

The case is Dunn v. Madison, decided on November 6. The facts are not complex. More than 30 years ago, Madison killed a police officer at close range. As his execution neared, Madison claimed he was not competent to be executed because he suffered a stroke. A court-appointed psychologist said Madison "understands the exact posture of the case at this point" and knows that Alabama is seeking retribution for his criminal act. Madison's expert said that while Madison does not remember the crime, he knows what he was tried for and knows he is in prison for murder even though he believes he "never went around killing folks."

This case arises in the posture of a habeas corpus proceeding. You can get habeas relief if the federal court finds that the state court conviction violated the U.S. Constitution. But a mere constitutional violation is not enough to win the habeas petition. You have to show the state court unreasonably applied clearly-established Supreme Court precedent. In other words, if the Supreme Court has not clearly addressed the issue raised in your habeas petition, you lose, even if, upon reflection and in hindsight, it appears the state court did violate the Constitution. Madison prevailed in the Eleventh Circuit. The Supreme Court reverses the Eleventh Circuit and Madison will be executed.

In Panetti v. Quarterman (2007), the Supreme Court said "the retributive purpose of capital punishment is not well served where the prisoner's mental state is so distorted 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 community as a whole." In 1986, the Court questioned the "retributive value of executing a person who has no comprehension of why he has been singled out." That case was Ford v. Wainwright. These cases are close, but no cigar. These cases did not squarely address the issue raised by Madison's case: whether "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."

Justices Ginsburg, Breyer and Sotomayor concur in the Court's ruling. They write that "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 the Court." But that is not enough for the Court to hear the case. "Appropriately presented, the issue would warrant full airing." Under the habeas corpus law that Congress enacted in 1996, which talks about clearly-established Supreme Court authority and whether the state court committed a clear constitutional violation, Madison must lose.