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March 17, 2017

Eleventh Circuit panel declares Alabama murderer incompetent to be executed

A panel of the Eleventh Circuit on Wednesday reached the rare conclusion that an Alabama death row prisoner was not competent to be executed.  The majority opinion authored by Judge Martin in Madison v. Commissioner, No. 16-12279 (11th Cir. March 15, 2017) (available here), gets started this way:  

Thirty years ago, the Supreme Court held that the Eighth Amendment prohibits the execution of a person who is incompetent.  Ford v. Wainwright, 477 U.S. 399, 409–10, 106 S. Ct. 2595, 2602 (1986).  The Court has since clarified that a person cannot be executed if he lacks a “rational understanding” of the reason for his execution. Panetti v. Quarterman, 551 U.S. 930, 954–60, 127 S. Ct. 2842, 2859–62 (2007).  This standard requires the prisoner to be able to rationally understand the connection between the crime he committed and the punishment he is to receive.  See Ferguson v. Sec’y, Florida Dep’t of Corr., 716 F.3d 1315, 1336 (11th Cir. 2013).  The Supreme Court told us that if the prisoner does not understand this connection, “the punishment can serve no proper purpose” and cannot be carried out. Panetti, 551 U.S. at 960, 127 S. Ct. at 2862.

This habeas petitioner, Vernon Madison, is a 66-year-old man on death row for the murder of a police officer over three decades ago.  In recent years, Mr. Madison has suffered strokes resulting in significant cognitive and physical decline.  His lawyers argue here that he is mentally incompetent to be executed under Ford and Panetti.  Finding that Mr. Madison had made a substantial threshold showing of incompetency, an Alabama trial court held a competency hearing.  At the hearing, Mr. Madison presented unrebutted testimony from Dr. John Goff that his strokes caused major vascular disorder (also known as vascular dementia) and related memory impairments and that, as a result, he has no memory of committing the murder — the very act that is the reason for his execution.  To the contrary, Mr. Madison does not believe he ever killed anyone. Dr. Goff testified that due to his memory impairments, Mr. Madison does not have a rational understanding of why the state is seeking to execute him.  The State presented expert testimony from Dr. Karl Kirkland. Dr. Kirkland testified that Mr. Madison was able to accurately discuss his legal appeals and legal theories with his attorneys and — on pretty much this basis alone — concluded that Mr. Madison has “a rational understanding of [his] sentence.”  Accepting the testimony of Dr. Kirkland, the Alabama trial court decided that Mr. Madison is competent to be executed.  Mr. Madison argues that the trial court’s decision relied on an unreasonable determination of the facts and involved an unreasonable application of the law. We agree.

In so holding, we are mindful of the great deference due to state court decisions on federal habeas review, particularly when the state court is applying a general standard like the one in Panetti.  See Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 786 (2011) (“The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” (quotation omitted)).  But “even a general standard may be applied in an unreasonable manner.” Panetti, 551 U.S. at 953, 127 S. Ct. at 2858. Panetti may set out a general standard for competency, but the focus of the inquiry is clear. Panetti doesn’t ask whether the prisoner can talk about the history of his case or legal theories with his attorneys.  Instead, Panetti requires courts to look at whether the prisoner is able to rationally understand the connection between the crime he committed and the punishment he is to receive. See Panetti, 551 U.S. at 960, 127 S. Ct. at 2862.  One of the experts testified that due to a mental disorder, Mr. Madison was not able to make this connection.  The other expert never addressed this question at all. This record is therefore wholly insufficient to support the trial court’s decision.  We conclude that the state court’s decision that Mr. Madison is competent to be executed rested on an unreasonable determination of the facts and involved an unreasonable application of Panetti. We therefore reverse the District Court’s denial of habeas relief.

A dissent authored by Judge Jordan gets started this way:

After reviewing the record, I believe that Vernon Madison is currently incompetent.  I therefore do not think that Alabama can, consistent with the Constitution, execute him at this time for his murder of a police officer three decades ago. See generally Panetti v. Quarterman, 551 U.S. 930, 958 (2007) (explaining that a state cannot put to death a prisoner who “cannot reach a rational understanding of the reason for the execution”). But Congress has chosen to generally prohibit federal courts from adjudicating constitutional claims anew on habeas review, so Mr. Madison’s competency (or lack thereof) is not our initial call to make. Under the restrictive standards we are required to apply, see 28 U.S.C. § 2254(d), and given the way we interpreted Panetti in Ferguson v. Secretary, 716 F.3d 1315 (11th Cir. 2013), I do not think Mr. Madison can obtain habeas relief.

March 17, 2017 at 12:04 AM | Permalink


All of it is awful lawyer double talk, worthless bull shit to coddle a vicious murderer, and to generate more lawyer make work jobs. These judges should be impeached for stealing tax money.

Posted by: David Behar | Mar 17, 2017 12:09:18 AM

Hi , David.
On this case I respectfully disagree.

What is to be gained from executing one who does not recall killing another ?

Our mother had vascular fementia shortly before she died.
At times she would not recognize her own adult child !

Docile the Kind Soul® in Oregon

Posted by: Docile the Kind Soul® in OR | Mar 17, 2017 2:31:11 AM

Thank you! It is very interesting

Posted by: beltranslations | Mar 17, 2017 5:04:30 AM

If the justification for the death penalty is incapacitation (something I think is somewhat dubious), I think one could make an argument that there's no problem killing someone who is incompetent as long as they were competent at the time of trial. If it's retribution, the idea that someone is aware they're receiving a punishment for what they did is certainly part of it, but it also seems somewhat facile. After all, they're only going to appreciate it for ten minutes longer (unless the chemicals don't quite work, then it'll be a couple hours longer). After that, there's no more appreciation for what they did and the consequences of it. Plus, if a person was high on cocaine or completely drunk when he committed a murder, it's not like they'll have any more awareness of what they did. If it's a deterrence argument, subsequent incompetence isn't going to have much of an effect either way.

Given that, this rule is a somewhat strange one. I certainly think there's a fascinating argument about punishing someone who isn't the same person as the one who committed the crime. A complete memory loss of what had happened, such as these strokes that led to being incompetent, is on the far end of the spectrum. But a true reformation is on the other and that's never been cause to call off the execution. The best justification I can think of is it's usually a rule affecting the mentally ill and there's something problematic about executing the mentally ill, but we still do that in many situations.

Posted by: Erik M | Mar 17, 2017 8:37:09 AM

All behavior, including superior performance, has strong biological determinism.

The primary argument is incapacitation. If insane, the death penalty needs to be immediate.

If the argument is retributive, then Prof. Berman needs to return his above average salary. He has not earned it, being highly intelligent and hard working as a personal trait. That trait is involuntary, and paying him a high wage violates the Equal Treatment clauses. The same applies to sports players with 1 in a million skills. Those are involuntary attributes. They need to return their $10 million a year for being able to pitch at 95 mph.

Posted by: David Behar | Mar 17, 2017 9:07:51 AM

If the state requests an en banc hearing, this panel's ruling can be reversed. Jordan overwhelmingly votes with the capital defendant on most cases but was willing to accept the state court findings here. I think the majority of the circuit would concur.

Posted by: DaveP | Mar 17, 2017 9:33:49 AM

What I am unclear on is the rationale basis for the court's holding. It seems to me logical that the proper timing on the standard is not whether he is incompetent when the sentence is carried out but when the sentence is imposed. In other words, he comprehended the connection between the sentence and the crime when sentence was imposed so why should the fact that he now one longer comprehends it change the analysis?

Posted by: Daniel | Mar 17, 2017 12:28:28 PM

Daniel asks why we don't execute the incompetent. Here's and exerpt from what the Supreme Court said in Ford v. Wainwright, 106 S.Ct. 2595, 2600–02, 477 U.S. 399, 406–10 (U.S.,1986):

"We begin, then, with the common law. The bar against executing a prisoner who has lost his sanity bears impressive historical credentials; the practice consistently has been branded “savage and inhuman.” 4 W. Blackstone, Commentaries * 24-* 25 (hereinafter Blackstone). Blackstone explained:“[I]diots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself. Also, if a man in his sound memory commits a capital offence, and before arraignment for it, he becomes mad, he ought not to be arraigned for it: because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.” Ibid. (footnotes omitted).Sir Edward Coke had earlier expressed the same view of the common law of England: “[B]y intendment of Law the execution of the offender is for example, ... but so it is not when a mad man is executed, but should be a miserable spectacle, both against Law, and of extream inhumanity and cruelty, and can be no example to others.” 3 E. Coke, Institutes 6 (6th ed. 1680) (hereinafter Coke).

Other recorders of the common law concurred. See 1 M. Hale, Pleas of the Crown 35 (1736) (hereinafter Hale); 1 W. Hawkins, Pleas of the Crown 2 (7th ed. 1795) (hereinafter Hawkins); Hawles, Remarks on the Trial of Mr. Charles Bateman, 11 How.St.Tr. 474, 477 (1685) (hereinafter Hawles).

As is often true of common-law principles, see O. Holmes, The Common Law 5 (1881), the reasons for the rule are less sure and less uniform than the rule itself. One explanation is that the execution of an insane person simply offends humanity, Coke 6; another, that it provides no example to others and thus contributes nothing to whatever deterrence value is intended to be served by capital punishment. Ibid. Other commentators postulate religious underpinnings: that it is uncharitable to dispatch an offender “into another world, **2601 when he is not of a capacity to fit himself for it,” Hawles 477. It is also said that execution serves no purpose in these cases because madness is its own punishment: furiosus *408 solo furore punitur. Blackstone

More recent commentators opine that the community's quest for “retribution”-the need to offset a criminal act by a punishment of equivalent “moral quality”-is not served by execution of an insane person, which has a “lesser value” than that of the crime for which he is to be punished. Hazard & Louisell, Death, the State, and the Insane: Stay of Execution, 9 UCLA L.Rev. 381, 387 (1962). Unanimity of rationale, therefore, we do not find. “But whatever the reason of the law is, it is plain the law is so.” Hawles 477.

We know of virtually no authority condoning the execution of the insane at English common law.1Further indications suggest that this solid proscription was carried to America, where it was early observed that “the judge is bound” to stay the execution upon insanity of the prisoner. 1 J. Chitty, A Practical Treatise on the Criminal Law * 761; see 1 F. Wharton, A Treatise on Criminal Law § 59 (8th ed. 1880).

This ancestral legacy has not outlived its time. Today, no State in the Union permits the execution of the insane. It is clear that the ancient and humane limitation upon the State's ability to execute its sentences has as firm a hold upon the jurisprudence of today as it had centuries ago in England. The various reasons put forth in support of the common-law restriction have no less logical, moral, and practical force than they did when first voiced. For today, no less than before, we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life. See Note, The Eighth Amendment and the Execution of the Presently Incompetent, 32 Stan.L.Rev. 765, 777, n. 58 (1980). Similarly, the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today. And the intuition that such an execution simply offends humanity is evidently shared across this Nation.

Faced with such widespread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment *410 prohibits a State from carrying out a sentence of death upon a prisoner who is insane. Whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment."

Posted by: Peter | Mar 17, 2017 2:27:37 PM

"and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.”

That is an exceptionally weak justification in this case where he has been on death row for decades. The odds of anything coming up at the last moment are remote. Given the tremendous barriers that have to be overcome to put someone to death in this country it strikes me that this concern is simply not relevant in modern times.

Posted by: Daniel | Mar 17, 2017 10:36:12 PM

Ford was found to be sane a few years later but died in prison in 1991.

Posted by: Joe | Mar 18, 2017 5:25:05 PM

Peter. If anyone quotes a Supreme Court decision, argument is over. The Supreme Court is wrong 100% of the time. It is an anti-victim, pro-lawyer employment set of mentally crippled lawyer rent seekers. Among the stupidest group of specialists, lawyers, they are the stupidest of all of them.

They should all be impeached, and replaced by members of the jury pool of surrounding Virginia counties.

Posted by: David Behar | Mar 18, 2017 8:54:54 PM

Committing a crime in an alcoholic memory blackout, is not considered an excuse to a crime.

Andrea Yates was taken off her meds by a psychiatrist afraid of being sued for a long term side effect. The tort bar was 100% responsible for her killing her 5 children in a tub, begging for their lives, to save their souls from the Devil.

She should have been summarily executed, despite being a normal and productive nurse on her medications. This execution would have been her beneficial to her. She was restored to sanity by her prison psychiatrist. She is now a normal mother who has to stare at the pictures of her 5 children and remember what she did.

As an aside, I was sued for the same side effect. I attacked the other side, and destroyed their lives, the plaintiff, the plaintiff lawyer, the plaintiff experts. No such lawsuit has ever been filed since that time. The lawyer moved to another subject. The plaintiff experts never testified again. Had I known more about the law, I could have orchestrated their arrests and imprisonment. I later met a patient who had suffered that side effect to a pitiable, horrifying extent. She told me, she could not find a lawyer to take her case within 200 miles of Philadelphia. It gave me pause.

Posted by: David Behar | Mar 18, 2017 9:06:47 PM

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