Memory, Mental Competency, and Capital Punishment

Memory, Mental Competency, and Capital Punishment

JURIST Guest Columnist Jeffrey L. Kirchmeier of City University of New York School of Law discusses diminished capacity standards in recent capital punishment cases…

The United States Supreme Court in Dunn v. Madison [text, PDF] recently considered whether or not a death row prisoner is competent to be executed if due to mental incapacity the prisoner cannot remember the crime. Ultimately, the Court decided on procedural grounds to let the execution proceed, but the case left unresolved questions.

Vernon Madison ended up on death row in Alabama for killing a police officer in 1985. During decades on death row, Madison, who now is in his late 60’s, suffered several physical and mental impairments. Additionally, a severe stroke in 2015 affected Madison’s vision, his motor coordination, and resulted in memory loss. After another stroke in 2016, guards found Madison unresponsive and incontinent. The second stroke resulted in disorientation and more memory loss.

Because of Madison’s mental decline, his attorneys requested a hearing to determine if he were competent to be executed. During the hearing, an expert gave unrefuted testimony that Madison had no memory of the murder that had put him on death row. The trial court concluded Madison was competent to be executed because Madison still understood that he was being executed as a punishment for a crime. In habeas corpus proceedings, however, the U.S. Court of Appeals for the Eleventh Circuit ruled in favor of Madison

The U.S. Supreme Court unanimously reversed. Ultimately, though, the issue regarding memory’s relevance to competence was not resolved due to the Court’s application of the habeas corpus standard of review under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

The AEDPA Standard

The Supreme Court in Dunn applied the highly deferential standard of review under AEDPA. Under Section 2254 of that statute, a state prisoner is entitled to federal habeas relief only if the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law” determined by the Supreme Court or was “based on an unreasonable determination of the facts in light of the evidence” submitted in state court.

Therefore, the Dunn Court had to evaluate whether the state trial court’s finding of competency was unreasonable. In other words, Madison could only win if the Supreme Court had already “clearly established” that a capital prisoner’s inability to remember the crime would render the prisoner incompetent to be executed.

Competency to Be Executed

The current Eighth Amendment standard for determining whether a capital defendant is competent to be executed results from two Supreme Court cases, Ford v. Wainwright and Panetti v. Quarterman. The Ford standard, which came out of a concurring opinion in that 1986 case, prohibits the execution of defendants who “‘do not have the mental capacity to understand the nature of the death penalty and why it was imposed on them.'”

In 2007, the Supreme Court somewhat clarified the Ford standard in Panetti, concluding that to be competent to be executed, a prisoner must have a rational understanding of the State’s reasons for execution. The Court explained that capital punishment does not serve its retributive goals if “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.”

Thus, the competency issue in Dunn v. Madison centered on whether a defendant — who due to mental incapacity does not remember the crime – has a rational understanding of the State’s reasons for execution. Due to the deferential AEDPA standard, the Court concluded that neither Ford nor Panetti clearly required that a defendant remember the crime. Thus, Dunn’s habeas claim lost.

The Court stressed that it was not addressing the merits of the competency issue outside of the AEDPA deferential standard. It did note, however, that Madison did recognize that he was being put to death as punishment because he was convicted of murder; he just did not remember committing the murder.

Future Treatment of the Issue?

Although the Court’s per curiam opinion did little to clarify the standard for competency to be executed, three of the Justices wrote a short concurring opinion stressing that the competency issue eventually needs to be addressed. Thus, in a non-habeas case, several of the Justices appear ready to resolve the question.

In addressing the merits of the issue in the future, the Court should consider the underlying reasons for the ban on executing incompetent prisoners. Some of the oft-stated reasons for the ban, such as the fact that incompetent prisoners cannot adequately prepare to meet their Maker, rest on questionable legal policy grounds. For example, some note that it is questionable whether deterrence theory supports the ban. One could conclude that other possible murderers would be deterred just as much by the execution of an incompetent prisoner as by the execution of a competent murderer.

Arguably the most solid justification for the ban is grounded on retributive theory. The death penalty only serves retributive goals where prisoners rationally comprehend why they are being executed and understand how they deserve it.

Yet, where a defendant does not remember the crime, does the death penalty still serve punishment goals? The Player King in William Shakespeare’s Hamlet notes, “Purpose is but the slave to memory.” And where there is no memory, purpose may not be served. More specifically, in the case of a defendant like Madison, who due to mental incapacity has no memory of the crime, the retributive purpose of the death penalty is not served.

Mental Health and Capital Punishment

The issue in Dunn v. Madison highlights other problems with executing people with mental illness. For example, the American Bar Association, the American Psychiatric Association, American Psychological Association, Mental Health America, and National Alliance on Mental Illness oppose the use of the death penalty for prisoners with severe mental disorders or disabilities at the time of the crime. Although some states have contemplated barring the death penalty for such defendants [PBS], no state yet has barred the execution of people with mental illness.

Finally, in a separate concurring opinion in Dunn v. Madison, Justice Breyer provided another solution to the quandary created when courts are forced to ponder how much a prisoner must remember or understand before execution. Referring to a problem he has repeatedly raised, Justice Breyer stressed the fact that death row prisoners now spend “unconscionably long periods of time” on death row awaiting execution, and he called again on the Court to reconsider the constitutionality of capital punishment.

As Justice Breyer noted, it is not that unusual that the 67-year-old Madison has spent more than half his life on death row. With aging prisoners spending long periods of time on death row, courts are likely to have to face more and more questions about competency, mental and physical health, and the rationale for the death penalty.

Thus, ultimately, although the Court decided Dunn v. Madison based on the habeas standard, it left questions unresolved. In the future, the Court and legislatures will continue to have to wrestle with mental health and competency issues, as well as with how merely asking those questions may help undermine any remaining asserted justifications for capital punishment.

Jeffrey L. Kirchmeier is a Professor of Law at City University of New York School of Law. He is the author of “Imprisoned by the Past: Warren McCleskey, Race, and the American Death Penalty” (Oxford University Press 2016).

Suggested citation: Jeffrey L. Kirchmeier, Memory, Mental Competency, and Capital Punishment, JURIST – Academic Commentary, Dec. 1, 2017,

This article was prepared for publication by Austin Koltonowski, a JURIST Assistant Editor. Please direct any questions or comments to him at

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