The US Supreme Court [official website] heard oral arguments [transcript, PDF] Tuesday over whether the state can execute an individual who suffers from dementia and cannot remember the crime.

Madison v. Alabama [docket] is before the Supreme Court for a second time. This time, the court seeks to answer the question [text, PDF]: “[c]onsistent with the Eighth Amendment … may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense?”

67-year-old Vernan Madison suffers from vascular dementia, which caused him to have several strokes. As a result, he is unable to remember commissioning the crime for which he is sentenced to death. Madison was scheduled face the death penalty in May 2016, but he challenged the sentence under Alabama’s competency-to-be-executed statute.

Alabama courts found that Madison did not meet the incompetency standard under the statute because he is not insane or psychotic, but the US Court of Appeals for the Eleventh Circuit disagreed. The “majority found that the evidence undisputably established that Mr. Madison had no memory of the offense and … that he was incompetent to be executed.” The Supreme Court reversed the holding, saying the appeals court had no authority to decide the merits of the evidence of the case. This time, the Supreme Court only heard arguments to decide whether execution of an individual with Madison’s mental disability violates the eighth amendment.

The petitioner argued that a person who is unable to remember the commission of a crime due to a diagnosed mental disability, rather than unexplainable memory loss, is incompetent to face execution. The petitioner explained this distinction in her argument, saying:

Here, we know that Mr. Madison’s brain is damaged.  We can see it on an MRI.  We know that his cognitive disabilities have declined. We know that he is not able to understand the things going on around him. And we argued that, because of that dementia, which has very particular features, he is incompetent to be executed.

The respondent countered, saying, “there is absolutely no objective evidence of a national consensus supporting” a rule that the state may execute a person who does not remember commissioning a capital offense.

Also Tuesday the US Supreme Court [official website] heard oral arguments [transcript] in a case challenging the federal Sex Offender Registration and Notification Act (SORNA) [text].

Gundy v. US [docket] begs answers to two primary questions [text] resulting from SORNA’s delegation authority to the Attorney General (AG): “[w]hether convicted sex offenders are “required to register” under [SORNA] while in custody, regardless of how long they have until release; and “[w]hether all offenders convicted of a qualifying sex offense prior to SORNA’s enactment are “required to register” under SORNA no later than August 1, 2008.”

The petitioner, Herman Grundy, specifically challenges SORNA’s delegation provision, saying it “grants unguided power to the nation’s top prosecutor to expand the scope of criminal laws and to impose burdensome, sometimes lifetime registration requirements on hundreds of thousands of individuals.” The statute refers to SORNA as a “comprehensive national system for the registration of [sex] offenders” but does not indicate that the statute applies retroactively to individuals convicted prior to the statute’s enactment. Justice Neil Gorsuch summarized the petitioner’s argument, saying:

[T]he specific statutory section dealing with pre-enactment offenders says unambiguously that the Attorney General decides whether, how, when, and who, even who. So you don’t even know if you’re going to be subject to this law … And … I’m having trouble thinking of another delegation in which this Court has ever allowed the chief prosecutor of the United States to write the criminal law for those he’s going to prosecute. [This Court] say[s] that vague criminal laws must be stricken. [This Court] just repeated that last term. What’s vaguer than a blank check to the Attorney General of the United States to determine who he’s going to prosecute?

The respondent countered the argument, saying the statute provides for guidance in governing pre-statute offenders and vests the authority with the AG: “[The AG’s] job is to get as many of the existing offenders who fall into that universe into the registries as you can, recognizing there are going to be some practical barriers. [He is] going to have to specify the applicability of the requirements.”