John Roberts, Swing Vote

The chief justice looks poised to join the liberals in a major death-penalty case.

John Roberts
Photo illustration by Slate. Photo by Win McNamee/Getty Images.

Vernon Madison has spent 33 years in solitary confinement awaiting execution for a crime he can no longer remember. A series of strokes have left the 68-year-old death-row inmate with severe cognitive impairment due to vascular dementia. He cannot see, or walk without aid, or recite the alphabet past the letter G, or process basic information. He struggles to speak and suffers incontinence. A growing portion of his brain tissue is dead. And Alabama would like to put him to death as soon as possible.

On Tuesday, the Supreme Court heard arguments in Madison v. Alabama, Madison’s last, best chance to avoid lethal injection. Justice Anthony Kennedy, who often swung left on capital punishment, is gone; no one has yet replaced him, and if the court deadlocks 4–4, Madison will die. It’s a grim default that Chief Justice John Roberts seems eager to avoid. Throughout Tuesday’s arguments, Roberts appeared eager to broker a compromise that would spare Madison’s life by conceding that dementia may exempt him from the death penalty. The case provides an early glimpse of the post-Kennedy court—with the chief justice embracing his role as the new swing vote.

Madison marks the Supreme Court’s latest effort to tinker with the machinery of death by determining who, exactly, is too incompetent to be executed. It should not be a difficult question. The Eighth Amendment bars the government from imposing “cruel and unusual punishments,” and at the time of its adoption in 1791, the execution of the “insane” was widely prohibited. In 1986’s Ford v. Wainwright, the Supreme Court confirmed that the Eighth Amendment forbids states from executing “insane” people, declaring that this “ancestral legacy has not outlived its time.” Then, in 2007’s Panetti v. Quarterman, the court added that an individual may not be killed if he does not understand the reason for his execution and held that inmates have a right to litigate their competency.

Despite these decisions, the Alabama courts have refused to recognize Madison’s mental incapacity and overturn his capital sentence. The reason hinges on a cramped understanding of incompetence. Alabama’s Mobile County Circuit Court found that Madison is competent because he isn’t severely psychotic or delusional (although he is on antipsychotic medication and suffers from a delusional disorder). A neuropsychologist did testify that Madison doesn’t remember his own crime, fails to understand why he’s being punished, and only vaguely grasps that the state seeks retribution. But because he hasn’t had a complete break with reality, the Alabama court concluded he may be lawfully executed.

Justice Elena Kagan zeroed in on this apparent misreading of precedent throughout Tuesday’s arguments. She asked Thomas Govan, Alabama’s deputy attorney general: Did the Alabama court ever acknowledge that it wasn’t “necessarily looking for delusions or schizophrenia or insanity”? Did it recognize that “dementia could do the trick” too? Or did it think, incorrectly, that “delusions are required to satisfy” the constitutional standard?

Govan hedged. He insisted that this case wasn’t really about dementia; it was solely about Madison’s inability to remember his crime. Madison’s real claim, Govan asserted, was that this amnesia should exempt him from execution. But Justice Stephen Breyer cut him off. “He does not recall his crime,” Breyer noted, “and he has a severe inability to orient himself to time and place.” Sure, amnesia alone might not save Madison. But under Ford and Panetti, shouldn’t these two factors together disqualify him from capital punishment?

“Madison has an understanding of what matters,” Govan pushed back. But does he? Justice Sonia Sotomayor jumped in, pointing out that, in Panetti, the defendant had paranoid schizophrenia. His condition manifested itself in many of the same ways that Madison’s dementia does. Don’t they both deserve the same constitutional rights? Sotomayor continued:

So we have a man here who knows that he’s incarcerated or kept in a cage because he’s in a bed, he can’t move on his own, can’t remember where the bathroom is next to him, can’t see, slurs his words. He’s really not quite there. But he knows that someone says he committed a murder and that they’re trying to kill him, but he doesn’t understand why. He can’t be present enough in time to rationally understand or reflect on what he has done because he can’t retain information for long. And why is that different than Panetti?

Justice Samuel Alito, a death-penalty enthusiast, tried to muddy the waters by fixating on the amnesia issue. He repeatedly asked Bryan Stevenson, Madison’s attorney, whether a death-row inmate’s inability to remember his crime should, by itself, bar his execution. But much to Alito’s frustration, the liberal justices kept drawing Stevenson back to Madison’s broader disabilities. They refused to let Alito reframe the case as one about amnesia rather than insanity.

And, oddly enough, Roberts joined them. At the very start, the chief justice asked Stevenson if he was trying to create a new categorical exemption from the death penalty for inmates who can’t remember committing murder. Stevenson said no—it would be “too easy for any offender to say, ‘I don’t remember.’ ” Instead, he argued that an inmate who has “the kind of disorder that Mr. Madison has” and lacks any “ability to remember anything about the circumstances of the offense” should be spared. Roberts seemed satisfied.

Later, Roberts asked Govan if a prisoner may not be executed if he “meets the Ford and Panetti standard by virtue of vascular dementia.” “Yes,” Govan said. Roberts looked surprised. “So are all we arguing about whether Mr. Madison himself meets the Ford and Panetti standard?” he asked. “That’s exactly right,” Govan responded.

With this exchange, Roberts successfully shrank Madison down to a simple application of precedent. Ford and Panetti say incompetent people can’t be executed. The Alabama court didn’t think Madison could be incompetent because he has dementia, not schizophrenia. That’s a straightforward mistake. And the Supreme Court can easily correct it by clarifying that dementia can qualify as “insanity” for constitutional purposes. It will break virtually no new constitutional ground. And it will save Madison’s life.

If Roberts does cast his vote for Madison, the decision will likely be 5–3, with the other conservatives dissenting. The decision will be modest and fact-oriented, a far cry from the sweeping encomia to dignity that Kennedy preferred. But it will be a progressive victory nonetheless. It’s not yet clear whether Roberts will remain restrained once another archconservative joins the court, cementing a five-justice Republican bloc. For now, however, the chief justice appears poised to build a coalition with the liberals that will keep Vernon Madison out of Alabama’s death chamber.