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The Narrowing Window of Eligibility for

Capital Punishment


The more we learn what happens in our minds and brains, the more
difficult capital punishment becomes in the United States. At least, that is
what the Supreme Court is discovering. Apart from questions concerning
racial disproportionality in seeking or imposing the death penalty, the
ambivalent evidence concerning any deterrent impact it may have and the
very substantial evidence that its cost far outweighs that of life
imprisonment without parole, after Madison v. Alabama, prosecutors who
consider seeking the death penalty will have to weigh one more
consideration: the likelihood that, even if they obtain it, the defendant’s
future neurodegenerative decline may preclude its imposition.
For nearly a decade, the Court has acknowledged the psychological
and neuroanatomical learning that behavioral and decision-making
characteristics of adolescents and young adults incline them to risk-taking,
inability to project future consequences, and susceptibility to peer pressure
in ways that constitutionally must affect their susceptibility to punishment.
That kids are different may seem a trite observation, now that it is
unconstitutional to impose life without the possibility of parole on
juveniles for non-homicide offenses,1 and to do so even for homicide
offenses without an individualized sentencing process that specifically
considers those features of youth,2 but just fifteen years ago it was
constitutional to impose the death penalty on a child.3 And just eighteen
years ago it was constitutional to impose the death penalty on a
developmentally disabled person. 4 And until last month, it was

* David M. Siegel is a Professor of Law and Director of the Center for Law and Social
Responsibility at New England Law|Boston.
1 Graham v. Florida, 560 U.S. 48 (2010).
2 Miller v. Alabama, 567 U.S. 460 (2012).
3 Roper v. Simmons, 543 U.S. 551 (2005).

4 Atkins v. Virginia, 536 U.S. 304 (2002). While there was no similar change in

understanding developmental disabilities over the same period, there has been a significant
change in care and service for developmentally disabled persons since the 1960s, from care


102 New England Law Review Forum Vol. 52

constitutional to execute someone who didn’t understand the reason they

were being executed if that lack of understanding was due to dementia. 5
The constitutional tests for the essential cognitive and affective
prerequisites for subjection to the criminal legal system are deceptively
simple. Competence to stand trial requires only the ability to consult with
counsel with “a reasonable degree of rational understanding” and both a
“rational as well as a factual understanding of the proceedings against”
one.6 Notwithstanding what most would consider the added complexity of
conducting a criminal trial, the Court has held that this same standard
applies for competence to represent oneself,7 or plead guilty – even in a
capital case.8 The Court acknowledged increased forensic psychological
research and understanding in the 1980s and 1990s that produced a more
refined competence construct, or perhaps recognized just how often people
with serious mental illness end up in the criminal legal system, in 2008
when it permitted states to require more of those with serious mental
illness who wish to represent themselves at trial,9 even though they would
have been competent to stand trial with counsel.
While the constitution requires no specific cognitive ability to suffer
punishment in general, it does require that a person being executed at least
rationally understand why they are being executed.10 Notwithstanding Dr.
Johnson’s observations about the mental clarity impending execution
brings, perhaps unsurprisingly people waiting to be killed have been
becoming insane since at least the time of Sir Edward Coke. 11 The
“humanity of the English law,” explained Blackstone, forbade execution of
a defendant who became “of nonsound memory” after sentencing because
– had the defendant not been insane – he might have had an argument
against his execution.12 Apart from being inhumane, executing the insane
wasn’t thought much of a deterrent and – since mentally disordered people
were not seen as of equal worth – killing them wasn’t adequate retribution
for the death of a non-disordered person.13

principally in large, public institutions isolated from society to a mainstreaming in education,

appropriate occupational settings and smaller community-based residences. See Nick Bouras
& John Jacobson, Mental Health Care for People with Mental Retardation: A Global Perspective, 1(3)
WORLD PSYCHIATRY 162 (2002), available at
5 Madison v. Alabama, No. 17-7505, 586 U.S. ___, 203 L. Ed. 2d 103 (Feb. 27, 2019).
6 Dusky v. U.S., 362 U.S. 402 (1960).
7 Faretta v. California, 422 U.S. 806 (1975).

8 Godinez v. Moran, 509 U.S. 389 (1993).

9 Indiana v. Edwards, 554 U.S. 164 (2008).

10 Ford v. Wainwright, 477 U.S. 399 (1986).

11 Id. at 407.

12 Nobles v. Georgia, 168 U.S. 398 (1897) (citing Blackstone).

13 Ford, 477 U.S. at 408.


2019 The Narrowing Window 103

Updating the “non-sound memory” terminology, the Court held that

the Eighth Amendment’s “evolving standards of decency” required that a
defendant know he was to be executed and know why, that is, know the
connection between his crime and the punishment for there to be any
retributive value in his execution.14 Thus a defendant whose psychotic
delusions prevent him from remembering the crime – and so from
understanding why he is to be executed – cannot constitutionally be
executed.15 But what if the defendant can’t remember the crime because
dementia, rather than psychotic delusions, has undermined his memory?
Vernon Madison has been incarcerated for over three decades for a
1985 murder, much of that time on death row. Long term incarceration
inflicts serious psychiatric, psychological and medical consequences on
inmates, so not surprisingly Madison’s “mental condition has sharply
deteriorated” in the past three decades.16 He has had multiple strokes,
brain damage, and suffers from vascular dementia, with “long-term
memory loss, disorientation and impaired cognitive function.”17 The
parties’ dispute was about whether these conditions render him unable to
rationally understand why he faces execution rather than whether they
exist. After Madison, whatever the reason for one’s inability to understand
why the state will end your life, whether schizophrenia or dementia, if you
lack a rational understanding of why you are being killed it will be
unconstitutional to do it.
While dementia is the catchall symptomatic term for memory or
cognitive decline, the most common form of degenerative memory
disorder in the US is Alzheimer’s disease.18 11% of Americans 65 or over
suffer with it, and it disproportionately affects African-Americans and
Hispanics.19 Non-age risk factors, including poor diet and lack of exercise,
would also seem particularly applicable to long-term prison inmates.
In 2016 the Justice Department reported the mean age of the 2814
inmates on death row in the US was 49. The median was 48. 20 The last time
the Justice Department calculated it, the average age of arrest for someone

14 Id. at 422—23 (Powell, J., concurring).

15 Panetti v. Quarterman, 551 U.S. 930 (2007).
16 Madison v. Alabama, No. 17-7505, 586 U.S. ___, 203 L. Ed. 2d 103, 111 (Feb. 27, 2019).

17 Br. for Pet. at 5, Madison v. Alabama, (U.S. Feb. 27, 2019) (No.

18 Alzheimer’s Desease and Related Dementias, CENTER FOR DISEASE CONTROL AND
PREVENTION, (last visited Mar. 18, 2019).
19 Alzheimer’s Desease and Related Dementias, supra note 18.

20 Elizabeth Davis & Tracy L. Snell, Capital Punishment, 2016 – Statistical Brief, BUREAU OF

JUSTICE STATISTICS tbl.4 (Apr. 30, 2018),


104 New England Law Review Forum Vol. 52

who ends on death row was 28,21 and the average time from sentence to
execution was fifteen and a half years. 22 Prison inmates in the United
States age much more quickly than do persons in the free world, 23 and a
disproportionate number of them suffer from severe mental illness.
As one scholar recently suggested, the death penalty “is a failed
experiment with human life that has devolved into human
experimentation in methods of execution of often feeble and otherwise
impaired prisoners.”24 Given the Court’s decision in Madison that it
doesn’t matter why an inmate awaiting execution cannot understand the
reason he is being executed, and the inexorable process of aging, capital
punishment in the US will likely depend on whether someone is sentenced
to death early enough to remain competent to be executed. And none of us
are getting any younger.


P7KA (last visited Mar. 18, 2019).
22 Tracy L. Snell, Capital Punishment in the United States, 2013 – Statistical Tables, BUREAU OF


23 Gabriele Cipriani, Cecilia Carlesi, Sabrina Danti & Mario Di Fiorino, Old and Dangerous:

Prison and Dementia, 51 J. FORENSIC & LEGAL MED. 40, 42 (2017) (“Studies have revealed that
the prison population experiences age related health issues at the same rate of people one
decade older.”).
24 Linda Malone, Too Ill to be Killed: Mental and Physical Competency to be Executed Pursuant

to the Death Penalty, 51 TEX. TECH. L. REV. 147, 167 (2018).