Mental Health America estimates that 5 to 10 percent of the nation’s 2700 death row inmates suffer from some form mental illness.


In August 2006, the American Bar Association through Resolution 122A said that an individual on death row should not be executed if they have a “mental disorder or disability that significantly impairs his or her capacity to understand the nature and purpose of [their] punishment …”


Two decades before Resolution 122A was issued, the U.S. Supreme Court said that executing a person who has “lost his sanity” violates the Eighth Amendment to the U.S. Constitution. The Court in Ford v. Wainwright reasoned that moral “intuition” bars “killing one who has no capacity” to understand his crime or punishment because to do so “simply offends humanity.”


The year following Resolution 122A the Supreme Court in a Texas death penalty case, Panetti v. Quarterman, clarified the Ford rule by saying that if a “prisoner’s concept of reality” is “so impair[ed]” that they cannot understand the execution’s “meaning and purpose” or the “link between [their] crime and its punishment.”


Recent Ruling Takes Step Backwards


Earlier this year the Supreme Court issued a ruling in an Alabama death penalty case, Madison v. Alabama, that severely muddied the Ford and Panetti rules.


Vernon Madison killed a police officer in 1985 during a domestic dispute. During the more than three decades he has spent on death row, Madison has suffered from a host of physical and mental health issues, including three strokes, memory loss, cognitive impairment and vascular dementia. It was factually determined through physical and mental examinations that he no recollection of “committing the crime for which he has been sentenced to die.”


The two legal issues before the Court in Madison were: 1) whether Panetti barred Madison’s execution “merely because cannot remember committing his crime;” and 2) whether Panetti barred Madison’s execution “merely because he suffers from dementia, rather than psychotic delusions.”


The Court concluded that under the Panetti rule “a person lacking memory of his crime may yet rationally understand why the State seeks to execute him” while “a person suffering from dementia may be unable to rationally understand the reasons for his [death] sentence  …” The Court said that “what matters is whether a person has the ‘rational understanding’ Panetti requires—not whether he has any particular memory or any particular mental illness.”


Legal Mumbo-Jumbo Leads to Justification of Executing Mentally Ill


This incestuous mixture of Madison’s legal mumbo-jumbo and the core principles governing mental health issues effectively placed a dark cloud over both the Ford and Panetti rules. The Madison legal mumbo-jumbo was synthesized in the following observations made in the Court’s majority opinion written by Justice Kagan:


“ … [Panetti] asks about understanding, not memory—more specifically, about a person’s understanding of why the State seeks capital punishment for a crime, not his memory of the crime itself. And the one may exist without the other. Do you have an independent recollection of the Civil War? Obviously not. But you may still be able to reach a rational—indeed, a sophisticated—understanding of that conflict and its consequences. Do you recall your first day of school? Probably not. But if your mother told you years later that you were sent home for hitting a classmate, you would have no trouble grasping the story. And similarly, if you somehow blacked out a crime you committed, but later learned what you had done, you could well appreciate the State’s desire to impose a penalty. Assuming, that is, no other cognitive impairment, loss of memory of a crime does not prevent rational understanding of the State’s reasons for resorting to punishment. And that kind of comprehension is the Panetti standard’s singular focus.”


The High Court vacated a lower court’s finding that upheld the execution and announced that the 8th Amendment may permit executing a prisoner even if he cannot remember his crime, but it may prohibit executing a prisoner who suffers from dementia or another disorder.  The lower court will now need to make a determination whether Madison is so effected by dementia that he can’t be executed.


Memory Loss is Mental Illness


Memory loss is a form of mental illness. It is known as “dissociative amnesia.”  And it is commonly recognized as a byproduct of the neurodegenerative disease known as “dementia.” Put in another, more simplified way, memory loss and dementia are brother and sister, not first cousins as the Madison court would have us believe. The Center for Development & Learning discusses the normal relationship between memory and understanding:


“Just as there is a relationship between learning and remembering, there is also a relationship between understanding and remembering. If we understand something, we are usually able to remember it better. Understanding enables us to know where to store the information in long-term memory (e.g., what category to place it in), and effective storage usually leads to effective retrieval. Also, if we are able to retrieve previously learned information from long-term memory when we are presented with new to-be-learned information, we can make associations between the two and thus understand the new information better. In this way, memory facilitates understanding. If we think of our long-term memory in our brains as a network of connections, then what we are doing is making new connections between what we already know and what we are trying to learn. And the more dense and complex this network is, the easier it is to store and retrieve new information.”


Rational Understanding Cannot Exist Without Memory


In effect, “rational understanding” cannot exist without memory. But that is not what Madison exhorts. The new mental health model for execution under Madison is this:


Warden to Inmate: Do you know why you are about to be executed?


Inmate to Warden: No.


Warden to Inmate: Well, the State says you killed a man and must be executed for it. Do you understand that?


Inmate to Warden: Yes.


Warden to Inmate: Excellent. You are mentally fit to be executed.


Just another example of the inhumanity and absurdity of the cruel and unusual punishment that is the death penalty.