Cleared for execution even though Alabama prisoner has no memory of offence

13 November 2017

On 6th November 2017 the US Supreme Court handed down a unanimous decision that clears the way for the execution of an inmate of Alabama death row despite evidence that as a result of suffering a number of strokes he has been left legally blind, unable to walk unaided, incontinent and unable to recall the offence for which he was sentenced to death.

The decision of the US Supreme Court reversed that of the US Court of Appeals for the 11th Circuit, which had held that Vernon Madison was incompetent to be executed. The federal appeals could had rejected the state court’s finding that Mr Madison was aware of the reasons for his impending execution, saying that due to his stroke-induced “memory loss, difficulty communicating and profound disorientation and confusion” he lacked an understanding of the “connection” between his crime and his execution.

Federal courts including the US Supreme Court are severely restricted in their ability to intervene in decisions of state courts and may only do so in circumstances where that decision “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” – see 28 U.S.C. para 2254 (d.).

In a decision that was for a death case unusually unanimous, the US Supreme Court acknowledged that the ruling by the Alabama Supreme Court that Mr Madison had a rational understanding of his execution was not “contrary to or an unreasonable application of clearly established federal constitutional law” and that therefore they were powerless to intervene. The US Supreme Court held that there was no clearly established law concerning when “a prisoner is incompetent to be executed because of a failure to remember his commission of the crime,” as “distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case.”

The following day, 7th November 2017, in a second case involving issues of competency to be executed there was a happier (for now at least) outcome. The Arkansas Supreme Court in a 5-2 decision, stayed the execution of death-row inmate Jack Greene just two days before he was due to die.

Lawyers representing Mr Greene had argued before the Arkansas Supreme Court that his right to due process of law, guaranteed by the 5th and 14th Amendments of the US Constitution, was violated when the state Corrections Director ruled that he was competent to be executed despite not having had any independent mental health evaluation or allowing his lawyers an opportunity to challenge her determination. Papers filed with the court suggest that Mr Greene is severely mentally ill, psychotic and delusional. The decision of the state court means that Mr Greene’s attorneys will now have the chance to argue that he should be independently evaluated as to competency to be executed rather than allowing that decision to be made by a state correctional official.

These two cases are further disturbing examples of the awful plight of those who are undoubtedly seriously mentally ill but not legally insane.

Inmates who are insane, that is, so out of touch with reality that they do not know right from wrong and cannot understand their punishment or the purpose of it, are exempt from execution. The Supreme Court held in Ford v. Wainwright 477 U.S. 399 (1986) that executing the insane is unconstitutional. However, if an inmate’s mental competency has been restored, he or she can then be executed.

Similarly inmates who are intellectually disabled (formerly referred to as mentally retarded) also cannot be executed as a result of the decision of the US Supreme Court in Atkins v Virginia 536 US 304 (2002).This leaves inmates who are mentally ill, but not insane in a category all of their own and at real risk of execution. Thus far the US Supreme Court has declined to hear a challenge to the constitutionality of executing those will severe mental illness but who do not qualify as legally insane.

Mark George QC is a barrister at and Head of Garden Court North Chambers. He is also a trustee of Amicus, a small charity that each year places around 30 interns in law offices in death penalty states in the US to assist lawyers working for those facing capital charges or seeking post-conviction relief.  For more information go to



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