Pope Francis Daily

WASHINGTON (CNS) — The U.S. Supreme Court, no stranger to death penalty cases, is looking very narrowly at two aspects of capital punishment this term: if an inmate with dementia should be executed if he has no memory of the crime he committed three decades ago and if a death-row prisoner with a specific health problem can be executed by a less painful manner because of his condition.

These two cases “put the unworkability and inhumanity of capital punishment on full display,” said Krisanne Vaillancourt Murphy, executive director of Catholic Mobilizing Network, a group that champions restorative justice and an
end to the death penalty.

She said state prison systems are increasingly “faced with the question of how to execute people with severe mental and physical health problems” particularly since America’s death-row populations are getting older and the
average death-row inmate spends 15 years awaiting execution.

“Harsh living conditions, including solitary confinement, only further exacerbate physical and mental illness,” she added.

The court heard oral arguments Oct. 2, the second day of its new term, about the pending execution of Vernon Madison, an Alabama man who killed a police officer 30 years ago. He has suffered strokes in recent years that left him blind and with
vascular dementia and significant memory loss. He cannot tell what season or
day it is, nor does he remember committing the crime.

This case, Madison v. Alabama, was argued before eight judges while Justice Brett
Kavanaugh’s confirmation was on hold. The court has already held that states may
not execute the mentally ill or the intellectually disabled but has not ruled
on those with dementia. This case also examines whether someone can be executed if they were mentally capable when they committed the crime but later developed
cognitive impairments.

During arguments, the judges appeared to lean in Madison’s favor, but this also is a new bench without Justice Anthony Kennedy, who in recent years played a key
role in the court’s opposition to the death penalty. He wrote the majority opinion in the court’s 2007 decision
saying people who cannot understand their punishments cannot be executed and in its
2005 ruling that juvenile offenders could not be executed. Both decisions had 5-4
votes.

Kavanaugh will not vote on the Madison case, but the court could decide to have it retried if it reaches a split vote.

During arguments, Bryan Stevenson, founder and executive director of the Equal Justice Initiative, a nonprofit organization for prisoners’ rights based in Montgomery, Alabama, told the court that it is simply not humane to execute someone who is disabled, confused or fragile. He also put it this way: “No penological justification or retributive value can be found in executing a severely impaired and incompetent prisoner.”

But the state saw it differently.

Alabama Deputy Attorney General Thomas Govan said the state still deserves to win “retribution for a heinous crime,” and described Madison’s claim as “unprecedented.”

Justice Stephen Breyer, who has been the court’s leading death penalty opponent, said Madison’s numerous impairments are not unusual since death-row prisoners are older on average than they used to be and have been awaiting execution for 20 to 40 years.

“This will become a more common problem,” Breyer said, adding that a narrow
ruling in Madison’s favor might prevent similar cases from flooding the courts.

The other
death penalty case before the court is Bucklew v. Precythe. Russell Bucklew is on Missouri’s death row for a 1986 murder. He suffers
from a rare medical condition that causes blood-filled
tumors in his head, neck and throat, which can easily rupture. His
attorneys have argued that the state’s lethal injection protocol would be more
gruesome and cause more suffering than if he were put to death by lethal gas,
which the state does not have the protocol to use.

Kavanaugh
will hear the oral arguments in this case before the court Nov. 6, but how he will vote on a death penalty
case is still pretty much unknown since, as a federal appeals court judge, he
rarely heard capital punishment cases.

Garrett
Epps, a law professor at the University of Baltimore, wrote in the Sept. 18
issue of The Atlantic that however the Bucklew case is resolved, it shows
“how fully the court has become enmeshed in the
sordid details of official killing. As the population of death row ages, issues
of age-related disease and dementia will become more important in assessing
individual death warrants, and the court will be the last stop for those
challenged.”

Vaillancourt Murphy said
it is not likely that many Catholics are paying attention to either of these
cases before the court, but she said there has been an increased interest among
Catholics to understand what capital punishment means in modern society particularly
since the catechism was revised in early August calling the use of the death
penalty “inadmissible.”

“This
added clarity in Catholic teaching is a welcome validation of the church’s
pro-life stance. We are called to uphold the sacred dignity of every human
person, no matter the harm someone has caused,” she said in an Oct. 9
email to Catholic News Service.

She
said Catholics “should pay attention to these cases because they serve as
important measures of how the highest court in the land is working to defend or
disregard human life.”

“As
believers and as U.S. citizens, we should be prepared for more cases resembling
these to go before the court in coming years,” she added. “The conundrum of America’s aging
death rows is not going to go away.”

– – –

Follow
Zimmermann on Twitter: @carolmaczim