A misguided execution of a cognitively disabled prisoner

This report, from the science journal Nature (click on screenshot) shows what happens when punishment is purely retributive.

The story: Vernon Madison killed a police officer in Alabama in 1985. He was sentenced to death.  In the ensuing 33 years on death row, Madison has had multiple strokes that have left him without any memory of the crime. He is, psychologists say, no different from someone born with severe enough intellectual impairment to be deemed not guilty by reason of insanity. But of course Madison was “sane” when he did the crime.

Madison is still scheduled to die. Why? Let Alabama explain:

[Madison’s] lawyers say that, in terms of his intellectual function, there is no difference between his current condition and that of a person born with an intellectual disability. The latter group is protected from execution, thanks to a 2002 Supreme Court decision.

Madison’s case differs because he did not have a severe cognitive impairment at the time he committed the murder, and presumably knew it was wrong. The state of Alabama argues that once the situation is explained to him, Madison also understands that he was tried and will be executed. Alabama says it doesn’t matter whether he remembers it, because he can still rationally conceptualize it.

But psychologists and psychiatrists say that this is very different from a deep understanding of one’s own guilt.

Well, I oppose the death penalty in general, as it doesn’t serve as a deterrent for others, it doesn’t allow those wrongfully convicted to be freed, it’s more expensive than giving life without parole, and it offers no chance of rehabilitation. I understand that if there’s a death penalty that is waived when the murderer is cognitively impaired, then someone who becomes impaired after doing the crime poses a problem for that system.

But it wouldn’t pose a problem to a humane justice system. Madison might be kept in custody for the rest of his life; but he shouldn’t be in prison rather than in a facility for psychiatric cases, or just in a hospital. What is gained by killing him? It’s not a deterrent, and if he’s still a danger he can be sequestered. There’s something especially sickening about killing someone who doesn’t know why he’s being killed, but of course there’s something sickening about executions in general.

Nature takes the humane stance in its op-ed, but the counterarguments show what happens when you dispense retributive justice on the grounds that someone deserves to be killed because they made the wrong choice (my emphasis below):

The case highlights the illogic of capital punishment. Death-penalty proponents argue that it is necessary for justice to be served, as well as to deter others from crime. Yet neither of these conditions applies here. Madison cannot see his execution as justice because he cannot recall his crime. And executing a person with an intellectual disability hardly serves as an example or deterrent.

Regardless of the decision, Madison is not going unpunished. If he escapes execution, he will spend the rest of his life in prison alone, disabled and confused by the world around him. He is no longer a threat. The court should set an example and grant mercy.

The mere phrase “justice must be served” is purely retributive, at least in this case. Killing a cognitively impaired prisoner is not a dispensation of justice to anybody with a drop of humanity in their veins.

Nature implies that a better scientific understanding of brain function could help with this case, which is being appealed to the Supreme Court, but I think they’re wrong. Someone shouldn’t be executed simply because they remember their crime and understand that it’s wrong. Neither of those are a matter of free choice.

If science does have a role here, it’s to help us realize that every criminal can be treated like a broken machine, but each should be treated uniquely because each criminal is broken in a different way. Nobody could have chosen not to murder at the moment of a killing. Because of that, because of the failure of execution to be a deterrent, and because of the impossibility of resurrecting executed people later found to be innocent, nobody should be executed.



  1. Damien
    Posted October 5, 2018 at 3:04 pm | Permalink

    For the record, I do not intend to ever remember any of my crimes.

  2. Posted October 5, 2018 at 3:23 pm | Permalink

    We scrap broken machines without compunction. I think we should not want to scrap broken human machines for reasons of empathy. Except for chance and necessity, it could have been me.

  3. Posted October 5, 2018 at 3:25 pm | Permalink

    Time to ban the death penalty in the United States. Well past time.

    • Heather Hastie
      Posted October 5, 2018 at 6:54 pm | Permalink

      I agree. The very idea of the death penalty sickens me. What does it say about a society that it wants to have the option of killing people? Perhaps it should look at why there are people in that society that are capable of such heinous acts that so many think they deserve to die. Even psychopaths are not born to kill.

  4. Adam M.
    Posted October 5, 2018 at 3:26 pm | Permalink

    The arguments about the expense, lack of deterrent value, potential for mistakes, etc. of capital punishment are convincing to me, but I’ve never seen why we should care if a criminal is mentally disabled, not only for the sake of avoiding execution but for any lenience in sentencing.

    If a person has a high chance of committing murder because he’s selfish or hateful, or because he has a mental disability that makes him prone to uncontrolled violent outbursts, or because he has an IQ of 60 and behaves like a very strong toddler, what difference does it make? It seems we are classifying certain brain dysfunctions as evil and others as innocent, but nobody has a choice about any of it.

    If our justice system should be based not around retribution but instead around protecting society from dangerous people, then the reason why somebody is dangerous doesn’t seem like it should matter. It doesn’t protect society to let dangerous insane people off the hook just because they’re insane.

    As for Madison, if he’s truly not a threat anymore then I agree he should be set free. But to say “we shouldn’t punish mentally disabled people because it’s not a deterrent” is kind of like saying “mentally disabled people don’t have libertarian free will but normal criminals do”. To my mind, it’s more of a deterrent to be consistent.

    • yazikus
      Posted October 5, 2018 at 4:43 pm | Permalink

      or because he has an IQ of 60 and behaves like a very strong toddler,

      I think the idea is that, as with a toddler, 99% of the time they do something ‘bad’ it is because the person in charge of them didn’t prevent the situation which allowed for the bad thing to happen. We recognize that adults without impairment are responsible for the actions, which those who are not might not be.

  5. busterggi
    Posted October 5, 2018 at 3:46 pm | Permalink

    Its all part of our wonderful Christian heritage that teaches us not to judge lest we be judged and that Jesus is the only true arbiter of justice.*

    *limits do not apply to Christians who judge evberyone and wish they could kill folks at their pleasure like they used to do

    • Heather Hastie
      Posted October 5, 2018 at 6:58 pm | Permalink

      At the annual CPAC meeting one of the brochures from a Christian group is about the reasons why sexually active gay people deserve the death penalty.

      Rachel Maddow featured it on her show one year.

      • infiniteimprobabilit
        Posted October 6, 2018 at 5:09 am | Permalink

        “reasons why sexually active gay people deserve the death penalty.”

        Why? In case they breed more gays?

        No, wait…

        • Heather Hastie
          Posted October 6, 2018 at 5:09 pm | Permalink

          I’d rather not say why they think that. I feel dirty just knowing the reason.

  6. John Conoboy
    Posted October 5, 2018 at 3:56 pm | Permalink

    I think one of the biggest reasons to get rid of the death penalty is that our legal system is flawed and we regularly convict people of crimes for which they are not guilty. Unlike the perfect CSIs we see on TV, real life forensics is deeply flawed. Many of the techniques they use to analyze evidence lack firm scientific testing, such a bite marks, bullet matching, interrogation techniques, witness identification, and more including fingerprint analysis. PCC pointed out in a recent post that even DNA analysis is misunderstood and misused.

    Work by groups like the Innocence Project, often results in people who were wrongly convicted being released. Mostly folks are released due to DNA analysis, but not every crime (except on TV) has DNA for testing. We are, no doubt, regularly executing innocent people and that is unacceptable.

  7. Posted October 5, 2018 at 4:18 pm | Permalink

    The death penalty is simply repugnant.
    With it, the USA sits snugly alongside China, Saudi Arabia and other abhorrent and medieval systems.

  8. stuartcoyle
    Posted October 5, 2018 at 4:25 pm | Permalink

    The death penalty has shown itself to be entirely ineffective at preventing the crimes it is supposed to deter. There are plentiful statistics to demonstrate that. Why does the U.S. continue with it? It is not a rational response to the high murder rate the country has.

    A rational response would look at what other countries with low murder rates do. Generally, they have no death penalty but strict weapons control laws, strong social safety nets and medical treatment for drug problems rather than prison.

    These considerations don’t even take into account the obvious moral issue of allowing the state to kill its own people. It seems that the same people who support the state having the power to kill want to remove as many other powers from the state as possible and otherwise have a small impotent government.

  9. Diane G
    Posted October 5, 2018 at 4:39 pm | Permalink

    Doesn’t (or shouldn’t) it violate some part of the Constitution to have the death penalty vary state by state?

    • Posted October 5, 2018 at 4:45 pm | Permalink

      No. On what basis would you argue that? The whole idea of federalism is different states can have different laws.

      • Ken Kukec
        Posted October 5, 2018 at 5:30 pm | Permalink

        All states must comply with the 8th Amendment’s prohibition on “cruel and unusual” punishment. Despite the efforts of the several states, none has found a way to impose the death penalty that isn’t arbitrary and capricious.

        It’s time for the United States to join the rest of the civilized world in abolishing this barbarism.

        • Posted October 5, 2018 at 5:49 pm | Permalink

          But that isn’t the point under discussion. If the death penalty is cruel and unusual it’s unconstitutional, period. Diane’s suggestion was about a lack of uniformity. To address that you need to grant ad arguendo that the death penalty per se is allowed and frame an argument but that state to state variation in it is not. Gonna be hard.

          • Ken Kukec
            Posted October 6, 2018 at 7:56 am | Permalink

            That the individual states have been experimenting with the death penalty since this nation’s inception, that none of them has yet to come up with a rational means for imposing it that reliably distinguishes the cases that warrant it from those that do not, and that 21 US states and territories have therefore abolished it (as has every other western democracy in the world), itself suggests that the death penalty constitutes cruel and unusual punishment.

            • Diane G
              Posted October 6, 2018 at 10:11 pm | Permalink

              Thanks for making my case for me, Ken. 🙂

              When the Constitution was written may have been the peak time in US history when people were choosing (if not actually establishing!) their states based on ideological agreement. As the country ballooned, I think state-choice has been inversely correlated. Most of us just find ourselves in a given state by virtue of birth, family history, employment, educational opportunities, and, not least, lack of resources to be able to move. Splits that are the product of choice instead tend to be those between urban and rural areas–look at all the states with little blue metropolitan dots surrounded by millions of acres of rural red.

              If we as a country hold the values of life & liberty as unalienable rights, then one’s level of jeopardy regarding the death penalty shouldn’t differ state by state.

  10. Posted October 5, 2018 at 4:50 pm | Permalink

    I remember cases where inmates were “too ill” to be executed. Unable to appreciate what was happening due to drugs. They had to be fully aware and conscious. Seems like the point there is cruelty, doesn’t it?

    The governor should commute.

    Btw while I agree in general with Jerry about the death penalty, I do think it is a deterrent.

    • Ken Kukec
      Posted October 5, 2018 at 5:24 pm | Permalink

      Do you have any evidence to support the position that capital punishment is a deterrent?

    • Posted October 5, 2018 at 6:00 pm | Permalink

      All penalties should be expected to deter crime. The important question is whether the death penalty deters crime more than a non-lethal alternative, say life without parole. I’m guessing the evidence on this is far from conclusive.

      I expect that in a regime where a quick summary execution is the result, the death penalty may well deter. But at the expense of the rights of the accused and possible innocents.

      • Posted October 5, 2018 at 8:57 pm | Permalink

        I think I agree with this.

        This is a very difficult thing to prove, a causal connection in a complex setting where you cannot experiment. There is a lot of evidence on each side.

        I don’t think the deterrent effect is strong enough to overcome other objections to executing people. But I won’t flatly assert it and pretend there isn’t any doubt.

      • Posted October 6, 2018 at 8:50 am | Permalink

        My research shows the best best way to deter crime is to have a show of police presence, speedily apprehension of criminals to raise the expectof getting caught, and short prison sentences. Longer sentences do not increase deterrence they in fact raise the rate on reincarnation.

        Studies are mixed on capital punishment. My argument against capital punishment is that it is just wrong/immoral. And innocent people are sometimes convicted.

        • Posted October 6, 2018 at 10:24 am | Permalink

          Raises the rate of reincarnation? Well, that’s just karma.

          • Posted October 6, 2018 at 10:30 am | Permalink

            The idea is for us to do things the reduce it. That is what the criminal and justice system are all about.

          • Diane G
            Posted October 7, 2018 at 1:04 am | Permalink

            Lol! Must admit, I read right over that the first time.

            Old Guy, you obviously meany to type “re-incarceration.” 🙂

  11. Posted October 5, 2018 at 5:53 pm | Permalink

    The death penalty is popular in a lot of places, but did you ever notice executions never seem to get any live media coverage? That’s because we know it’s shameful.

    There is in fact some limited live media coverage of executions. Execution Watch provides live coverage of every execution in Texas on KPFT in Houston. Opponents of the death penalty understand that live coverage of executions is likely to turn people against the death penalty.

    As for Mr. Madison in Alabama, I always thought the death penalty was directed against the mens rea. Madison doesn’t have that any more.

  12. Curtis
    Posted October 5, 2018 at 6:37 pm | Permalink

    I agree with everything you say but would like to emphasize your thoughts on his continued imprisonment.

    There is no reason to keep him in jail. He is no longer a threat to society. He is being punished for something he does not remember. As you said, he belongs in a hospital or psychiatric institution.

    • Posted October 6, 2018 at 8:39 am | Permalink

      He would still be in-prisoned, just in a different setting.

  13. John Conoboy
    Posted October 6, 2018 at 1:02 am | Permalink

    The death penalty does not deter crime when you execute an innocent person.

    • Posted October 6, 2018 at 8:37 am | Permalink

      Do you think it does when used on guilty people?

  14. Posted October 6, 2018 at 4:06 am | Permalink

    I agree that even in a system using death penalty, a prisoner in such a condition no longer qualifies for it.
    For the same reason, I think that a non-criminal person with dementia who has never requested euthanasia or no longer remembers that he has once requested it, should not be subjected to it.

    • Ken Kukec
      Posted October 6, 2018 at 11:55 am | Permalink

      What about someone who expressly requests to be euthanized in the event he or she falls into a state of irreversible dementia?

      • Posted October 6, 2018 at 3:57 pm | Permalink

        I think that his request must be granted while he still has some decision-making ability; otherwise, it is not binding.
        It is frightening to me how structures of power use one’s past statements selectively whenever convenient. I remember a mother, Heather Hironimus, who initially agreed to her son’s circumcision but then changed her mind. She was jailed until she agreed to the procedure, and the child was taken away from her. In my country, circumcision has never been a standard, it is regarded by many as an example of religion poisoning everything, and the whole story sounded insane to me.

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