MADISON v. ALABAMA
No. 17-7505
SUPREME COURT OF THE UNITED STATES
February 27, 2019
586 U. S. ____ (2019)
CERTIORARI TO THE CIRCUIT COURT OF ALABAMA, MOBILE COUNTY
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MADISON v. ALABAMA
CERTIORARI TO THE CIRCUIT COURT OF ALABAMA, MOBILE COUNTY
No. 17-7505. Argued October 2, 2018—Decided February 27,
In Ford v. Wainwright, 477 U. S. 399, this Court held that the Eighth Amendment‘s ban on cruel and unusual punishments precludes executing a prisoner who has “lost his sanity” after sentencing. Id., at 406. And in Panetti v. Quarterman, 551 U. S. 930, the Court set out the appropriate competency standard: A State may not execute a prisoner whose “mental state is so distorted by a mental illness” that he lacks a “rational understanding” of “the State‘s rationale for [his] execution.” Id., at 958-959.
Petitioner Vernon Madison was found guilty of capital murder and sentenced to death. While awaiting execution, he suffered
Held:
1. Under Ford and Panetti, the Eighth Amendment may permit executing a prisoner even if he cannot remember committing his crime. Panetti asks only about a person‘s comprehension of the State‘s reasons for resorting to punishment, not his memory of the crime itself. And the one may exist without the other. Such memory loss, however, still may factor into the analysis Panetti demands. If that loss combines and interacts with other mental shortfalls to deprive a person of the capacity to comprehend why the State is exacting death as a punishment, then the Panetti standard will be satisfied. Pp. 9-11.
2. Under Ford and Panetti, the Eighth Amendment may prohibit executing a prisoner even though he suffers from dementia or another disorder rather than psychotic delusions. The Panetti standard focuses on whether a mental disorder has had a particular effect; it has no interest in establishing any precise cause. Panetti‘s references to “gross delusions,” 551 U. S., at 960, are no more than a predictable byproduct of that case‘s facts. Ford and Panetti hinge on the prisoner‘s “[in]comprehension of why he has been singled out” to die, 477 U. S., at 409, and kick in if and when that failure of understanding is present, irrespective of whether one disease or another is to blame. In evaluating competency, a judge must therefore look beyond any given diagnosis to a downstream consequence. Pp. 12-14.
3. Because this Court is uncertain whether the state court‘s decision was tainted by legal error, this case is remanded to that court for renewed consideration of Madison‘s competency. The state court‘s brief 2018 ruling—which states only that Madison “did not prove a substantial threshold showing of insanity[ ]“—does not provide any assurance that the court knew a person with dementia, and not psychotic delusions, might receive a stay of execution. Nor does that court‘s initial 2016 opinion. The sole question on which Madison‘s competency depends is whether he can reach a rational understanding of why the State wants to execute him. In answering that question—on which this Court
Vacated and remanded.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS and GORSUCH, JJ., joined. KAVANAUGH, J., took no part in the consideration or decision of the case.
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 17-7505
VERNON MADISON, PETITIONER v. ALABAMA
ON WRIT OF CERTIORARI TO THE CIRCUIT COURT OF ALABAMA, MOBILE COUNTY
[February 27, 2019]
JUSTICE KAGAN delivered the opinion of the Court.
The Eighth Amendment, this Court has held, prohibits the execution of a prisoner whose mental illness prevents him from “rational[ly] understanding” why the State seeks to impose that punishment. Panetti v. Quarterman, 551 U. S. 930, 959 (2007). In this case, Vernon Madison argued that his memory loss and dementia entitled him to a stay of execution, but an Alabama court denied the relief. We now address two questions relating to the Eighth Amendment‘s bar, disputed below but not in this Court. First, does the Eighth Amendment forbid execution whenever a prisoner shows that a mental disorder has left him without any memory of committing his crime? We (and, now, the parties) think not, because a person lacking such a memory may still be able to form a rational understanding of the reasons for his death sentence. Second, does the Eighth Amendment apply similarly to a prisoner suffering from dementia as to one experiencing psychotic delusions? We (and, now, the parties) think so, because either condition may—or, then again, may not—impede the requisite comprehension of his punishment. The only issue left, on which the parties still disagree, is what those rulings mean for Madison‘s own execution. We direct that issue to the state court for further consideration in light of this opinion.
I
A
This Court decided in Ford v. Wainwright, 477 U. S. 399 (1986), that the Eighth Amendment‘s ban on cruel and unusual punishments precludes executing a prisoner who has “lost his sanity” after sentencing. Id., at 406. While on death row, Alvin Ford was beset by “pervasive delusion[s]” associated with “[p]aranoid [s]chizophrenia.” Id., at 402-403. Surveying both the common law and state statutes, the Court found a uniform practice against taking the life of such a prisoner. See id., at 406-409. Among the reasons for that time-honored bar, the Court explained, was a moral “intuition” that “killing one
The Court clarified the scope of that category in Panetti v. Quarterman by focusing on whether a prisoner can “reach a rational understanding of the reason for [his] execution.” 551 U. S., at 958. Like Alvin Ford, Scott Panetti suffered from “gross delusions” stemming from “extreme psychosis.” Id., at 936, 960. In reversing a ruling that he could still be executed, the Panetti Court set out the appropriate “standard for competency.” Id., at 957. Ford, the Court now noted, had not provided “specific criteria.” 551 U. S., at 957. But Ford had explored what lay behind the Eighth Amendment‘s prohibition, highlighting that the execution of a prisoner who cannot comprehend the reasons for his punishment offends moral values and “serves no retributive purpose.” 551 U. S., at 958. Those principles, the Panetti Court explained, indicate how to identify prisoners whom the State may not execute. The critical question is whether a “prisoner‘s mental state is so distorted by a mental illness” that he lacks a “rational understanding” of “the State‘s rationale for [his] execution.” Id., at 958-959. Or similarly put, the issue is whether a “prisoner‘s concept of reality” is “so impair[ed]” that he cannot grasp the execution‘s “meaning and purpose” or the “link between [his] crime and its punishment.” Id., at 958, 960.
B
Vernon Madison killed a police officer in 1985 during a domestic dispute. An Alabama jury found him guilty of capital murder, and the trial court sentenced him to death. He has spent most of the ensuing decades on the State‘s death row.
In recent years, Madison‘s mental condition has sharply deteriorated. Madison suffered a series of strokes, including major ones in 2015 and 2016. See Tr. 19, 46-47 (Apr. 14, 2016). He was diagnosed as having vascular dementia, with attendant disorientation and confusion, cognitive impairment, and memory loss. See id., at 19-20, 52-54. In particular, Madison claims that he can no longer recollect committing the crime for which he has been sentenced to die. See Tr., Pet. Exh. 2, p. 8.
After his 2016 stroke, Madison petitioned the trial court for a stay of execution on the ground that he had become mentally incompetent. Citing Ford and Panetti, he argued that “he no longer understands” the “status of his case” or the “nature of his conviction and sentence.” Pet. for Suspension in No. CC-85-1385.80 (C. C. Mobile Cty., Ala., Feb. 12, 2016), pp. 11, 14. And in a later filing, Madison emphasized that he could not “independently recall the facts of the offense he is convicted of.” Brief Pursuant to Order (Apr. 21, 2016), p. 8. Alabama countered that Madison had “a rational understanding of [the reasons for] his impending execution,” as required by Ford and Panetti, even assuming
Expert reports from two psychologists largely aligned with the parties’ contending positions. Dr. John Goff, Madison‘s expert, found that although Madison “underst[ood] the nature of execution” in the abstract, he did not comprehend the “reasoning behind” Alabama‘s effort to execute him. Tr., Pet. Exh. 2 (Apr. 14, 2016), p. 8; see id., at 9. Goff stated that Madison had “Major Vascular Neurological Disorder“—also called vascular dementia—which had caused “significant cognitive decline.” Ibid. And Goff underscored that Madison “demonstrate[d] retrograde amnesia” about his crime, meaning that he had no “independent recollection[ ]” of the murder. Id., at 8; see id., at 9. For his part, Dr. Karl Kirkland, the court-appointed expert, reported that Madison “was able to discuss his case” accurately and “appear[ed] to understand his legal situation.” Tr., Ct. Exh. 1, pp. 10-11. Although Kirkland acknowledged that Madison‘s strokes had led to cognitive decline, see id., at 10, the psychologist made no mention of Madison‘s diagnosed vascular dementia. Rather, Kirkland highlighted that “[t]here was no evidence of psychosis, paranoia, or delusion.” Id., at 9; see ibid. (Madison “did not seem delusional at all“).
At a competency hearing, Alabama similarly stressed Madison‘s absence of psychotic episodes or delusions. The State asked both experts to affirm that Madison was “neither delusional [n]or psychotic.” Tr. 56; see id., at 22. And its closing argument focused on their agreement that he was not. As the State summarized: “He‘s not psychotic. He‘s not delusional.” Id., at 81. On the State‘s view, that fact answered the competency question because “[t]he Supreme Court is looking at whether someone‘s delusions or someone‘s paranoia or someone‘s psychosis is standing in the way of” rationally understanding his punishment. Id., at 82. Madison‘s counsel disputed that point. “[T]he State would like to say, well, he‘s not delusional, he‘s not psychotic,” the attorney recapped. Id., at 83. But, she continued, “[t]hat‘s not really the criteria” under Panetti. Tr. 83. Rather, the Court there barred executing a person with any mental illness—“dementia” and “brain injuries” no less than psychosis and delusions—that prevents him from comprehending “why he is being executed.” Ibid.
The trial court found Madison competent to be executed. Its order first recounted the evidence given by each expert witness. The summary of Kirkland‘s report and testimony began by stating that the psychologist had “found no evidence of paranoia[,] delusion [or] psychosis.” Order (Apr. 29, 2016), p. 5 (2016 Order). The court then noted Kirkland‘s view that Madison could “give details of the history of his case” and “appear[ed] to understand his legal situation.” Ibid. Turning to the Goff report, the court noted the expert‘s finding that Madison was “amnesic” and could not recollect his crime. Id., at 6; see id., at 7. In a single, final paragraph, the court provided both its ruling and its reasoning. Madison had failed to show, the court wrote, that he did not “rationally understand the punishment he is about to suffer and why he is about to suffer it.” Id., at 10. The court “accept[ed] the testimony of Dr. Kirkland as to the understanding Madison has concerning
Madison next sought habeas relief in federal court, where he faced the heavy burden of showing that the state-court ruling “involved an unreasonable application of[] clearly established federal law” or rested on an “unreasonable determination of the facts.” Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
When Alabama set an execution date in 2018, Madison returned to state court to argue again that his mental condition precluded the State from going forward. In his petition, Madison reiterated the facts and arguments he had previously presented to the state court. But Madison also claimed that since that court‘s decision (1) he had suffered further cognitive decline and (2) a state board had suspended Kirkland‘s license to practice psychology, thus discrediting his prior testimony. See Pet. to Suspend Execution in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Dec. 18, 2017), pp. 1–2, 16–19.2 Alabama responded that nothing material had changed since the court‘s first competency hearing. See Motion to Dismiss (Dec. 20, 2017), p. 9. The State also repeated its argument that
Madison then filed in this Court a request to stay his execution and a petition for certiorari. We ordered the stay on the scheduled execution date and granted the petition a few weeks later. See Madison v. Alabama, 583 U. S. ____ (2018). Because the case now comes to us on direct review of the state court‘s decision (rather than in a habeas proceeding), AEDPA‘s deferential standard no longer governs. (And for that reason—contrary to the dissent‘s suggestion, post, at 12—our decision on Madison‘s habeas petition cannot help resolve the questions raised here.)
II
Two issues relating to Panetti‘s application are before us. Recall that our decision there held the Eighth Amendment to forbid executing a prisoner whose mental illness makes him unable to “reach a rational understanding of the reason for [his] execution.” 551 U. S., at 958; see supra, at 2-3. The first question presented is whether Panetti prohibits executing Madison merely because he cannot remember committing his crime. The second question raised is whether Panetti permits executing Madison merely because he suffers from dementia, rather than psychotic delusions.3 In prior stages of this case, as we have described, the parties disagreed about those matters. See supra, at 4-8. But at this Court, Madison accepted Alabama‘s position on the first issue and Alabama accepted Madison‘s on the second. See, e.g., Tr. of Oral Arg. 11, 36. And rightly so. As the parties now recognize, the standard set out in Panetti supplies the answers to both questions. First, a person lacking memory of his crime may yet rationally understand why the State seeks to execute him; if so, the Eighth Amendment poses no bar to his execution. Second, a person suffering from
A
Consider initially a person who cannot remember his crime because of a mental disorder, but who otherwise has full cognitive function. The memory loss is genuine: Let us say the person has some kind of amnesia, which has produced a black hole where that recollection should be. But the person remains oriented in time and place; he can make logical connections and order his thoughts; and he comprehends familiar concepts of crime and punishment. Can the State execute him for a murder? When we considered this case before, using the deferential standard applicable in habeas, we held that a state court could allow such an execution without committing inarguable error. See Madison, 583 U. S., at ____ (slip op., at 4) (stating that no prior decision had “clearly established” the opposite); supra, at 6. Today, we address the issue straight-up, sans any deference to a state court. Again, is the failure to remember committing a crime alone enough to prevent a State from executing a prisoner?
It is not, under Panetti‘s own terms. That decision 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 same answer follows from the core justifications Panetti offered for framing its Eighth Amendment test as it did. Echoing Ford, Panetti reasoned that execution has no retributive value when a prisoner cannot appreciate the meaning of a community‘s judgment. See 551 U. S., at 958-959 (citing 477 U. S., at 407–408); supra, at 3. But as just explained, a person who can no longer remember a crime may yet recognize the retributive message society intends to convey with a death sentence. Similarly, Ford and Panetti stated that it “offends humanity” to execute a person so wracked by mental illness that he cannot comprehend the “meaning and purpose of the punishment.” 477 U. S., at 407; 551 U. S., at 960; see id., at 958. But that offense to morality must be much less when a person‘s mental disorder causes nothing more than an episodic memory loss. Moral values do not exempt the simply forgetful from punishment, whatever the neurological reason for their lack of recall.
But such memory loss still may factor into the “rational understanding” analysis that Panetti demands. If that loss combines and interacts with other mental
B
Next consider a prisoner who suffers from dementia or a similar disorder, rather than psychotic delusions. The dementia, as is typical, has compromised this prisoner‘s cognitive functions. But it has not resulted in the kind of delusional beliefs that Alvin Ford and Scott Panetti held. May the prisoner nonetheless receive a stay of execution under Ford and Panetti? Or instead, is a delusional disorder a prerequisite to declaring a mentally ill person incompetent to be executed? We did not address that issue when we last considered this case, on habeas review; in that sense, the question is one of first impression. See supra, at 6, n. 1.
But here too, Panetti has already answered the question. Its standard focuses on whether a mental disorder has had a particular effect: an inability to rationally understand why the State is seeking execution. See supra, at 2-3. Conversely, that standard has no interest in establishing any precise cause: Psychosis or dementia, delusions or overall cognitive decline are all the same under Panetti, so long as they produce the requisite lack of comprehension. To be sure, Panetti on occasion spoke of “gross delusions” in explaining its holding. 551 U. S., at 960. And similarly, Ford talked about the “insane,” which sometimes refers to persons holding such irrational beliefs. See, e.g., 477 U. S., at 401, 410.4 But those references are no more than a predictable byproduct of the two cases’ facts. At the same time (and interchangeably), Panetti used more inclusive terms, such as “mental ill-
ness,” “mental disorder,” and “psychological dysfunction.” 551 U. S., at 936, 959, 960; see Ford, 477 U. S., at 408-409, n. 2 (referring to prisoners with “mental illness“). And most important, Panetti framed its test, as just described, in a way utterly indifferent to a prisoner‘s specific mental illness. The Panetti standard concerns, once again, not the diagnosis of such illness, but a consequence—to wit, the prisoner‘s inability to rationally understand his punishment.
And here too, the key justifications Ford and Panetti offered for the Eighth Amendment‘s bar confirm our conclusion about its reach. As described above, those decisions stated that an execution lacks retributive purpose when a mentally ill prisoner cannot understand the societal judgment underlying his sentence. See Panetti, 551 U. S., at 958–959; Ford, 477 U. S., at 409; supra, at 2-3. And
In evaluating competency to be executed, a judge must therefore look beyond any given diagnosis to a downstream consequence. As Ford and Panetti recognized, a delusional disorder can be of such severity—can “so impair the prisoner‘s concept of reality” that someone in its thrall will be unable “to come to grips with” the punishment‘s meaning. Panetti, 551 U. S., at 958; Ford, 477 U. S., at 409. But delusions come in many shapes and sizes, and not all will interfere with the understanding that the Eighth Amendment requires. See Panetti, 551 U. S., at 962 (remanding the case to consider expert evidence on whether the prisoner‘s delusions did so). And much the same is true of dementia. That mental condition can cause such disorientation and cognitive decline as to prevent a person from sustaining a rational understanding of why the State wants to execute him. See supra, at 11-12. But dementia also has milder forms, which allow a person to preserve that understanding. Hence the need—for dementia as for delusions as for any other mental disorder—to attend to the particular circumstances of a case and make the precise judgment Panetti requires.
III
The only question left—and the only one on which the parties now disagree—is whether Madison‘s execution may go forward based on the state court‘s decision below. Madison‘s counsel says it cannot because that ruling was tainted by legal error—specifically, the idea that only delusions, and not dementia, can support a finding of mental incompetency. See Tr. of Oral Arg. 12, 21, 25, 27. Alabama counters that the state court did not rely on that (concededly) incorrect view of the law. See id., at 37-41. But we come away at the least unsure whether that is so—especially given Alabama‘s evidence and arguments in the state court.
As noted earlier, the 2018 ruling we review today contains only one sentence of explanation. See supra, at 7-8. It states that Madison “did not provide a substantial threshold showing of insanity[ ] sufficient to convince this Court to stay the execution.” App. A to Pet. for Cert. If the state court used the word “insanity” to refer to a delusional disorder, then error occurred: The court would have denied a stay on the ground that Madison did not have that specific kind of mental illness. And the likelihood that the court made that mistake is heightened by the State‘s emphasis, at that stage of the proceedings (as at others), that Madison was “not delusional or psychotic” and that “dementia” could not suffice to bar his execution absent “an expansion of Ford and Panetti.” Motion to Dismiss 4, 10; see supra, at 4–8; but see post, at 9–10, and n. 4 (disregarding those arguments).5 Alabama
Alabama further contends, however, that we should look past the state court‘s 2018 decision to the court‘s initial 2016 determination of competency. (The dissent similarly begins with the 2016 ruling, see post, at 6–7, even though that is not the decision under review here.) According to the State, nothing material changed in the interim period, see supra, at 7; thus, we may find the meaning of the later ruling in the earlier one, see Tr. of Oral Arg. 36–37. And, the State continues, the 2016 opinion gets the law right. Alabama‘s proof is that the court, after summarizing the psychologists’ testimony, found that “Madison has a rational[] understanding, as required by Panetti,” concerning the “punishment he is about to suffer and why he is about to suffer it.” 2016 Order, at 10; see Tr. of Oral Arg. 39; supra, at 5-6. (The dissent quotes the same passage. See post, at 7.)
But the state court‘s initial decision does not aid Alabama‘s cause. First, we do not know that the court in 2018 meant to incorporate everything in its prior opinion. The order says nothing to that effect; and though it came out the same way as the earlier decision, it need not have rested on all the same reasoning. Second, the 2016 opinion itself does not show that the state court realized that persons suffering from dementia could satisfy the Panetti standard. True enough, as Alabama says, that the court accurately stated that standard in its decision. But as described above, Alabama had repeatedly argued to the court (over Madison‘s objection) that only prisoners suffering from delusional disorders could qualify as incompetent under Panetti. See, e.g., Brief on Madison‘s Competency 2 (Madison “failed to implicate” Ford and Panetti because he “does not suffer from psychosis or delusions“); Tr. 82 (“The Supreme Court [in Panetti] is looking at whether someone‘s delusions or someone‘s paranoia or someone‘s psychosis is standing in the way of” rationally understanding his punishment); see also supra, at 4–5; but see post, at 9–10, and n. 4 (disregarding those arguments). And Alabama relied on the expert opinion of a psychologist who highlighted Madison‘s lack of “psychosis, paranoia, or delusion,” while never mentioning his dementia. Tr., Ct. Exh. 1 (Apr. 14, 2016), p. 9. That too-limited understanding of Panetti‘s compass is reflected in the court‘s 2016 opinion. In its single paragraph of analysis, the court “accept[ed] the testimony” of the State‘s preferred psy- chologist.6 And the
For those reasons, we must return this case to the state court for renewed consideration of Madison‘s competency (assuming Alabama sets a new execution date). See, e.g., Kindred Nursing Centers L. P. v. Clark, 581 U. S. ____, ____ (2017) (slip op., at 9) (remanding when “uncertain” whether “an impermissible taint occurred“); Clemons v. Mississippi, 494 U. S. 738, 751–752 (1990) (similar). In that proceeding, two matters disputed below should now be clear. First, under Ford and Panetti, the Eighth Amendment may permit executing Madison even if he cannot remember committing his crime. Second, under those same decisions, the Eighth Amendment may prohibit executing Madison even though he suffers from dementia, rather than delusions. The sole question on which Madison‘s competency depends is whether he can reach a “rational understanding” of why the State wants to execute him. Panetti, 551 U. S., at 958. In answering that question—on which we again express no view, see supra, at 6—the state court may not rely on any arguments or evidence tainted with the legal errors we have addressed. And because that is so, the court should consider whether it needs to supplement the existing record. Some evidence in that record, including portions of the experts’ reports and testimony, expressly reflects an incorrect view of the relevance of delusions or memory; still other evidence might have implicitly rested on those same misjudgments.
The state court, we have little doubt, can evaluate such matters better than we. It must do so as the first step in assessing Madison‘s competency—and ensuring that if he is to be executed, he understands why.
We accordingly vacate the judgment of the state court and remand the case for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE KAVANAUGH took no part in the consideration or decision of this case.
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 17–7505
VERNON MADISON, PETITIONER v. ALABAMA
ON WRIT OF CERTIORARI TO THE CIRCUIT COURT OF ALABAMA, MOBILE COUNTY
[February 27, 2019]
JUSTICE ALITO, with whom JUSTICE THOMAS and JUSTICE GORSUCH join, dissenting.
What the Court has done in this case makes a mockery of our Rules.
Petitioner‘s counsel convinced the Court to stay his client‘s execution and to grant his petition for a writ of certiorari for the purpose of deciding a clear-cut constitutional question: Does the
After persuading the Court to grant review of this question, counsel abruptly changed course. Perhaps because he concluded (correctly) that petitioner was unlikely to prevail on the question raised in the petition, he conceded that the argument advanced in his petition was wrong, and he switched to an entirely different argument, namely, that the state court had rejected petitioner‘s claim that he is incompetent to be executed because the court erroneously thought that dementia, as opposed to other mental conditions, cannot
This was not a question that the Court agreed to hear; indeed, there is no mention whatsoever of this argument in the petition—not even a hint. Nor is this question fairly included within those on which the Court granted review. On the contrary, it is an entirely discrete and independent question.
Counsel‘s tactics flagrantly flouted our Rules. Our Rules make it clear that we grant certiorari to decide the specific question or questions of law set out in a petition for certiorari. See this Court‘s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court“). Our whole certiorari system would be thrown into turmoil if we allowed counsel to obtain review of one question and then switch to an entirely different question after review is granted. In the past when counsel have done this, we have dismissed the writ as improvidently granted. See, e.g., Visa, Inc. v. Osborn, 580 U. S. ___ (2016); City and County of San Francisco v. Sheehan, 575 U. S. ___ (2015). We should do that here.
Instead, the majority rewards counsel‘s trick. It vacates the judgment below because it is unsure whether the state court committed the error claimed in petitioner‘s merits brief. But not only was there no trace of this argument in the petition, there is nothing in the record showing that the state court ever adopted the erroneous view that petitioner claims it took.
I
The question on which we granted review was an outgrowth of our per curiam decision in Dunn v. Madison, 583 U. S. ___ (2017), which concerned an Eleventh Circuit decision granting petitioner federal habeas relief. Prior to that decision, this Court had held in Ford v. Wainwright, 477 U. S. 399 (1986), that the
We summarily reversed. Under the relevant provision of the federal habeas statute,
Our opinion stated, however, that it “express[ed] no view on the merits of the underlying question outside of the AEDPA context.” Dunn, 583 U. S., at ___ (slip op., at 4). And a concurring opinion authored by JUSTICE GINSBURG and joined by JUSTICES BREYER and SOTOMAYOR teed up this question for review in a later case. Id., at ___ (slip op., at 1) (“The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a
Taking this cue, petitioner then sought relief in state court based on his inability to remember his crime, and when that effort failed, he filed the petition at issue now.
II
The centerpiece of the petition and petitioner‘s 11th-hour application for a stay of execution1 was the argument that he could not constitutionally be executed because he did not remember killing Officer Schulte. The petition repeatedly noted petitioner‘s inability to remember his crime. See Pet. for Cert. i, iii, 1, 2, 8, 10, 11, 12, 18, 22, 23, 25, 26, 27, 28. And the petition was very clear about the question on which review was sought:
“[T]his case presents this Court with the appropriate vehicle to consider the substantial question of whether the execution of a prisoner with no memory of the underlying offense is consistent with the evolving standards of decency inherent in this Court‘s
Eighth Amendment jurisprudence.” Id., at 2.
This same point was made time and again:
- “[B]ecause [petitioner‘s] disability renders him unable to remember the underlying offense for which he is to be punished, his execution does not comport with the evolving standards of decency required by this Court‘s
Eighth Amendment jurisprudence.” Id., at 18. - “[I]mposing death on a prisoner, who, like Mr. Madison, suffers from substantial memory deficits by virtue of multiple stroke and resulting vascular dementia serves no retributive or deterrent purpose.” Id., at 22.
- “[E]xecuting an individual with no memory of the underlying offense serves no retributive purpose.” Ibid.
- “[W]here the person being punished has no memory of the commission of the offense for which he is to be executed, the ‘moral quality’ of that punishment is lessened and unable to match outrage over the offense.” Id., at 22–23.
- “Mr. Madison‘s severe memory impairments as a result of vascular dementia render him incompetent to be executed under the
Eight Amendment .” Id., at 25 (quotation altered).
In sum, the body of the petition makes it clear that review was sought on the question invited by the Dunn concurrence, and the thrust of the wording of the two questions was the same. They read as follows:
“1. Consistent with the
Eighth Amendment , and this Court‘s decisions in Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense? See Dunn v. Madison, [583 U. S. ___ (2017) (GINSBURG, J., joined by BREYER and SOTOMAYOR, JJ., concurring).]”“2. Do evolving standards of decency and the
Eighth Amendment‘s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition which prevents him from remembering thecrime for which he was convicted or understanding the circumstances of his scheduled execution?” Pet. for Cert. iii.
With the exception of the final phrase in question two (“or understanding the circumstances of his scheduled execution“), both questions solely concern the effect of memory loss on an
But whether or not the petition may be fairly read to present that factbound question, it is a travesty to read it as challenging the state-court order on the ground that the state court erroneously believed that dementia cannot provide a basis for a Ford/Panetti claim. There is no inkling of that argument in the petition. Although the petition described the state-court order at numerous places, the petition never claimed that the order was based on an impermissible distinction between dementia and other mental conditions. See, e.g., Pet. for Cert. ii, 2–3, 16. And in fact, there is a point in the petition where such an interpretation of the state-court order would surely have been mentioned if the petition had intended to raise it as a ground for review. The petition noted that “courts have recognized dementia and attendant cognitive decline and memory impairment as a basis for a finding of incompetency to be executed,” id., at 25, but the petition did not follow that statement by claiming that the state court in this case took a contradictory position.
Because the petition did not raise—indeed, did not even hint at—the argument on which the Court now grants relief, the Court‘s decision is insupportable.2 It violates our Rule that “[o]nly the questions set out in the petition, or fairly included therein, will be considered by the Court.” See Rule 14.1(a).
III
Even if it were proper for us to consider whether the order below was based on an erroneous distinction between dementia and other mental conditions, there is little reason to think that it was. After a full evidentiary hear- ing in 2016, the state court rejected petitioner‘s Ford/Panetti claim based on a correct statement of the holding of those decisions. It found that petitioner “ha[d] not carried his burden [of showing] by a preponderance of the evidence . . . that he . . . does not rationally understand the punishment he is about to suffer and why he is about to suffer it.” Order (Apr. 29, 2016), p. 10. The court‘s order went on to say that it “specifically [found] that Madison has a rationa[l] understanding, as required by Panetti, that he is going to be executed because of the murder he committed and a rationa[l] understanding that the State is seeking retribution and that he will die when he is executed.” Ibid.
In concluding that the state court might have drawn a distinction between dementia and other mental conditions, the majority seizes upon the wording of the order issued after a subsequent hearing in 2018. Ante, at 14. In that order, the same judge
Taken out of context, the term “insanity” might not be read to encompass dementia, but in context, it is apparent that the state court‘s use of that term was based on the way in which it was used in Ford and Panetti. The state court did not simply refer to “insanity.” It referred to “insanity, a requirement set out by the United States Supreme Court.” Thus, it followed the term “insanity” with an appositive, which is a word or phrase that renames the word or phrase that precedes it. In other words, what the state court clearly meant by “insanity” was what this Court termed insanity in Ford and Panetti. What was that?
In Ford, the Court held that the
Today‘s decision does not reject this interpretation of the state-court order; it says only that it is vacating and remanding because it is “at the least unsure” whether the state court used the term “insanity” in this way. Ante, at 14. The majority cites two reasons for its uncertainty, but both are weak.
First, the majority attributes to the state court an interpretation of the term “insanity” that was advanced by the State in this Court in its brief in opposition to the petition for certiorari. Ante, at 15. In that submission, the State argued that certiorari should be denied because petitioner had sought relief in state court under the wrong provision of state law, namely,
The majority‘s argument based on the State‘s brief in opposition suffers from multiple defects. For one thing, nothing suggests that the state court rejected petitioner‘s application on the ground that he invoked the wrong provision of state law; the State‘s filing in the state court made no mention of the argument set out in its brief in opposition filed here. Moreover, if the state court had rejected petitioner‘s application on the ground that he moved under the wrong provision of state law, it is doubtful that we could review that decision,
The majority‘s other proffered basis for doubt is that the State “repeatedly argued to the [state] court (over Madison‘s objection) that only prisoners suffering from delusional disorders could qualify as incompetent under Panetti.” Ante, at 16. The majority, however, cites no place where the State actually made such an argument. To be sure, the State, in contending that petitioner was not entitled to relief under Ford and Panetti, argued strenuously that he was not delusional. (The State made this argument because petitioner‘s counsel claimed that petitioner was in fact delusional and fell within Ford and Panetti for that reason.3) But arguing, as the State did, that petitioner
was not entitled to relief because the claim that he was delusional was untrue is not the same as arguing that petitioner could be executed even if his dementia rendered him incapable of understanding the reason for his execution. The majority cites no place where the State made the latter argument in the state court.4 And even if the
State
I add one more comment regarding the majority‘s uncertainty about the basis for the state-court decision: Our decision two years ago in Dunn evinced no similar doubts. There, we said that the state court “held that, under this Court‘s decisions in Ford and Panetti, Madison was entitled to relief if he could show” that he lacks a rational understanding of the circumstances of his punishment. 583 U. S., at ___ (slip op., at 2) (quotation altered). And we said that the state court “determined that Madison is competent to be executed because—notwithstanding his memory loss—he recognizes that he will be put to death as punishment for the murder he was found to have committed.” Id., at ___ (slip op., at 4); see also ibid. (referring to the state court‘s “finding that Madison understands both that he was tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime“). Why the majority cannot now see what it understood without any apparent difficulty two years ago is hard to grasp.
For all these reasons, what the Court has done in this case cannot be defended,
*
Petitioner has abandoned the question on which he succeeded in persuading the Court to grant review, and it is highly improper for the Court to grant him relief on a ground not even hinted at in his petition. The writ should be dismissed as improvidently granted, and I therefore respectfully dissent.