Is it right to hold a man accountable for a three-decade-old crime he does not remember committing?
That, roughly speaking, is the question before eight justices of the Supreme Court on Tuesday, as they prepare to hear arguments in the death-penalty case of Madison v. Alabama, No. 17-7505.
Vernon Madison shot a police officer twice in the head in 1985, and has spent more than 30 years since then on death row. Now in his late 60s, Madison is legally blind and slurs his speech. Following several strokes and a diagnosis with vascular dementia, his memory loss is so severe that he "does not believe that he ever killed anybody," according to a doctor who assessed him.
While the court has handed down rulings limiting the death penalty before, it has never addressed whether the 8th Amendment's prohibition on cruel and unusual punishment bars the killing of somebody who simply can't recall.
In the second day of its new term, the Supreme Court for the first time will confront the role of memory in capital punishment. And it will do so just as questions of memory, guilt and innocence have thrust the institution, which often seeks to avoid the glare of partisan politics, uneasily into the spotlight.
As the nation remains gripped by the competing narratives of Supreme Court nominee Brett Kavanaugh and Christine Blasey Ford, a research psychologist who says he sexually assaulted her at a high school gathering in 1982, new attention has been placed on the reliability of both of their memories, as well as Kavanaugh's drinking habits at the time the incident allegedly happened.
"One idea here is that he simply was drinking more than he was saying over this time period and that he didn't remember what happened," Sen. Amy Klobuchar, D-Minn., told CNN over the weekend.
It's a theory that has been repeated with increasing frequency since an emotional hearing Thursday, in which Kavanaugh vehemently declared himself innocent of the charge, while Ford said she was "100 percent sure" Kavanaugh assaulted her.
The role of memory was dramatically encapsulated in a line Ford delivered after Sen. Patrick Leahy, D-Vt., asked her to name her strongest recollection of the incident. Her response drew increased attention to an obscure region of the brain.
"Indelible in the hippocampus is the laughter, the uproarious laughter between the two, and their having fun at my expense," she said, describing her claim that a drunken Kavanaugh and another boy laughed at her while Kavanaugh pinned her to a bed and attempted to remove her swimsuit.
The hippocampus is negatively impacted by heavy drinking as well as vascular dementia.
Tuesday's case has the potential to be the first dramatic shift for the court following the departure of Justice Anthony Kennedy, who has often served as the crucial swing vote in rulings curtailing the implementation of the death penalty.
Two notable 5-4 rulings authored by Kennedy stand out. In the 2005 case Roper v. Simmons, No. 03-633, Kennedy wrote an opinion finding that the execution of minors was unconstitutional because it violated the 8th Amendment. Three years later, in Kennedy v. Louisiana, No. 07-343, Kennedy relied on the same reasoning to further restrict the use of capital punishment, finding that it was unconstitutional to execute someone for the crime of child rape.
"It's just a fact, that if you want to know what 'evolving standards of decency' have been in the United States for the last 15 years, Justice Kennedy has made that decision," John D. Adams, a former law clerk to Justice Clarence Thomas and now a partner at the law firm McGuireWoods, said at a recent panel conversation hosted by the conservative legal group the Federalist Society.
If Kavanaugh is confirmed, it is not obvious from his prior rulings how he may come down on death penalty cases. Because he will not hear oral arguments in Madison v. Alabama, he will only rule on the case if the justices are divided 4-4. In that situation, the court will have to schedule new arguments.
If that does happen, and Kavanaugh rules in the case, it's likely that he will bring a starkly different judicial ideology to it than Kennedy would have, experts have said.
"We don't know much about Brett Kavanaugh's death penalty thought. But I'm going to place a bet that it's probably different than Justice Kennedy's," Adams said. "And I think you're going to see a court that is going to approach the death penalty in a very different way moving forward."
