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*Lauren Brittany Garcia

Death row is aging, and the current standard for competence to be executed is unworkable. According to the Death Penalty Information Center’s database, of the 2,800 prisoners on death row, 1,200 of them are over the age of 50.[1] While age alone is not enough to raise a constitutional concern, the illnesses which become more common with age do.[2] Specifically, there is a constitutional concern with health issues, like dementia and similarly related mental disorders, which affect the level of competence of the prisoner. As Justice Breyer said during oral arguments in Madison v. Alabama, “[T]here are many, many, many prisoners on death row under threat of execution who are in their 40s, 50s, 60s, 70s, possibly 80s, who have been there for 20, 30, 40 years perhaps. So this will become a more common problem.”[3]

The current standard for competency to be executed is that a prisoner must have a rational understanding of the crime committed and the punishment. This standard comes from two prior Supreme Court cases dealing with insanity: Ford v. Wainwright and Panetti v. Quarterman.[4] However, the Court has explicitly stated the standard is not “precise.”[5] The Court did specify a “rational understanding” is more than awareness and more than an “amoral character.”[6] However, even these descriptions are vague, and the Court avoided establishing a more concrete “rule governing all competency determinations.”[7] The vagueness of the standard is evident, especially when applied to non-insanity cases––cases like Vernon Madison’s.

Vernon Madison is a 68-year-old man currently on death row for the murder of a police officer in Mobile, Alabama.[8] While incarcerated, Madison suffered several strokes; as a result, he is now legally blind, incontinent, and most importantly, suffering from vascular dementia which prevents him from remembering the murder.[9] On October 2, 2018, Madison’s case was heard by the Supreme Court to determine whether it is constitutional to execute someone who does not remember their crime.[10]

Vernon Madison’s vascular dementia affects him in much the same way as it affects others: his memory is greatly impaired, and he is experiencing cognitive decline.[11] Madison has a working memory score of 58, which means his memory is significantly compromised.[12] The score places Madison “within the borderline to intellectually disabled range.”[13] Madison cannot remember events from the past 30 years.[14] More specifically, he “cannot independently recall the facts of the offense; the sequence of events from the offense, to his arrest, to his trial or previous legal proceedings in his case; or the name of the victim.” His IQ score is 72, “placing him in the borderline range of intelligence and confirming a significant decline from his previous scores.”[15] Perhaps the best example of Madison’s compromised reasoning is the way he frequently urinates on himself despite there being a toilet in his cell.[16]

Mr. Madison can explain to you that he has a toilet in his cell. It’s a 5-by-8 cell. He can explain to you that he can use that toilet. But he routinely urinates on himself and he gets frustrated because he’s asking the guards to take him to the toilet.[17]


On February 27, 2019, the Supreme Court decided Madison v. Alabama.[18] In a 5–3 decision, the Court ruled in Madison’s favor by vacating the decision of the lower court and remanding the case for further consideration.[19] Without deciding Madison’s competency, the majority noted his case could be decided within the Ford and Panetti standard.[20]

[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 dementia may be unable to rationally understand the reasons for his sentence; if so, the Eighth Amendment does not allow his execution.[21]


While this result was a victory for Madison and provides some clarification as to the “rational understanding” standard, the standard is still too unclear in application. There are better, more concrete, options available to determine competency to be executed. For example, in 2006, the American Bar Association (“ABA”) released a recommended test for determining competency for execution.[22] It is a three-part test which covers the different ways a prisoner may be incompetent to be executed.[23] The third part of the test specifically addresses cases like Madison’s: cases in which the prisoner develops a mental disorder of disability after sentencing.[24] The ABA test provides more description, explanation, and context to what it means to be competent to be executed, which would allow courts to more confidently and consistently determine whether a person is competent to be executed. [25]

The Court should have embraced the opportunity to refine and expand the test to include conditions like dementia. By refusing to do so in Madison’s case, the Supreme Court only put off the decision for a future date, but the issue Vernon Madison’s case presented will only become more prevalent as inmates on death row age and succumb to similar cognitive disorders.

*J.D. Candidate, 2020, FIU College of Law.

[1] See Kim Chandler, Aging Death Row: Is Executing Old or Infirm Inmates Cruel?, Associated Press (Apr. 18, 2018),

[2] Id.

[3] Transcript of Oral Argument at 23, Madison v. Alabama, 139 S. Ct. 718 (2019) (No. 17-7505) (alteration added).

[4] Ford v. Wainwright, 447 U.S. 399 (1986); Panetti v. Quarterman, 551 U.S. 930 (2007).

[5] Panetti, 551 U.S. at 957.

[6] Id. at 959, 960–61.

[7] Id. at 960–61.

[8] See Jess Bravin, Supreme Court Grapples with Planned Execution of Convicted Killer with Dementia, Wall Street J. (Oct. 2, 2018),

[9] See id.

[10] See Amy Howe, Argument Analysis: A Narrow Victory Possible for Death-Row Inmate with Dementia?, SCOTUSblog (Oct. 2, 2018, 5:27 PM),

[11] See Brief for the American Psychological Association and American Psychiatric Association as Amici Curiae in Support of Petitioner at 12, Madison v. Alabama, 139 S. Ct. 718 (2019) (No. 17-7505).

[12] See Brief of Petitioner at 21, Madison v. Alabama, 139 S. Ct. 718 (2019) (No. 17-7505).

[13] Id. (internal quotation marks removed).

[14] Id. at 20.

[15] Id. at 21.

[16] See Reply Brief of Petitioner at 13, Madison v. Alabama, 139 S. Ct. 718 (2019) (No. 17-7505).

[17] Transcript of Oral Argument at 17, Madison v. Alabama, 139 S. Ct. 718 (2019) (No. 17-7505).

[18] Madison v. Alabama, 139 S. Ct. 718, 718 (2019).

[19] Id. at 719.

[20] Id. at 726.

[21] Id. at 726–27.

[22] See generally Resolution 122A, Am. Bar Ass’ (2006),

[23] Id.

[24] Id.

[25] See Symposium, Competency for Execution: The Implications of a Communicative Model of Retribution, 76 Tenn. L. Rev. 713, 768–69 (2009).