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If Alabama were to go ahead with its plan to execute 68-year-old Vernon Madison, he wouldn’t know why. Because of several strokes over the past few years, he has vascular dementia, which has left him with no memory of the crime that sent him to death row 33 years ago. And, because the Eighth Amendment’s ban on cruel and unusual punishment precludes executing a prisoner who doesn’t understand the reasons why he’s being put to death, the U.S. Supreme Court last week threw out a state court ruling allowing Madison’s execution to go forward and ordered the lower court to reconsider his case.

The 5-3 decision was written by Justice Elena Kagan, with Justices Roberts, Breyer, Ginsburg, and Sotomayor concurring.

Reading a summary of her ruling from the bench, Kagan said, “Based on our review of the record, we can’t be sure that the state court recognized that Madison’s dementia might render him incompetent to be executed,” according to NBC News

Justice Samuel Alito wrote the dissenting opinion, with Justices Thomas and Gorsuch joining in.

(Justice Brett Kavanaugh joined the court after the case was argued last October and didn’t participate in the decision.)

Madison was sent to Alabama’s death row 33 years ago after being convicted of killing Mobile police Cpl. Julius Schulte in April 1985. 

Twice, his execution was stayed. In May 2016, the U.S. Court of Appeals for the Eleventh Circuit issued a stay finding that Madison had no memory of the crime, and was incompetent to be executed. The U.S. Supreme Court reversed that order, and the state set a new execution date for January 2018. But armed with new evidence, and after being denied relief again by the state court, Madison’s lawyers filed another request for a stay to the High Court, which was granted 30 minutes before he was to be killed.

Last October, the Court heard oral argument in the case, during which Bryan Stevenson of the Equal Justice Initiative, which is representing Madison, asked the Court to address not only his client’s inability to remember the crime and understand why he’s sentenced to death, but also the fact that his death sentence was imposed by a judge after a jury recommended a sentence of life without parole. His lawyers have argued that sentence should be commuted in light of a 2017 law banning judicial override. 

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