The nation's death rows are starting to look like geriatric wards. Condemned inmates in many states are more likely to die of natural causes than to be executed. The rare ones who are put to death often first spend decades behind bars, waiting.
It turns out that executing old men is not easy. In November, Ohio called off an attempt to execute Alva Campbell, 69, after the execution team could not find a suitable vein into which to pump lethal chemicals. The state announced that it would try again in June 2019, by which time he would have been 71.
But Mr. Campbell suffered from what one judge called an "extraordinary list of ailments." He used a walker, could barely breathe and relied on a colostomy bag. He was
found lifeless in his cell on Saturday, having died in the usual way, without government assistance.
In Alabama last month, state officials
called off the execution of Doyle Lee Hamm, 61, also because they could not find a suitable vein. Mr. Hamm has at least 2 kinds of cancer, cranial and lymphatic, and he may not have long to live with or without the state's efforts.
Last week, the Supreme Court agreed to hear the case of another Alabama inmate, Vernon Madison, a 67-year-old man who suffers from dementia and cannot remember the crime that sent him to death row. The court, which has barred the execution of juvenile offenders and the intellectually disabled, is now turning its attention to old people.
In 1985, Mr. Madison killed a police officer, Julius Schulte, who had been trying to keep the peace between Mr. Madison and his ex-girlfriend, Cheryl Greene, as she sought to eject him from what had been their shared home. Mr. Madison shot Ms. Greene, too, wounding her.
Mr. Madison remembers none of this. He has suffered at least 2 severe strokes, and he is blind and incontinent. His speech is slurred, and what he says does not always make sense.
He has asked that his mother be told of his strokes, but his mother is dead. He soils himself, saying "no one will let me out to use the bathroom," though there is a toilet in his cell. He says he plans to move to Florida. He can recite the alphabet, but only to the letter G.
Mr. Madison also insists that he "never went around killing folks."
A court-appointed psychologist found that Mr. Madison had "significant body and cognitive decline as a result of strokes." But the psychologist testified that Mr. Madison understood what he was accused of and how the state planned to punish him. According to Steve Marshall, Alabama's attorney general, that is enough.
The Supreme Court's precedents bar the execution of people who lack a "rational understanding" of the reason they are to be put to death.
Mr. Marshall told the justices that Mr. Madison satisfied that standard. "The ability to form a rational understanding of an event," he wrote in January in a brief urging the justices to stay out of the case, "has very limited relation to whether a person remembers that event."
Mr. Madison's case, which has been bouncing around the court system for more than 30 years, has taken some unusual turns.
His 1st conviction was reversed because prosecutors violated the Constitution by excluding all 7 potential jurors who were black. His 2nd conviction was thrown out after prosecutors committed misconduct by using expert testimony to tell the jury about evidence never properly introduced.
At Mr. Madison's 3rd trial, the jury voted to sentence him to life in prison. But Judge Ferrill D. McRae, of Mobile County Circuit Court, overrode that verdict and sentenced Mr. Madison to death.
I interviewed Judge McRae in 2011, not long before he died. I had sought him out because he had achieved a rare distinction. He had overridden 6 jury verdicts calling for life sentences, a state record, while never rejecting a jury's recommendation of death.
Alabama juries are not notably squeamish about the death penalty, but Judge McRae said they needed to be corrected when they were seized by an impulse toward mercy. "If you didn't have something like that," he said of judicial overrides, "a jury with no experience in other cases would be making the ultimate decision, based on nothing."
Alabama abolished judicial overrides last year.
In 2016, Mr. Madison came very close to being put to death. A deadlocked 8-member Supreme Court refused to vacate a stay of execution issued by a federal appeals court, with the court's 4 conservative members saying they would have let the execution proceed. Justice Antonin Scalia had died a few months before, leaving the Supreme Court short-handed. Had Justice Scalia lived, Mr. Madison would almost certainly be dead by now.
The case took some additional procedural twists, and Mr. Madison returned to the Supreme Court in January after a state court again ruled against him. The Supreme Court stayed his execution, though the court's 3 most conservative members - Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch - said they would have let it go forward.
The case, Madison v. Alabama, No. 17-7505, will be argued in the fall, and it will give the court a chance to consider some profound questions.
"Mr. Madison is one among a growing number of aging prisoners who remain on death row in this country for ever longer periods of time," Justice Stephen G. Breyer wrote in a concurring opinion when the court considered an earlier appeal. "Given this trend, we may face ever more instances of state efforts to execute prisoners suffering the diseases and infirmities of old age."
Source: The New York Times, Adam Liptak, March, 2018
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
