Why you should care
Because changing technology, training and norms are affecting an aging death row population.
Vernon Madison has suffered multiple strokes that have left him blind, with dead brain tissue and urinary incontinence, and unable to walk independently or remember the crime that put him on death row three decades ago. On Tuesday, the U.S. Supreme Court will consider whether the state of Alabama can legally kill Madison — who murdered a police officer in 1985 — despite the degenerative medical condition that has robbed him of the ability to understand the circumstances of his execution.
The case tackles questions about evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment when the sentence is death. But it also spotlights an increasingly difficult proposition facing prisons and prosecutors: an inmate population that is rapidly aging and experiencing all of the physical and mental damage of that process, heightened by the intense rigor and stress of incarcerated life. Nowhere is that reality more dramatic than on death row, where the wait time has more than tripled — from an average of six years and two months in 1984 to 19 years and nine months for prisoners executed in 2018 so far, according to Department of Justice data compiled by the Death Penalty Information Center. Experts say a major reason why death row inmates are living longer is that they are getting better representation.
That qualitative difference stems from a mix of legal, technological and judicial advances made in the past few decades that are just bearing fruit now, says Robert Dunham, the executive director at the Death Penalty Information Center in Washington, D.C.
Judicial orders in the 1980s and 1990s barred a reassessment of a death sentence if fresh facts came up after a conviction, making it hard for defendants to seek retrials based on having been poorly represented. This tilted the balance against death row inmates. But in three key cases in the late 1990s and early 2000s, the Maryland, Virginia and Pennsylvania Supreme Courts clarified that courts don’t have to prove the defendant would be acquitted to be able to submit habeas corpus twice. “More cases began to get reversed,” Dunham says, and “most of those people never ended up on death row.” Then, in Martinez v. Ryan in 2012, he adds, the Supreme Court ruled that defendants who had been given an ineffective lawyer twice were no longer barred from developing new claims in federal court under habeas corpus.
We may face ever more instances of state efforts to execute prisoners suffering the diseases and infirmities of old age.
Justice Stephen Breyer, 2017
Increased training and licensing guidelines published by organizations like the American Bar Association for public defenders in death penalty cases have also added to the level of support potential death row inmates receive. And the advent of genetic testing and the ability to consider DNA evidence in court has opened up new avenues for defense lawyers to give better representation than was possible earlier.
“If there is evidence in the case, it just takes longer — it’s not CSI,” says Peter Collins, a Seattle University criminal justice professor, referring to the television show in which DNA results often are turned around in days, if not hours.
The Madison case is in many ways an example of the broader ways in which an aging prison population is impacting death row executions. In the last year, Ohio and Alabama have both delayed separate executions because they could not find suitable veins in sickly death row inmates for injecting the lethal drugs. “We may face ever more instances of state efforts to execute prisoners suffering the diseases and infirmities of old age,” Justice Stephen Breyer wrote in December of 2017, as part of a concurring opinion addressing a previous appeal by Madison before the nation’s highest court.
Some argue that the longer death row stays have more to do with a lessening appetite for capital punishment than with better legal defense options. “The usual hypothesis is excessive litigation and people pursuing every avenue of appeals,” says Austin Sarat, a law professor at Amherst College. But he notes that the Anti-Terrorism and Death Penalty Act of 1996 made it harder to exploit loopholes and delay the process. States now sometimes decide not to expedite executions owing to their questionable popularity. “When we think of death cases now, we think of DNA and exonerations, disparities in racial justice, botched executions,” Sarat says. “In that context, executing them may seem like less of an imperative.”
Habeas corpus itself has been “gutted,” adds Michael Radelet, a death penalty expert at the University of Colorado, and a prolonged wait in death penalty cases is hardly a reward for families and inmates. “It’s like torture before the killing,” he says. “The additional time is another added stressor that can, in and of itself, compound the mental illness.”
But without better legal defenses in the form of past rulings, trained lawyers and tech assistance, the debate over the death sentence may never have reached where it is today — not just about whether the state can take a person’s life, but also, specifically, whether it can kill inmates who don’t remember what crime they committed.
In McCleskey v. Zant (1987), the Supreme Court had essentially ruled that “you only get one shot,” Dunham says, regardless of what future evidence might come up. However, federal lawyers who investigated multiple habeas corpus claims alleging they had been improperly convicted at the state level started finding a glut of facts that state lawyers should have used but didn’t. Because of the McCleskey decision, Dunham says, they were “powerless” to address those problems: “What ultimately happened was that the Supreme Court over and over and over again saw these meritorious claims that they were unable to address.” When defendants had legitimate complaints about their representation, it was often difficult to do a retrial, because Strickland v. Wainwright in 1984 had ruled that defendants must not just prove their lawyer acted unreasonably under professional norms, but also that it materially affected the outcome of the case.
The Maryland, Virginia and Pennsylvania Supreme Court verdicts and Martinez v. Ryan helped restore the balance. And even Sarat concedes that sound litigation, such as cases about states using untested or inappropriate chemicals for lethal injections, also help delay executions. States often make unconstitutional mistakes. “In states like Alabama that still don’t care about the quality of representation in state court, you end up with people having their convictions and death sentences overturned sometimes three, four, six times in federal court,” Dunham says.
For sure, because death row inmates can rarely, if ever, afford representation, the quality of their representation often depends on what their jurisdiction can afford. “There are places where bailiffs are acting as defense attorneys,” Collins says. And while some morbidly argue that quick executions save on taxpayer costs, “it doesn’t really pencil out that way,” says Collins, who co-authored a study looking into the costs of capital punishment, which found that incarcerating prisoners for life is almost always less expensive than executing them.
One twist in the tale of Madison in Alabama: If Justice Antonin Scalia hadn’t passed away in 2016, an appeals court stay of execution could well have been overturned, and Madison wouldn’t be alive today. The Supreme Court remains shorthanded once more as sexual assault allegations have delayed the nomination of Brett Kavanaugh. And so after three decades, Madison could be spared a little bit longer. The ramifications could be felt not just by him, but the entirety of a population quickly resembling less a prison system than an elderly home.