In an unusually philosophical argument on the nature and consequences of human memory, the Supreme Court struggled on Tuesday to decide whether the Constitution allows Alabama to execute an inmate who cannot recall the 1985 murder that sent him to death row.
The court, which is short-handed while it awaits word of the fate of Judge Brett M. Kavanaugh’s nomination, seemed eager to find a narrow solution to a large problem. The nation’s death row is aging, Justice Stephen G. Breyer said, and various forms of dementia are becoming more common.
“There 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,” he said. “So this will become a more common problem.”
But other justices appeared to be looking for a way to rule for the inmate, Vernon Madison, without making a broad statement.
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 remembers none of this. He has had at least two 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 that “no one will let me out to use the bathroom,” though there is a toilet in his cell. He has said he plans to move to Florida. He can recite the alphabet only to the letter G.
Mr. Madison also insists that he “never went around killing folks.”
But he can, for a time at least, understand what he is accused of and how Alabama plans to punish him.
“He did not remember the crime,” Justice Samuel A. Alito Jr. said, summarizing the evidence in the case, Madison v. Alabama, No. 17-7505. “He did not remember the victim.”
“But he said he understands the sentence, specifically the meaning of the death sentence,” Justice Alito said. “He understands the meaning of execution, and many details involved. He is able to understand the nature of the proceedings. He thinks he understands that what the state is seeking is retribution. He feels his conviction was unjust.”
Mr. Madison’s lawyer, Bryan A. Stevenson, likened his client’s condition to a parent with dementia.
“You can say I’m your daughter, and that person will respond to you as their daughter,” Mr. Stevenson said. “But, when you come back the next day, they don’t have a rational understanding of who you are.”
Thomas R. Govan, a lawyer for the state, said Mr. Madison’s lack of memory should not bar his execution.
“The state would still have a strong interest in seeking retribution for a horrible crime,” he said. “Even if they can’t remember the crime, that doesn’t somehow lessen their ability to understand.”
The Supreme Court has prohibited the execution of people who lack a “rational understanding” of the reason they are to be put to death. Mr. Stevenson said those decisions also barred the execution of his client.
Mr. Stevenson conceded that a mere failure to remember was not by itself sufficient. “It would have to be accompanied by some mental disability,” he said. “And here we argued that that disability was dementia.”
Justice Elena Kagan asked whether “a kind of fugue state or a blackout that’s unaccompanied by anything else” would suffice. Chief Justice John G. Roberts Jr. also wondered whether “simply blacking out” would bar punishment. Both times, Mr. Stevenson said no.
Mr. Stevenson sought to reassure the court that extending its earlier decisions to cover inmates like Mr. Madison would not open the floodgates to claims of lost memories. He urged the court to rule that “where someone has a disability that renders them incapable of orienting to time or place or rationally understanding the circumstances of their offense, they are incompetent.”
Mr. Govan, the state’s lawyer, said Mr. Madison was aware of the key facts. “On the things that matter,” Mr. Govan said, “he does understand.”