# Vernon Madison v. Alabama/Opinion of Justice Alito

SUPREME COURT OF THE UNITED STATES
No. 17–7505
VERNON MADISON, PETITIONER v. ALABAMA ON WRIT OF CERTIORARI TO THE CIRCUIT COURT OF ALABAMA, MOBILE COUNTY [February 27, 2019]
Justice Alito, with whom Justice Thomas and Justice Gorsuch join, dissenting.
What the Court has done in this case makes a mockery of our Rules.
Petitioner’s counsel convinced the Court to stay his client’s execution and to grant his petition for a writ of certiorari for the purpose of deciding a clear-cut constitutional question: Does the Eighth Amendment prohibit the execution of a murderer who cannot recall committing the murder for which the death sentence was imposed? The petition strenuously argued that executing such a person is unconstitutional.
After persuading the Court to grant review of this question, counsel abruptly changed course. Perhaps because he concluded (correctly) that petitioner was unlikely to prevail on the question raised in the petition, he conceded that the argument advanced in his petition was wrong, and he switched to an entirely different argument, namely, that the state court had rejected petitioner’s claim that he is incompetent to be executed because the court erroneously thought that dementia, as opposed to other mental conditions, cannot provide a basis for such a claim. See Brief for Petitioner 16.
This was not a question that the Court agreed to hear; indeed, there is no mention whatsoever of this argument in the petition–not even a hint. Nor is this question ​fairly included within those on which the Court granted review. On the contrary, it is an entirely discrete and independent question.
Counsel’s tactics flagrantly flouted our Rules. Our Rules make it clear that we grant certiorari to decide the specific question or questions of law set out in a petition for certiorari. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”). Our whole certiorari system would be thrown into turmoil if we allowed counsel to obtain review of one question and then switch to an entirely different question after review is granted. In the past when counsel have done this, we have dismissed the writ as improvidently granted. See, e. g., Visa, Inc. v. Osborn, 580 U. S. ___ (2016); City and County of San Francisco v. Sheehan, 575 U. S. ___ (2015). We should do that here.
Instead, the majority rewards counsel’s trick. It vacates the judgment below because it is unsure whether the state court committed the error claimed in petitioner’s merits brief. But not only was there no trace of this argument in the petition, there is nothing in the record showing that the state court ever adopted the erroneous view that petitioner claims it took.
I
The question on which we granted review was an outgrowth of our per curiam decision in Dunn v. Madison, 583 U. S. ___ (2017), which concerned an Eleventh Circuit decision granting petitioner federal habeas relief. Prior to that decision, this Court had held in Ford v. Wainwright, 477 U. S. 399 (1986), that the Eighth Amendment prohibits the execution of a person who is “insane,” and in Panetti v. Quarterman, 551 U. S. 930 (2007), the Court elaborated on this rule, explaining that a person cannot be executed if he lacks a rational understanding of the reason for the ​execution. The Eleventh Circuit interpreted those cases to mean that petitioner could not be executed because he did not remember killing his victim, Mobile, Alabama, police officer Julius Schulte.
We summarily reversed. Under the relevant provision of the federal habeas statute, 28 U. S. C. §2254(d), which was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), petitioner could not obtain federal habeas relief unless the state court’s rejection of his memory-loss claim represented an unreasonable application of federal law as clearly established at the time by decisions of this Court. We held that neither Ford nor Panetti clearly established that a person cannot be executed if he does not remember committing the crime for which the death sentence was imposed.
Our opinion stated, however, that it “express[ed] no view on the merits of the underlying question outside of the AEDPA context.” Dunn, 583 U. S., at ___ (slip op., at 4). And a concurring opinion authored by Justice Ginsburg and joined by Justices Breyer and Sotomayor teed up this question for review in a later case. Id., at ___ (slip op., at 1) (“The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet addressed by the Court. Appropriately presented, the issue would warrant full airing”).
Taking this cue, petitioner then sought relief in state court based on his inability to remember his crime, and when that effort failed, he filed the petition at issue now.
II
The centerpiece of the petition and petitioner’s 11th-hour application for a stay of execution was the argument ​that he could not constitutionally be executed because he did not remember killing Officer Schulte. The petition repeatedly noted petitioner’s inability to remember his crime. See Pet. for Cert. i, iii, 1, 2, 8, 10, 11, 12, 18, 22, 23, 25, 26, 27, 28. And the petition was very clear about the question on which review was sought:
   “[T]his case presents this Court with the appropriate vehicle to consider the substantial question of whether the execution of a prisoner with no memory of the underlying offense is consistent with the evolving standards of decency inherent in this Court’s Eighth Amendment jurisprudence.” Id., at 2.
This same point was made time and again:
* “[B]ecause [petitioner’s] disability renders him unable to remember the underlying offense for which he is to be punished, his execution does not comport with the evolving standards of decency required by this Court’s Eighth Amendment jurisprudence.” Id., at 18.
* “[I]mposing death on a prisoner, who, like Mr. Madison, suffers from substantial memory deficits by virtue of multiple stroke and resulting vascular dementia serves no retributive or deterrent purpose.” Id., at 22.
* “[E]xecuting an individual with no memory of the underlying offense serves no retributive purpose.” Ibid.
* “[W]here the person being punished has no memory of the commission of the offense for which he is to be executed, the ‘moral quality’ of that punishment is lessened and unable to match outrage over the offense.” Id., at 22–23. ​
* “Mr. Madison’s severe memory impairments as a result of vascular dementia render him incompetent to be executed under the Eight Amendment.” Id., at 25 (quotation altered).
In sum, the body of the petition makes it clear that review was sought on the question invited by the Dunn concurrence, and the thrust of the wording of the two questions was the same. They read as follows:
   “1. Consistent with the Eighth Amendment, and this Court’s decisions in Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense? See Dunn v. Madison, [583 U. S. ___, ___ (2017) (Ginsburg, J., joined by Breyer and Sotomayor, JJ., concurring).] “2. Do evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution? ” Pet. for Cert. iii.
With the exception of the final phrase in question two (“or understanding the circumstances of his scheduled execution”), both questions solely concern the effect of memory loss on an Eighth Amendment analysis. The final phrase in question two and certain passages in the petition, if read with an exceedingly generous eye, might be seen as a basis for considering whether the evidence in the state-court record shows that petitioner’s dementia rendered him incapable of having a rational understanding of the reason for his execution. But that is the sort of factbound question on which we rarely grant review, see this ​Court’s Rule 10, and it is questionable whether we did so here.
But whether or not the petition may be fairly read to present that factbound question, it is a travesty to read it as challenging the state-court order on the ground that the state court erroneously believed that dementia cannot provide a basis for a Ford/Panetti claim. There is no inkling of that argument in the petition. Although the petition described the state-court order at numerous places, the petition never claimed that the order was based on an impermissible distinction between dementia and other mental conditions. See, e. g., Pet. for Cert. ii, 2–3, 16. And in fact, there is a point in the petition where such an interpretation of the state-court order would surely have been mentioned if the petition had intended to raise it as a ground for review. The petition noted that “courts have recognized dementia and attendant cognitive decline and memory impairment as a basis for a finding of incompetency to be executed,” id., at 25, but the petition did not follow that statement by claiming that the state court in this case took a contradictory position.
Because the petition did not raise—indeed, did not even hint at—the argument on which the Court now grants relief, the Court’s decision is insupportable. It violates our Rule that “[o]nly the questions set out in the petition, or fairly included therein, will be considered by the Court.” See Rule 14.1(a).
III
Even if it were proper for us to consider whether the order below was based on an erroneous distinction between dementia and other mental conditions, there is little reason to think that it was. After a full evidentiary ​hearing in 2016, the state court rejected petitioner’s Ford/Panetti claim based on a correct statement of the holding of those decisions. It found that petitioner “ha[d] not carried his burden [of showing] by a preponderance of the evidence… that he… does not rationally understand the punishment he is about to suffer and why he is about to suffer it.” Order (Apr. 29, 2016), p. 10. The court’s order went on to say that it “specifically [found] that Madison has a rationa[l] understanding, as required by Panetti, that he is going to be executed because of the murder he committed and a rationa[l] understanding that the State is seeking retribution and that he will die when he is executed.” Ibid.
In concluding that the state court might have drawn a distinction between dementia and other mental conditions, the majority seizes upon the wording of the order issued after a subsequent hearing in 2018. Ante, at 14. In that order, the same judge wrote: “Defendant did not provide a substantial threshold showing of insanity, a requirement set out by the United States Supreme Court, sufficient to convince this Court to stay the execution.” Order (Jan. 16, 2018), p. 1 (emphasis added). The majority worries that the state-court judge might not have applied the same standard in 2018 as he had two years earlier and might have viewed “insanity” as something narrower than the standard mandated by Ford and Panetti. This concern is unfounded.
Taken out of context, the term “insanity” might not be read to encompass dementia, but in context, it is apparent that the state court’s use of that term was based on the way in which it was used in Ford and Panetti. The state court did not simply refer to “insanity.” It referred to “insanity, a requirement set out by the United States Supreme Court.” Thus, it followed the term “insanity” with an appositive, which is a word or phrase that renames the word or phrase that precedes it. In other ​words, what the state court clearly meant by “insanity” was what this Court termed insanity in Ford and Panetti. What was that?
In Ford, the Court held that the Eighth Amendment prohibits the execution of a person who is “insane,” and in the portion of Justice Marshall’s lead opinion that was joined by a plurality, Justice Marshall equated insanity with a mental condition that “prevents [a person] from comprehending the reasons for the penalty or its implications.” 477 U. S., at 417. Justice Powell, who provided the fifth vote for the decision, took a similar position. See id., at 422–423 (opinion concurring in part and concurring in judgment). In Panetti, which built on the holding in Ford, the Court used the term in a similar way. See 551 U. S., at 958–960. Accordingly, a defendant suffers from “insanity,” as the term is used in Ford and Panetti, if the prisoner does not understand the reason for his execution.
Today’s decision does not reject this interpretation of the state-court order; it says only that it is vacating and remanding because it is “at the least unsure” whether the state court used the term “insanity” in this way. Ante, at 14. The majority cites two reasons for its uncertainty, but both are weak.
First, the majority attributes to the state court an interpretation of the term “insanity” that was advanced by the State in this Court in its brief in opposition to the petition for certiorari. Ante, at 15. In that submission, the State argued that certiorari should be denied because petitioner had sought relief in state court under the wrong provision of state law, namely, Ala. Code §15–16–23 (2011), which authorizes the suspension of the execution of an inmate who is “insane.” The State argued that petitioner’s memory loss did not render him “insane” within the meaning of this statute and that if he wished to argue that the Eighth Amendment bars the execution of an inmate who cannot remember his crime, he “should have filed a ​petition for post-conviction relief” under Alabama Rule of Criminal Procedure 32.4. Brief in Opposition 11–12.
The majority’s argument based on the State’s brief in opposition suffers from multiple defects. For one thing, nothing suggests that the state court rejected petitioner’s application on the ground that he invoked the wrong provision of state law; the State’s filing in the state court made no mention of the argument set out in its brief in opposition filed here. Moreover, if the state court had rejected petitioner’s application on the ground that he moved under the wrong provision of state law, it is doubtful that we could review that decision, for then it would appear to rest on an adequate and independent state-law ground. And to top things off, the majority’s argument distorts what the State’s brief in opposition attempted to say about the term “insane.” The State did not argue that a defendant who lacks a rational understanding of the reason for his execution due to dementia is not “insane” under Ala. Code §15–16–23. Instead, the State’s point was that a defendant is not “insane” in that sense merely because he cannot remember committing the crime for which he was convicted.
The majority’s other proffered basis for doubt is that the State “repeatedly argued to the [state] court (over Madison’s objection) that only prisoners suffering from delusional disorders could qualify as incompetent under Panetti.” Ante, at 16. The majority, however, cites no place where the State actually made such an argument. To be sure, the State, in contending that petitioner was not entitled to relief under Ford and Panetti, argued strenuously that he was not delusional. (The State made this argument because petitioner’s counsel claimed that petitioner was in fact delusional and fell within Ford and Panetti for that reason.) But arguing, as the State did, that petitioner ​was not entitled to relief because the claim that he was delusional was untrue is not the same as arguing that petitioner could be executed even if his dementia rendered him incapable of understanding the reason for his execution. The majority cites no place where the State made the latter argument in the state court. And even if the ​ ​State had made such an argument, what matters is the basis for the state court’s decision, not what counsel for the State wrote or said.
I add one more comment regarding the majority’s uncertainty about the basis for the state-court decision: Our decision two years ago in Dunn evinced no similar doubts. There, we said that the state court “held that, under this Court’s decisions in Ford and Panetti, Madison was entitled to relief if he could show” that he lacks a rational understanding of the circumstances of his punishment. 583 U. S., at ___ (slip op., at 2) (quotation altered). And we said that the state court “determined that Madison is competent to be executed because–notwithstanding his memory loss–he recognizes that he will be put to death as punishment for the murder he was found to have committed.” Id., at ___ (slip op., at 4); see also ibid. (referring to the state court’s “finding that Madison understands both that he was tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime”). Why the majority cannot now see what it understood without any apparent difficulty two years ago is hard to grasp.
For all these reasons, what the Court has done in this case cannot be defended, and therefore it is hard to escape thinking that the real reason for today’s decision is doubt on the part of the majority regarding the correctness of the ​state court’s factual finding on the question whether Madison has a rational understanding of the reason for his execution. There is no question that petitioner suffers from severe physical and mental problems, and the question whether he is capable of understanding the reason for his execution was vigorously litigated below. But if the Court thinks it is proper for us to reach that question and to reverse the state court’s finding based on a cold record, it should own up to what it is doing. *** Petitioner has abandoned the question on which he succeeded in persuading the Court to grant review, and it is highly improper for the Court to grant him relief on a ground not even hinted at in his petition. The writ should be dismissed as improvidently granted, and I therefore respectfully dissent.
* ↑ Petitioner sought and obtained a stay of execution based on this same argument. See Application for Stay of Execution 2, 6 (moving the Court to stay petitioner’s execution so that it could address the “substantial” and “critical” question whether executing petitioner, “whose severe cognitive dysfunction leaves him without memory of his commission of the capital offense,” would violate the Eighth Amendment).
* ↑ The Court is unable to cite a single place in the petition that makes any reference to the argument that the state court failed to understand that dementia could satisfy the Ford/Panetti test.
* ↑ Petitioner’s papers emphasized again and again that he suffers from delusions. See Pet. for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Feb. 12, 2016), p. 1 (“Mr. Madison has long suffered from serious mental illness, marked by paranoid delusions and other disabilities”); id., at 5 (“At Mr. Madison’s trial, Dr. Barry Amyx established that Mr. Madison suffers from a delusional disorder that has existed since he was an adolescent”); ibid. (“This well-documented history of paranoia was one of the reasons Dr. Amyx concluded that Mr. Madison had a delusional disorder in a paranoid, really a persecutory type” (internal quotation marks omitted)); ibid. (“Dr. Amyx noted that Mr. Madison exhibited delusional thinking about… medication and believed that he was being used as a guinea pig in medical experiments”); id., at 6 (emphasizing a “more recent observation” that “ ‘Mr. Madison consistently presented with paranoid delusions’ ”); id., at 8 (“Mr. Madison exhibited delusional and disoriented behavior in June 2015”); id., at 14 (“decades of delusional thinking and psychotropic medications”); see also Pet. for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Dec. 18, 2017), pp. 6–7 (detailing similar statements). This line of argument fell apart when petitioner’s own expert testified that he found no indication that petitioner was “[e]ither delusional or psychotic.” Tr. 56 (Apr. 14, 2016).
* ↑ Unable to cite any place where the State made this argument to the state court, the Court claims that the State did so in the Eleventh Circuit. Ante, at 6–7, n. 1. But even if that were so, it is hard to see what that would have to do with the question whether the state court thought that dementia could not satisfy the Ford/Panetti test. And in any event, the Court does not fairly describe the State’s argument in the Eleventh Circuit. The State’s Eleventh Circuit brief argued that merely suffering from a mental condition like dementia is not enough to render a prisoner incompetent to be executed; instead, the prisoner must also establish that he lacks a rational understanding of the reason for his execution. See Brief for Appellee in No. 16–12279 (CA11), pp. 37–38 (Brief for Appellee) (“The fairest reading of the state court’s opinion is that it assumed that dementia and memory loss caused by strokes is a mental illness and went straight to the rational understanding question. Thus, it is not that the trial court refused to consider Madison’s claims pertaining to dementia–Madison cannot point to any portion of the state court order that says this–it is that the trial court correctly noted that Madison failed to prove that any dementia interfered with Madison’s ability to have a rational understanding of his execution, including the reasons therefor”); id., at 27 (“The Supreme Court has not held that a petitioner can show incompetence without demonstrating a mental illness or that dementia and memory loss definitively preclude rational understanding”); id., at 29 (“To the extent the state court followed the lead of the Supreme Court, this Court, and the ABA and required Madison to show that a mental illness prevented him from having a rational understanding of his punishment, doing so was not an unreasonable application of clearly established federal law”). It is true that the State’s brief, in addressing the standard for granting federal habeas relief under 28 U. S. C. §2254(d), stated that this Court “ha[d] never held that dementia or memory loss is sufficient to show a lack of rational understanding,” Brief for Appellee 29, but that was because a claim under §2254(d) must be based on a clearly established Supreme Court holding. See Recording of Oral Arg. in No. 16–12279 (CA11, June 23, 2016), at 32:37–33:30 (State rejecting a suggestion that Panetti holds “if you don’t remember committing the crime at all, and it is clear based on the medical testimony that you don’t remember committing this crime, then you don’t have a rational understanding of the factual basis for the imposition of the death penalty”: “First of all, under AEDPA deference, I think that that is not the holding of Panetti…. I think under AEDPA deference, it’s pretty clear that the holding of Panetti is very narrow…. I would say the holding in Panetti is that documented mental illness that results in a delusion has to be considered when talking about rational understanding”); id., at 36:00–36:30 (“I think the Supreme Court has never held that not remembering something is equivalent to not having a rational understanding. I think that is just undeniably true. And if AEDPA deference applies, then I don’t think the state court could have been unreasonable in rejecting the view that memory is required”). The State did not argue either that dementia cannot satisfy Ford and Panetti or that the state court based its decision on that ground. On the contrary, Alabama wrote that “even if the trial court had determined that dementia and severe memory loss–or even total amnesia–are insufficient to meet the rational understanding test, that finding would not contradict clearly established federal law.” Brief for Appellee 29; see also id., at 30 (“Even assuming the state court held, as a matter of law, that amnesia is not sufficient to show a lack of rational understanding, that determination was not unreasonable in light of clearly established federal law”). The majority acknowledges that the State made this concededly correct habeas argument, but then oddly writes it off as an “additional” or alternative argument. Ante, at 7, n. 1. Yet, as the State’s brief and oral argument illustrate, the State’s core contention was that the state court did not unreasonably apply clearly established law under Panetti’s “very narrow” holding. (And as we later held in Dunn, the State was correct.) The majority simply cannot escape the inconvenient fact that the State never argued, as a non-AEDPA matter, that petitioner could be executed even if his dementia precluded a rational understanding.