(Slip Opinion) OCTOBER TERM, 2018 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.


## SUPREME COURT OF THE UNITED STATES

Syllabus

MADISON v. ALABAMA

CERTIORARI TO THE CIRCUIT COURT OF ALABAMA

, MOBILE
COUNTY

No. 17–7505. Argued October 2, 2018—Decided February 27, 2019

In Ford v. Wainwright , 477 U. S. 399, this Court held that the Eighth

Amendment’s ban on cruel and unusual punishments precludes executing a prisoner who has “lost his sanity” after sentencing. Id. , at
406. And in Panetti v. Quarterman , 551 U. S. 930, the Court set out the appropriate competency stan dard: A State may not execute a prisoner whose “mental state is so distorted by a mental illness” that he lacks a “rational understanding” of “the State’s rationale for [his]
execution.” Id. , at 958–959.
Petitioner Vernon Madison was found guilty of capital murder and

sentenced to death. While awaiting execution, he suffered a series ofstrokes and was diagnosed with vascular dementia. In 2016, Madison petitioned the state trial cour t for a stay of execution on the ground that he was mentally incompetent, stressing that he could not recollect committing the crime for which he had been sentenced to die. Alabama responded that Madison had a rational understanding of the reasons for his execution, ev en assuming he had no memory of committing his crime. And more broadly, the State claimed that Madison failed to implicate Ford and Panetti because both decisions concerned themselves with gross delusions, which Madison did not have. Following a competency hearing, the trial court found Madison competent to be executed. On federal habeas review, this Court summarily reversed the Eleventh Ci rcuit’s grant of relief, holding that, under the “demanding” and “deferential standard” of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), “[n]either Panetti nor Ford ‘clearly established’ that a prisoner is incompetent to be executed” because of a simple failure to remember

his crime. Dunn v. Madison , 583 U. S. ___, ___. But the Court “express[ed] no view” on the question of Madison’s competency outside of2 MADISON v. ALABAMA

Syllabus

the AEDPA context. Id. , at ___. When Alabama set a 2018 execution date, Madison returned to state court, arguing once more that his mental condition precluded the Stat e from going forward. The state court again found Madison mentally competent.

Held : 1. Under Ford and Panetti , the Eighth Amendment may permit ex

ecuting a prisoner even if he cannot remember committing his crime.
Panetti asks only about a person’s comprehension of the State’s rea

sons for resorting to punishment, no t his memory of the crime itself. And the one may exist without the ot her. Such memory loss, howev

er, still may factor into the analysis Panetti demands. If that loss
combines and interacts with other me ntal shortfalls to deprive a per

son of the capacity to comprehend why the State is exacting death as a punishment, then the Panetti standard will be satisfied. Pp. 9–11.

2. Under Ford and Panetti , the Eighth Amendment may prohibit executing a prisoner even though he suffers from dementia or anoth

er disorder rather than psychotic delusions. The Panetti standard fo

cuses on whether a mental di sorder has had a particular effect ; it has no interest in establishing any precise cause. Panetti ’s references to “gross delusions,” 551 U. S., at 960, are no more than a predictable byproduct of that case’s facts. Ford and Panetti hinge on the prison

er’s “[in]comprehension of why he has been singled out” to die, 477
U. S., 409, and kick in if and when that failure of understanding is present, irrespective of whether one disease or another is to blame. In evaluating competency, a judge must therefore look beyond any given diagnosis to a downstream consequence. Pp. 12–14.

3. Because this Court is uncertain whether the state court’s deci

sion was tainted by legal error, this case is remanded to that court for
renewed consideration of Madison’ s competency. The state court’s brief 2018 ruling—which states only that Madison “did not prove a substantial threshold showing of insanity[ ]”—does not provide any assurance that the court knew a pe rson with dementia, and not psy

chotic delusions, might receive a stay of execut ion. Nor does that court’s initial 2016 opinion. The sole question on which Madison’s competency depends is whether he can reach a rational understand

ing of why the State wants to execut e him. In answering that ques

tion—on which this Court again ex presses no view—the state court may not rely on any arguments or ev idence tainted with the legal er

rors addressed by this Court. Pp. 14–18.

Vacated and remanded.

K

AGAN , J., delivered the opinion of the Court, in which R OBERTS

, C. J., and G INSBURG , B REYER , and S OTOMAYOR , JJ., joined. A LITO , J., filed a dissenting opinion, in which T HOMAS and G ORSUCH , JJ., joined.

K

AVANAUGH , J., took no part in the consid eration or decision of the case._________________

_________________ 1 Cite as: 586 U. S. ____ (2019)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.


## 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]

J USTICE K AGAN delivered the opinion of the Court.
The Eighth Amendment, this Court has held, prohibits the execution of a prisoner whose mental illness prevents him from “rational[ly] understanding” why the State seeks to impose that punishment. Panetti v. Quarterman , 551
U. S. 930, 959 (2007). In this case, Vernon Madison ar

gued that his memory loss and dementia entitled him to a stay of execution, but an Alabama court denied the relief. We now address two questions relating to the Eighth Amendment’s bar, disputed below but not in this Court. First, does the Eighth Amendment forbid execution when

ever a prisoner shows that a mental disorder has left him without any memory of committing his crime? We (and, now, the parties) think not, because a person lacking such a memory may still be able to form a rational understand

ing of the reasons for his deat h sentence. Second, does the Eighth Amendment apply similarly to a prisoner suffering from dementia as to one experi encing psychotic delusions? We (and, now, the parties) th ink so, because either condi

tion may—or, then again, may not—impede the requisite comprehension of his punishment. The only issue left, on which the parties still disagree, is what those rulings2 MADISON v. ALABAMA

Opinion of the Court

mean for Madison’s own execution. We direct that issue to the state court for further consideration in light of this opinion.

I
A

This Court decided in Ford v. Wainwright , 477 U. S. 399 (1986), that the Eighth Amendment’s ban on cruel and unusual punishments precludes executing a prisoner who has “lost his sanity” after sentencing. Id., at 406. While on death row, Alvin Ford wa s beset by “pervasive delu

sion[s]” associated with “[p]aranoid [s]chizophrenia.” Id., at 402–403. Surveying both the common law and state statutes, the Court found a uniform practice against tak

ing the life of such a prisoner. See id., at 406–409. Among the reasons for that time-honored bar, the Court ex

plained, was a moral “intuition” that “killing one who has no capacity” to understand his crime or punishment “simply offends humanity.” Id., at 407, 409; see id., at 409 (citing
the “natural abhorrence civilized societies feel” at perform

ing such an act). Another rationale rested on the lack of “retributive value” in executing a person who has no com

prehension of the meaning of the community’s judgment.
Ibid. ; see id., at 421 (Powell, J., concurring in part and concurring in judgment) (stati ng that the death penalty’s “retributive force[ ] depends on the defendant’s awareness of the penalty’s existence and purpose”). The resulting rule, now stated as a matter of constitutional law, held “a category of defendants define d by their mental state” incompetent to be executed. Id., at 419. The Court clarified the scope of that category in Panetti

v. Quarterman by focusing on whether a prisoner can “reach a rational understanding of the reason for [his] execution.” 551 U. S., at 958. Like Alvin Ford, Scott Panetti suffered from “gross delusions” stemming from “extreme psychosis.” Id., at 936, 960. In reversing a3 Cite as: 586 U. S. ____ (2019)

Opinion of the Court

ruling that he could still be executed, the Panetti Court set out the appropriate “standard for competency.” Id., at
957. Ford , the Court now noted, had not provided “specific criteria.” 551 U. S., at 957. But Ford had explored what lay behind the Eighth Amendment’s prohibition, high

lighting that the execution of a prisoner who cannot com

prehend the reasons for his punishment offends moral values and “serves no retributive purpose.” 551 U. S.

, at

958. Those principles, the Panetti Court explained, indi

cate how to identify prisoners whom the State may not execute. The critical question is whether a “prisoner’s mental state is so distorted by a mental illness” that he lacks a “rational understanding” of “the State’s rationale for [his] execution.” Id., at 958–959. Or similarly put, the issue is whether a “prisoner’s concept of reality” is “so impair[ed]” that he cannot gr asp the execution’s “meaning and purpose” or the “link between [his] crime and its punishment.” Id., at 958, 960.

B
Vernon Madison killed a police officer in 1985 during a domestic dispute. An Alabama jury found him guilty of capital murder, and the trial court sentenced him to death. He has spent most of the ensuing decades on the
State’s death row. In recent years, Madison’s mental condition has sharply
deteriorated. Madison suffered a series of strokes, includ

ing major ones in 2015 and 2016. See Tr. 19, 46–47 (Apr. 14, 2016). He was diagnosed as having vascular dementia, with attendant disorientation and confusion, cognitive impairment, and memory loss. See id., at 19–20, 52–54. In particular, Madison claims that he can no longer recol

lect committing the crime for which he has been sentenced to die. See Tr., Pet. Exh. 2, p. 8. After his 2016 stroke, Madison petitioned the trial court for a stay of execution on th e ground that he had become4 MADISON v. ALABAMA

Opinion of the Court

mentally incompetent. Citing Ford and Panetti , he argued that “he no longer understands” the “status of his case” or
the “nature of his conviction and sentence.” Pet. for Sus

pension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Feb. 12, 2016), pp. 11, 14. And in a later filing, Madison emphasized that he could not “independently recall the
facts of the offense he is convicted of.” Brief Pursuant to Order (Apr. 21, 2016), p. 8. Alabama countered that Mad

ison had “a rational understanding of [the reasons for] his impending execution,” as required by Ford and Panetti

, even assuming he had no memory of committing his crime. Brief on Madison’s Competency (April 21, 2016), pp. 4–5,

8. And more broadly, the State claimed that Madison could not possibly qualify as incompetent under those two
decisions because both “concerne d themselves with ‘[g]ross
delusions’ ”—which all agree Madison does not have. Id., at 2; see ibid. (Madison “failed to implicate” Ford and

Panetti because he “does not suffer from psychosis or delusions”). Expert reports from two psychologists largely aligned with the parties’ contending positions. Dr. John Goff, Madison’s expert, found that although Madison “un

derst[ood] the nature of execution” in the abstract, he did not comprehend the “reasoni ng behind” Alabama’s effort

to execute him . Tr., Pet. Exh. 2 (Apr. 14, 2016), p. 8; see id., at 9. Goff stated that Madison had “Major Vascular Neurological Disorder”—also called vascular dementia— which had caused “significant cognitive decline.” Ibid. And Goff underscored that Madison “demonstrate[d] retrograde amnesia” about his crime, meaning that he had no “independent recollection[ ]” of the murder. Id., at 8;

see id., at 9. For his part, Dr. Karl Kirkland, the courtappointed expert, reported that Madison “was able to discuss his case” accurately and “appear[ed] to understand his legal situation.” Tr., Ct. Exh. 1, pp. 10–11. Although Kirkland acknowledged that Madison’s strokes had led to5 Cite as: 586 U. S. ____ (2019)

Opinion of the Court

cognitive decline, see id., at 10, the psychologist made no mention of Madison’s diagnosed vascular dementia. Rather, Kirkland highlighted that “[t]here was no evidence of psychosis, paranoia, or delusion.” Id., at 9; see ibid. (Mad

ison “did not seem delusional at all”). At a competency hearing, Alabama similarly stressed Madison’s absence of psychotic episodes or delusions. The State asked both experts to affirm that Madison was “neither delusional [n]or psychotic.” Tr. 56; see id. , at 22. And its closing argument focused on their agreement that he was not. As the State summarized: “He’s not psychotic.
He’s not delusional.” Id. , at 81. On the State’s view, that fact answered the competency question because “[t]he Supreme Court is looking at whether someone’s delusions or someone’s paranoia or someone’s psychosis is standing in the way of ” rationally understanding his punishment.
Id. , at 82. Madison’s counsel disputed that point. “[T]he State would like to say, well, he’s not delusional, he’s not psychotic,” the attorney recapped. Id. , at 83. But, she continued, “[t]hat’s not really the criteria” under Panetti

. Tr. 83. Rather, the Court there barred executing a person with any mental illness—“dementia” and “brain injuries” no less than psychosis and delusions—that prevents him from comprehending “why he is being executed.” Ibid. The trial court found Madison competent to be executed. Its order first recounted the evidence given by each expert witness. The summary of Kirkland’s report and testimony began by stating that the psychologist had “found no evidence of paranoia[,] delusion [or] psychosis.” Order (Apr. 29, 2016), p. 5 (2016 Order). The court then noted
Kirkland’s view that Madiso n could “give details of the history of his case” and “appear[ed] to understand his legal situation.” Ibid . Turning to the Goff report, the court noted the expert’s finding that Madison was “amne

sic” and could not recollect his crime. Id., at 6; see id., at

7. In a single, final paragraph, the court provided both its6 MADISON v. ALABAMA

Opinion of the Court

ruling and its reasoning. Madison had failed to show, the court wrote, that he did not “rationally understand the punishment he is about to suffer and why he is about to
suffer it.” Id., at 10. The court “accept[ed] the testimony of Dr. Kirkland as to the understanding Madison has concerning the situation.” Ibid. “Further,” the court concluded, “the evidence does not support that Mr. Madi

son is delusional.” Ibid. Madison next sought habeas relief in federal court, where he faced the heavy burden of showing that the state-court ruling “involved an unreasonable application of[ ] clearly established federal law” or rested on an “un

reasonable determination of th e facts.” Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d). The District Court rejected his petition, but the Court of Appeals for the Eleventh Circuit ruled that Madi

son had demonstrated both kinds of indisputable error.
See Madison v. Commissioner , 851 F. 3d 1173 (2017). This Court then summarily reversed the appeals court’s
decision. See Dunn v. Madison , 583 U. S. ___ (2017) ( per curiam ). We explained, contrary to the Eleventh Circuit’s principal holding, that “[n]either Panetti nor Ford ‘clearly established’ that a prisoner is incompetent to be executed” because of a simple failure to remember his crime. Id., at ___ (slip op., at 4). And we found that the state court did not act unreasonably—otherwise put, did not err “beyond any possibility for fairminded disagreement”—when it found that Madison had the necessary understanding to
be executed. Ibid. (internal quotation marks omitted). But we made clear that our decision was premised on AEDPA’s “demanding” and “deferential standard.” Id., at ___, ___ (slip op., at 3, 4). “We express[ed] no view” on the question of Madison’s competency “outside of the AEDPA
context.” Id., at ___ (slip op., at 4). 1

——————

1 Neither did we opine on—or even mention—the subsidiary legal7 Cite as: 586 U. S. ____ (2019)

Opinion of the Court

When Alabama set an execution date in 2018, Madison
returned to state court to argue again that his mental condition precluded the State from going forward. In his petition, Madison reiterated the facts and arguments he had previously presented to the state court. But Madison also claimed that since that court’s decision (1) he had suffered further cognitive decline and (2) a state board had suspended Kirkland’s license to practice psychology, thus discrediting his prior testimony. See Pet. to Suspend
Execution in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Dec. 18, 2017), pp. 1–2, 16–19. 2 Alabama responded that nothing material had changed since the court’s first com

petency hearing. See Motion to Dismiss (Dec. 20, 2017),

p. 9. The State also repeated its argument that Panetti permits executing Madison, pointing to the experts’ agreement that he is “not delusional or psychotic” and

—————— question whether a mental disorder other than delusions may render a person incompetent to be executed. Alabama told the Eleventh Circuit that it could not, thus reprising the claim the State had made in the
trial court. See Madison , 851 F. 3d, at 1188 (describing Alabama’s argument that “only a prisoner suffering from gross delusions can show incompetency under Panetti ”); Recording of Oral Arg. in No. 16–12279 (CA11, June 23, 2016), at 26:36–26:45 (“In this case, what we have is someone who claims to have a mental illness, dementia,” but does not have “delusions, which is what Panetti requires”); id., at 26:48–27:21 (When asked if someone with “sever e dementia” but no delusions could be executed, the State responded “I th ink so because . . . they don’t have delusions”). (Alabama alternatively argued that the state court’s decision was not based on that view, see Brief for Appellee in No. 16– 12279 (CA11), pp. 37–38; the quotations the dissent picks out, see post, at 10, n. 4, come from that additional argument.) The Eleventh Circuit rejected the State’s contention that dementia could not preclude an
execution as “inconsistent with the principles underlying” Ford and

Panetti . 851 F. 3d, at 1188. But we had no reason to address that holding in light of the errors we saw in other parts of the appeals court’s analysis.

2 As Madison’s petition recounted, th e license suspension followed the opening of a criminal investigation into whether Kirkland had commit

ted narcotics offenses. See Pet. to Suspend Execution 17–19.8 MADISON v. ALABAMA

Opinion of the Court

asserting that neither “memory impairment [n]or demen

tia [could] suffice to satisfy the Panetti and Ford stand

ards” without “an expansion” of those decisions. Motion to Dismiss 4, 10. A week before the scheduled execution, the state court again found Madison mentally competent. Its brief order stated only that Madison “did not provide a substantial threshold showing of insanity[ ] sufficient to convince this Court to stay th e execution.” App. A to Pet.
for Cert. Madison then filed in this Court a request to stay his execution and a petition for certiorari. We ordered the stay on the scheduled execution date and granted the petition a few weeks later. See 583 U. S. ___, ___ (2018).
Because the case now comes to us on direct review of the state court’s decision (rather than in a habeas proceeding),
AEDPA’s deferential standard no longer governs. (And for that reason—contrary to the dissent’s suggestion, post , at 12—our decision on Madison’s habeas petition cannot help resolve the questions raised here.)

II
Two issues relating to Panetti ’s application are before us. Recall that our decision there held the Eighth Amendment to forbid executing a prisoner whose mental
illness makes him unable to “reach a rational understand

ing of the reason for [his] execution.” 551 U. S., at 958; see

supra, at 2–3. The first question presented is whether

Panetti prohibits executing Madison merely because he cannot remember committing his crime. The second ques

tion raised is whether Panetti permits executing Madison merely because he suffers from dementia, rather than psychotic delusions. 3 In prior stages of this case, as we

——————

3 The dissent is in high dudgeon over our taking up the second ques

tion, arguing that it was not presente d in Madison’s petition for certio

rari. See post, at 1–6. But that is incorr ect. The petition presented two questions—the same two we addre ss here. The first question asked9 Cite as: 586 U. S. ____ (2019)

Opinion of the Court

have described, the parties disagreed about those matters.
See supra, at 4–8. But at this Court, Madison accepted Alabama’s positon on the first issue and Alabama accepted Madison’s on the second. See, e.g. , Tr. of Oral Arg. 11, 36. And rightly so. As the parties now recognize, the standard
set out in Panetti supplies the answers to both questions. First, a person lacking memo ry of his crime may yet ra

tionally understand why the State seeks to execute him; if so, the Eighth Amendment poses no bar to his execution. Second, a person suffering from dementia may be unable to rationally understand the reasons for his sentence; if so, the Eighth Amendment does not allow his execution. What matters is whether a person has the “rational un

derstanding” Panetti requires—not whether he has any particular memory or any particular mental illness.

A
Consider initially a person who cannot remember his crime because of a mental disorder, but who otherwise has

—————— whether the Eighth Amendment bars executing Madison because he has no “memory of his commission of the capital offense.” Pet. for Cert.
iii. The second question asked whether that Amendment bars his
execution because his “vascular de mentia” and “severe cognitive dys

function” prevent him from either remembering his crime “or under

standing the circumstances of his scheduled execution.” Ibid. So the first question concerned whether memory loss alone could form the
basis of a Panetti claim and the second whethe r the varied consequences of dementia could do so. The body of the petition, to be sure, devoted more space to the first question. Bu t it clearly referenced the second. See Pet. for Cert. 18 (“[T]his Court has never sought to constrain the world of maladies that can give rise to a finding that a prisoner is incompetent to be executed”); id., at 25 (“[C]ourts have recognized dementia and attendant cognitive de cline and memory impairment as a basis for a finding of incompetency to be executed”). And in any event, the number of words spent on each is not what matters. Our Rule
states that the Court will consider “[o]nly the questions set out in the petition, or fairly included therein. ” This Court’s Rule 14.1(a). Here, we consider, in order, the two ques tions set out in Madison’s petition.10 MADISON v. ALABAMA

Opinion of the Court

full cognitive function. The memory loss is genuine: Let us say the person has some kind of amnesia, which has produced a black hole where that recollection should be. But the person remains oriented in time and place; he can make logical connections and order his thoughts; and he comprehends familiar concepts of crime and punishment.
Can the State execute him for a murder? When we con

sidered this case before, us ing the deferential standard applicable in habeas, we held that a state court could allow such an execution without committing inarguable
error. See Madison , 583 U. S., at ___ (slip op., at 4) (stat

ing that no prior decision had “clearly established” the opposite); supra, at 6. Today, we address the issue straight-up, sans any deference to a state court. Again, is the failure to remember committing a crime alone enough to prevent a State from executing a prisoner? It is not, under Panetti ’s own terms. That decision asks about understanding, not memory—more specifically, about a person’s understanding of why the State seeks capital punishment for a crime, not his memory of the crime itself. And the one may exist without the other. Do you have an independent recollection of the Civil War? Obviously not. But you may still be able to reach a rational—indeed, a sophisticated—understanding of that conflict and its consequences. Do you recall your first day of school? Probably not. But if your mother told you years later that you were sent home for hitting a classmate, you would have no trouble grasping the story. And similarly, if you somehow blacked out a crime you committed, but later learned what you had done, you could well appreci

ate the State’s desire to impose a penalty. Assuming, that is, no other cognitive impair ment, loss of memory of a crime does not prevent rational understanding of the State’s reasons for resorting to punishment. And that kind of comprehension is the Panetti standard’s singular
focus.11 Cite as: 586 U. S. ____ (2019)

Opinion of the Court

The same answer follows from the core justifications

Panetti offered for framing its Eighth Amendment test as it did. Echoing Ford, Panetti reasoned that execution has no retributive value when a prisoner cannot appreciate the meaning of a community’s judgment. See 551 U. S., at 958–959 (citing 477 U. S., at 407–408); supra, at 3. But as just explained, a person who can no longer remember a crime may yet recognize the retributive message society intends to convey with a death sentence. Similarly, Ford
and Panetti stated that it “offends humanity” to execute a person so wracked by mental illness that he cannot com

prehend the “meaning and purpose of the punishment.” 477 U. S., at 407; 551 U. S., at 960; see id., at 958. But that offense to morality must be much less when a per

son’s mental disorder causes nothing more than an episodic memory loss. Moral values do not exempt the simply forgetful from punishment, whatever the neurological
reason for their lack of recall. But such memory loss still may factor into the “rational understanding” analysis that Panetti demands. If that
loss combines and interacts with other mental shortfalls to deprive a person of the capacity to comprehend why the State is exacting death as punishment, then the Panetti standard will be satisfied. That may be so when a person has difficulty preserving any memories, so that even newly gained knowledge (about, say, the crime and punishment) will be quickly forgotten. Or it may be so when cognitive deficits prevent the acquisition of such knowledge at all, so that memory gaps go forever uncompensated. As Panetti indicated, neurologists, psychologists, and other experts can contribute to a court’s understanding of issues of that
kind. See id. , at 962. But the sole inquiry for the court remains whether the prisoner can rationally understand
the reasons for his death sentence.12 MADISON v. ALABAMA

Opinion of the Court

B
Next consider a prisoner who suffers from dementia or a similar disorder, rather than psychotic delusions. The dementia, as is typical, has compromised this prisoner’s cognitive functions. But it has not resulted in the kind of
delusional beliefs that Alvin Ford and Scott Panetti held. May the prisoner nonetheless receive a stay of execution
under Ford and Panetti ? Or instead, is a delusional disor

der a prerequisite to declaring a mentally ill person in

competent to be executed? We did not address that issue when we last considered this case, on habeas review; in that sense, the question is one of first impression. See

supra, at 6, n. 1. But here too, Panetti has already answered the ques

tion. Its standard focuses on whether a mental disorder has had a particular effect : an inability to rationally un

derstand why the State is seeking execution. See supra, at 2–3. Conversely, that standard has no interest in es

tablishing any precise cause : Psychosis or dementia, delu

sions or overall cognitive decline are all the same under

Panetti , so long as they produce the requisite lack of com

prehension. To be sure, Panetti on occasion spoke of “gross delusions” in explaining its holding. 551 U. S., at

960. And similarly, Ford talked about the “insane,” which sometimes refers to persons holding such irrational be

liefs. See, e.g., 477 U. S., at 401, 410. 4 But those refer

ences are no more than a predictable byproduct of the two cases’ facts. At the same time (and interchangeably),

Panetti used more inclusive terms, such as “mental ill

-

——————

4 Alternatively, however, the term may also be used to encompass persons with other mental conditio ns, so long as they are “severe enough [to] prevent[ ] a person from having legal capacity and excuse[ ] the person from criminal or civil responsibility.” Black’s Law Diction

ary 914 (10th ed. 2014). In that different understanding, “insanity” connotes a general standard of legal competency rather than a more limited description of delusional disorders.13 Cite as: 586 U. S. ____ (2019)

Opinion of the Court

ness,” “mental disorder,” and “psychological dysfunction.” 551 U. S., at 936, 959, 960; see Ford , 477 U. S., at 408– 409, n. 2 (referring to prisoners with “mental illness”). And most important, Panetti framed its test, as just de

scribed, in a way utterly indifferent to a prisoner’s specific
mental illness. The Panetti standard concerns, once again, not the diagnosis of such illness, but a consequence—to wit, the prisoner’s inability to rationally understand his punishment. And here too, the key justifications Ford and Panetti offered for the Eighth Amendment’s bar confirm our con

clusion about its reach. As described above, those deci

sions stated that an execution lacks retributive purpose when a mentally ill prisoner cannot understand the socie

tal judgment underlying his sentence. See Panetti , 551
U. S., at 958–959; Ford , 477 U. S., at 409; supra, at 2–3. And they indicated that an execution offends morality in the same circumstance. See 551 U. S., at 958, 960; 477

U. S., at 409; supra, at 2–3. Both rationales for the consti

tutional bar thus hinge (just as the Panetti standard deriving from them does) on the prisoner’s “[in]comprehension of why he has been singled out” to die. 477 U. S., at 409; see supra, at 2–3. Or said otherwise, if and when that failure of understanding is present, the rationales kick in—irrespective of whether one disease or another (say, psychotic delusions or dementia) is to blame. In evaluating competency to be executed, a judge must therefore look beyond any given diagnosis to a down

stream consequence. As Ford and Panetti recognized, a delusional disorder can be of such severity—can “so impair the prisoner’s concept of re ality”—that someone in its thrall will be unable “to come to grips with” the punish

ment’s meaning. Panetti , 551 U. S., at 958; Ford , 477
U. S., at 409. But delusions come in many shapes and sizes, and not all will interfere with the understanding that the Eighth Amendment requires. See Panetti , 55114 MADISON v. ALABAMA

Opinion of the Court

U. S.

, at 962 (remanding the case to consider expert evi

dence on whether the prisoner’s delusions did so). And
much the same is true of dementia. That mental condition can cause such disorientation and cognitive decline as to prevent a person from sustaining a rational understanding of why the State wants to execute him. See supra, at 11–

12. But dementia also has milder forms, which allow a person to preserve that understanding. Hence the need— for dementia as for delusions as for any other mental disorder—to attend to the particular circumstances of a case and make the precise judgment Panetti requires.

III
The only question left—and the only one on which the parties now disagree—is whether Madison’s execution may go forward based on the state court’s decision below. Madison’s counsel says it cannot because that ruling was tainted by legal error—specif ically, the idea that only delusions, and not dementia, can support a finding of mental incompetency. See Tr. of Oral Arg. 12, 21, 25, 27. Alabama counters that the state court did not rely on that (concededly) incorrect view of the law. See id. , at 37–41. But we come away at the least unsure whether that is so—especially given Alabama’s evidence and arguments in
the state court. As noted earlier, the 2018 ruling we review today con

tains only one sentence of explanation. See supra, at 7–8.
It states that Madison “did not provide a substantial threshold showing of insanity[ ] sufficient to convince this Court to stay the execution.” App. A to Pet. for Cert. If
the state court used the word “insanity” to refer to a delu

sional disorder, then error occurred: The court would have denied a stay on the ground that Madison did not have that specific kind of mental illness. And the likelihood
that the court made that mi stake is heightened by the State’s emphasis, at that stag e of the proceedings (as at15 Cite as: 586 U. S. ____ (2019)

Opinion of the Court

others), that Madison was “not delusional or psychotic”
and that “dementia” could not suffice to bar his execution absent “an expansion of Ford and Panetti .” Motion to Dismiss 4, 10; see supra, at 4–8; but see post, at 9–10, and

n. 4 (disregarding those arguments). 5 Alabama argues, however, that the court spoke of “insanity” only because the state statute under which Madison sought relief uses that term. See Tr. of Oral Arg. 37; Ala. Code §15–16–23 (2011) (allowing a stay of ex ecution “on account of the [convict’s] insanity”). But even if so, that does not advance
the State’s view that the st ate court properly understood the Eighth Amendment bar when assessing Madison’s competency. Alabama told this Court in opposing certio

rari that its statute covers only those with delusional disorders, and not those with dementia. See Brief in Opposition 12 (“[T]he sole question to be answered under the state statute was whether Madison was insane, not whether he suffered from dementia”). The state court’s (supposed) echoing of statutory language understood in that way cannot provide assurance that the court knew a person with dementia might receive a stay of execution; indeed, it suggests exactly the opposite. The court’s 2018
order thus calls out for a do-over. Alabama further contends, however, that we should look past the state court’s 2018 decision to the court’s initial 2016 determination of competency. (The dissent similarly begins with the 2016 ruling, see post, at 6–7, even though that is not the decision under review here.) According to the State, nothing material changed in the interim period,

see supra, at 7; thus, we may find the meaning of the later ruling in the earlier one, see Tr. of Oral Arg. 36–37. And,

——————

5 The State once again repeated that argument in its Brief in Opposi

tion to Madison’s certiorari petition. See Brief in Opposition 11–12 (“Madison does not argue that he is insane. Instead, he argues that he
suffers from dementia” and that his execution should be barred “under a yet-unannounced expansion of Ford and Panetti ”).16 MADISON v. ALABAMA

Opinion of the Court

the State continues, the 2016 opinion gets the law right. Alabama’s proof is that the court, after summarizing the psychologists’ testimony, found that “Madison has a ra

tional[ ] understanding, as required by Panetti ,” concern

ing the “punishment he is about to suffer and why he is about to suffer it.” 2016 Order, at 10; see Tr. of Oral Arg. 39; supra, at 5–6. (The dissent quotes the same passage.
See post, at 7.)
But the state court’s initial decision does not aid Ala

bama’s cause. First, we do not know that the court in 2018 meant to incorporate everythi ng in its prior opinion. The order says nothing to that effect; and though it came out the same way as the earlier decision, it need not have rested on all the same reasoning. Second, the 2016 opin

ion itself does not show that the state court realized that persons suffering from dementia could satisfy the Panetti standard. True enough, as Alabama says, that the court accurately stated that standard in its decision. But as described above, Alabama had repeatedly argued to the court (over Madison’s objection) that only prisoners suffer

ing from delusional disorders could qualify as incompetent
under Panetti . See, e.g., Brief on Madison’s Competency 2 (Madison “failed to implicate” Ford and Panetti because he “does not suffer from psychosis or delusions”); Tr. 82 (“The Supreme Court [in Panetti ] is looking at whether some

one’s delusions or someone’s paranoia or someone’s psy

chosis is standing in the way of ” rationally understanding his punishment); see also supra, at 4–5; but see post, at 9– 10, and n. 4 (disregarding those arguments). And Ala

bama relied on the expert opinion of a psychologist who highlighted Madison’s lack of “psychosis, paranoia, or delusion,” while never mentioning his dementia. Tr., Ct. Exh. 1 (Apr. 14, 2016), p. 9. That too-limited understand

ing of Panetti ’s compass is reflected in the court’s 2016 opinion. In its single paragraph of analysis, the court “accept[ed] the testimony” of the State’s preferred psy

-17 Cite as: 586 U. S. ____ (2019)

Opinion of the Court

chologist. 6 And the court further found that “the evidence does not support that Mr. Madison is delusional”—without ever considering his undisputed dementia. 2016 Order,

at 10. For those reasons, we must return this case to the state
court for renewed consideratio n of Madison’s competency (assuming Alabama sets a new execution date). See, e.g., Kindred Nursing Centers L. P. v. Clark , 581 U. S. ___, ___ (2017) (slip op., at 9) (remanding when “uncertain” whether “an impermissible taint occurred”); Clemons v. Mississippi

, 494 U. S. 738, 751–752 (1990) (similar). In that proceed

ing, two matters disputed below should now be clear. First, under Ford and Panetti, the Eighth Amendment may permit executing Madison even if he cannot remem

ber committing his crime. Second, under those same decisions, the Eighth Amendment may prohibit executing Madison even though he suffers from dementia, rather than delusions. The sole question on which Madison’s competency depends is whether he can reach a “rational understanding” of why the Stat e wants to execute him.

Panetti , 551 U. S., at 958. In answering that question—on which we again express no view, see supra, at 6—the state court may not rely on any arguments or evidence tainted with the legal errors we have addressed. And because that is so, the court should consider whether it needs to supplement the existing record. Some evidence in that record, including portions of the experts’ reports and testimony, expressly reflects an incorrect view of the relevance of delusions or memory; still other evidence might have implicitly rested on those same misjudgments.

——————

6 The court well understood that expe rt’s exclusive focus on whether Madison had psychotic delusions. In summarizing his testimony, the court began as follows: “Dr. Kirkland in his exam found no evidence of paranoia or delusion at the time of his examin[ation], on March 31, 2016. He also found that there was no psychosis present.” 2016 Order, at 5; see supra, at 5.18 MADISON v. ALABAMA

Opinion of the Court

The state court, we have little doubt, can evaluate such matters better than we. It must do so as the first step in assessing Madison’s competency—and ensuring that if he is to be executed, he understands why. We accordingly vacate the judgment of the state court and remand the case for further proceedings not incon

sistent with this opinion.
It is so ordered.

J USTICE K AVANAUGH took no part in the consideration
or decision of this case._________________

_________________ 1 Cite as: 586 U. S. ____ (2019)

A LITO

, J., dissenting



## 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]

J USTICE A LITO , with whom J USTICE T HOMAS and

J USTICE G ORSUCH 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 constitu

tional 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 ques

tion, 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 op posed to other mental condi

tions, 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 w hatsoever of this argument in the petition—not even a hint. Nor is this question2 MADISON v. ALABAMA

A LITO

, J., dissenting

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 clai med 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 peti

tioner claims it took.

I
The question on which we granted review was an out

growth 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 prohib

its 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 the3 Cite as: 586 U. S. ____ (2019)

A LITO

, J., dissenting

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 rejec

tion 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 J USTICE G INSBURG and joined by J USTICES B REYER and
S OTOMAYOR 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 ad

dressed 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 1 was the argument

——————

1 Petitioner sought and obtained a stay of execution based on this4 MADISON v. ALABAMA

A LITO

, J., dissenting

that he could not constitutionally be executed because he did not remember killing Offi cer 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 un

derlying offense is consistent with the evolving stand

ards 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. Madi

son, suffers from substantial memory deficits by vir

tue 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 un

derlying 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 ex

ecuted, the ‘moral quality’ of that punishment is less

ened and unable to match outrage over the offense.” Id., at 22–23.

—————— same argument. See Application for Stay of Execution 2, 6 (moving the Court to stay petitioner’s execution so that it could address the “sub

stantial” and “critical” question wh ether executing petitioner, “whose severe cognitive dysfunction leaves him without memory of his commis

sion of the capital offense,” woul d violate the Eighth Amendment).5 Cite as: 586 U. S. ____ (2019)

A LITO

, J., dissenting

● “Mr. Madison’s severe memory impairments as a re

sult 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 of

fense? See Dunn v. Madison , [583 U. S. ___, ___ (2017) (G INSBURG , J., joined by B REYER and
S OTOMAYOR , JJ., concurring).] “2. Do evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual pun

ishment bar the execution of a prisoner whose compe

tency has been compromised by vascular dementia and multiple strokes causing severe cognitive dys

function 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 peti

tion, 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 ren

dered 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 this6 MADISON v. ALABAMA

A LITO

, J., dissenting

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 ink

ling of that argument in the petition. Although the peti

tion 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 petiti on noted that “courts have recognized dementia and attendant cognitive decline and memory impairment as a basis for a finding of incompe

tency 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. 2 It violates our Rule that “[o]nly the questions set out in the petition, or fairly included th erein, 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 be

tween dementia and other mental conditions, there is little reason to think that it was. After a full evidentiary hear

-

——————

2 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.7 Cite as: 586 U. S. ____ (2019)

A LITO

, J., dissenting

ing 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 Mad

ison has a rationa[l] understanding, as required by Panetti

, that he is going to be execut ed 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 re

names the word or phrase that precedes it. In other8 MADISON v. ALABAMA

A LITO

, J., dissenting

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 implica

tions.” 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 reje ct this interpretation of the state-court order; it says only that it is vacating and re

manding 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 inter

pretation 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 mean

ing 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 peti

-9 Cite as: 586 U. S. ____ (2019)

A LITO

, J., dissenting

tion 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 stat e court rejected petitioner’s application on the ground that he invoked the wrong provision of state law; the St ate’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 doubt

ful 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 o ff, 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 proffere d basis for doubt is that the State “repeatedly argued to the [state] court (over Madi

son’s objection) that only prisoners suffering from delu

sional 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 be

cause petitioner’s counsel clai med that petitioner was in
fact delusional and fell within Ford and Panetti for that

reason. 3 ) But arguing, as the State did, that petitioner

——————

3 Petitioner’s papers emphasized again and again that he suffers from10 MADISON v. ALABAMA

A LITO

, J., dissenting

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 execu

tion. The majority cites no place where the State made the latter argument in the state court. 4 And even if the

—————— 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 pa ranoid delusions and other disabil

ities”); 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 experi

ments”); 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 pe titioner was “[e]ither delusional or psychotic.” Tr. 56 (Apr. 14, 2016).

4 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 El eventh 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 assume d 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 to11 Cite as: 586 U. S. ____ (2019)

A LITO

, J., dissenting

—————— 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 under

standing of his execution, in cluding the reasons therefor”); id., at 27 (“The Supreme Court has not held th at a petitioner can show incompe

tence without demonstrating a mental illness or that dementia and memory loss definitively preclude rational understanding”); id., at 29 (“To the extent the state court follo wed 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 brie f, 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 de mentia or memory loss is sufficient
to show a lack of rational underst anding,” 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 understand

ing”); 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 it s decision on that ground. On the contrary, Alabama wrote that “even if the trial court had deter

mined that dementia and severe memory loss—or even total amnesia—
are insufficient to meet the rational understanding test, that finding would not contradict clearly establis hed 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 under

standing, that determination was no t unreasonable in light of clearly12 MADISON v. ALABAMA

A LITO

, J., dissenting

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 uncer

tainty 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 commit

ted.” 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 under

stood 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

—————— 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 Panet

ti ’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 peti

tioner could be executed even if his dementia precluded a rational understanding.13 Cite as: 586 U. S. ____ (2019)

A LITO

, J., dissenting

state court’s factual finding on the question whether Mad

ison has a rational underst anding of the reason for his execution. There is no quest ion that petitioner suffers from severe physical and mental problems, and the ques

tion 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.