If Alabama Executes Vernon Madison, Bill Clinton Will Share The Blame

This column was originally published by Truthdig.com.

Vernon Madison has been on Alabama’s death row for 32 years. Now 67, he suffers from severe vascular dementia and retrograde amnesia as a result of a series of strokes. Testing revealed that he has a borderline IQ of 72 and a working memory score (which measures attention and concentration) of 58, indicating major impairment. He is legally blind. His speech is slurred. He cannot walk independently. And he is incontinent. The cumulative effect of his disabilities has left him with no recollection of the crime that sent him to prison.

Any day now, the state of Alabama—home of such stalwarts of righteousness as Attorney General Jefferson Beauregard Sessions III and former state Supreme Court Chief Justice and current Republican Senate candidate Roy Moore—will set an execution date for Madison. If the state succeeds in putting him to death, several parties will share the blame. They will include not only Madison himself, but a system of capital punishment that is cruel, irrational and racist.

Also sharing the blame will be the 42nd president of the United States, William Jefferson Clinton, whose legislative accomplishments include the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, which the Supreme Court relied on earlier this month when it ruled adversely on the latest appeal in Madison’s case.

How Madison came to this point is emblematic of much that is wrong with capital punishment. In September 1985, a jury convicted him of capital murder in the death of a Mobile, Alabama police officer. Madison had been charged with shooting the officer in the back of the head during an investigation into a report of a missing child and a domestic dispute between Madison and his girlfriend.

Madison is black. The officer was white.

In 1987, the Alabama Court of Appeals reversed Madison’s conviction because the local district attorney had engaged in racially discriminatory jury selection.

Madison was retried in 1990. At his second trial, he didn’t deny shooting the officer but pleaded not guilty by reason of insanity. He was convicted again, and once more, the state appellate court reversed, holding that the DA had engaged in prosecutorial misconduct by eliciting improper expert testimony about Madison’s mental state.

Madison was convicted a third time of capital murder following a jury trial in April 1994. During the penalty phase of the proceedings, evidence was introduced showing that Madison suffered from a mental illness, marked by paranoid delusions, dating to his teenage years. After hearing testimony from both prosecution and defense psychiatrists, who disagreed about the severity of his condition, the jury voted to sentence Madison to life in prison without the possibility of parole rather than death.

The trial judge, however, countermanded the jury’s recommendation and imposed another death verdict. At the time, Alabama was one of only four states (the others were Indiana, Delaware and Florida) that permitted such “judicial overrides.” According to the Equal Justice Initiative (EJI), the Montgomery, Alabama nonprofit that currently represents Madison, the judge (who died in 2011) overrode a total of six life verdicts during his tenure on the bench, the most of any Alabama jurist.

Madison appealed his death sentence unsuccessfully in the Alabama court system, and in 1998, the United States Supreme Court declined to review the case. From there, Madison followed the path of many other condemned inmates, filing petitions for writs of habeas corpus in both state and federal courts. The petitions succeeded in delaying the case, but on March 3, 2016, the Supreme Court of Alabama ordered that Madison be put to death by lethal injection.

Before Madison was slated to die, however, the EJI convinced a Mobile County Circuit Court judge to hold a hearing to determine whether Madison was sufficiently competent to be executed.

As interpreted by a long line of U.S. Supreme Court decisions, the Eighth Amendment prohibits the execution of “one whose mental illness prevents him from comprehending the reasons for the penalty or its implications.” In recent years, the court also has barred the execution of intellectually disabled persons. Such executions, the court has reasoned, serve no legitimate penological purpose, whether by way of retribution or deterrence.

But despite ample evidence of Madison’s cognitive and memory deficits, the county court judge found him competent. In his order, the judge even failed to mention Madison’s diagnosis of dementia.

Running out of time and options, the EJI lodged a habeas corpus petition with the U.S. Court of Appeals for the 11th Circuit in Atlanta. Prior to the passage of the AEDPA, the EJI might have expected a relatively easy victory based on a violation of Madison’s constitutional rights regarding his competency for execution.

But as 9th Circuit Court Judge Alex Kozinski has written, the AEDPA “has pretty much shut out the federal courts from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred. We now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted. AEDPA is a cruel, unjust and unnecessary law that effectively removes federal judges as safeguards.”

In order to succeed on a habeas corpus petition filed in federal court, a state prisoner must show that the state court ruling he contests “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States,” or else was “based on an unreasonable determination of the facts in light of the evidence presented.” Further, a petitioner has to show that the state court’s decision was “so lacking in justification that there was an error well understood and comprehended beyond any possibility for fair-minded disagreement.”

As investigative journalist Liliana Segura wrote persuasively in a 2016 article for The Intercept, Bill Clinton signed the AEDPA into law as part of a deliberate policy of presenting himself as tough on crime following GOP victories in the 1994 midterm elections. Based on an examination of a trove White House memos released from the Clinton Digital Library in 2014, Segura argued that the adverse effects the AEDPA and other criminal justice reforms of the era would have on poor and minority defendants and prison inmates were not “unintended consequences,” as Bill and Hillary maintained during the 2016 presidential campaign, but were entirely foreseeable.

Still, the EJI managed to convince two members of the three-judge 11th Circuit panel that heard oral argument on Madison’s case that the state court’s competency decision satisfied the stringent standards of the AEDPA. Accordingly, the two judges in the majority found Madison incompetent to be executed.

That was not so for the Supreme Court.

In a unanimous, eight-page, unsigned per curiam (“by the court”) decision issued Nov. 6, the high tribunal held that Madison’s claims were foreclosed by the AEDPA. The court reversed the 11th Circuit’s judgment and sent the case back to Alabama, which now has the authority to set a new execution date.

In the meantime, Madison remains on death row, awaiting news of his appointment in the injection chamber, unable to recall the night he shot a police officer more than three decades ago.

To add further injustice to Madison’s regrettable story, there are no longer any states that permit judges to override jury verdicts that call for life sentences rather than death in capital cases. Indiana abolished the practice in 2002, and Delaware and Florida followed suit in 2016 after the Supreme Court invalidated Florida’s capital punishment scheme for giving too much power to judges over sentencing.

Alabama was the last to fall in line, passing a new statute in April, outlawing judicial overrides. Unfortunately for Madison, the new law was not made retroactive to his case or that of 32 other condemned men in Alabama put on death row by trial judges who had nullified jury recommendations of life-without-parole sentences.

Although the number of executions in the United States has fallen in recent years, the U.S. remains among the world’s leaders in capital punishment, along with the likes of Saudi Arabia, China, Egypt, Somalia, Iran and Iraq. It’s high time we put an end to the travesty.

There’s no reason to believe Congress will act, but it could get the ball rolling by repealing the AEDPA. Vernon Madison may deserve to spend the rest of his days locked away, but he should not be put to death because of the rigid dictates of a criminal justice statute signed into law by a Democratic president as a matter of pure political expediency.

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