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Is it too cruel to execute people who are old or sick?

Last week, the U.S. Supreme Court agreed to hear an appeal on behalf of a 67-year-old Alabama death row inmate. After suffering at least two serious strokes, Vernon Madison has dementia. His speech is slurred and he says things that don't make sense. He is also blind now, and incontinent. He doesn't remember how to use the toilet in his cell. He can only say the alphabet to the letter G. He can't remember committing the crime for which he was sentenced to death.

Madison was convicted of killing a police officer. The officer was attempting to keep the peace as Madison's then-girlfriend tried to eject him from their shared home. Madison is said to have shot both the officer and his girlfriend, who was wounded. Today, Madison doesn't remember those events. He insists he "never went around killing folks."

It's worth noting that Madison was ultimately sentenced to death only after three trials. The first two trials were found to have violated various constitutional standards. In the third, the jury voted for life without parole, but the judge overrode their decision and ordered the death penalty.

The Supreme Court could decide that executing Madison violates the 8th Amendment's prohibition against cruel and unusual punishment. Based on court precedent, however, it will probably consider the question only from one angle: whether Madison has a "rational understanding" of the reason he is being executed. If he does not, executing him would likely be considered too cruel.

A court-appointed psychologist confirmed that Madison does have "significant body and cognitive decline as a result of strokes," but also said that Madison can understand the accusation against him and the sentence imposed.

The state of Alabama says that's enough. "The ability to form a rational understanding of an event," it argues, "has very limited relation to whether a person remembers that event."

Madison is one of a growing list of death row inmates who are either quite old or markedly infirm. In two other recent cases, the states of Ohio and Alabama were trying to execute men with serious ailments but had to call off the executions. They were unable to locate a vein healthy enough to support the lethal injections.

In past 8th Amendment cases, the Supreme Court has ruled it is cruel or unusual to execute juvenile offenders and people with intellectual disabilities. With many death row inmates now aged or infirm, the Supreme Court will probably see a growing number of cases in which these inmates' ill health or poor cognition make executions problematic.

The high court will hear the appeal of Madison v. Alabama this fall. What do you think they should decide? 

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