Ruminations on Madison v Alabama and Kavanaugh

Sheila and I were listening to the oral arguments before the Supreme Court in the case of Madison v Alabama. At basic issue is whether a person who has lost his memory of a crime due to a medical condition, in this case vascular dementia, can be executed under the Constitution’s Eighth Amendment.

During the arguments, a recurring theme was the importance of memory with the word “blackout” coming up. For example, Justice Kagan asked, “but the idea of a kind of fugue state or a blackout that's unaccompanied by anything else, does that count as the kind of mental disability that you're talking about?” The word “blackout” rang some bells. Stevenson’s response was, “We're not arguing that someone who is competent to stand trial, who nonetheless at trial maintains that they blacked out or don't remember would, therefore, be incompetent to be executed.”

During Kavanaugh’s nomination hearings, he insisted that while he “liked” beer, he never drank to excess and certainly never to the point of blacking out. He also never used the excuse of not being able to remember. I couldn’t help but wonder whether he was being really smart and avoiding the stigma of being labeled incompetent or mentally ill, a term the justices seemed to associate with the concept of blacking out. Then again memory loss or not being able to remember something is often attributed to malingering. Defendants at trial also use defenses of "I don't remember." It doesn't preclude the state from trying them, from convicting them, from sentencing them. It doesn't make them incompetent. It did seem a bit obscene to suggest that this man on death row, now blind, incontinent, and suffering from dementia could be attempting to fool them so he wouldn’t be executed.

What a shame that Kavanaugh wasn’t on the bench when this came up as he could have spoken from personal experience.

I must admit to being saddened and horrified by the entire discussion. Here the decision to take a life revolved on splitting hairs and dictionary definitions. The poor man has been on death row for more than thirty years, has all sorts of physical problems, and good old Alabama just can’t wait to execute the fellow. That strikes me as more than immoral.