Legal Docket: Death penalty with dementia

MARY REICHARD, HOST: It is Monday morning, a fresh week for The World and Everything in It. Today is the 8th day of October, 2018.

Good morning to you, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

Today on Legal Docket, Mary kicks off coverage of all the arguments for this new term of the U.S. Supreme Court.

She will use the justices’ own voices—and those of the legal advocates for and against—to tell the stories.

But today, we start off with a voice from the animal kingdom: that of the endangered dusky gopher frog.

AUDIO: [Sound of a gopher frog]

REICHARD: Right, this three-inch long amphibian can live six to ten years.

It’s particular about where it lives. And it’s very particular about where it breeds.

For example, the species’ romantic inclinations require “ephemeral ponds,” which is to say, pools of water found in forests. These pools hold water for a while after rains, but then in summer, they dry out.

It’s really cute, as frogs go, and endears itself by putting its hands in front of its eyes when threatened.

But its numbers are critically low, and its habitat just about gone.

The dusky gopher frog landed on the endangered species list 17 years ago.

And now its case winds up at the U.S. Supreme Court.

The journey to the Supreme Court actually begins back in 1973. That was when President Richard Nixon signed the Endangered Species Act into law. It aimed to protect imperiled species from extinction due to unfettered land development.

NIXON: Each of us all across this great land has a stake in maintaining and improving environmental quality. Clean air and clean water, the wise use of our land, protection of wildlife and natural beauty, parks for all to enjoy. These are part of the birthright of every American.  

REICHARD: One of the agencies responsible for administering the Endangered Species Act is the United States Fish and Wildlife Service. To save time and make the argument easier to follow, I’ll just refer to it as “the agency.”

In this case, the agency designated 1,500 acres of private land in Louisiana as “critical habitat … essential to the conservation” of the dusky gopher frog.

The land is still in private hands and timber companies hold leases to harvest the trees. It’s about 50 miles from the only known natural habitat left for the frog. That’s in Mississippi, across the border between the states, although they once lived in this part of Louisiana.

(Frogs aren’t privy to human maps.)

But that’s the crux of the argument. The land owners argue if a species hasn’t lived there for a half century, and couldn’t live there today, how can the government designate it as  “essential habitat?”

You can probably guess what really puts a burr under the landowners’ saddle.

It’ll cost millions of dollars to restore the habitat so the frog can live in Louisiana once again.

At the Supreme Court, the government argued restoration of land is essential to the purpose of the Endangered Species Act.

Deputy Solicitor General Edwin Kneedler.

KNEEDLER: If the frog is to be conserved and the risk of its extinction reduced, the area involved here is essential to accomplish those explicit statutory purposes.

REICHARD: Chief Justice John Roberts pointed out that’s all well and good, but the landowners don’t want to shell out that kind of money to restore the frog’s habitat.

And the government has neither offered to pay for it, nor buy the land outright.

The agency’s lawyer Kneedler acknowledged the chief justice’s point. But he argued the designation turns on the status of the land, not the intention of the landowner. Government isn’t forcing the landowner to do anything he or she doesn’t want to do.

And besides, all efforts to restore habitat only have to be “reasonable.”

Maybe you can predict the next questions.

They came from Justices Samuel Alito and Neil Gorsuch.

ALITO: What’s the definition of reasonable? GORSUCH: And where does all this come from in the statute? Where do you get reasonable efforts in the statute? KNEEDLER: Well I think it runs through the statute, frankly. ….GORSUCH: Can you show me where? …I don’t see reasonable efforts there.  KNEEDLER: No not reasonable efforts, but…GORSUCH: It’s not there. KNEEDLER: No, but it — it talks about conservation, what’s essential for conservation of the species. Conservation is defined as all measures necessary to bring the species back to the point where it does not need protection for that.

REICHARD: Justice Alito circled around to the elephant in the room: where is the line? How do we know when the government goes too far?

ALITO: Now this case is going to be spun, we’ve already heard questions along this line, as a choice between whether the dusky gopher frog is going to become extinct or not.  That’s not the choice at all. The question is, who is going to have to pay and who should pay for the preservation of this public good? Now it may be very difficult for a lot of people to shed tears for a big corporation like the one in this case, but let’s suppose this is a — this is a family farm and part of the — the land is designated or a good part of it is designated as critical habitat.  Now to what — is there some formula, some percentage of the value of the family farm that would have to be required for this reasonable restoration before — before that becomes unreasonable? Can you provide any guidance on that? KNEEDLER:  I — I don’t think there would be a hard and fast rule.  

REICHARD: If the government had a difficult time with the more conservative justices, the landowners didn’t have it any easier with the more liberal justices.

Landowner lawyer Timothy Bishop underscored the government’s own estimate that the land value could decline by $33 million if the designation stands.

Possible regulatory burdens and other economic costs down the line, he predicted, will deter future land buyers.

Besides, the landowners argue, the Endangered Species Act prohibits designating land as critical habitat if the land isn’t currently occupied by the endangered species.

The agency’s interpretation of the law is just too expansive. But Justice Elena Kagan wasn’t buying it.

KAGAN: To my mind, it is a counterintuitive result that the statute would prefer extinction of the species to the designation of an area which requires only certain reasonable improvements in order to support the species. ..it does not seem a result that’s demanded at all by the statutory language, which contemplates that habitats will exist even beyond the areas where a species currently  resides.

The conflict appears to run right between the use of natural resources to provide human needs, and the need to protect the environmental balance that ensures the protection of those resources now and into the future.

And then there’s the legal issue of private property rights versus state control.

With only eight justices having heard and now deciding this case, they might try to find a narrow way to decide. If they can’t do that and have a split 4-to-4 ruling, then the lower court decision that supports designating the land as critical habitat will stand, although it won’t set a national precedent.

The second case today involves a man who’s been on death row for more than 30 years in Alabama.

His name is Vernon Madison.

Back in 1985, Madison shot Mobile, Alabama, police officer Julius Schulte. The officer had answered a domestic disturbance call from Madison’s girlfriend and was sitting in his patrol car. The shot killed him.

Madison also shot his girlfriend. She survived. And because she was a witness, she was able testify that the officer had not pulled a gun and had not threatened Madison.

Over the years in prison, Madison developed myriad health crises. Multiple strokes led to the case of dementia from which he now suffers.

And that’s the legal issue.

Madison’s lawyer, Bryan Stevenson, argues his client ought not be executed.

Not because he doesn’t remember the murder he committed.

But, the defense argues, because it’s inhumane to execute a man so diminished, blind, barely able to walk, and disoriented now at age 67.

STEVENSON: He now has intellectual functioning in the borderline range.  He has a memory score of 58. And these severe disabilities have rendered him bewildered and confused most of the time.

ROBERTS: Mr. Stevenson, I’m — it’s a question for both sides, but I’m having trouble with a firm grasp on exactly what issues are presented.

REICHARD: The chief justice wondered: Is the question whether it violates the Constitution to execute someone who can’t remember what he did? Or is the question whether dementia makes a person incompetent so he can’t be executed? That can be a slippery analysis, as Justice Elena Kagan pointed out.

KAGAN: But if there’s mental disability that has given rise to this lack of memory, then it is?

STEVENSON: Well, I guess what I’m conceding, Justice Kagan, is that we’re arguing that more is required than someone saying I don’t remember my crime, you can’t execute me. The state has an interest in being able to impose punishment and to execute these kinds of sentences with something more than “I don’t  remember.” We’ve never argued that.

REICHARD: Justice Sonia Sotomayor interjected that if someone can’t follow through in his thinking, that’s not rational in the way someone without dementia is rational.

Pushing back on that was Thomas Govan, lawyer for Alabama arguing in favor of carrying out the execution.

GOVAN: Well, Your Honor, with  respect, on the things that matter, he does understand.  And we haven’t talked about all the things that he — he does recall both  before and after the offense. He remembers that he was convicted of multiple juvenile offenses and sent — spent  time in a youth detention facility…

REICHARD: Govan reiterated that lower courts already found sufficient reason to carry out the execution.

In an emotional summation, Madison’s lawyer Stevenson reminded the justices of the court’s rulings in two other cases about mental capacity. The crux of both is that courts should consider an inmate’s ability to comprehend his sentence and find execution unconstitutional if he can’t.

STEVENSON: The Court has said:  Look, the death penalty gives the state an incredible power.  It’s an awesome power. The authority to execute someone who is not an immediate threat  is an awesome power. And that power has to be utilized fairly, reliably, and humanely…..  The Court always looks at facts and circumstances through the lens of the Constitution, through the window of  the Constitution, and we have that here. But the Eighth Amendment isn’t just a window. It’s a mirror. And what the Court has said is that our norms, our values are  implicated, when we do things to really fragile, really vulnerable people.

REICHARD: Last week when this case was heard, the court was short one justice. So this case just might end up in a tie. Given the stakes, a likely scenario would be the justices order a second argument so the full bench of nine justices consider the matter.

And that’s this week’s Legal Docket.

(AP Photo/Manuel Balce Ceneta) The U.S. Supreme Court is seen at near sunset in Washington, Thursday, Oct. 4, 2018. 

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