Can states execute someone who can no longer remember the crime they committed?

It’s a weighty question an eight-member Supreme Court tried to tackle on Tuesday in hearing an appeal from an Alabama man who’s been on death row for more than 30 years for fatally shooting a police officer in 1985.

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Vernon Madison suffers from vascular dementia, a result of multiple serious strokes, and says he no longer remembers committing the crime for which he’s awaiting execution.

His attorney, Bryan Stevenson, argued that under the court’s prior rulings, his level of dementia makes his execution inhumane.

Justices Samuel Alito, Sonia Sotomayor and Elena Kagan questioned whether Madison was trying to claim that a lack of memory alone is enough to prohibit the death penalty under the Eighth Amendment’s ban on cruel and unusual punishment.

Alito said he couldn’t think of any situation other than a mental condition that would cause someone to forget they committed a capital offense.

“Well, that's my point, Justice Alito,” Stevenson said. “We're arguing that it would have to be accompanied by some mental disability, and here we argued that that disability was dementia.”

Kagan asked what would happen if someone blacking out would count as a mental disability that could preclude them from death row.

Stevenson said Kagan's hypothetical is quite different than his client’s case. He said Madison’s MRI showed he suffers brain damage, and because of his dementia he is incompetent.

Stevenson noted that Madison routinely urinates on himself because can’t remember that the toilet in his cell is next to his bed, even though Madison can explain that he has a toilet in his cell and is capable of using it.

Alito said Madison obviously suffers from serious physical and mental problems, but he noted that a lower court judge found he understood the rationale for a death sentence.

Chief Justice John Roberts said he understood Stevenson’s argument but also understands the state’s position that not remembering a crime is markedly different than not understanding the rationale for punishing someone for a crime.

In 1986, the Supreme Court ruled in Ford v. Wainwright that the Eighth Amendment prohibits states from executing people who are mentally incompetent. The court later ruled in 2007, in Panetti v. Quarterman, that the Eighth Amendment prohibits killing people who can't understand why they are being punished or the meaning of the death sentence.

Alabama Deputy Attorney General Thomas Govan told the Supreme Court justices that what Madison seeks is “unprecedented,” and that of the 31 states that allow death penalty, none has prohibited executing someone who can’t remember the facts of their crime.

“This Court has never created a categorical rule excluding someone from capital punishment, where at least there was some objective evidence of a national consensus in that direction,” he said. “ Here there is none.”

This is Madison’s second time before the Supreme Court. Two years ago the justices reversed an 11th Circuit Court of Appeals ruling that found Madison was ineligible for execution.

The justices said the lower court never clearly established that a prisoner is incompetent to be executed because they can't remember committing the crime.

When the court reversed the 11th Circuit’s ruling in 2016, Justice Stephen Breyer suggested in a concurring opinion that the constitutionality of the death penalty itself ought to be reconsidered.

On Jan. 25, 2018, the court agreed to temporarily delay Madison's execution while they consider a second appeal of his case. Their decision came on the day Madison was scheduled to be put to death.

Justices Neil Gorsuch, Clarence Thomas and Alito, however, said they would have denied the request.

Updated at 4:10 p.m.