In 1985 Officer Julius Shulte responded to a missing child report placed by the then girlfriend of Vernon Madison. Madison snuck up on the officer and murdered him by shooting him in the back of the head. Madison was found guilty and sentenced to death.
As the wheels of justice slowly turned, Madison aged and developed dementia. He was scheduled to be executed in January, 2018 but the execution was delayed and the Supreme Court has agreed to hear his case. The defense’s argument is that Madison’s dementia prevents him from remembering the crime and his execution would violate the constitutional ban on cruel and unusual punishment. The prosecution seems to agree that Madison cannot recall the crime because of his dementia but argue that he should still be executed because he can understand that he will be put to death for a murder he was convicted of committing. This case will, of course, be settled in court but it does raise some classic problems in philosophy.
While metaphysics might seem far removed from the realm of crime and punishment, as John Locke noted, “In this personal identity is founded all the right and justice of reward and punishment…” The reason for this is obvious: it is only just to punish (or reward) the person who committed the misdeed (or laudable deed). Locke is talking about metaphysical personal identity: what it is to be a person and what it is to be the same person across time. As such, he is using the term technically and not in the casual sense in which terms like “person” and “man/woman” are used interchangeably.
In the normal course of events the practical goal is to find the right person and no worries about the metaphysics of personal identity come into play. In odd circumstances, the question can arise as to whether what seems to be the same person really is the same person. For example, one might wonder whether a person with severe dementia is the same person as the person who committed a crime long ago. Appropriately enough, John Locke addressed this problem in considerable detail.
In discussing personal identity, Locke notes that being the same man (or woman) is to the same as being the same person. For him, being the same man is a matter of biological identity: it is the same life of the body through which flows a river of matter over the course of the years. Being the same person for him is having the same consciousness. Roughly put, Locke seems to take consciousness to be awareness and memory. In any case, he hinges identity on memory such that if memory is irretrievably lost, then the identity is broken. For example, if I lose the memory of running a 5K back in 1985, then I would not be the same person as the person who ran that 5K.
Locke does consider cases in which someone might try the memory defense in court and addresses this challenge with practical epistemology. If the court can establish that the same man (biological identity) but the defendant cannot establish that they have permanently lost the memory of the misdeed, then the matter will be proved against them and they should be found guilty. Locke does remark that in the afterlife, God will know the fact of the matter and punish (or reward) appropriately. However, if it can be established that the person does not remember what the man (or woman) did, then they would not be the same person as that man (or woman). As such, punishing a different person for what the same man did would be unjust.
While there is the practical matter of knowing whether a person has forgotten, it does seem that this has been established in the Madison case. While people can obviously lie about their memory, dementia is impossible to fake, since there are objective medical tests that can assess the brain. As such, concerns about deception can be set aside and the question remains as to whether the person who committed the crime is still present to be executed. On Locke’s theory he would not—the memories that would forge the chain of identity have been devoured by the demon of dementia.
There are, of course, many other theories of personal identity to choose from. For example, one could go with the old classic that the same soul makes the same person. One must simply find a way to identify souls to make this work. There are, of course, other options to pull from the long history of philosophy. It is also worth considering various justifications for punishment in this context.
Punishment is typically justified in terms of rehabilitation, retribution, and deterrence. While rehabilitation might be possible in the afterlife, execution cannot rehabilitate a person for the obvious reason that it kills them. While the deterrence value of execution has obviously failed to deter the person to be executed, it could be argued that it will deter others—which is a matter of considerable debate. It could be argued that executing a person with dementia will have deterrence value. In fact, it could be contended that showing that the state is willing to kill even those with dementia would make the state even scarier and thus boost the deterrence value. For the deterrence justification, the metaphysical identity of the person does not seem to matter—what matters is that the punishment would deter others, which is essentially a utilitarian argument.
The retribution justification takes us back to personal identity: retribution is only just if it is retribution against the person who committed the crime. It could be argued that retribution just requires retribution against the same man because matters of metaphysics are too fuzzy for such matters as murder. Also, as noted above, one could use the retribution justification by advancing another theory of personal identity. For example, David Hume argues that a person is a bundle of perceptions united by a causal chain (rather like how a nation has its identity). On his view, memory discovers identity but (unlike for Locke) it is not the basis of identity. Hume explicitly makes the point that a person can forget and still be the same person; so Madison could still be the same person who committed the crime on Hume’s account. However, Hume closes his discussion on personal identity in frustration: he notes that the connections can become so tenuous and frayed that one cannot really say if it is the same person or not. This would seem to apply in cases of dementia and hence Madison might not be the same person, even on Hume’s view.
This view could be countered by arguing that it is the same person regardless of the deterioration of the mental states. One approach, as noted above, is to go with the soul as the basis of personal identity or make an intuition argument by asking “who else could it be but him?” One could, of course, also take the pragmatic approach and set aside worries of identity and just embrace whatever the court says.
This is in a sense quite similar to the Kavanaugh situation. Obviously the 55 year old Kavanaugh is not the same person as the 17 year old Kavanaugh.
I am against the death penalty, but if it is going to be used, it should be carried out fairly quickly after the sentence is handed down.
I’ll try this again – I wrote a response yesterday but had a malfunction before I was able to post.
I agree with TJB – this is much like the Kavanaugh situation, and I believe it was addressed here in a similar way.
I also agree that if we are going to use the death penalty, it should be carried out swiftly. As it is now, it opens the door to years and years of appeals and filings and legal wranglings that have more to do with loopholes and wordsmithing than they do with crime and punishment – and meanwhile, it seems to be morally very questionable at best to put a convicted criminal through all of that uncertainty – a cycle of hope and despair that can and does last for decades. It is little wonder that Madison suffers from dementia.
I have a cousin who once owned a boa constrictor. She would put live rats in the cage – but if the rat was not eaten within 24 hours, she’d take it out and set it free. She felt it was immoral to force a creature, even a rat, to live with the specter of death hanging overhead for too long.
This discussion reminds me of the parole hearing of Morgan Freeman’s character in “The Shawshank Redemption”. Although it’s fiction, it does illustrate the point nicely. (Don’t ask me why he’s called “Otis Redding” in the title).
A valid question raised by this is about rehabilitation – are criminals truly “rehabilitated” after years of incarceration? Is this rehabilitation due to some proactive effort on the part of the system, or just due to years of sorrow and regret? Or do they become, after so much time, completely different people – who look back with incredulity that they were ever capable of the crimes they committed?
(I myself look back on my past with that incredulity. I never committed a crime, but sometimes I can’t believe the stuff I did. No further details will be forthcoming)
Considering Locke’s position, this not only could apply to the misdeeds of youth, but of schizophrenia and multiple personality disorder as well. If one can escape the death penalty because of “temporary insanity” or other mental illness at the time of the crime – i.e., surmising that the crime was not committed by the same “person” on trial – shouldn’t the converse also be applicable?
(I feel like I’ve posted this story before, but the first time this defense was used in a US court was in 1859 when Dan Sickles, a US Representative from New York, murdered Philip Barton Key in cold blood upon discovery of an affair he had been having with Sickles’ young wife, Maria. Sickles was defended by Edwin Stanton, who later became Lincoln’s Secretary of War. Stanton argued that Sickles was temporarily out of his mind with rage and jealousy, and that the murderer was not ‘the real Dan Sickles’. The defense was successful, Sickles was acquitted, and went back to the House of Representatives the next day. It was a different time back then – at one point during his tenure as a representative, Sickles went to England to meet with Queen Victoria. Because Maria, his wife was pregnant at the time, rather than make her endure the journey across the Atlantic, Sickles brought a prostitute with him. No wonder Maria took up with Key!)
In the case of a multiple personality disorder – what if dominant personality “A” commits a murder, while submissive personality “B” knows about it but is afraid to report it. Is “B” then a witness? Should “A” be convicted, and “B” charged with aiding and abetting, or obstruction of justice?