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 heard his case. The defense’s argument was 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 seemed to agree that Madison could not recall the crime but argued he should be executed because he can understand that he will be put to death for being convicted of murder. In a 5-3 opinion, the Court held that the Eighth Amendment may permit executing a prisoner even they cannot remember committing their crime, but it may prohibit executing someone suffering from dementia or another disorder, rather than psychotic delusions. The Court also held that if a prisoner is unable to rationally understand the reasons for their sentence, the Eighth Amendment forbids their execution. While the legal issue has been settled (for now), there still remains philosophical questions.
While metaphysics might seem far removed from the courts, 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” or “woman” are used interchangeably.
In the normal pursuit of legal justice, the practical goal is to find the right person and there are no worries about the metaphysics of personal identity. But in unusual 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 metaphysical person who committed the long ago crime. Appropriately enough, John Locke addressed this problem in considerable detail.
In discussing personal identity, Locke notes that being the same man (or woman) is not identical with 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 years. Being the same person is having the same consciousness. 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. I am certainly a slower person, even if I am the same person. If a loss of memory does entail a loss of personal identity, then perhaps a “memory defense” could be used: a person who cannot remember a crime is not the person who committed the crime.
Locke does consider the use of 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). For Locke 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, this seemed to have been established in the Madison case. While people can lie about their memory, dementia seems impossible to fake, as there are objective medical tests for the condition. 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 demons of dementia.
There are, of course, many other theories of personal identity to choose from. For example, one could go with the view that the same soul makes the same person. One must simply find a way to identify souls to make this work. There are 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 failed to deter the person to be executed, it could be argued that it will deter others—which is a matter of debate. It could be argued that executing a person with dementia will have deterrent value. In fact, it could be contended that showing that the state is willing to kill even people with dementia would make the state even more terrifying. 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 only requires retribution against the same man (or woman) because matters of metaphysics are too fuzzy for such important matters. One could also use the retribution justification by advancing another theory of personal identity. For example, at one point 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 in Hume’s view.
This view could be countered by arguing that it is the same person regardless of the deterioration of 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 what the court decided. Vernon Madison was not executed but died on February 22, 2020.
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