The U.S. Supreme Court heard argument in Madison v. Alabama on October 2, 2018 on whether an Alabama death-row prisoner who has vascular dementia, brain damage, cognitive deficits, and memory loss from two near-fatal strokes is competent to be executed. During oral argument, Bryan Stevenson (pictured), the executive director of the Equal Justice Initiative, told the justices that, as a result of severe and progressively worsening dementia, Vernon Madison lacks a rational understanding of why Alabama intends to put him to death and is therefore incompetent to be executed. A majority of the justices appeared sympathetic to Madison's position, including Chief Justice John Roberts who is now regarded as the swing vote in death-penalty cases. The issues before the Court narrowed significantly as a result of concessions made by both sides at the argument. Madison's pleadings had argued that the Court's decisions in 1986 in Ford v. Wainwright and 2007 in Panetti v. Quarterman on competency to be executed applied beyond the limited circumstances of insanity and delusional mental illness at issue in those cases. "For purposes of retribution, there is no moral or constitutional distinction between a person who cannot 'recogni[ze] … the severity of the offence as a result of delusions and a person who is unable to do so as a result of dementia, cognitive decline, and memory deficits," his lawyers wrote. Alabama Deputy Attorney General Thomas Govan conceded that incompetency caused by severe dementia could also qualify. Stevenson, on the other hand, conceded in response to questioning by Justices Samuel Alito and Elena Kagan that merely having no memory of committing the offense does not make a prisoner incompetent to be executed. Rather, Stevenson said, the memory loss must be the product of a medical or physical condition that also affects the prisoner's understanding of why he or she is to be executed. Stevenson said Madison's severe vascular dementia has left him with no memory of having killed a police officer who responded to a domestic disturbance in 1985. An MRI has shown that Madison has suffered substantial brain damage, and psychological testing has documented significant cognitive decline accompanied by IQ-loss that now places him in the borderline range of intellectual functioning. Madison's dementia has also left him disoriented as to date and time and without the ability to rationally comprehend his legal situation. He is legally blind, Stevenson said, has slurred speech, cannot recite the alphabet past the letter G or retain basic information, cannot walk without assistance, and continually soils himself because he does not know how to use the toilet in his five-by-eight cell. Madison's physical disabilities, Stevenson said, provide evidence illustrating the extent to which Madison's vascular dementia has affected all aspects of his life. Stevenson argued that Alabama's courts improperly rejected Madison's evidence of incompetency, focusing only on whether his impairments were caused by insanity, psychosis, or delusions. Govan asserted in response that by reciting the correct legal standard from Ford and Panetti and making reference to the testimony concerning Madison's impairments, Alabama had in fact considered that evidence. He further disputed whether Madison is incompetent at all, stating that Alabama would find him competent to stand trial in his current condition. Stevenson closed the argument by telling the Court that the "awesome power" to execute a person who no longer poses an immediate threat must "be utilized fairly, reliably, and humanely." The Court, Stevenson said, reviews facts and circumstances "through the window of the Constitution ..... But the Eighth Amendment isn't just a window. It's a mirror." Our norms and values "are implicated when we do things to really fragile, really vulnerable people," Stevenson said. "And what we've argued is that dementia in this case renders Mr. Madison frail, bewildered, vulnerable in a way that cannot be reconciled with executing him because of his incompetency."

Finding that the Nevada Department of Corrections acted in “bad faith” to obtain the drug midazolam through “subterfuge,” a Las Vegas trial court has issued a preliminary injunction barring the state from using its supply of that drug in carrying out any execution. The 43-page ruling issued by Judge Elizabeth Gonzalez (pictured) on September 28, 2018 effectively freezes efforts by Nevada prosecutors to execute Scott Dozier, who has waived his appeals and asked to be put to death. Judge Gonzalez found that Nevada prison officials knew when they purchased supplies of each of the drugs in the state's three-drug lethal-injection protocol from drug distributor Cardinal Health that the manufacturers of all three drugs prohibited the use of their medicines in executions. However, Judge Gonzalez limited the injunction to the midazolam produced by the generic-drug manufacturer Alvogen Inc., finding that the company’s distribution contract with Cardinal Health specifically barred sales of the sedative for use in lethal injections. While Gonzalez said she was “disturbed by the conduct of the State” in its purchase of the paralytic drug cisatracurium and its “illegitimate acquisition” of the opiate fentanyl, she said the absence of evidence that drug manufacturers Sandoz Inc. and Hikma Pharmaceuticals USA Inc. had sales controls in place with Cardinal Health at the time Nevada purchased supplies of those drugs was sufficient to deny them injunctive relief. The court issued its order after week-long hearing on a lawsuit filed by Alvogen just before Dozier’s scheduled July 11, 2018 execution. Alvogen’s suit alleged that Nevada had obtained its supply of midazolam “by subterfuge” and that Nevada had “intentionally defrauded Alvogen’s distributor” by concealing its intention to use the drugs to execute Dozier and by “implicitly ma[king] the false representation that they had legitimate therapeutic rationale” for buying the drug. Gonzalez’s order notes that even before beginning to distribute midazolam, “Alvogen put in place controls to prevent the direct sale [of the drug] to any department of corrections, or any sale that Alvogen believed could be diverted to be used in an execution.” The judge determined that both Nevada’s prison director, James Dzurenda, and its prison pharmacy director, Linda Fox, knew when they bought Alvogen’s drugs that the company “objected to their use in lethal injection and that they had controls in place to prevent sales for such use... Indeed,” Judge Gonzalez wrote, “when purchasing the Alvogen Midazolam Product, Fox’s response to Alvogen’s objections was ‘Oh shit.’ She then asked if Mr. Dzurenda if he would like her to order more [midazolam] because she was ‘certain once it’s in the press that we got it [she] will be cut off.’” Knowing “that it was not allowed to acquire this product for use in capital punishment,” Judge Gonzalez wrote, the Nevada Department of Corrections “was not a good faith purchaser” of Alvogen’s midazolam. The court also found that Nevada's use of the medicines in executions “will irreparably harm the three companies’ reputations,’ ... result[ing] in lost sales, lost licensing opportunities, weakened employee recruitment, divestitures by investors, increased financing costs, lost opportunities to enter the market for generic drugs, and lost opportunities to develop new branded drugs.” The case is the first time a court has conducted a hearing into state misconduct in acquiring execution drugs. In 2017, drug distributor McKesson Medical-Surgical sued Arkansas and multiple drug companies alleged misconduct by the state in obtaining its execution drugs. Although the Arkansas Supreme Court permitted that lawsuit to move forward, the drugs expired and the parties agreed to dismiss the action before the court could take evidence in the case. 

An Arkansas ethics board has filed disciplinary charges against six members of the Arkansas Supreme Court alleging that they violated the canons of judicial ethics in removing a trial judge from all death-penalty cases as a result of the judge's participation in an anti-death-penalty vigil. On September 20, 2018, the Arkansas Judicial Discipline and Disability Commission announced that it had filed formal disciplinary charges against state Supreme Court Chief Justice John Dan Kemp and Justices Robin Wynne, Courtney Goodson, Jo Hart, Karen Baker, and Rhonda Wood, after an investigatory panel of the commission found probable cause that the Justices had "acted arbitrarily and capriciously" in removing Pulaski County Circuit Judge Wendell Griffen from drug distributor McKesson Medical-Surgical, Inc.'s case against Arkansas for alleged misconduct in obtaining execution drugs and from all pending cases involving the death penalty or the state's execution protocol. The panel found that the justices had given Judge Griffen no meaningful opportunity to respond to a motion filed by the state attorney general's office that sought to remove him from the McKesson lawsuit. Prosecutors had complained that Griffen, who is also a Baptist minister, had committed misconduct by strapping himself to a mock gurney in front of the Governor's mansion as part of an April 14, 2017 Good Friday anti-death-penalty vigil and protest. After the close of business that day, the attorney general's office notified the state supreme court—but not Judge Griffen—that it intended to seek his disqualification from presiding over the McKesson case. On Saturday, April 15, the court set a 3:00 p.m. deadline that day to respond to the attorney general's petition, but failed to notify Judge Griffen of its order. That same evening, the supreme court clerk's office sent an email to Griffen's chambers finally notifying him of the proceedings and giving him until 9:00 a.m. Monday, April 17 to respond. However, the panel wrote: "It cannot be reasonably assumed that Judge Griffen would receive the email at his chambers address on a weekend" and that he "could not have reasonably been expected to have effectuated a meaningful response to the state's petition to remove him from the McKesson case." Even more seriously, the panel found that Griffen "was never given notice of, and the opportunity to be heard on, the Supreme Court's ultimate action—[his removal] from all death penalty and execution protocol cases pending and in the future." None of the parties to the McKesson litigation "had even raised or argued the issue of Judge Griffen's blanket disqualification," the panel said, only disqualification from the McKesson case. Nonetheless, the panel wrote, the justices went beyond the requested remedy and "acted sua sponte to remove judicial duties from Judge Griffen which he would otherwise have been legally obligated to discharge regarding other death penalty and execution protocol cases." The panel concluded, "where disciplinary action is taken against another judge without sufficient notice to that judge and goes beyond the relief requested by any party, we believe that such arbitrary and capricious conduct could form the basis for disciplinary action by the Commission of the judge or judges ordering the action taken against another judge." The ethics panel did not find probable cause to believe that the justices had any improper communications with the attorney general's office in removing Griffen from the death-penalty cases and dismissed those allegations against the justices.

The FBI Uniform Crime Report for 2017, released by the U.S. Department of Justice, reports that murder rates stabilized across the United States in 2017, decreasing marginally compared to adjusted homicide figures from 2016 but remaining above the record lows recorded earlier in the decade. The initial FBI crime figures for 2017 report 17,284 murders across the United States in 2017, compared to 17,413 in 2016, dropping the nationwide murder rate from 5.4 murders per 100,000 people to 5.3. The homicide numbers are virtually identical to the initial FBI homicide figures included in the 2016 FBI Uniform Crime Report, which initially reported 17,250 murders and a murder rate of 5.3 murders per 100,000 people in 2016. Once again, states with the death penalty tended to have higher murder rates than states without the death penalty, with Louisiana and Missouri topping the list at 12.4 and 9.8 murders per 100,000 population, respectively. Seven of the nine states with the highest murder rates (and sixteen of the twenty highest) are death-penalty states, while five of the eight states with the lowest murder rates (and nine of the lowest fifteen) do not have the death penalty. New Hampshire, which has the death penalty, and North Dakota and Maine, which do not, had the lowest murder rates at 1.0, 1.3, and 1.7 murders per 100,000 population, respectively. The data also supports the idea that abolishing the death penalty does not make states more dangerous. Delaware, which ended the death penalty in 2016, saw a 7.8% decrease in its murder rate from 2016 to 2017. As in past years, regional data showed that more executions do not mean lower murder rates. The South, which has performed far more executions than any other region, continued to have the highest murder rate (6.4 per 100,000 people), while the Northeast, which has carried out only four executions since 1976, had the lowest (3.5). FBI data shows that murder rates have fallen dramatically since the 1980s and 1990s, contributing to the nationwide decline in capital punishment. The current murder rate is 45.9% below 1991's murder rate of 9.8 per 100,000 people. However, the decline in new death sentences has been even greater, with the 39 death sentences imposed in 2017 87.5% below the 315 death sentences imposed in 1994 and 1996.