Whether the Eighth Amendment categorically excludes from the death penalty an individual who, because of a stroke that caused dementia, is functionally intellectually disabled and does not remember the crime he committed

QUESTION PRESENTED In 2001, Petitioner Michael Joseph Mulder suffered a stroke that left him with diagnosed dementia, memory loss, paralysis on the right side of his body, and receptive, expressive, and anomic aphasia—meaning that Mr. Mulder is unable to meaningfully comprehend information that is spoken or written to him and unable to formulate thoughts and meaningfully express himself. As a result of the stroke, Mr. Mulder has an IQ score of 69 and does not remember most of his life, including the crime for which he was convicted. Medical experts have described Mr. Mulder as functioning both emotionally and intellectually at a second grade level. During a 2011 competency hearing, a federal district judge found Mr. Mulder incompetent and unable to communicate rationally, concluding that Mr. Mulder’s stroke negatively impacted his cognition, memory, and ability to communicate. The district court additionally concluded that these impairments were permanent. As it stands today, Mr. Mulder’s physical and mental conditions continue to decline. He suffers from the same mental impairments and has no memory of his crime. It is virtually certain he will never recover, but instead will sit on death row unless a court intervenes. In light of Mr. Mulder’s diagnosed dementia, his inability to remember his crime, and his continuous physical decline, the question presented is Whether the Eighth Amendment categorically excludes from the death penalty an individual who, because of a stroke that caused dementia, is functionally intellectually disabled and does not remember the crime he committed. 1