In 1985, Vernon Madison murdered a police officer, Julius Schulte, in Mobile, Alabama. Madison was due to be executed by lethal injection in January this year, but was given a last-minute stay of execution. After several strokes, he suffers from dementia and memory impairment, and can no longer remember committing the crime.

The Supreme Court will now hear his case. The legal issue hinges on the letter of the law. In 1986, the Supreme Court ruled that executing someone who cannot understand the reason for their execution violates the 8^th Amendment to the US Constitution’s ban on ‘cruel and unusual punishment’, and in 2016 the Circuit Court of Appeal ruled that ‘according to his perception of reality he never committed murder’ and hence cannot ‘understand the reason’ for his execution. (That ruling was later overturned by the Supreme Court, which now appears to be having second thoughts about that.)

The legal question, then, seems to turn on whether someone who can’t remember committing a crime is nonetheless capable of ‘understanding the reason’ for their execution. But let’s leave that tricky question to the Supreme Court to decide, and ask a more general, and more philosophical, question: can someone who can’t remember performing a given act be genuinely morally responsible (as opposed to satisfying the legal requirements for punishment) for that act?

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"In Locke’s view, if you can’t remember performing a given act, then you are literally not the same person as the person who performed that act"

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According to one strand of thought stemming from the 18^th-Century philosopher John Locke, the answer is ‘no’. Indeed, Locke himself went even further than that: he thought that if you can’t remember performing a given act, then you are literally not the same person as the person who performed that act. That might sound decidedly odd, but for Locke, the concept of a ‘person’ is what he calls a ‘forensic’ notion – that is, more or less, a notion whose purpose is to sort out who is morally responsible for what. According to this more radical proposal, Madison’s ‘perception of reality’ that he ‘never committed the murder’ is entirely accurate.

So in Locke’s view, Madison is not, now, morally responsible for the murder (indeed he is not even the same person as the murderer) – and hence does not deserve to be punished for it. But why think that in order to be morally responsible for something, you must be able to remember doing it?

Well, let’s approach this question by doing what philosophers often do, which is to consider some rather more extreme possible cases. Consider Bruce Banner and The Incredible Hulk. Let’s assume that Bruce has no control over whether or when he ‘turns into’ the Hulk, and that Bruce can’t remember anything about what Hulk has been up to. So when the Hulk transforms back into Bruce, Bruce has no idea what Hulk might have got up to. Suppose Hulk does something really bad. Is Bruce morally responsible for that? There is of course room for dispute about this, but my gut feeling is that the answer is ‘no’: Bruce is not morally responsible, and that is so precisely because he can’t remember what the Hulk did. (And Locke would add the extra step: Bruce and the Hulk are therefore different people.)