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.)

Things might be different if Bruce did have control over whether or when the Hulk emerged. Suppose Bruce can turn into Hulk – or not – at will, and knows that Hulk is prone to behaving very badly. Then Bruce surely bears at least some responsibility for Hulk’s actions, even though he has no control over exactly what the Hulk will do. Similarly – and much closer to reality – if you know that you tend to behave very badly when very drunk but never remember when you wake up the following morning what you did, that doesn’t get you off the hook. After all, if you, in your pre-drunken state, had exerted more control over your own behaviour, by refusing those drinks or staying away from the pub all together, then you wouldn’t have indulged in the bad behaviour. So you are still indirectly to blame for that bad behaviour even though you can’t remember it, via being morally responsible for having got drunk – something that you knew was likely to lead to bad behaviour.

Even Locke himself can accommodate a version of that claim. In his view you are not literally the same person as the drunk who behaved badly. Nonetheless you are a kind of accomplice to it; without your wilfully drinking in excess, that drunk person would never have come into existence. You’re morally responsible for that, and hence bear some responsibility for the foreseeable consequences of it. The situation would be a bit like one in which you brainwash or hypnotise someone into holding up a security van. (This is entirely possible; the British illusionist Derren Brown once did it. Although of course it wasn’t a real security van.)

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"Madison remembers neither the murder nor (let’s assume) any of the events leading up to it. So in Locke’s view, Madison is not now morally responsible, even in a derivative way, for the murder, whether or not we add Locke’s extra claim that Madison-now is not the same person as the person who committed the murder"

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These kinds of cases suggest that there is something to Locke’s thought that you can’t be morally responsible for something you can’t remember doing – as in the Banner/Hulk case where Bruce has no control over Hulk’s behaviour – but that we probably need to distinguish between direct and derived responsibility to deal with tricky cases, such as the case where Bruce does have control over whether Hulk appears or the bad-behaviour-when-drunk case.

The Madison case is not one of those cases, however. In the drunk case, for example, right now you (let’s assume) can at least remember accepting the invitation to go to the pub and to drink at least the first few drinks – knowing full well what the likely consequences would be. So you are morally responsible for all of those things, and hence indirectly morally responsible for the behaviour of the drunk person (whether or not we follow Locke in thinking that that person wasn’t really you). By contrast, Madison remembers neither the murder nor (let’s assume) any of the events leading up to it. So in Locke’s view (suitably amended to take care of the tricky cases) Madison is not now morally responsible, even in a derivative way, for the murder – whether or not we add Locke’s extra claim that Madison-now is not the same person as the person who committed the murder.

So for Locke, whatever the Supreme Court decides, from a moral point of view Madison isn’t guilty of anything.