April 20, 2020 Feature

Advocacy and the Age-Related Mental Health Issues of the Older Client

J. Vincent Aprile II

“What is the creature that walks on four legs in the morning, two legs at noon and three in the evening?” . . . . “Man.”
Sophocles, Oedipus Rex.

The segment of Americans ages 65 and older is projected to nearly double from 52 million in 2018 to 95 million by 2060, and that group’s portion of the total population will rise from 16 percent to 23 percent. U.S. Census Bureau, Population Projections. “More than 6 million people in the United States suffer from various types of dementia, including Alzheimer’s disease, and those numbers are growing at an alarming rate. Based on current projections, by 2050 that number will exceed 16 million people, or about 1 in 5 Americans age 65 or older.” Jo Ann Jenkins, Our Goal: Disrupt Dementia, AARP Bulletin, July/Aug. 2018, at 22. Alzheimer’s disease alone accounts for 60 to 80 percent of dementia cases.

These projections reveal that this nation’s criminal justice system will have to address the impact of the growing number of 65 and older individuals participating in a variety of roles in the administration of justice and the reality that many of those individuals may unfortunately suffer from some form of dementia.

A criminal defense attorney, whether retained or appointed, must view an elderly client through two separate frames. Counsel must appreciate that the older client is presumed to be mentally and physically capable, when properly advised and assisted, of understanding the lawyer’s advice and making decisions regarding important matters in the case. But defense counsel must be alert to the possibility that an elderly client may be experiencing cognitive impairment that is not readily apparent.

“When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” Model Rules of Prof’l Conduct r. 1.14 (Am. Bar Ass’n 2016). As a result, a criminal defense attorney has an ethical and legal obligation to determine whether a client does suffer a mental impairment and the extent to which that impairment diminishes the client’s role in both the attorney-client relationship and the criminal justice process.

Defense “[c]ounsel should consider whether the client appears to have a mental impairment or other disability that could adversely affect the representation. Even if a client appears to have such a condition, this does not diminish defense counsel’s obligations to the client, including maintaining a normal attorney-client relationship in so far as possible. In such an instance, defense counsel should also consider whether a mental examination or other protective measures are in the client’s best interest.” Criminal Justice Standards: The Defense Function, at Standard 4-3.1(c) (Am. Bar Ass’n, 4th ed. 2015).

Although the signs of dementia are many and varied, certain traits or problems of the client should trigger the need for more investigation by counsel. For example, early signs and symptoms of Alzheimer’s dementia include memory impairment, such as difficulty remembering events; difficulty concentrating, planning, or problem solving; problems finishing daily tasks at home or at work; confusion with location or passage of time; visual or space difficulties, such as not understanding distance in driving, getting lost, or misplacing items; language problems, such as word-finding problems or reduced vocabulary in speech or writing; use of poor judgment in decisions; withdrawal from work events or social engagements; and changes in mood, such as depression or other behavior and personality changes. Admittedly, any one of these manifestations may not be the result of Alzheimer’s or another form of dementia and may be the product of some other mental health issue.

Investigating Dementia

In determining whether a client has some type of dementia, certain cautions apply.

  • Don’t Rely on the Client for Symptoms. People with memory loss or other possible signs of Alzheimer’s or other forms of dementia may find it hard to recognize they have a problem. A client will often be an unreliable source of evidence of dementia symptoms.
  • Family and Friends Are Better Sources for Symptoms. Signs of dementia may be more obvious to family members, friends, and co-workers, particularly those who have an extended history with the client.
  • Do Not Necessarily Rely on a Primary Care Physician’s Diagnosis. A client’s primary care physician may not be adequately equipped to diagnose the presence or absence of Alzheimer’s or other dementia types due to outdated, unreliable tests or methodologies or lack of current knowledge about this area. Always determine what tests, methodologies, or symptoms the client’s doctor used to make the diagnosis regardless of the diagnosis.
  • Seek Out a Specialist. Find a physician or neurologist who specializes in evaluating Alzheimer’s and other forms of dementia to obtain a reliable diagnosis.
  • Utilize National Organizations and Their Websites to Obtain Information. Organizations such as the Alzheimer’s Association, The Association for Frontotemporal Degeneration (AFTD), and the American Association of Retired Persons (AARP), to name but a few, are excellent sources for information regarding this area of mental illness for older individuals.

Dementia and Competency to Stand Trial

Dementia, depending on the individual’s quota of symptoms, could render an older client or any client mentally incompetent to stand trial, either temporarily or permanently. As a result, it is incumbent on counsel representing an elderly defendant to be certain either that the client has no dementia or that the specific dementia symptoms will not, either individually or in toto, adversely impact the client’s mental competency to stand trial.

Federal Constitutional Standard for Competency to Stand Trial

“The two cases that set forth the Constitution’s ‘mental competence’ standard, Dusky v. United States, 362 U.S. 402 (1960) (per curiam), and Drope v. Missouri, 420 U.S. 162 (1975), specify that the Constitution does not permit trial of an individual who lacks ‘mental competency.’” Indiana v. Edwards, 554 U.S. 164 (2008). “Dusky defines the competency standard as including both (1) ‘whether’ the defendant has ‘a rational as well as factual understanding of the proceedings against him’ and (2) whether the defendant ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.’” Id. at 170. “Drope repeats that standard, stating that it ‘has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.’” Id. The Dusky standard is adequate for defendants who plead not guilty as well as those who plead guilty. Godinez v. Moran, 509 U.S. 389 (1993).

Counsel, if possible, needs to inform the diagnosing mental health expert of the pragmatic realities of both the dynamics of the attorney-client relationship in a criminal case as well as the complexities of criminal proceedings for an accused. Too often those who are called on to render evaluations of a criminal defendant’s competency to stand trial have only a sterile, unrealistic view of the two prongs of the competency test, perhaps guided by only a standard generic competency examination form. Defense counsel should endeavor to provide the evaluator with pragmatic individualized information about both of the competency prongs and counsel’s concerns about the client’s particular symptoms as they impact both competency functions.

Frontotemporal Dementia (FTD) and Competency to Stand Trial

“At the age of 63, Joel Dreyer experienced the onset of frontotemporal dementia, a degenerative brain disorder that causes changes in personality and behavior, impairs social interactions, and causes disinhibition and a loss of insight and impulse control. He was a practicing psychiatrist at the time. From the age of 66 to 69, despite having no criminal history, Dreyer participated in a conspiracy to distribute controlled substances, and in December 2010, at the age of 73, he was sentenced to ten years imprisonment after he pleaded guilty to charges related to that conspiracy.” United States v. Dreyer, 705 F.3d 951, 957 (9th Cir. 2013). At the sentencing hearing, three expert reports all “diagnosed Dreyer with frontotemporal dementia and noted that he exhibited textbook manifestations of the condition since its apparent onset in 2001, three years before his participation in the controlled substance conspiracy, and that his symptoms persisted into the present.” Id. At sentencing, defense counsel informed the court that his client would not allocute because of the dementia’s effect on his behavior. There was no defense motion for a competency hearing, and no hearing was ordered sua sponte by the sentencing court. On appeal, the court held “the record before the district court at sentencing was sufficient to cause a genuine doubt as to the defendant’s competence and that the court committed plain error by failing to order a hearing sua sponte.” Dreyer’s sentence was remanded “for the district court to evaluate Dreyer’s competency on the basis of an evidentiary hearing.”

Parenthetically, frontotemporal dementia (FTD) or frontotemporal degenerations refer to a group of disorders caused by progressive nerve cell loss in the brain’s frontal lobes (the areas behind the forehead) or its temporal lobes (the regions behind the ears). The nerve cell damage caused by frontotemporal dementia leads to loss of function in these brain regions, which variably cause deterioration in behavior and personality, language disturbances, or alterations in muscle or motor functions. See Ass’n for Frontotemporal Degeneration (AFTD), http://www.theaftd.org. It is obvious why a diagnosis of FTD should raise concerns about the client’s competency to stand trial.

FTD symptoms such as lack of reasoning and logic, inability to plan or concentrate, and speech and language difficulties may be used to demonstrate the client lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and/or to assist in preparing his defense, rendering the client incompetent to stand trial.

Dementia, regardless of its source, should always prompt defense counsel to consider its potential to render a client incompetent to stand trial.

Chances of Incompetent Dementia Client Being Restored to Competency in the Future

Alzheimer’s Disease

Alzheimer’s is a progressive disease, where dementia symptoms gradually worsen over a number of years. In its early stages, memory loss is mild, but with late-stage Alzheimer’s, individuals lose the ability to carry on a conversation and respond to their environment. Alzheimer’s has no current cure, but treatments for symptoms are available and research continues. Although current treatments cannot stop Alzheimer’s from progressing, they can temporarily slow the worsening of dementia symptoms and improve quality of life for those with Alzheimer’s.

Frontotemporal Dementia

FTD brings a gradual, progressive decline in behavior, language, or movement, with memory usually relatively preserved. There is no way to prevent or reverse the damage caused by FTD yet, but medications and lifestyle changes can help relieve the symptoms.

Frontotemporal Lobar Degeneration

FTLD refers to a group of non-Alzheimer’s dementias that cause portions of the frontal and temporal lobes to atrophy, leading to impairments in behavior, personality, language, and movement. FTLD is estimated to cause up to ten percent of dementia cases, and it is the most common cause of dementia in individuals younger than 60 years old, with symptoms usually appearing between the ages of 50 and 60.

The inability to cure and/or reverse Alzheimer’s or FTD is important in demonstrating to the court that the client, once determined to be incompetent to stand trial, will not be restored to competency by hospitalization or future treatment, requiring the charges to be dismissed with prejudice.

Dementia and the Physical Inability to Stand Trial

Defense counsel must also determine whether the client’s medical conditions will interfere with the defendant’s physical competence to stand trial. See, e.g., United States v. Doran, 328 F. Supp. 1261, 1263 (S.D.N.Y. 1971). Physical competency focuses on the accused’s medical condition and whether the physical problems the defendant is experiencing will be exacerbated by subjecting the infirm defendant to trial, increasing significantly the risks to the accused’s health. Physical and mental conditions arise often in the cases as distinct and separate grounds of “incompetency” to stand trial—namely, (1) “mental” inability to comprehend and assist and (2) “physical” disorders making trial excessively painful or risky. It is not extraordinary, of course, that both kinds of impediments should be found to coexist. Id. at 1262.

Many older individuals suffer from one or more medical conditions including various heart conditions, breathing problems, diabetes, and bone and joint disorders. Often these conditions, their severity, and the pain and suffering that accompany them are not immediately apparent to counsel. Defense counsel must inquire into the medical conditions or symptoms an elderly client may be experiencing.

Physical competency to stand trial weighs both the medical evidence of the older defendant’s health problems and the availability of remedial measures, such as a shortened trial day, appropriate medication, at-hand medical equipment, and standby medical personnel. Courts also analyze whether the physical problems of the defendant are temporary or permanent when considering whether a postponement of the trial is a workable solution.

Even when the degree and severity of dementia are insufficient to render the elderly defendant incompetent to stand trial, that dementia may be sufficient to demonstrate physical incompetency to stand trial, or at least contribute to that determination. Dementia symptoms such as visual impairment, language impairment, difficulty concentrating, and balance/movement problems, if insufficient to establish mental incompetency, may support physical incompetency to stand trial.

Issues of mental and physical incompetency to stand trial are not unique to the elderly defendant, but the occurrence of either or both of these issues is more prevalent in the older defendant and often much more difficult to recognize.

Dementia and the Pretrial Release Hearing

A defendant’s mental condition should always be an essential component of the court’s decision to order or deny pretrial detention. Defense counsel should educate the court about the dementia the accused is experiencing, if known, and what assistance the defendant will receive upon release to deal with the manifesting symptoms. For example, if the accused is experiencing memory issues that may adversely influence his ability to recall and attend his upcoming court date, the defense should advise the court of the precautions counsel and others will take to ensure the defendant attends all court appearances.

Dementia and Discovery

If a defendant is not found incompetent to stand trial by reason of his type of dementia, in jurisdictions with restrictive discovery rules defense counsel, on the basis of the client’s dementia symptoms, may seek greater access to the prosecution’s files, such as “open file” discovery. The Kentucky Supreme Court, as early as 1981, “reject[ed] amnesia by virtue of mental disease or otherwise as a basis for declaring an accused incompetent to stand trial,” but proposed a solution. Commonwealth v. Griffin, 622 S.W.2d 214, 217 (Ky. 1981). “If the amnesia is medically confirmed, the trial court can make a determination based on the situation in each case whether ‘fair trial’ commands that the prosecution should open its files to the defendant.” Id. The correlation between amnesia and incompetency to stand trial has been recognized in some jurisdictions. “Whether defendant has access to the prosecutor’s files has also been considered a significant factor in determining the question of incompetency as a result of amnesia.” (State v. Emerson, 375 N.W.2d 256, 261 (Iowa 1985).)

Amnesia is an inability to lay down new memories, recall old memories, or both. Amnesia bears a striking resemblance to memory impairment, such as difficulty remembering events, often present in Alzheimer’s dementia and the later stages of FTD. Significant memory issues flowing from dementia may justify “open file” discovery in jurisdictions where complete discovery from the prosecution is routinely unavailable.

The Elderly Defendant’s Dementia as a Factor in Pretrial Motion Practice

The presence of dementia in the elderly defendant may also be relevant to issues pertaining to the client’s conduct during law enforcement’s investigation of the case. An elderly client’s confession, consent to search, or other decisions may be undermined by the accused’s dementia. But see Colorado v. Connelly, 479 U.S. 157, 167 (1986) (holding “coercive police activity is a necessary predicate to a finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause”).

Counsel should also consider a motion in limine to preclude the admission of the dementia client’s out-of-court inculpatory statement on the grounds that then as now the defendant was incompetent to testify. Incompetency to testify may result from a witness’s lack of capacity to perceive accurately the matters in question, to recollect facts, to provide understandable testimony, or to understand the obligation to testify truthfully. Any of these factors may occur as a result of dementia.

Although dementia may be inadequate to justify the exclusion of evidence on constitutional grounds, the accused’s dementia may be relevant to the jury’s view of the credibility of the confession or other decisions made by the client. See, e.g., Crane v. Kentucky, 976 U.S. 683 (1986).

Unconstitutional Delay in Prosecution and Dementia

In motions to dismiss for pre-indictment delay (United States v. Marion, 404 U.S. 307, 325 (1971)) and for denial of a speedy trial (Barker v. Wingo, 407 U.S. 514 (1972)), “[t]here is also prejudice if defense witnesses are unable to recall accurately events of the distant past.” Id. at 532. An elderly client’s dementia symptoms may provide compelling evidence of an inability to recall accurately previous events, even of the not-so-distant past, creating necessary prejudice in instances of law enforcement or prosecution delay before or after initiating formal criminal proceedings. This is particularly significant where memory impairment has progressed during the challenged delay as is common in various types of dementia.

Defense counsel should remain alert to the possibility that both defense and prosecution witnesses may be suffering from memory impairment attributable to dementia and be ready to use that factor to the accused’s benefit when litigating either form of unconstitutional delay.

Dementia and Criminal Responsibility

For example, frontotemporal dementia is a progressive neurodegenerative disorder, previously known as Pick’s disease, that affects the frontal and anterior temporal regions. On average, FTD has an age of onset in the late 50s, with an equal incidence among men and women. Although the disorder is termed dementia, early in the course most patients have a personality change with relatively intact cognition (i.e., early FTD is less an impairment in memory, language, or perception than a disorder of abnormal behavior). Subgroups of FTD patients can develop primary progressive aphasia [loss of ability to understand or express speech], semantic deficits, parkinsonism evolving to progressive supranuclear palsy (PSP), corticobasal degeneration, or motor wasting and motor neuron disease (MND). The core features of the usual behavioral variant FTD are transgression of social norms including sociopathic behavior, a loss of empathy or appreciation of the feelings of others, and disinhibited, compulsive acts. Patients with FTD can commit criminal violations while retaining the ability to know moral rules and conventions. Mario F. Mendez, The Unique Predisposition to Criminal Violations in Frontotemporal Dementia, 38 J. Am. Acad. Psychiatry L. 318 (2010), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3139561/.

In considering whether a client’s dementia may meet the criteria for insanity, counsel needs to evaluate the client’s mental condition under the jurisdiction’s insanity test. Under the American Law Institute’s Model Penal Code Test for Insanity, for example, “a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” Conversely, under the M’Naghten Test (Rule), a criminal defendant is determined to have been insane at the time of the alleged offense if he or she did not know right from wrong or did not understand the moral nature of the act because of a mental disease or defect.

The Dementia Defense for Both Violent and Nonviolent Acts

Both physical and verbal violence are more frequently found in diseases that impact frontal brain circuits responsible for controlling behavior, such as FTD. Patients with Alzheimer’s are less prone to violence but more prone to poor judgment offenses.

Dementia Patient’s Ability to Appreciate the Criminality of His or Her Conduct

Patients with behavioral variant frontotemporal dementia (bvFTD) have shown an ability to appreciate and verbalize their inappropriate behaviors. In some instances, patients with neurodegenerative disease are able to distinguish right from wrong.

Dementia Patient’s Ability to Conform His or Her Conduct to the Law

Many patients with neurodegenerative disease have difficulty controlling their behaviors.

Elderly Defendant’s Decision Not to Testify

The defendant’s decision not to testify at a jury trial may be the result of the older defendant’s concern or that of defense counsel that the client’s symptoms of dementia could cause the jury to draw an unfavorable impression of the client. In that situation, defense counsel may need to find a way to inform the jury of the reasons why the defendant will not take the stand or to prepare the jury for problems the accused may experience testifying. Defense strategies may include a stipulation between the defense and prosecution that the accused has been diagnosed with a form of dementia and has certain enumerated symptoms that could affect the client’s conduct on the witness stand. This stipulation presented to the jury could provide a context for the jury to evaluate a defendant’s decision either to testify or decline to take the stand, even though the jury is not permitted constitutionally to draw an adverse inference from an accused’s decision not to testify.

Other approaches used separately or in tandem could include using voir dire to discuss with the venire their individual experiences with people suffering from dementia and the impressions formed from those involvements, having the diagnosing expert testify about the client’s condition, and/or using a jury admonition or instruction regarding either the general or individualized effects of dementia.

To illustrate, during voir dire, counsel or the court, as requested by counsel, could explore which of the venire have had a significant contact or relationship with a person suffering from dementia and the most enduring opinions about dementia formed by those encounters. This information would be helpful in determining the venirepersons to strike with peremptory and cause challenges.

Evaluating Elderly Prosecution Witnesses for Dementia

In those cases involving older prosecution witnesses, defense counsel should be alert to the possibility that those witnesses themselves may suffer dementia and concomitant memory problems that could raise credibility issues. Defense counsel, where there are appropriate indications of dementia in an opposing witness, should seek access to the witness’s medical history through pretrial motions. The prosecution is constitutionally obligated to disclose material exculpatory and impeachment evidence when such evidence is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972). Even though disclosure is mandated regardless of whether the defendant makes a request for exculpatory or impeachment evidence, defense counsel should nevertheless request any evidence of dementia in elderly prosecution witnesses. Kyles v. Whitley, 514 U.S. 419, 432–33 (1995). The prosecution, however, will have no obligation to disclose information it does not have.

A Defendant’s Dementia Should Be an Important Sentencing Factor

Regardless of the jurisdiction, defense counsel should present the defendant’s dementia and its impact on the client’s life whether during a period of incarceration or during a supervised release.

Recidivism of Elderly Defendants

In sentencing, defense counsel should be aware of the extremely low recidivism rates for elderly defendants. Department of Justice statistics show that prisoners 55 or older recidivate at a rate of just two percent. Bureau of Justice Statistics, U.S. Dep’t of Justice, Trends in State Parole, 1999–2000. Other studies have indicated that there is virtually no recidivism for individuals age 60 or older. See, e.g., Kyung Yon Jhi & Hee-Jong Joo, Predictors of Recidivism Across Major Age Groups of Parolees in Texas, 6 Justice Pol’y J., no. 1, Spring 2009.

Expense of Warehousing Elderly Inmates

Additionally, older inmates, particularly those convicted of nonviolent crimes, usually present a host of problems for confinement facilities that may militate against imprisonment and support a probated sentence. “Our analysis suggests that housing non-violent elderly inmates in prison is not a good use of scarce resources since they are potentially very expensive yet represent a relatively low risk to society.” Report of the California Legislative Analyst’s Office (as quoted in Patrick McMahon, Aging Inmates Present Prison Crisis, USA Today, Aug. 10, 2003, Nation sec.).

Inability of Jails and Prisons to Provide Adequate Assistance and Treatment to Inmates with Dementia

Sentencing courts need to be educated about how a defendant’s dementia and specific symptoms will change the nature of the various punishments being considered by the court.

Medications for Memory Loss

Although current medications cannot cure Alzheimer’s or stop it from progressing, they may help lessen symptoms, such as memory loss and confusion, for a limited time. The US Food and Drug Administration (FDA) has approved two types of medications—cholinesterase inhibitors (Aricept, Exelon, Razadyne) and memantine (Namenda)—to treat the cognitive symptoms (memory loss, confusion, and problems with thinking and reasoning) of Alzheimer’s disease. If the defendant is incarcerated, will the penal institution be able to provide such medications, and at what cost to government?

Behavioral Issues

In addition to irritability, anxiety, and depression present in the early stages of Alzheimer’s, in the later stages, additional symptoms may occur including memory loss; confusion; aggression and anger; anxiety and agitation; general emotional distress; physical or verbal outbursts; repetition; suspicions; restlessness; hallucinations (seeing, hearing, or feeling things that are not really there); delusions (firmly held belief in things that are not true); and sleep issues.

As people with dementia, including Alzheimer’s, gradually lose their ability to find words, express thoughts, and follow conversations, they also have more difficulty understanding others. Communication changes during the middle stages of dementia include trouble finding the right word, repeating questions, losing the train of thought, reverting to a native language, and relying on nonverbal communication. Eating, dressing, and grooming will become more challenging as dementia progresses.

Dementia may condemn a jail or prison inmate to repeated violations of disciplinary rules and institutional punishments. It is unlikely that a prison or jail disciplinary process will provide mental health evidence regarding the prisoner’s dementia symptoms to mitigate or excuse the charged violation, even though the offending conduct may be a product of dementia and/or the medications used to treat it. A punishment of confinement in a penal institution for one with certain dementia symptoms may be a more severe penalty than it would be for a person without dementia. Providing the sentencing court with information about these problems faced by the correctional facilities to which the dementia client may be sentenced is a prerequisite to protecting the client from the unintended consequences of a sentence of institutionalization.

Unique Institutional Problems Elderly Inmates Create

Correctional facilities are recognizing the unique problems elderly prisoners can present, particularly as more inmates are in this age group. “In addition to health care issues, work assignments, co-payments, nutritional requirements, concerns for victimization, end of life issues and appropriate staffing are concerns that will have to be addressed.” Ronald H. Aday, Aging Prisoners: Crisis in American Corrections (2003). Information on these correctional problems provided by corrections officials or experts should be part of the defense sentencing strategy when representing a client suffering from dementia.

Additional Problems for Jails and Prisons Caused by Elderly Inmates

Confinement for the elderly may subject them as a group to more risks than prisoners in other age groups. Elderly inmates may be more vulnerable to self-harm, suicide, or victimization than their younger counterparts. Older prisoners are necessarily wary of being victimized by younger and stronger inmates and view their advanced age as a significant factor marking them as potential victims. James W. Marquart, Dorothy E. Merianos & Geri Doucet, The Health-Related Concerns of Older Prisoners: Implications for Policy, 20 Ageing & Soc’y 79 (2000). Due to the natural reduction in physical mobility associated with aging, older inmates suffer stress because they are less able to perform routine tasks in confinement, such as showering or using the bathroom. Jack M. Guralnik & Eleanor M. Simonsick, Physical Disability in Older Americans, 48 J. Gerontology (Special Issue) 3 (1993). All of these factors, where applicable, should be brought to the attention of the sentencing court.

Life Expectancy of an Elderly Defendant as a Mitigating Factor

Additionally, defense counsel should use life expectancy tables to demonstrate the relationship of a potential sentence of imprisonment, regardless of its length, to the estimated life span of the older defendant. For an elderly defendant, a sentence of 10 years may be the equivalent of a life sentence or even a death sentence. Demonstrating the uniqueness of every defendant is essential to a sentencing presentation, and the specific age-related circumstances of an elderly defendant must be part of the sentencing equation.

Life expectancy, for example, for people with Alzheimer’s-type dementia is 8 to 12 years on average. The progression of the condition varies from one person to another and depends partly on how old the individual was at the time of diagnosis and on his or her general health. “Research shows that people generally live from 2 to 10 years after diagnosis [of FTD], with an average reported life expectancy of about 6.5 to 7 years. The range of survival extends from as few as 18 months to over 20 years, so it is impossible to predict any one individual’s situation. Still, neurologists knowledgeable about frontotemporal degeneration are able to evaluate the rate of disease progression with patients and families to help them plan for care.” Ass’n for Frontotemporal Degeneration, https://www.theaftd.org/what-is-ftd/faqs/.

When the sentencing is of a defendant who is both elderly and suffering from dementia, the accused’s actual estimated life expectancy must be calculated to place the potential sentences of confinement in the context of the individual rather than the generic life expectancy for a person of the defendant’s chronological age. The reductions in life expectancy generated by the particular form of dementia must be included in these calculations.

Prison Placement for Dementia Clients

In jurisdictions where the sentencing court has some ability to recommend or determine prison placement, the defense should marshal the data on which, if any, of the available confinement facilities are capable of providing accommodations for the client’s dementia symptoms, such as medications and therapy, to assist the court in determining the appropriate facility. Defense counsel may also use that information to illustrate to the court that a probated or suspended sentence would be a better sentencing solution than imprisonment that “would simply pass the cost of medical care on to taxpayers.” United States v. Edwards, 595 F.3d 1004, 1011 (9th Cir. 2010). Even data relevant to prison placement may provide sentencing leverage.

Allocution and Dementia

In some jurisdictions, following a finding of guilty, a defendant is accorded an opportunity to allocute, i.e., the defendant is permitted to make a formal unsworn statement to the sentencer to express remorse and explain personal circumstances that might be relevant to sentencing. In that situation, a defendant with dementia, if possible, may use this procedure to discuss his or her dementia symptoms and the impact of those mental and physical manifestations on the potential punishments. In some instances, defense counsel may explain that due to the extent of the client’s dementia and the limitations imposed, the defendant will waive allocution. United States v. Dreyer, 705 F.3d 951, 957 (9th Cir. 2013).

Sentencing Information for a Client with Dementia May Be an Effective Factor in Plea Negotiations

Defense counsel should not wait to gather information for the sentencing presentation as these factors can provide important leverage in pretrial plea negotiations.

Dementia and Competency to be Executed

In Madison v. Alabama, 139 S. Ct. 718 (2019), the Supreme Court evaluated whether a condemned inmate suffering from dementia may be executed. “In evaluating competency to be executed, a judge must therefore look beyond any given diagnosis to a downstream consequence.” Id. at 729. Dementia “can cause such disorientation and cognitive decline as to prevent a person from sustaining a rational understanding of why the State wants to execute him[,]” . . . [b]ut dementia also has milder forms, which allow a person to preserve that understanding.” Id. As a result, for dementia as for any other mental disorder, courts must determine the effect dementia has on the condemned inmate’s ability to rationally understand why the government seeks his or her execution.

Gubernatorial and Presidential Commutations of Sentences and Pardons

The same information about dementia among Alzheimer’s and FTD patients discussed above in sentencing is valuable in applications to a governor or a president for commutations of sentences to time already served or to a much shorter term than the original sentence. Counsel can marshal this information into a commutation application or a supplement to an application.

In certain situations, a convicted and sentenced defendant, whether still incarcerated or released from confinement, may be an excellent candidate for a pardon due to the existence of dementia, such as from Alzheimer’s or FTD. The defendant’s dementia may be relevant to either or both issues of guilt as well as sentencing for purpose of a pardon.

Parole Hearing Packages or Presentations for Inmates with Dementia

As in commutation and pardon applications for an inmate with dementia, counsel can prepare a package or a presentation for the parole authority, depending on the jurisdiction, that includes all the specific information about the inmate’s dementia as well as the impact the dementia symptoms have on the inmate’s sentence and time in confinement.

Dementia Is Not Confined to Older Individuals

Defense counsel should realize that younger people as well as older people can develop dementia, including Alzheimer’s disease, although an individual’s risk of either increases with age. Consequently, counsel should be alert to the possibility that some form of dementia may be an explanation for certain symptoms even in a younger person.

Dementia and the Judge or Prosecutor

Defense counsel should anticipate that either or both the prosecution and the judge may have little correct knowledge about dementia, including Alzheimer’s or FTD, and may even have obvious incorrect beliefs about these conditions. The defense must educate both about dementia and its impact on the client as early as possible, such as at a bail hearing or early plea negotiations. When the chronological age of the judge or the prosecutor places either or both in the category of “elderly” or “older,” the defense presentation on behalf of an older client must be adapted to counter potential judicial or prosecutorial skepticism of the debilitating effects of growing old based on their own personal aging experiences. Dementia is not regarded as a routine occurrence in the aging process.

The suggestions in this article are far from all the various ways defense counsel can represent a client with dementia. Perhaps this article will encourage defense counsel to educate themselves on the various forms of dementia, especially Alzheimer’s, and apply that knowledge to generate other tactics and strategies to ensure the clients with dementia, particularly older ones, receive quality representation tailored to their unique challenges. Prosecutors too will benefit from appreciating the impact of dementia on those who will play various roles in their cases.

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J. Vincent Aprile II

J. Vincent Aprile II retired after 30 years as a public defender and joined Lynch, Cox, Gilman, & Goodman, PSC, in Louisville, Kentucky, where he specializes in criminal law, employment law, and litigation. He is a member of the editorial board of Criminal Justice magazine (1989-2012, 2014-present) as well as a regular columnist (1992 to present). Vince is a proud member of the Silent Generation.