May 12, 2021

Criminal Justice and the Policy and Practice Challenges of Dementia: A Research and Policy Development Initiative

The Commission is currently implementing a 12-month project of the American Bar Association Commission on Law and Aging to identify issues and options related to the identification and involvement of persons with aging-related cognitive impairment (i.e., dementia) in the criminal justice system.  The project grew from exploratory discussions among clinical and legal experts, many of whom now constitute the project team listed below, coordinated by the ABA Commission on Law and Aging. The project team had reached out to members of other stakeholder groups who have affirmed the significance of the project and expressed their interest in participating, including the American Psychiatric Association; the American Academy of Neurology; the International Association of Chiefs of Police; the National District Attorneys Association; the National Commission on Correctional Health Care; the Alzheimer’s Association; and the American Geriatrics Society.

Background. For older persons, there has been no systematic effort to understand the impact of age-related brain changes in criminal prosecution or the corrections system. As our population ages and the prevalence of cognitive impairments among older persons increases, multiple issues related to the interface between persons with aging-related cognitive impairment (i.e., dementia) and the criminal justice system need to be addressed. This complex and multifactorial interface has not received the systematic attention it requires. Indeed, it has received almost no attention.

There has been a far-reaching approach to understanding neurological development in youth as it relates to juvenile justice proceedings and the need for alternative dispositions when immaturity and brain development are factored into disposition. There has also been attention given to the intersection of persons with mental health issues and the criminal justice system. However, issues related to dementia are fundamentally different from those of mental health. Most programs involving persons with mental disorders in the legal system focus on encouraging treatment or rehabilitation programs. Unfortunately, this is not the case in patients suffering from dementia, who are likely to deteriorate regardless of the intervention or the environment in which they live.

Dementia syndromes sometimes result in deviant or criminal behavior, leading to involvement with the criminal justice system. This raises fundamental legal and moral challenges in ensuring fair punishment, protecting public safety, and delivering appropriate healthcare services to the incarcerated person. There is an acute need to develop an understanding of how the impact of dementia should be taken into account in both prosecution and corrections so that a framework for policy and practice can be established.

Project Goal. The goal of this project is the establish an evidence-based framework to organize the key issues, solution options, and policy and practice recommendations. Key to this goal is identifying needed collaborations and resources that can work with law enforcement, the courts, and corrections facilities. From this framework, the project will develop policy, practice, education, and/or research recommendations related to screening and identification of dementia, diversion, prosecution, adjudication, sentencing, and management in correctional facilities, including compassionate release.

Impact beyond the project term includes enhancing knowledge and awareness within the criminal justice system and developing organizational policies, legislation if needed, and standards of practice for prosecutors, defense attorneys, judges, clinicians, and corrections management.

Research Questions and Methodology. The project will explore the frequency with which issues relating to dementia in the over age-65 population arise during arrest, adjudication, and during correctional or forensic placements. A greater understanding of these issues will demonstrate for law and policy makers the scope and scale of the challenges of dementia in the criminal justice system. The project will collect and synthesize data on these practices from state and federal courts and administrative agencies. From this data collection and from surveying of experts and stakeholders, the project will seek answers to questions such as  the following:

  • What key indicators are needed to identify cases and appropriate dispositions?
  • What prosecutorial guidelines are needed, informed by medical and behavioral knowledge of dementia and appropriate diversion alternatives?
  • What linkages and partnerships with community-based resources are needed to meet the needs of individuals with aging-related cognitive impairments for whom prosecution is inappropriate?
  • What kinds of rules and procedures would be helpful in responding to cases involving doubted competence, including non-criminal diversion and assistance?
  • What kinds of rules and procedures would be helpful in cases involving defendants who may lack sufficient capacity to participate in a criminal trial?
  • What kinds of rules and procedures would be helpful in the adjudication of criminal responsibility, including reconstructing the defendant’s capacities at the time of the offense as it relates to neurocognitive decline in older adults?
  • What are the dispositional challenges and promising options, including placements for older adults with dementia whose alleged offenses involved serious victim injury, yet who are not convicted?
  • What are the correctional challenges and promising options that arise during imprisonment of older adult offenders diagnosed with dementia after they have been convicted?

The research design has three components:

I.      Literature review, gap analysis, and key indicator development, led by Jennifer Bronson of the National Research Institute.

II.     Exploratory virtual focus groups with law enforcement/first responders, judges, prosecutors, defense attorneys, jail personnel, and correctional health care personnel and administrators.

III.   Consensus building for developing recommendations using the input of the focus groups organized around stakeholder groups and key issues.

The project will develop findings and recommendations regarding policy, practice, education, and/or research are expected to fall under one of the following five categories:

  • Screening and identification of dementia at first contact and arrest
  • Diversion options
  • Guidelines for prosecutors and defense attorneys
  • Guidelines for judges on adjudication and sentencing
  • Guidelines for correctional facilities for prisoners who develop signs of dementia

In summary, this is a mixed-methods study, consisting of secondary data analysis and primary qualitative information on expert experience, opinions, and recommendations.  The project team will synthesize the views, analysis, opinions, and recommendations of the interviews and Delphi Focus Groups and make final judgements on the findings, conclusions and recommendations that best reflect the prevailing wisdom.

Deliverables.  The primary deliverable of the project will be a published White Paper with a set of findings and recommendations, along with the publishing of short summaries and commentaries on the report in a variety of mainstream neurology, gerontology, and psychiatry journals. However, the real impact of this kind of initiative is realized years beyond the project term, because the assimilation of policies and practices by organizations and professional groups is a slow process. Legislation where needed and standards of practice come about only through persistence over time. The groups represented by the project team, as well as the professional groups that have expressed interest in the project, are able and willing to consider the results of this initiative in their normal policy development and advocacy processes that continuously shape law and practice over time. These efforts will reach prosecutors, defense attorneys, judges, court administrators, and corrections officials.

Project Personnel

Co-Principal Investigators:

  • Charles P. Sabatino, JD, Director of the ABA Commission on Law and Aging.
  • Richard J. Bonnie, JD, the Harrison Foundation Professor of Medicine and Law, Professor of Psychiatry & Neurobehavioral Sciences and Director of the Institute of Law, Psychiatry & Public Policy at the University of Virginia School of Law.

Co-Investigators:

  • Debra Pinals, MD, Medical Director of Behavioral Health and Forensic Programs for the Michigan Department of Health and Human Services; Director of the Program in Psychiatry, Law, & Ethics and Clinical Professor of Psychiatry at the University of Michigan Medical School.
  • Jennifer Bronson, PhD, the Senior Director of Consulting & Research at Nat. Assoc. of State Mental Health Program Directors Research Institute (NRI).
  • David Godfrey, JD, Senior Attorney, Commission Law and Aging.

Project Advisors:

  • Jason Karlawish, MD, Professor of Medicine, Medical Ethics and Health Policy and Neurology at the University of Pennsylvania.
  • Jacobo Mintzer, MD, Executive Director of the Research and Innovation Center & Chief Research and Innovation Officer, Roper St. Francis Healthcare.
  • Domingo Herraiz, Director of Programs, International Assn. of Chiefs of Police.
  • Additional collaborators with interest and expertise in the topic will continue to join the project as the effort has progressed.