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May 17, 2022

The Experience of Persons with Dementia in the Criminal Legal System

David Godfrey, JD

The PDF in which this article appears can be found in Bifocal, Vol. 43, Issue 5.

Please join us on June 15th at Noon Eastern Time for an event officially releasing the full report of our research into persons with Dementia and the Criminal Legal System. The report contains findings and recommendations based on the research.  The research was made possible by the RRF Foundation, coordinated by the ABA Commission on Law and Aging in collaboration with an all-star research team.  Registration is required, but there is no cost.  Be among the first to hear the key findings and recommendations and how to leverage this research for change in your community.  Register at The program will be about 30 minutes.  After registering, you will receive a confirmation email containing information about joining the release event.

Back in my legal aid days, a call came in from the family of a nursing home resident desperate for help. The patient had dementia and in a moment of disorientation and frustration hit a staff member. The police were called, and were charges filed. The indigent criminal defense office had declined to help because the charge was a misdemeanor. I knew that if she was convicted or agreed to a guilty plea, she could have been involuntarily discharged from the skilled nursing facility as “high-risk.” I agreed to see what I could do. My conversation with the prosecutor was short, I questioned if my client was “competent” to stand trial, and was the jail equipped to care for a nearly bedridden person with dementia.  The prosecutor said, “I’ll get back to you.” The next day the charge was dismissed. If I hadn’t been there, if the family hadn’t kept asking for help after being told by others we can’t represent her, she might have been convicted and involuntarily discharged from care, in an area where “high-risk” patients were often placed across state lines 150 miles away, or in the state mental hospital. Then as now, many nursing facilities refused to care for “high-risk” patients.    

With funding from the RRF Foundation and in collaboration with the University of Virginia, the University of Michigan, the National Research Institute, University of South Carolina, and the Penn Memory Center, we have spent the last 18 months looking at the big picture of persons with dementia and the criminal legal system using the “sequential intercept model” that examines interaction along the process of the criminal legal system from first contact to long term corrections. 

Data was gathered from a variety of sources.  A comprehensive case law review was performed by the law school at the University of Virginia.  Researchers examined peer reviewed journal articles.  South Carolina offered a unique data set, comparing a statewide health database of persons with dementia to criminal arrest and incarceration data.  We received survey responses from over 300 professionals in law enforcement, prosecution, defense, the courts, forensic psychology, correctional health and correctional operations.  We conducted 45 in-depth interviews with professionals who work in the criminal legal system. 

Top four Action Steps:

  • Reform the system that refers persons with dementia who are found unable to stand trial for “restoration.”
  • Create new care placements for persons with dementia who are considered “high risk” so that placement is possible.
  • Transfer persons with dementia out of the traditional correctional system.
  • Provide system wide training on the impact of dementia on a person, and how to respond to unexpected behaviors.

This research reveals that there is widespread agreement that correctional systems are by and large unprepared or unable to provide a safe and caring environment for persons living with neurocognitive conditions, also known as dementia. The typical correctional setting relies on the person understanding, remembering, and learning the rules, tasks that are difficult or impossible for a person with dementia. Persons living with dementia in a correctional system are often placed in special housing either as punishment or for personal safety. Those settings often result in isolation that may worsen cognitive decline.  There are some innovative efforts to train companion caregivers for persons with dementia in correctional systems. Those efforts merit study, but at best the person is in an environment that is difficult to survive in. 

Persons living with dementia become involved in the criminal legal system either as new arrestees, or as persons who experience cognitive decline while in the correctional system. Data is limited on the number of persons aging into dementia in the correctional system, and persons entering the criminal legal system with existing dementia.  The South Carolina data indicated that far more persons are aging in than entering with dementia. 

The criminal legal system is ill equipped for persons with dementia who commit crimes. While there are pioneering efforts at training and community-based diversion from the criminal legal system, many front-line responders lack training to recognize that the person with dementia was unable to form intent for most crimes. Those that are arrested need defense attorneys that recognize the impact of neurocognitive decline on the person’s ability to form intent, to control behavior and to make choices. As one respondent put it, ““You have to be naked and baying at the moon in order for most lawyers to recognize that they have a mental health problem before them.” Training is need on recognizing and understanding dementia from the front line to the court room, to corrections. 

Neurocognitive conditions or decline do not fit the legal model for mental illness in that there are no effective cures, treatments or therapies that restore ability. This creates a challenge in pre-trial determinations of fitness to stand trial, and in correctional health care that often has resources to care for physical or mental illness, but not long-term cognitive decline.

The standard procedure in many Courts when a defendant is found unable to stand trial, is a commitment of the person to a mental hospital for “restoration of capacity.” Restoration is impossible for a person with a progressive dementia.  We have heard repeatedly about the vicious cycle of being found unable to stand trial, commitment to a mental hospital for restoration that is unsuccessful, resulting in the person going back before the judge and often being sent back to a psychiatric hospital for further treatment until it is finally decided this is not going to help. New laws and standards of practice are desperately needed to break this cycle. A diagnosis of dementia should result in placement in an appropriate care setting, and a new form of civil commitment where needed to assure safety. A couple of states have prohibited admission to state mental hospitals of persons with dementia – resulting in the next challenge, a lack of placement options.  Professionals who assess capacity and defense attorneys lack data on recidivism for persons with dementia, but the answer is likely dependent on the environment the person is released to, with a need for care in a safe and controlled environment being paramount.  

It is difficult and often impossible to find memory care, skilled nursing care, or Alzheimer’s care for a person with dementia and a history of violent acts even without a prior conviction. Most community based long term care providers refuse to admit and will discharge these patients.  Even medical or compassionate parole/release programs reported that unless there is a family member willing to care for the person, placement is nearly impossible, people often die before a care placement can be found.  There are a few innovative programs that are developing specialized care settings for persons who are considered “high risk.” Some care facilities are a part of correctional health care, others are community-based facilities focused on care for persons who are otherwise hard to place.  These models need to be studied and replicated.

We offer special thanks to the RRF Foundation for funding this project, to the members of the research team that did so much of the work on this project, and the over 300 professionals who responded to the surveys and participated in interviews who made this project a reality.  

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David Godfrey, JD

Director ABA Commission on Law and Aging