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.