Persons living with dementia commit acts that would be crimes if the person was able to form intent and understand their actions, and the aging of the prison population is leading to unprecedented numbers of persons behind bars developing dementia.
Dementia, from Alzheimer’s or other causes, changes the way a person understands the world around them, and can change a person’s behavior. A person living with dementia may experience emotions such as depression or anxiety; they may become confused or disoriented; they may experience delusions or hallucinations – very real perceived beliefs that only that person experiences. This can result in the person committing acts that the law considers a crime. These same changes make life in the correctional system (jails and prisons) nearly impossible for a person who has or who is developing dementia.
Please join us on June 15th at Noon Eastern Time for the release of a report on the “Experience of Persons Living with Dementia and the Criminal Legal System.” The report contains findings and recommendations based on research into the experience of persons with dementia and the criminal justice system. 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, there is no cost, and the program will be about 30 minutes in length.
Be among the first to hear the key findings and recommendations and how to leverage this research for change in your community. To receive the link for the release event, sign up at https://americanbar.zoom.us/webinar/register/WN_wmG3ovoARiSi07ycMYweRA After registering, you will receive a confirmation email containing information about joining the program.
There is not a lot of data on the “criminal” acts committed by persons living with dementia. As part of this research project, South Carolina compared data from a statewide database on dementia with a statewide criminal database. The data indicated that non-violent crimes were the most common infractions, things like trespassing, shoplifting, drug possession, and traffic violations and a lesser number of violent acts. About 300 professionals responded to a survey as part of this research. The survey asked, if known, what the person with dementia in the criminal justice system was charged with or convicted of. There were 214 responses to this question.
| Sex Crimes | 36 | 16.8% |
| Tresspass, Shoplifting | 30 | 14.01% |
| Assault | 30 | 14.01% |
| Domestic Violence | 25 | 11.685% |
Traffic/ DUI/ Drugs |
25 | 11.685% |
Theft/ Financial Crime
|
19 | 9.345% |
| Assault in Health Care/SNF | 17 | 7.943% |
| Threatening | 7 | 3.281% |
Some of these can be grouped together. Trespassing, threatening, and arson were often arrests for persons with dementia who wander or are homeless. Trespassing is obvious, entering a place without permission, and threatening was often failure to follow the directions of law enforcement. Every one of the arson reports was a person with dementia who was lighting a fire to stay warm, such as a person who entered the outer lobby of a post office on a cold winter night and lit a fire in a trashcan to try to stay warm. Several health care workers and jail staffers reported an increase in arrests of persons with dementia who were homeless when the weather was bad.
Assault in an in-patient health care setting or skilled nursing facility is about equally split between a physical assault on another patient and striking a staff member. Understaffing and a lack of training contribute to this grouping.
The case reports on murder are always tragic. One that stands out was a couple who operated a jewelry store. Many years ago, they had an armed robbery, and the husband kept a loaded pistol in his work bench after that. One day, his wife returned to the store from running an errand, her husband was disoriented and thought she was trying to rob the store, and he shot and killed her in the middle of the store, in the middle of the day, in front of customers and family members. A set of facts that devastated the city. He was inconsolable and couldn’t understand what happened to his wife. The pressure on police and prosecutors for or against prosecution were immense.
So, what do you do?
Sometimes the police make the decision to not arrest a person with dementia who has committed a crime. There are some model programs around the country that use a community response approach to respond to dementia and mental health issues. If there is any reason to believe mental health is a factor, the front-line response includes a trained mental health counselor or social worker. One pilot projected showed that the savings in prosecution and corrections more than offset the cost of a more effective response model.
Often prosecutors decline to prosecute (it proved impossible to put any numbers on this). In the jewelry store tragedy, the family agreed to inpatient dementia care, and the prosecutor declined to bring charges.
When criminal charges are brought, often the first defense motion is for competency to stand trial. In general terms the defendant must be able assist counsel in the defense or trial would result in a denial of due process.
In most jurisdictions when a person is found unable to stand trial, the defendant is automatically committed to a mental hospital for “restoration of capacity.” The very nature of a progressive dementia like Alzheimer’s disease is that restoration is impossible. We heard repeatedly of persons with dementia being sent back and forth between mental hospitals, jail, and court hearings. One jail medical director described a tragic case, a man charged with a misdemeanor who spent two years cycling between the jail and the state mental hospital on a charge that if he had been found guilty only carried a 90-day sentence. Sadly, the man died shortly after the prosecutor and judge finally agreed that restoration was fruitless.
The rules and procedures that result in this process must be changed. Dementia is not like other mental illnesses in that there is no effective treatment or therapy, the person is not going to regain ability to assist counsel. These cases should be otherwise dismissed when there is a finding of dementia. A couple of states do not allow admission to state mental hospitals if the primary diagnosis is dementia.
Another huge challenge is placement in a care setting for a person with dementia and a history of violence. Most skilled nursing homes, or Alzheimer’s care facilities, flat out refuse to admit anyone with a history of violence. Specialized care facilities are needed across the country that are designed and staff trained to provide compassionate care for persons with dementia and a history of violent actions. A few correctional systems have built nursing homes. Even in those states the report is that the need far exceeds the supply. There are some community-based care facilities that specialize in “high risk” residents. Many more are needed.
In talking with professionals that work on release, they say the greatest hope is finding family and friends who are willing and appear to be able to provide community-based care. Interviews with professionals who seek medical parole or compassionate release consistently said if the person didn’t have family to return to, they often died behind bars waiting for placement.
The report to be published in June contains detailed findings and recommendations. The findings are based on data that came up repeatedly across the research in case law, journal articles, interviews, and surveys. The recommendations are from an all-star team of researchers. Analysis of the underlying case law, literature, interviews, and surveys are included in the report that will be available on the website of the ABA Commission on Law and Aging after June 15th.
