By American Bar Association
The inability to understand court proceedings and to assist counsel with their own defense are some of the challenges facing people living with dementia in the legal system, experts said during the recent “Dementia and the Criminal Justice System” webinar.
The program, sponsored by the American Bar Association Senior Lawyers Division, Commission on Disability Rights, Judicial Division, Guardianship and Guardianship Alternatives Committee and Commission on Law and Aging, explored efforts by legal practitioners to balance public safety, accountability and criminal responsibility when dealing with those living with dementia.
“There are a lot of challenges for prosecutors, judges and defense counsel when a person living with dementia has committed a crime,” said attorney David Godfrey.
Godfrey used a fictional composite — a person with dementia in a skilled nursing facility who attacked a staffer and was criminally charged — to outline possible obstacles when working with people with dementia.
For prosecutors, their “overlapping mission is to protect the public, to hold persons who have committed crimes accountable for their actions and to deter crime,” Godfrey said. “What does this mean if the person with dementia is convicted? The correctional system is ill-equipped to care for them,” he said. “Very few correctional health systems have long-term care options, and most of the long-term care that is available focuses on physical illness, not cognitive decline.
“Placement of a person with a violent criminal conviction is very, very difficult,” he said. “A conviction [also] is unlikely to deter other persons living with dementia from striking out in frustration.”
Godfrey said the considerations are different for judges. “Judges struggle with the moral implications of ‘we’ve got a crime, we’ve got witnesses, we’ve got evidence.’ If we convict, are we being hard on someone who may not be able to control their actions and behaviors?”
Judges, many of whom are elected, also may be concerned about public perception about the verdict in their cases. For instance, the public may believe a judge is being too harsh on a person living with dementia if they are convicted or that the judge ignored the facts or the law in the case if the defendant is acquitted. “What if the judge suspends their sentence and they then go on to injure another person? How will the public react?” Godfrey said.
The cases also present a conundrum for defense attorneys, Godfrey said. In the fictional case, “an intentional assault occurred in a room full of witnesses. The evidence would make a not guilty defense difficult,” he said.
Defense attorneys also are trying to prevent the person with dementia from “a penalty that might be devastating or unfair,” Godfrey said. “For a person living with dementia, especially as the illness progresses, being moved into a jail or prison is a disorienting experience and could lead to a rapid deterioration.”
Most persons living with early to mid-stage dementia will be found competent to stand trial, according to attorney Eric Drogin. And if they are not, the standard in most states is commitment for restoration of competency, something that is generally impossible for a person with dementia. Drogan continued with a discussion of mental health defenses, standards that are hard to meet until very late stages of dementia. A defense based on lack of intent, may work for persons with late-stage dementia, if the charge requires a specific finding of intent.
While a relatively small number of older adults — with or at increased risk of dementia — are sentenced to prison, very long sentences are resulting in an aging prison population. Dementia is an increasing care need in correctional health.
Despite the increased need, few correctional health systems have the expertise or resources to care for a person with dementia, Godfrey said. “Correctional health facilities are far more focused on providing medical care that treats or cures physical illnesses or injury or that treats mental illness with medication and therapy. Skilled long-term care in correctional health is often far more focused on end-of-life care.”
(https://www.americanbar.org/news/abanews/aba-news-archives/2025/07/defendants-dementia-challenges-justice-system/)
The inability to understand court proceedings and to assist counsel with their own defense are some of the challenges facing people living with dementia in the legal system, experts said during the recent “Dementia and the Criminal Justice System” webinar.
The program, sponsored by the American Bar Association Senior Lawyers Division, Commission on Disability Rights, Judicial Division, Guardianship and Guardianship Alternatives Committee and Commission on Law and Aging, explored efforts by legal practitioners to balance public safety, accountability and criminal responsibility when dealing with those living with dementia.
“There are a lot of challenges for prosecutors, judges and defense counsel when a person living with dementia has committed a crime,” said attorney David Godfrey.
Godfrey used a fictional composite — a person with dementia in a skilled nursing facility who attacked a staffer and was criminally charged — to outline possible obstacles when working with people with dementia.
For prosecutors, their “overlapping mission is to protect the public, to hold persons who have committed crimes accountable for their actions and to deter crime,” Godfrey said. “What does this mean if the person with dementia is convicted? The correctional system is ill-equipped to care for them,” he said. “Very few correctional health systems have long-term care options, and most of the long-term care that is available focuses on physical illness, not cognitive decline.
“Placement of a person with a violent criminal conviction is very, very difficult,” he said. “A conviction [also] is unlikely to deter other persons living with dementia from striking out in frustration.”
Godfrey said the considerations are different for judges. “Judges struggle with the moral implications of ‘we’ve got a crime, we’ve got witnesses, we’ve got evidence.’ If we convict, are we being hard on someone who may not be able to control their actions and behaviors?”
Judges, many of whom are elected, also may be concerned about public perception about the verdict in their cases. For instance, the public may believe a judge is being too harsh on a person living with dementia if they are convicted or that the judge ignored the facts or the law in the case if the defendant is acquitted. “What if the judge suspends their sentence and they then go on to injure another person? How will the public react?” Godfrey said.
The cases also present a conundrum for defense attorneys, Godfrey said. In the fictional case, “an intentional assault occurred in a room full of witnesses. The evidence would make a not guilty defense difficult,” he said.
Defense attorneys also are trying to prevent the person with dementia from “a penalty that might be devastating or unfair,” Godfrey said. “For a person living with dementia, especially as the illness progresses, being moved into a jail or prison is a disorienting experience and could lead to a rapid deterioration.”
Most persons living with early to mid-stage dementia will be found competent to stand trial, according to attorney Eric Drogin. And if they are not, the standard in most states is commitment for restoration of competency, something that is generally impossible for a person with dementia. Drogan continued with a discussion of mental health defenses, standards that are hard to meet until very late stages of dementia. A defense based on lack of intent, may work for persons with late-stage dementia, if the charge requires a specific finding of intent.
While a relatively small number of older adults — with or at increased risk of dementia — are sentenced to prison, very long sentences are resulting in an aging prison population. Dementia is an increasing care need in correctional health.
Despite the increased need, few correctional health systems have the expertise or resources to care for a person with dementia, Godfrey said. “Correctional health facilities are far more focused on providing medical care that treats or cures physical illnesses or injury or that treats mental illness with medication and therapy. Skilled long-term care in correctional health is often far more focused on end-of-life care.”
(https://www.americanbar.org/news/abanews/aba-news-archives/2025/07/defendants-dementia-challenges-justice-system/)
