Why Are Impaired Elders Charged With Crimes?


The prevalence of dementia rises dramatically with age. Over the past several years, I have observed a phenomenon that is of great concern to me?and should be to everyone. This is a phenomenon sometimes called “geroforensics.”

Two vignettes, which are composites of cases I have evaluated recently, illustrate the phenomenon.

In honor of Mental Health Month, this posting is dedicated to my family members who have suffered from dementing illnesses. Our family has been fortunate in many ways, among them the resources (personal, supportive and, not least, financial) to have avoided the tragic outcomes described below.

Herman is an 82-year-old man who suffers from dementia. As his dementia progressed, he reached a point where his family could no longer manage his aggressive or wandering behaviors, and they placed him in a nursing home. He adjusted fairly well to the nursing home, but as is commonly the case in dementia, he had difficulty interpreting the world around him, and often became suspicious of others whom he viewed as “stealing” from him.

One day, Herman became angry with Albert, a 91-year-old resident of the nursing home, and he struck Albert with his cane. Albert fell to the floor, striking his head. He sustained a skull fracture and a brain hemorrhage, from which he died several days later. Herman was charged with murder. After evaluating the case over a period of time, including reviewing various records, it became evident that the defendant was not competent to stand trial and was not likely to become competent in the foreseeable future given his dementia, and charges were eventually dropped.

Scotty is a 72-year-old man who was charged with burglary and theft after being found sleeping in a stranger's home wearing the stranger's gloves. After arrest, he was placed on the mental health unit in the detention center, where he attended various groups but was noted to be “minimally engaged” and “non-participatory.”

The treatment staff in the detention center noted that he was deteriorating during the three months he was jailed, at one point becoming frankly confused and incontinent. No medical reason for his delirium was identified. After several months, he was evaluated and found to be incompetent to stand trial, and he was transferred to my hospital for further evaluation. History indicated that he was homeless and that strangers in the area in which he lived “watch out for him” and “get him to the clinic every now and then.” In addition, he told us “I like to drink Ol' Granddad.”

These cases raise a number of questions, including:

  • Why are obviously impaired elders charged with crimes?
  • How can our forensic mental health system, designed for younger defendants with serious mental illnesses or developmental disabilities, accommodate the needs of these older defendants who are not candidates for rehabilitation and a return to competency?

I have no answers to these questions. They vex courts all over the country.

A recent Wisconsin appellate decision found that individuals with dementia would not be eligible for civil commitment, because Alzheimer's disease is defined in Wisconsin statute as “a degenerative disease of the central nervous system, and as such is distinct from the “serious and persistent mental illnesses” that are the subject of civil commitment proceedings.

In Maryland, where I work, things are a little less clear-cut. For the purposes of civil commitment, mental disorder is defined as “a behavioral or emotional illness that results from a psychiatric or neurological disorder… that so substantially impairs the mental or emotional functioning of an individual as to make care or treatment necessary or advisable for the welfare of the individual or for the safety of the person or property of another.”

This does not clearly exclude dementia from civil commitment, as is the case in Wisconsin, though there are procedural restrictions that require assessment of individuals over age 65 to be evaluated for suitability for a more appropriate nursing home placement when being considered for commitment to state hospitals.

Upon a finding of criminal incompetency in Maryland, the definition of “mental disorder” is identical to that used in civil commitment. Thus, individuals found incompetent based on untreatable neuropsychiatric impairments may be committed to state hospitals for long periods of time based on such findings, tying up resources not designed for them, and which may put them at risk given the younger, more aggressive population that often constitute a state hospital population.

Shouldn't there be a more rational approach to individuals charged with offenses while suffering with dementia?

For all of the juvenile system's flaws, we do not prosecute children with crimes when they clearly are unable to form intent or to control their behaviors. It seems to me that we need a similar system at the other end of the age scale, especially given the success our medical system has had in keeping people alive long enough to develop dementia.

I am glad that my family members did not end their lives being punished for crimes that they could not help committing. Unfortunately, we cannot say the same for Herman or Scotty.

Erik Roskes, a regular blogger for The Crime Report, is a forensic psychiatrist and currently the Director of Forensic Services at the Springfield Hospital Center in Maryland. He welcomes readers comments. The opinions expressed are those of the author only, and do not represent those of any of Dr. Roskes' employers or consultees, including the Maryland Department of Health and Mental Hygiene. He can be found at http://mysite.verizon.net/eroskes.

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