Dementia and Criminal Justice 1

“In the aftermath of this mental health service and policy shortfall, this is an aging, mental health, and criminal justice crisis that is too large to ignore… It is too costly and inhumane to do nothing about this social problem.”Maschi, T. et al. (2012). Forget me not: Dementia in prison. The Gerontologist, Vol. 0, No. 0, 1—11

Forget me not….

The Impact of Dementiaon the Criminal Justice System

Presenter: Sharon J. Kernen, Ph.D.Comprehensive Forensic & Clinical Neuropsychology Assessments

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The cost of increasing dementia Statistics Definition of dementia Cognitive domains: What is lost? Myths Epidemiology Risk factors Variations

Overview

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DSM-5 terminology Diagnostic criteria Roles of law enforcement, prosecutors,

defense counsels, and judges Competency to Stand Trial Overflowing prisons Challenges facing prisons Activities of daily living in prison

Cont.

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Some favorite beings

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What’s her name again?◦UNM Grad◦Forensic, clinical, and geriatric

neuropsychology◦Seven years in Second Judicial District◦Past history as certified personal trainer,

program manager, and aerobics director working with “Mature Adults”◦Wife, mom and nana, and head dog wrangler

Background:

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Yep! There you go…

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THE IMPACT

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36 million with dementia globally Triple that number in 2050 Approximately affects one in 20 over age 65 and

one-fifth of people over 80 90% eventually require full-time nursing care Average life span: six years post-diagnosis Dementia rate among older prisoners largely

undetermined but estimated at 40,000 in U.S. with increase of ¼ million by 2050.

Where are we going?

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Estimated public spending is upward of 202 billion dollars, likely much more costly than care in the community

In 2010 worldwide cost of dementia care in general population estimated at $604 billion. In the U.S. estimated at $157 billion to $215 billion

Annual cost to house older adults in prison is $70,000, 3 times estimated comparable costs for younger inmates

Cost:$$$$$$$

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Defined broadly: a syndrome of acquired intellectual impairment produced by brain dysfunction. Often called, “a cruel and unusual disease.”◦Phillipe Pinel used it to refer to intellectual

deterioration and idiocy◦Others called it “senility◦Dementia praecox: Schizophrenia

Dementia is………..

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“Dementia” is a loss of mental functions not due to delirium. It comprises of 3 or more deficit areas:◦Memory◦Language◦Perception◦Praxis◦Calculations◦Semantic knowledge◦Executive function◦Personality◦Social behavior◦Emotional awareness or expressionDocumented by mental status assessments

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Dementia Myths A global impairment Must impair memory A behavioral disorder Inevitable with aging Cannot have an acute onset An untreatable disorder

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Single greatest predictor: Longer lifespan After onset of dementia: 5 to 6 years World Health Organization: 35.6 million

globally will triple by 2050 No quality data on number of prisoners with

dementia

EPIDEMIOLOGY

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Alzheimer’s: Most Prevalent

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From:Mendez, M. & Cummings,J. (2003). Dementia:A Clinical Approach. Third Edition, p. 9

Overlapping nature of AD

ADFTD

DLBVascular

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RISKY BUSINESS

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Types of Dementia: Variations

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Cortical◦Alzheimer’s◦Frontotemporal◦Asymmetric cortical atrophiesFrontal-subcorticalDementia with Lewy BodiesParkinson’s DiseaseHuntington’s DiseaseProgressive Supranuclear PalsyVascular DementiaCreutz-Jacob…….etc.

Cortical vs. Subcortical

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Mild/Major Neurocognitive Disorder due to…..page 602◦Alzheimer’s Disease◦With Lewy Bodies◦Vascular◦Traumatic Brain Injury◦HIV Infection◦Prion Disease◦Parkinson’s Disease◦Huntington’s Disease◦Another medical condition◦Multiple etiologies◦Unspecified

DSM-5: Diagnostic Terminology

Note: The word “dementia”

is never used.

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Beyond renaming it “cognitive decline,” you must specify “possible” or “probable” and include the ICD code for due to…..

Page 603 and 604 will help with that.

Confused yet?

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Probable Alzheimer’s Disease: diagnosed if there is evidence of a causative Alzheimer’s disease genetic mutation from either genetic testing or family history

Possible Alzheimer’s Disease: diagnosed if there is no evidence of causative Alzheimer’s disease genetic mutation or family history and all three of the following are present:

DSM-5 Definitions – p. 611

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(1) Clear evidence of decline in memory and learning

(2) Steadily progressive, gradual decline in cognition, without extended plateaus

(3) No evidence of mixed etiology (i.e., absence of other neurodegenerative of cerebrovascular disease or another neurological or systemic disease or condition likely contributing to cognitive decline

DSM-5 cont.—p. 611

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If it were only this simple…..

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Executive function has evolved to broadly describe an array of loosely defined control processes responsible for planning, coordinating, sequencing, and monitoring other cognitive skills, enabling goal-directed and future-oriented behavior. Some also place extremely functional activities such as attention, visuospatial function, reasoning, and planning among the tasks to be under the guidance of executive function. In other words, executive function may be described by several related but dissociable processes, including divided attention, updating and monitoring, task shifting, response inhibition, and visuospatial function or the perception of the surrounding world.

What is Executive Function?

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Neuropsychological Evaluation, usually on a yearly basis with the first assessment used as a baseline

An initial baseline MRI and repeated when neuropsychological evaluation shows cognitive decline

Tracking Progression

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Also includes Early symptoms ofexecutive dysfunc-tion rather than memory

DLB

• Fluctuating cognition• Visual hallucinations• ParkinsonismDSM-5—p.618

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Recent memory that affects daily life Difficulty performing regular tasks Problems with language Disorientation of time and space Decreased or poor judgment Problems with complex tasks Misplacing things Changes in mood and behavior Relating to others Loss of initiative

Warning Signs

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What happens between early and late stage dementia? Trouble with a capital T Delusions Hallucinations Wandering Physical and verbal aggression Sexually inappropriate Paranoia Sundowning Depression

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Aggression, sexual or physical often concludes with interaction with the

police. Police training needs to include more information about behaviors that might be dementia rather than criminal.Criminalization of theSymptoms

Role of Law Enforcement

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Deserving of the same treatment given to those with a mental

disorder:a psychiatric evaluation and pharmaceuticalintervention.

Rather than jail…

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High rates of various mental health disorders contribute to increased risk for dementia

Premature aging Adverse environment (exceptional stresses) Traumatic brain injury Chronic substance abuse Medication side effects Historically poor diets

Additional Risk Factors for Inmates

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Vitamin deficiencies Exposure to violence Inadequate service provision Purpose is punishment Poor quality of life Lower educational status

Cont.

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Awareness of the need to raise competency Usually not difficult to get a judge to issue such an

order Try to get them released from jail. If there is no

family to take them in, this may be difficult. When dementia is suspected, considering asking

for approval for an LSR to evaluate with a comprehensive neuropsychological assessment.

Defense Counsel

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Need for specialized training on needs and problems present in an elderly defendant

An appreciation of the potential conditions and limitations

Awareness that their impairment may not be obvious Determination of whether the client’s medical

conditions will interfere with physical competence or will stresses of trial exacerbate illnesses and take preventative measures

Defending the Elderly

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Presence of dementia may be relevant to conduct during investigation

Confession, consent to search, understanding of Miranda Waiver

Find a way to inform the jury as to why the defendant cannot take the stand

Seek access to prosecution witness’ medical records Be alert to possibility of suicidal ideation Use life expectancy tables and stages of dementia to

demonstrate the relationship of a sentence A sentence of 10 years may equal a life sentence Extremely low rate of recidivism among elderly

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Become aware and educated about what constitutes dementia

Other than the case of a habitual offender or violent behavior and if the dementia is well documented by the examiner, first consider stipulating to the diagnosis

Prisoners with dementia often do not remember why they are in prison or how long they have been there.

When treatment becomes punishment Beware of criminalizing the symptom: Offenses

committed in old age are often expressions of the onset of dementia. Pathological shifts can weaken inhibitions, resulting in instances of violence and deviant sexual behavior.

Role of Prosecution

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Some prosecutors have taken the media stance to heart and feel that anyone who has been arrested must be prosecuted

Prosecutors also need to be aware of what dementia is and that it is irreversible and that the defendant’s actions have been the result of delusional thinking.

Attitude of being tough on crime (any crime) and prison is the only appropriate

punishment

Yes, sometimes justice is blind

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Due to its increasing prevalence, judges need to recognize the symptoms and have an understanding of dementia. They need to opine accordingly when competency is

raised and dementia is documented anddiagnosed.

Role of the Judge

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Judges should have an understanding of “criminalizing the symptom”

True for any mental illness, not just dementia An understanding of dementia and its irreversibility and

progressive nature With such an understanding, someone with dementia

would never be sentenced to prison for a non-violent crime

Judges also allow themselves to be driven by media opinion and societal bias

The public traditionally believes that any sentence other than prison is too lenient for serious offenders…many retail stores have a policy that anyone caught shoplifting should go to jail

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Moreover some view mental illness as volitional and perhaps a deliberate attempt to avoid punishment

The public’s intolerance of perpetrators, whether mentally ill or not, is demonstrated by a desire for more restrictive detention laws

The statute for mens rea or diminished capacity attenuates some harsh punishments. New Mexico does have such a law.

Innocent until proven guilty does not hold true

The Halls of Justice

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New Mexico Criteria for Determining Competence to Stand Trial

The Client must have a factual understanding of the charges and legal proceedings, (2) The Client must also have a rational understanding of the charges and legal proceedings, and (3) The Client must have the ability to assist his or her attorney [State v. Rotherham, 122 N.M. 246, 252, (1996)].

COMPETENCY STATUTE IN NM

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Trial DeficitsFailure to understand MirandaLegal chargesPotential penaltiesRoles of court officersPleasPlea bargainingInability to rationally assist attorneyBe self-protective

Geriatric Competency to Stand Trial

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Appropriate courtroom behaviorBased on 30 studies average rate of

incompetence is 30% of those evaluatedAverages based on young defendants with

psychiatric disordersLiterature shows that those over 60, 30%

had dementia, 25% psychosis, and 38% personality disorder and 50% deemed incompetent, due to organic impairment

Very little research on geriatric defendants

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Study: Geriatric C to ST  CST Group IST Group % % p ValueMemory impairment 22.2 95.2 <0.0001Impaired abstraction 25.0 85.7 <0.0001Impaired concentration 27.8 71.4 <0.0001Impaired calculation 19.4 61.9 <0.001Thought process abnormality 5.6 47.6 <0.001Hallucination s 8.3 14.3 <0.74,NSDelusions 11.0 14.3 <1.0, NS

From: Journal of the American Academy of Psychiatry and the Law: 2002

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Prisons Overflowing

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The worldwide growth of prison populations has been spearheaded by the U.S. since the 1980s with “tough-on-crime” criminal justice policies

Stricter sentencing laws and longer mandatory prison terms set the upward trend of mass incarceration

In terms of the elderly a more compassionate stance is taking hold, such as the U.S. Compassionate Release Laws and moving away from overly punitive policies that affect older adults.

Other countries have begun to follow suit

Impact of Policy

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Challenges faced by prisons….

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Dementia is a hidden problem that may show in early stages as depression, aggression, and anxiety and they go unnoticed

Prison systems too large to devote the time to diagnose early dementia effectively

Highly regimented nature of prison life determines that mental health issues are easily missed or ignored

Older offenders reluctant to seek attention or report changes in mood, as many have been raised with a more stoic attitude and are therefore non-medicated

Mental health services directed toward younger more vocal inmates

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Lack of comprehensive screening policies for dementia

Medical screenings are performed but they are not designed to detect issues associated with aging, i.e., cognitive impairment

Healthcare practitioners in the community also lack proper tools and disregard standardized scoring

Identifying dementia further encumbered by deficiencies in staff training and health care

Unawareness of need to conduct regular mental health checks on older prisoners whose symptoms may fluctuate

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Repeated requests for healthcare units to train and oversee the delivery of care for older detainees have gone unheeded

COs are in best position to notice changes in mood or behavior but lack required skills

Improved communication between security and mental health staff, including officer observations in functional evaluations is a need

Aims of incarceration, whether punitive or rehabilitative hold little meaning for the inmate with dementia.

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Research on the experiences of older people in prison is replete with examples of detainees

oblivious to their surroundings and mentally incapable of participating in courses required for release even in the institutions that provide compassionate release There are major operational implications for

facilities lacking knowledge, tools and resources to effectively manage, ensuring more older inmates will be left “vegetating”

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Culture of Victimization Aggression Violence Bullying Mocking Provoking Sexual

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Excessive Punishments

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Inmates with dementia: Prison Statistics

Excessive Representation of Dementia in Prisons

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Basic physical needs◦Grooming and personal hygiene◦Dressing◦Toileting/Continence◦Transferring◦Ambulating◦Eating

Activities of Daily Living (ADLs)Functional Skills

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Categorized separately from ADLs Managing finances Managing medications Appointments DrivingADLs are more preserved and impairment shows up in later stages, dependent on physical functioningIADLs performance is more sensitive to early cognitive decline

Instrumental Activities of Daily Living (IADLS)Complex Activities Related to Independent Living

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Prison Activities of Daily Living

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Restructure of the environment to reduce the potential for confusion and agitation◦Good lighting◦Quiet surroundings◦Contrasting colors to delineate bathrooms

and other accessibility needs◦Remove mirrors

Modifications for Impaired Prisoners

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◦Simple signage including pictures with words◦Handrails◦Wheelchair accessible showers◦Locked units◦Absence of rugs or carpeting with edges◦Consistent daily routines◦Hearing aids◦Eyeglasses◦Clothing: velcro and elastic designs

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Dropping to the floor for alarms Standing for head counts Ambulating to dining hall Hearing orders from staff Climbing up and down: top bunkStaff must be trained that inability to perform does not equal defiance but may be indication of disease

PADLs: Life in Prison with Dementia

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Inability to perform PADLs leaves the prisoner vulnerable to harsh punishment or segregation

Violation of facility rules may result in solitary confinement, which further compromises their physical and mental well-being

Consequences

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Used to be sociable, now withdrawn Some memory lapses Misplacing items Mood changes Temperamental Easily agitated Confusion

Overlooked Early Symptoms

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Staff training for those who see individuals frequently◦Communications◦Take their perspective seriously◦Never try to argue them out of delusions or confusion◦Non-judgmental ◦Patience, discipline, and flexibility◦No multi-step directions◦Support autonomy: keep choices simple and

manageable

SOLUTIONS

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May need to re-introduce self each time Make sure you have their full attention Talk slowly, use gestures, and allow time to process Try not to initiate a behavioral crisis Policy changes:◦Compassionate Release Programs◦Institute programs where other compatible

prisoners can be their gentle guide◦Do not incarcerate individuals with dementia for

non-violent crimes◦Plan for older prisoners (50+) to have regular

checkups: early detection is key

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Prison Nursing Care

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Alternative Placement Area (APA): A designated living area for inmates who have special housing designation and who meet specified mental health criteria◦Mental Health Treatment Center: only at CNMCF and from

description, this would be the only likely placement for later stages of dementia

◦Rounds: Visits by Behavioral health clinician to provide brief conversation, discussion, and receive requests for behavioral health services

◦Well-Being Checks: Designed to monitor for any mental health deterioration

Dementia or any special needs for same is not mentionedThe legal mandate for prisoner healthcare also does not

mention providing for special geriatric needs

NM PRISON POLICIES

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Released prisoners without family may be helplessly lost: Programs need to be in place that will help guide them appropriately

Nursing homes (in NM) will not take a convicted felon

More group homes with trained staff are a must: some will need 24/7 supervision

Financially, it will eventually be less expensive than caring for them in prison

Community Challenges…

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Please do not hesitate to contact me if you have any further questions:

505-263-8055kershar@comcast.netdr.s.kernen@gmail.com

505-263-8055

…and as always my best regards