Dementia and Criminal Responsibility

A remarkable legal case unfolding in the U.K. raises intriguing legal and ethical questions about dementia and the assignment of guilt. A Labour party grandee, Lord Greville Janner, will be tried for pedophilia. Nine men have come forward with allegations that Janner sexually abused them when they were children.

The assaults were alleged to have occurred 30-50 years ago. Janner, now 86-years old, was diagnosed with dementia 6 years ago and has been judged incompetent to participate in his own defense. The court will thus take the unusual step of holding a “trial of the facts” in which evidence is heard and conclusions about its credibility drawn, but no declaration of criminal guilt will be made and no criminal sentence can be given.

There is ferocious debate underway about whether Janner’s high position in the Establishment led to a cover up at the time the abuse was occurring, and also over whether it violates human rights to try a person for terrible crimes when they cannot defend themselves. Those are very much debates worth having, but my own mind keeps dwelling on a different point.

My friend and fellow RBC blogger Mark Kleiman makes a case against extremely long criminal sentences (e.g., 30 years of incarceration for murder) by arguing that when enough time has gone by, the person who is behind bars is no longer really the same person who committed the crime. If one can make that case in general, I would think it would apply even more to someone who is demented. That is, even assuming that it is known in advance that someone who is now demented committed a crime while they still retained their faculties, is it fair to punish them if a disease has erased much or all of their personality, memories and identity?

I took care of patients with dementia when I worked in hospice, and watched grieving relatives (spouses and adult children) slowly come to terms with the fact that while their loved one’s heart was still beating and lungs still functioning, the person they knew and loved was gone. The person who was a good spouse or parent was not really there to thank, the person who was a poor spouse or parent was not really there to blame.

I would think courts would have to come to terms with these realities too. It wouldn’t mean that whatever the accused did wrong in their life was morally acceptable, rather that the perpetrator is no longer with us and therefore beyond the reach of punishment.

p.s. Some commentators have asserted that Janner’s dementia is faked, pointing to a 1991 fake (and egregiously mishandled) case involving convicted fraudster Ernest Saunders. Given that Saunders was 56 at the time and Janner is 86 (i.e., risk of dementia over 200 times higher), and that neurological scanning technology has come a long way in the past quarter century, and that Janner has been examined by 4 medical experts and Saunders was diagnosed by one, that’s a facile comparison. But in any case, it’s not relevant to my ethical question: If someone truly is demented, should we still punish them for what they did when they were intact?

Author: Keith Humphreys

Keith Humphreys is a Professor of Psychiatry at Stanford University. His research, teaching and writing have focused on addictive disorders, self-help organizations (e.g., breast cancer support groups, Alcoholics Anonymous), evaluation research methods, and public policy related to health care, mental illness, veterans and drugs. He is the author or co-author of numerous books and scholarly articles, and has written for the New York Times, Wall Street Journal, Washington Post, The Guardian (UK), the San Francisco Chronicle and other media outlets. When he is not in the San Francisco Bay Area, he is usually in London, where he is an ad hoc policy adviser to the national and city government, an honorary professor of psychiatry at Kings College, a senior editorial adviser to the journal Addiction, and a member of The Athenaeum. When he is not in the San Francisco Bay Area or London, he is usually in Washington D.C., where he serves as a frequent science and policy advisor to federal agencies, and where he has served previously as an appointee to a White House commission and several Secretarial task forces. From July 2009-2010, he served as Senior Policy Advisor at the White House Office of National Drug Control Policy. When he is not in the San Francisco Bay Area or London or Washington D.C., he is usually in the Middle East, where since 2004 he has volunteered in the international humanitarian effort to rebuild Iraq’s mental health care system. This work has taken him to Turkey, Egypt, Iraq, Jordan and Lebanon to teach and consult with Iraqi health professionals and policy makers.

3 thoughts on “Dementia and Criminal Responsibility”

  1. In addition to the punitive issues, there are the utilitarian ones: what official actions will prevent the accused — assuming for the moment that they're guilty — from offending again? In my neck of the woods (yes, anecdata, but that's really all we have) there was a case of an older child molester who served a sentence, was released, and then went on to molest even more children, trading on his grandfatherly persona (he was well past 70) to get children to trust him and adults to trust him with their children. Unless the dementia is of a kind that prevents re-offense, you've still got to do something to protect potential victims. Does that mean some other kind of court-enforced close supervision rather than a traditional prison?

    From a societal point of view, it's also more than a little skeevy that this question comes up (apparently) only in the context of rich, powerful men who managed to evade being tried for their crimes until they reached an age where reputable diagnosticians would certify them as demented. Countries are still trying and deporting one-time concentration-camp guards, keeping poor mentally ill criminals jailed (or in the case of the US, executing them) and generally visiting judicial injustice on people without the social and financial capital to make a good showing among the intelligentsia.

    Also sobering here: consider the number of people tried and jailed for child-abuse conspiracies during the 80s — many of those conspiracies now being widely accepted as having only existed in the fevered minds of ambitious prosecutors. Once again, not people with a lot of financial and social capital.

  2. I'm not a fan of punishment in general, but of keeping offenders away from likely victims. If this guy is truly demented, he needs round-the-clock care. It sounds like opportunities to re-offend in future will be very limited.

  3. Keith, to me it looks like the purpose of this trial is to establish facts recognizable by the courts in other cases.

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