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
Dementia and Criminal Justice 72
2. on the Criminal Justice System
Presenter: Sharon J. Kernen, Ph.D.
Comprehensive Forensic & Clinical Neuropsychology Assessments
3. The cost of increasing dementia
Statistics
Definition of dementia
Cognitive domains: What is lost?
Myths
Epidemiology
Risk factors
Variations
Dementia and Criminal Justice 74
4. 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
Dementia and Criminal Justice 75
6. 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
Dementia and Criminal Justice
9. 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.
Dementia and Criminal Justice 80
10. 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
Dementia and Criminal Justice 81
11. 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 and Criminal Justice 82
12. “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 expression
Documented by mental status assessments
Dementia and Criminal Justice 83
14. A global impairment
Must impair memory
A behavioral disorder
Inevitable with aging
Cannot have an acute onset
An untreatable disorder
Dementia and Criminal Justice 85
15. 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
Dementia and Criminal Justice 86
21. 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
Dementia and Criminal Justice 92
22. 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.
Dementia and Criminal Justice 93
23. 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:
Dementia and Criminal Justice 94
24. (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
Dementia and Criminal Justice 95
26. 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.
Dementia and Criminal Justice 97
27. 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
Dementia and Criminal Justice 98
28. Also includes
Early symptoms of
executive dysfunc-
tion rather than
memory
• Fluctuating cognition
• Visual hallucinations
• Parkinsonism
DSM-5—p.618
Dementia and Criminal Justice 99
29. 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
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34. 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 the
Symptoms
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35. Deserving of the same treatment given to those
with a mental
disorder:
a psychiatric
evaluation and
pharmaceutical
intervention.
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36. 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
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37. Vitamin deficiencies
Exposure to violence
Inadequate service provision
Purpose is punishment
Poor quality of life
Lower educational status
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38. 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.
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39. 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
Dementia and Criminal Justice
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40. 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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41. 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. Dementia and Criminal Justice
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42. 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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43. 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 and
diagnosed.
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44. 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
Dementia and Criminal Justice
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45. 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
Dementia and Criminal Justice
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46. 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)].
Dementia and Criminal Justice
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47. Trial Deficits
Failure to understand Miranda
Legal charges
Potential penalties
Roles of court officers
Pleas
Plea bargaining
Inability to rationally assist
attorney
Be self-protective
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48. Appropriate courtroom behavior
Based on 30 studies average rate of
incompetence is 30% of those evaluated
Averages based on young defendants with
psychiatric disorders
Literature 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
Dementia and Criminal Justice
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49. CST Group IST Group
% % p Value
Memory impairment 22.2 95.2 <0.0001
Impaired abstraction 25.0 85.7 <0.0001
Impaired concentration 27.8 71.4 <0.0001
Impaired calculation 19.4 61.9 <0.001
Thought process abnormality 5.6 47.6 <0.001
Hallucination s 8.3 14.3 <0.74,NS
Delusions 11.0 14.3 <1.0, NS
From: Journal of the American Academy of Psychiatry and the Law: 2002
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51. 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
Dementia and Criminal Justice
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53. 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
Dementia and Criminal Justice
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54. 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
Dementia and Criminal Justice
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55. 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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56. 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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57. Aggression
Violence
Bullying
Mocking
Provoking
Sexual
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61. Inmates with dementia: Prison Statistics
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62. Basic physical needs
◦ Grooming and personal hygiene
◦ Dressing
◦ Toileting/Continence
◦ Transferring
◦ Ambulating
◦ Eating
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63. Categorized separately from ADLs
Managing finances
Managing medications
Appointments
Driving
ADLs are more preserved and impairment
shows up in later stages, dependent on physical
functioning
IADLs performance is more sensitive to early
cognitive decline
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65. 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
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66. ◦ 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
Dementia and Criminal Justice
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67. Dropping to the floor for alarms
Standing for head counts
Ambulating to dining hall
Hearing orders from staff
Climbing up and down: top bunk
Staff must be trained that inability to perform
does not equal defiance but may be indication of
disease
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68. 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
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69. Used to be sociable, now withdrawn
Some memory lapses
Misplacing items
Mood changes
Temperamental
Easily agitated
Confusion
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70. 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
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71. 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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73. 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
mentioned
The legal mandate for prisoner healthcare also does
not mention providing for special geriatric needs
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74. 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
Dementia and Criminal Justice
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75. Please do not hesitate to contact me if you
have any further questions:
505-263-8055kershar@comcast.net
dr.s.kernen@gmail.com
505-263-8055
…and as always my best regards
Dementia and Criminal Justice
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Editor's Notes
It should be acknowledged that many mentally ill (including dementia) persons who commit serious crimes and enter the criminal justice system might not have engaged in such behavior if they had been receiving adequate and appropriate mental health treatment (John Hyde)….The less serious misdemeanor offense is often a way of asking for help. People living on the streets, in missions, or cheap hotels obviously have a minimum of community supports.
Let’s see, maybe it is Shannon or Karen….Karen sort of goes with Kernen. It was my work in the Mature Adult Program at Sports and Wellness that brought the realization that I could be doing much more. That and the skillful teaching of a fantastic mentor that revealed the challenges and mysteries of the human brain, particularly as it changes over time.
As an expert witness, the prosecution does their best to make you look incredibly uninformed. Love the word “absolutely” and use it a lot. Expert Witness has a whole different meaning in NM. The ADA is the most knowledgeable person in the room and the judge does not know any differently. Law School: Arrogance 101
Are you certain of your diagnosis?
Can NP count?
Incident with WAIS-IV
Expert Witness cannot ask questions….dependent on defense counsel to cover in redirect
Familial with early onset
Late onset
Memory is usually first skill lost with A.
My memory’s not as sharp as it used to be. Also, my memory’s not as sharp as it used to be.
Things your brain does for you automatically.
In order to appropriately diagnose dementia, each domain must be tested.
Don’t let aging get you down. It’s too hard to get back up.!
Better preventative health care
Better nutrition
Higher educational status
Not all with dementia have AD
Mixed etiologies (next slide)
Mixed etiologies, particularly vascular and AD
AD can only be diagnosed at autopsy. Dependent on neuropsychological testing and collaborative reports (difficult to do in the prison setting)
double vision and misinterpretation of what the see
Cause: There has been a gene link but it’s not thought to be strongly heriditary. DLB risk is heightened
APOE4 allele. Involves death of cholinergic and dopaminergic neurons. Abnormal collection of protein
within the cells. These structures are called the Lewy bodies. Pathology is often concomitant with AD
Often misdiagnosed ROBIN WILLIAMS
Vascular: must have neuroimaging evidence to diagnose
“Sugar why don’t you sit down by the table and we’ll start supper.” Said Dorothy to her Husband of 50 years. “Sure thing,” said her husband settling himself down.
“Now darling, would you like the soup first or the salad?” Questioned Dorothy.
“Umm I guess I’ll take the soup.” He responded.
After a whole meal of one endearing term after another, their guest Bob couldn’t contain his curiosity any longer. Bob snuck into the kitchen and asked, “Dorothy do you always talk to your husband like that?”
“Bob, I’ll be honest with you,” Dorothy replied. “It’s been five years now, I just can’t remember his name, and I am just too embarrassed to ask him!”
Precursors to vascular dementia
A number of dementias are brought about by other disease factors: HIV, Hepatic encephalopathy, TBI
What is encephalopathy?
Onset and progression differences
What is meant by unspecified?
Very first action is complete medical checkup
Neuropsychological baseline: HISTORY! Bring someone who knows you well.
Neurologist….MRI
Differences in diagnosing someone who has been high functioning. May still be quite articulate.
Many clinicians feel that this is insufficient:
National Institute on Aging and Alzheimer’s Association : dementia may be diagnosed when there are cognitive or neuropsychiatric symptoms that interfere with work or normal activities, reveal a decreased level of function from baseline and cannot be explained by any other psychiatric disorder or delirium.
Impairment must be in two of five domains:
Acquiring and remembering new information
Ability to reason judge and handle complex tasks
Visual spatial abilities
Language functions
Changes in personality or behavior
Possible AD: atypical course (sudden onset or insufficient historical data), or demonstrates mixed etiology
Probable AD: more classical presentation with insidious onset, history of cognitive decline, memory or word-finding deficits, spatial cognition, impaired judgment or executive dysfunction. Clinician must evaluate in two sessions and document decline
Aphasia: speech problems
Apraxia: movement problems
Agnosia
Executive Function: often the most troublesome
Why must be rule out delirium? Fluctuating deficits and eventually reverses.
EF mediates almost everything. Why young people seem to have none. Not all of these functions are in top performance mode all the time.
Depression/Anxiety may allow the limbic cortex to take over
Impacted by most mental illnesses
Mr. B.
Phineas Gage if time
How many prisoners get neuropsychological baseline
How many get an MRI
Experience of being in the scanner
MRI: magnetic properties of tissue can be used to obtain information about the structure and function of the living brain. Signals are produced by protons in the brain tissue. The proton, the magnetic nucleus of the hydrogen atom responds to applied magnetic fields by emitting characteristic radio waves. Protons each rotate around their axis and normally rotate at random until a second radio frequency is applied to make them all rotate together. Then when it is taken away they return to normal rotation but at different rates. Functional MRI records changes related to tissue functions in successive images.
Thinness of slices improves diagnostics
DLB: closely associated with Parkinson’s Disease
more rapid cognitive decline but fluctuating in nature
develop hallucinations
variable attention and focus
sleep behavior disorder (abnormalities in REM); vivid dreams, violent movements, falling out of bed
Tremors less common than in Parkinson’s
Stiff movements
Difficulty swallowing
orthostatic hypotension
Explain MRI, SPECT, Pet scans
Positron Emission Tomography: Involves introduction of substances tagged with radionuclides that emit positrons (positively charged electrons)
Single Proton Emission Computed Tomography: Imaging techniques for biochemical processes. Records different levels of cerebral blood flow, hyperfusion and hypofusion
Stage 7 is imminently terminal. One does not die from dementia.
Alzheimer’s Association has produced a number of good handouts.
Also refer to the website for Crisis Prevention Intervention (CPI)
URLs part of handouts
Louis
Could use some behavior modification therapy?
Someone calls the police because of an aggressive argument with a neighbor who threatens to punch him out.
Circumstance could very well be a dementia symptom but neighbor will be arrested and charged with a misdemeanor. Part of decision making rests on person’s background…habitual offender or first time?
The neighbor needs to go to the hospital for an evaluation. There are pharmaceutical interventions for violent and/or sexually inappropriate behaviors. Usually an antipsychotic.
Dementia meds:
Donepizil/aricept. Memantime, galantamine, revastigmine….cholinesterase inhibitors
Role of brain chemical acetylcholine…activating role….a neurotransmitter that modulates processes, causes neurons to fire. Is also part of the peripheral nervous system.
These are risk factors that are not present in most of the general population. Prisoners develop dementia at much younger ages.
They are there to be punished for their crime. Why should they be provided special attention, diets, increased access to medical assistance. Many prisons do not have cholinesterase inhibitors in their formulary, so prisoners don’t get them. The National Commission on Correctional Healthcare maintains clinical practice guidelines on a variety of topics, dementia is not mentioned.
How do you get a knowledgeable history?
Some attorneys are very good at recognizing possible dementia and are quick to raise competency. Others are not quite so good and may interpret it as irrascible behavior or even presumptive MR. They do raise competency for the latter.
Determination of medical condition is important. If too medically fragile to work with attorney and defend selves, they are not competent to stand trial. Again past record is taken into consideration.
Jury trial vs. bench trial:
Can a defendant be forced to take the stand?
Jury can be much more dicey
PTSD case …psychotic….diminished capacity
Medically fragile may prefer to die
May need to get the physician to attest to medical condition
The reason why our trial process is so slow. A more reasonable attitude is decidedly needed
Treating to competency….explain process
Bias
Fear of the media
Re-election
Must appear to be tough on crime
Keep prosecutors under control
JUDGES ARE TRAINED IN JURISPRUDENCE AND NOT SOPHISTICATED PSYCHOLOGICAL DIAGNOSIS. The psychologist expert witness does not tell the judge or the DA how to interpret the law, yet prosecutors question our findings at every turn.
The Supreme Court ruled one can only be held for a reasonable length of time but did set a maximum time limit for restoration to competency. Some are held in “competency limbo”
Describe process here
When possible happens in first six months usually
Those who are chronically psychotic with lengthy history of inpatient hospitalization or those with irreparable cognitive disorders have very low probability.
PEOPLE WITH INTELLECTUAL DISABILITIES AND BRAIN DISORDERS SUCH AS DEMENTIA, MAY FACE PARTICULAR CHALLENGES IN RESTORING COMPETENCY…..an understatement…traditional treatments are ineffective and inappropriate.
New Mexico: 9 months except if felony involving great bodily harm, use of firearm, aggravated arson, CSP, the court may order a hearing on factual guilt (1.5) and if found guilty and dangerous may order continued treatment for period not to exceed max sentence (John Hyde)
Talk about plea bargaining
What else happened in the 1980s?
Expansion of geriatric release laws could increase the cost savings. States need to combine a lower age threshold with geriatric specific risk and needs assessment. Refining these policies would decrease costs and not jeopardize public safety.
Some policy choices that result in longer prison terms: mandatory minimum, truth in sentencing laws and the abolition of parole
Working Programs:
California Men’s Colony…convicted killers stepping up to help with ADLs. Helpers, called Gold Coats, are trained by the Alzheimer’s Association. The helpers gain as well…they learn empathy and compassion. One said, “I was a predator, now I’m a protector.
Staff Training: Kentucky Public Health Leadership..Program for training officers in proper care inmates with dementia
