There’s no national tally of how many people with dementia fall into legal quagmires. Existing data suggest that such cases are rare — just over 1% of people arrested for murder in 2021 were 65 years or older, according to an analysis by The Marshall Project. Each case presents a grave dilemma for judges and prosecutors. Do they drop the charges for something as serious as murder, potentially against the wishes of the surviving family? Or do they keep pursuing a likely futile case? It’s the same quandary for cases involving many people with mental illnesses, when their disorders are so severe that they can never stand trial. Experts fear cases like these are a mounting problem, as the number of people with dementia increases and more of them get entangled in the justice system. Some states have noted an increase in resident-on-resident assaults in nursing facilities, which can lead to criminal charges. Such serious violence is uncommon.
Aggression can be a frequent side effect of dementia, often when someone is afraid. And if police get involved, courts are often ill-prepared to know what to do next. A report last year from the American Bar Association, which surveyed legal professionals, health care workers and corrections staff nationwide, found one of the biggest problems in dealing with dementia was “the almost unbending insistence of the courts to seek restoration.” The authors recommended that people with dementia no longer be hospitalized for competency restoration at all, as it “has little chance of success [and] may be harmful.” Instead, many health workers and corrections officials said communities need more long-term nursing facilities with tighter security and well-trained staff. These homes could safely house people with a history of aggressive behavior, rather than locking them in jail or a psychiatric hospital — which may not be able to provide the specialized care they need.