As a long-time researcher at the intersection of elder law and public health, I have observed with growing concern how Western justice systems are struggling to adequately address the unique challenges posed by defendants living with dementia.
Amid rising healthcare costs, political scrutiny over sentencing practices, and increasingly aging populations in both the United States and Europe, questions of justice, accountability, and compassion are becoming ever more urgent.
In the United States, dementia now affects over 6.1 million people, with projections reaching 13 million by 2050, according to the Alzheimer’s Association. European countries face a similar trajectory. The aging curve has steepened, and with it comes a growing number of legal cases involving elderly individuals whose cognitive capacities are compromised—whether mildly or severely.
At a recent webinar titled “Dementia and the Criminal Justice System,” hosted by the American Bar Association's Senior Lawyers Division, experts laid out the difficult choices confronting prosecutors, judges, and defense attorneys when a person with dementia commits a crime.
Attorney David Godfrey illustrated this through a fictional yet highly plausible case: a nursing home resident with mid-stage dementia assaults a staff member and faces criminal charges.
For prosecutors, the triad of public protection, criminal accountability, and deterrence becomes fraught. How do you punish someone whose understanding of right and wrong is fundamentally impaired? Even when convictions are secured, the U.S. correctional system is woefully underprepared to care for inmates with dementia.
Long-term care in prisons is often geared toward physical illness or palliative needs rather than cognitive decline. This mismatch creates a cruel paradox: a conviction may serve formal justice, but the outcome is frequently one of neglect or acceleration of the defendant’s deterioration.
Judges, meanwhile, wrestle with legal and moral dilemmas. They must navigate between the factual reality of the offense—often supported by eyewitnesses and video evidence—and the cognitive state of the accused. Is a conviction unduly harsh if the individual lacked the capacity for intent or impulse control? But if leniency is granted and the person reoffends, the judge may face intense public scrutiny. Elected judges in particular are sensitive to how their decisions play out in the media and among constituents.
Defense attorneys are left trying to protect clients who may be functionally unable to aid in their defense, even if they are technically competent to stand trial. For people in early- to mid-stage dementia, competency is often presumed, yet the consequences of incarceration—disorientation, fear, rapid cognitive decline—can be devastating.
Legal defense strategies based on cognitive impairment face high evidentiary burdens. In many jurisdictions, mental health defenses require a high threshold that only late-stage dementia may meet, particularly when a specific intent must be disproven.
Another complication is the standard procedure for dealing with defendants deemed incompetent to stand trial. In most states, this involves commitment for the purpose of competency restoration—an impossibility for individuals with irreversible cognitive diseases like Alzheimer’s. Thus, the system stalls. The defendant can’t be tried, but also cannot be restored to competency. Neither justice nor care is adequately served.
Several European countries, including the UK and Germany, are experimenting with alternative justice models that could inform reforms in the U.S. These include community-based sentencing, mandatory supervision in lieu of incarceration, and specially trained "elder court navigators."
In one UK case, a woman with moderate dementia who assaulted a caregiver due to a delusional belief was diverted to a community treatment program. The judge's decision—based on simplified court procedures, a psychiatric assessment, and caregiver testimony—was lauded as a humane yet safe compromise.
The financial dimension is equally critical. In the U.S., elder law and guardianship litigation involving dementia defendants often cost families upward of $40,000 per year. Retaining specialized legal counsel can cost $300 to $500 per hour.
Meanwhile, insurance companies are beginning to factor in professional liability risks associated with legal mismanagement of dementia cases. Legal professionals face potential exposure if clients with cognitive impairments are imprisoned without proper representation or protective measures.
Moreover, aging prison populations are placing enormous strain on correctional health systems. In the past decade alone, the number of incarcerated people over age 65 has surged by over 75%. Yet fewer than 10% of correctional facilities are equipped to handle the needs of cognitively impaired inmates. This is not just a moral failing; it’s a systemic one.
To build a justice system that is both humane and accountable, we need interdisciplinary cooperation. Legal professionals must gain a better understanding of dementia-related symptoms—memory loss, confusion, paranoia, emotional volatility—and how these manifest in legal settings.
Public policy should facilitate early cognitive screening in the court system, provide funding for dementia-friendly legal procedures, and support alternatives to incarceration. The healthcare and legal systems must also coordinate to develop institutional infrastructure for care-focused sentencing options.
Some states are already inching toward such reforms. California has launched early screening pilots in elder courts. New York is exploring legislation to expand community-based sentencing for defendants with neurocognitive disorders.
Internationally, courts in Germany and Sweden have experimented with special chambers that include both legal and medical experts, ensuring that sentencing decisions reflect a holistic understanding of the defendant’s condition.
Ultimately, justice for people living with dementia demands more than procedural correctness—it requires moral clarity, scientific literacy, and a commitment to system-level innovation. The answer isn’t to eliminate accountability but to recalibrate it in a way that respects human dignity while still safeguarding society.
In many cases, alternatives such as structured adult day care, intensive supervision, or community guardianship can meet those goals far more effectively than incarceration.
The legal profession, in the West and beyond, must now rise to this challenge. In doing so, it will not only serve one of society’s most vulnerable populations but also redefine the very meaning of justice in an aging world.