In prison, without knowing why

This article in the New York Times caught my attention yesterday, partly because just a few weeks ago I sat on a panel discussing punishment of late stage demented offenders.

The number of prisoners in the US with dementia is on the rise. The NYT article notes that due to budget constraints, offenders whose cognition is so compromised that they cannot take care of themselves are being cared for by other prisoners, a solution that risky at best.

I don’t think late stage demented prisoners should be in prison at all. Here’s why:

Although assessment of guilt and sentence do not depend upon recollection – an offender who takes illegal drugs and then goes on a killing spree is still held responsible even if he doesn’t remember his crimes – an inability to recollect ones’ crime sometime after one’s trial and sentencing calls into question whether continued punishment is justified. Late stage demented offenders who cannot remember their crime should not suffer continued punishment because the major justifications of punishment (retribution, deterrence, rehabilitation and incapacitation) fail where there is no basic comprehension of the reason why one is being punished.

Retribution

Proportionality is a hallmark of retributive punishment. According the US Model Penal Code, to be just, punishment must be proportional to either the crime committed or harm caused, and to the type of offender. A murderer deserves more punishment than a car thief. And a person who is insane or mentally incompetent is not as deserving of punishment as someone with normal mental capacity. This is because one with diminished mental capacities does not know what they were doing is wrong in the same way a competent person does, or they fail to fully understand the consequences of their acts.

This requirement of proportionality is not only relevant at the time the crime is committed. In Panetti v. Quarterman, the US Supreme Court refused to allow Panetti to be executed because he thought he was being executed for his religious beliefs, instead of his earlier crimes. According to the Court, retribution requires that capital punishment “…have the potential to make the offender recognize at last the gravity of his crime and to allow the community as a whole…to affirm its own judgment that the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed. The potential for a prisoner’s recognition of the severity of the offense and the objective of community vindication are called in question, however, if the prisoner’s mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole.” That is, if the person doesn’t understand that they are getting their “just deserts,” they feel no connection to society’s values or judgment of their acts.

For this reason, a late stage demented person who cannot remember their crime is no longer the person who deserves their just deserts. If he cannot link the suffering imposed by imprisonment to their earlier act, he is not enduring punishment proportional to their harmful act.

Deterrence

While making the connection between the violation of societal values and punishment has the effect of delivering to the offender his “just deserts”, it may also have the effect of deterring him from future similar crimes, another important principle of punishment. There are two different types of deterrent effects: specific deterrence, wherein we hope a specific offender will be less likely to commit crimes due to his criminal punishment, and general deterrence, wherein we hope other potential offenders are less likely to commit crimes because of the threat of criminal sanctions.

The aim of specific deterrence obviously fails with regard to the late stage demented. A late stage demented offender who does not remember his earlier crimes will not be deterred by an understanding of the punishment that this earlier act incurred. Indeed, he may not even remember the imposition of punishment at all. More generally, the late stage demented are not able to contemplate the consequences of their acts in the normal way, and thus are not likely to be deterred by a threat of punishment.

Further, the aim of “general deterrence” is not undermined by releasing those with late stage dementia. It is extremely unlikely that one contemplating a crime will be more likely to commit it because they think they might be released if suffering from late stage dementia. At any rate, studies show that arrest rates are more likely to influence offender decisions than punishment, so an early release due to mental illness is so unlikely to influence potential offenders that it needn’t be considered.

Rehabilitation

Society may also hope that remorse or other prison programming will achieve the result of rehabilitation – a change in the person’s character so that he is less likely to commit criminal acts in the future. But remorse is essentially impossible for a late stage demented offender, precisely because there is no comprehension of the reason why the offender is being punished. And in general, rehabilitation is largely out of the question for this group of offenders because of the decrease in their cognitive capacities. Although late stage demented persons are less likely to be efficient or very violent offenders, this change in behavior can hardly be called rehabilitation. So this principle of punishment is also not served by holding the late stage demented in prison.

Incapacitation

Finally, if no remorse is felt, and no change in character occurs, society may default to incapacitating a criminal so he is unable to perform similar harmful acts. (I say similar acts, because we have no way of knowing if an offender is likely to commit dissimilar harmful acts, although we might think we do. For example, we may be deterring a person from auto-theft by imprisoning them for murder, but this is such a distant and unrelated result it should not factor in our determinations of punishment.) This principle of punishment seems unique in that it is purely forward-looking: it does not seem to require a substantive psychological connection between offender and their past crime.

But this isn’t exactly the case. Where one has not committed a crime but is a clear danger to himself and others, civil commitment, not criminal commitment, is appropriate. In the case of late stage demented offenders, we may want to incapacitate them, but this is not really because their criminal act indicated to us that they are likely to be dangerous. The late stage demented person is so changed cognitively from their earlier self that the prior criminal act no longer seems to be a good predictor of future behavior. It might be that a demented offender who previously committed sexual assaults will still be prone to sexual assaults. But his ability to execute this desire will be so hobbled as to make him a very unlikely offender. So our desire to incapacitate the late stage demented offender is not due to his earlier decision to commit a harmful act, but instead, because of their current disease. As stated already, demented persons are at times prone to aggression and lower levels of violence. They are also unlikely to be able to tend to their own basic needs. These are two reasons to incapacitate late stage demented persons civilly.

In sum, a late stage demented person is no longer the person who merits his just deserts: if he cannot link the suffering imposed by imprisonment to their earlier act, he is not enduring punishment proportional to their harmful act. Further, he will obviously not be deterred by the punishment they are enduring, or be rehabilitated by the experience of punishment or by any experience or programming connected with incarceration. And, because the character of the person has changed, they are also not good candidates for incapacitation via criminal incarceration: that is, they are unlikely to be dangerous, at least in the same way they were before they became incompetent. They may be likely to commit certain sorts of harmful acts, but they are just as likely to commit these acts regardless of their environment. Thus this population, and society, are best served by incapacitation of late stage demented offenders in via civil commitment. Or, if such incapacitation is not necessary, such offenders should be released into care of family or friends.

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