Should older people suffering from dementia go to prison?

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Former French president  Jacques Chirac, 78 years old, was diagnosed with the symptoms of dementia last  month, two days before the trial for the “bogus jobs” affair opened, a trial in  which Chirac is one of the defendants [1]. Just a few days ago in Cambodia, Ieng  Thirith, the only woman to be tried for the crimes against humanity committed in  Cambodia, aged 79, was also said to be suffering from health issues including  Alzheimer’s which, according to her defence team, make her unfit to stand trial  [2].

These cases  raise judicial and ethical problems as one can question whether it is fair to  judge a person who is suffering from dementia for crimes they may not even  remember. Dementia is  characterised by loss of or decline in memory and other cognitive abilities,  results in damaged brain cells and becomes more severe over time. In other  words, people suffering from dementia lack what Kant called “rationality”, the  capacity to make reasonable choices, including the capacity to defend  themselves. Many legal systems, including UK common law, usually grant people  suffering from dementia with incompetency to stand trial, which means that they  are either excused, or removed  from court proceedings.

Dropping the charges  against a defendant who is not capable of understanding the nature of the  charges against them or to answer questions about their past is another option  available to courts. It is the solution that the Extraordinary Chambers in the  Courts of Cambodia (ECCC) will opt for if they choose to follow the case of Ieng  Thirith’s defence. In international criminal law, fitness to stand trial is  usually assessed by the “Strugar test”, first coined in the International  Criminal Tribunal for the case of former Yugoslavian war criminal Pavle Strugar.  This test states that a defendant should be able to plea; to understand the  nature of the charges; court proceedings; details of the evidence; the  consequences of the judgment; to communicate with counsel; and to testify in  order to be deemed fit to stand trial. According to the  opinions provided by Ieng Thirith’s defence team, her current condition  precludes her from being able to satisfy most, if not all of the Strugar fitness requirements.

The French criminal  court has decided to choose the other option: the trial of Jacques Chirac has  started without him and he will be judged in absentia. He will not be  present in the courtroom, but his lawyers will represent him during the  proceedings and will possibly be sentenced. This situation follows a letter  written by the former president, in which he expresses his wish to be tried in absentia to the court, a procedure in accordance to French criminal  law. However, this provision was initially introduced for persons who are  physically incapable to be in a court rather than defendants who show symptoms  of dementia (commentators believe that it might be a vascular form of dementia,  due to the stroke he had in 2005). Judging someone in their absence is always  problematic both for the prosecution (the defendant is not present in court to  testify) and the defence (the exchange of information between the defendant and  his counsel is easier if the defendant is in court). For these reasons, judging  defendants in absentia it should only occur after careful  consideration. Some may deem it regrettable that the court did not order another  medical examination to determine if Jacques Chirac’s mental capacities do indeed  keep him from understanding the consequences of the judgement, regardless of his  willingness to be judged. Dementia is often characterised by anosognosia –the  lack of awareness of one’s disease – and Jacques Chirac’s letter purporting his  competence to be tried in this way may not account for this. If he is sentenced  to a prison term (he currently risks being sentenced up to 10 years in prison),  the court might then consider adapting the sentence to reflect his apparent  dementia by confining him to his home, for example.

Regardless of their  outcome, what the cases of Jacques Chirac, Ieng  Thirith  and others do highlight is the extraordinarily difficult questions that arise in  the trials of those who may have broken the law in the past, but who are now  suffering from cognitive impairments. Viewing these issues through the lens of  human rights can provide a framework through which legislators can address these  issues in an ethical manner. In particular following guidelines set by the  Universal Declaration of Human Rights (UDHR) and the European Convention of  Human Rights (ECHR) can help to ensure that all defendants, regardless of health  status, can receive a fair trial.

Lilly  Diener

[1] http://www.guardian.co.uk/world/2011/sep/04/jacques-chirac-too-ill-trial

[2] http://www.voanews.com/khmer-english/news/Ieng-Thirith-Unfit-for-Trial-Defense-Lawyers-Say-132238548.html

Lilly Diener was an intern at ILC-UK. ILC-UK would like  to congratulate Lilly on her recent success in achieving a distinction in her  Masters. The law, dementia and human rights were the subject of her  dissertation.

2 thoughts on “Should older people suffering from dementia go to prison?

  1. Simon Evans said:

    why is it that people living with dementia are often described as ‘sufferers’, while those with cancer are said to be ‘fighting’ it?

  2. Jo Ann brown said:

    Because there is no cure for dementia and its progressive.but you can delay the onset and enhance your capacities for as long as possible

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