Abstract
The paper investigates whether it is plausible to hold the late stage demented criminally responsible for past actions. The concern is based on the fact that policy makers in the United States and in Britain are starting to wonder what to do with prison inmates in the later stages of dementia who do not remember their crimes anymore. The problem has to be expected to become more urgent as the population ages and the number of dementia patients increases. This paper argues that the late-stage demented should not be punished for past crimes. Applicable theories of punishment, especially theories with an appropriate expressivist, or communicative element, fail to justify the imprisonment of the late-stage demented. Further imprisonment would require a capacity for comprehension on the part of the punished, and, under certain narrowly specified conditions, even a capacity to be at least in principle capable of recalling the crime again.
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Notes
Quoted in an article written for Associated Press, which then appeared in countless large newspapers and other media across the United States.
For the additional problems that curable mental disorders can raise in this context, see Latzer (2003).
Rebecca Dresser argues that the “present best interest principle” should guide doctors faced with advance directives prohibiting life-prolonging treatments (1986). Applied to the punishment problem, this would raise the question of whether punishment lies in the present best interest of the demented.
Even though I will not address this here, I take it that a plausible form of general deterrence theory has to contain a restriction according to which only the guilty may be punished (Hart 1986).
For example the Panel on Research on Deterrent and Incapacitative Effects by the US National Academy of Sciences thinks that there is more evidence to the effect that there are general deterrent effects of punishment than to the contrary, but at the same time “cannot yet assert that the evidence warrants an affirmative conclusion regarding deterrence” (Blumstein et al. 1986, 7). Similar points have also been established in a more recent meta study (Dölling et al. 2009).
I am not going to discuss conditions other than dementia at the end of life. For example, some systems provide room for the idea that an incapacitating and fatal heart disease with a near certain life expectancy of only one more week should also result in a prison release. These further considerations are beyond the scope of this paper.
His position about advance directives is similar to Dworkin’s. He agrees that advance directives should be binding on the grounds that the interests of the autonomous adult who consented to the directives are normatively superior to the interests of the demented. He does not address the relative importance of continuity and connectedness in this context though.
To ensure the possibility of such a subjective appreciation of one’s self-involvement these recollections should of course also be caused in the right kind of way. They should not be a result of hypnosis or some other external induction.
McMahan argues explicitly in favor of this position (2002, 59–66). Parfit’s definition of continuity as an overlapping chain of “strong connectedness”, which in turn applies if there are at least half as many connections from day to day as in ordinary people, leaves some wiggle room here. Arguably, the demented can lose their psychological capacities more rapidly than required by this definition, so that they would not display continuity anymore (Parfit 1984, 206).
David Shoemaker presents a competing analysis of amnesia cases (Shoemaker 2012).
Note that this formulation requires—contra Parfit—that personal identity does matter in some cases. A less controversial, but also rhetorically less powerful way of putting things would be to insist on a special intimate psychological connection or relationship between the dementia patient and the crime.
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Funded by the German Research Foundation (Deutsche Forschungsgemeinschaft DFG).
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Dufner, A. Should the Late Stage Demented be Punished for Past Crimes?. Criminal Law, Philosophy 7, 137–150 (2013). https://doi.org/10.1007/s11572-012-9194-5
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DOI: https://doi.org/10.1007/s11572-012-9194-5