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Thursday, July 11, 2013

Judges with Dementia

In Deere v. Cullen, a death row inmate argued in a habeas petition that the sentencing judge was senile.  The district court denied an evidentiary hearing.  A panel of the Ninth Circuit affirmed last month.  A dissenting judge wrote: “The majority holds that a judge suffering from dementia may sentence a man to death.” http://cdn.ca9.uscourts.gov/datastore/opinions/2013/06/03/10-99013.pdf

On the face of the opinion alone, the dissent seems to have the stronger argument (at least for a hearing), but either way the numbers suggest that judges with dementia are often presiding in death penalty and other cases.  Many states have no mandatory retirement age and the prevalence of dementia among persons 71 years or older is 13.9%. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2705925/

The majority in Deere dismissed affidavits from three attorneys who had practiced in front of the sentencing judge on the ground that none of them sought disqualification for incompetency.  But the pressure against doing so is obvious.  Is there a better solution?

Most states do have mandatory retirement ages.  However, those no doubt oust many good judges and do not affect judges with early onset problems. Should judges or candidates for judgeships be screened for cognitive capacity?

Posted by Fredrick Vars on July 11, 2013 at 11:36 AM | Permalink

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That's an interesting question. A parallel might be to doctors, for whom dementia poses a direct threat to patient health. According to a recent Washington Post article (http://articles.washingtonpost.com/2012-12-10/national/35745299_1_retirement-age-older-doctors-dementia), there's a growing movement among hospitals to require periodic physical and cognitive exams as a condition of continuing to extend their privileges. This seems like a better approach than mandatory retirement ages (which, as the post suggests, can be both over- and under-inclusive). Perhaps also a confidential Judicial Council hotline to identify erratic behavior among judges? I believe the lower federal courts (though not the Supreme Court) have a mechanism like that in place to address these types of concerns in a confidential way, but I don't know how widespread equivalent state mechanisms are.

Posted by: Anon | Jul 11, 2013 12:38:38 PM

As I know someone with Dementia, I would say that it would be unfair to the people involved in the case to have a judge with dementia. They are not fully aware and they might say one thing but mean a completely different statement. I think it would be in everyone's best interest if judges were to be tested and if they have dementia it would be time for them to retire.

Posted by: Brian S. | Jul 11, 2013 2:12:40 PM

If Judge Fletcher cares so much about senile judges, then he should get his colleagues to exert some pressure for so e of the senile district judges in Fletcher's circuit to retire. I can think of 2 obviously senile judges in the Ninth Circuit who still hear cases -- and I'm sure other practitioners in other areas would know of more.

Posted by: Glass Houses | Jul 13, 2013 12:51:52 PM

@Glass Houses. Absent some institutional mechanism, I imagine the prospect of personally exerting pressure almost as unlikely as advocates doing so.

Also, it's not clear to me what power an institutional mechanism has when judges serve for life. Perhaps it could entirely remove senior, as opposed to active, judges from hearing cases? If not, or if the judge is active, maybe the circuit could remove him from the criminal docket, thus shifting the burden entirely to civil litigants.

Posted by: last american hero | Jul 14, 2013 6:44:29 PM

Regardless of potential arguments regarding Neurocognitive Disorders or diseases (NCDs), dementia per se no longer exists as a recognized mental disorder under the DSM-5, adopted in May 2013. Many followers of DSM categories' inclusions and exclusions have known of dementia's pending removal from the DSM for quite some time, as I discuss in a current rough draft article currently available on SSRN. At minimum, under the DSM, neither judges nor anyone else could have received a legitimate diagnosis of dementia since mid-May 2013.

Posted by: David Groshoff | Jul 22, 2013 9:25:03 PM

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