Judges with Dementia #4 in all-time ProbateSharks.com volume

Friday, July 12, 2013

Judges with Dementia

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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Comments

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