Friday, September 24, 2021
In any given week, I often have someone reach out to me, a mere lawyer, asking me for suggestions about how to access assistance for a family member, a friend, or a colleague who is experiencing "mild to moderate dementia." Of course, part of those requests arise because of my identity as an elder law attorney. But, still, I think that such requests are a sign of the public's difficulty in identifying trustworthy alternatives. This week, for example, a call came from a commercial attorney who was startled to realize he might be the closest to a family friend who is struggling with her doctor's strongly-worded recommendation that she should no longer live alone, because of serious difficulties with her memory and balance. The family was unable or unwilling to help her. Thus, the commercial attorney was learning about how/whether he could become her surrogate, if needed, for accessing better care and more suitable living arrangements. Without such a friend, the decision-maker would likely end up being a complete stranger.
Also this week, however, I was researching a question that led me to put "dementia" into a search box on the Westlaw search engine for recent court decisions. I expected to see guardianship and conservatorship cases, as that is probably the most obvious reason why lawyers and courts would be involved with dementia.
Instead, 3 of the first 5 case decisions (reported during September 15-September 24) reported on Westlaw involved requests by convicted criminal defendants for relief or modification of sentences due to consequences of dementia. This means judges are being asked to evaluate the severity of progressive conditions and the impact of the diagnosis on the likelihood the defendant will reoffend if released. See e.g., Sentencing Guidelines Manual's application notes listing "advanced dementia" as a possible factor in considering whether there are "extraordinary and compelling reasons" for a reduced or modified sentence.
Two cases decided by federal courts on the same day stood out:
In U.S. v. Shabazz (USDC for District of Columbia, 9/22/21), compassionate release was denied for a 55 year old man, who had served 46 of his 67 month sentence for heroin and cocaine sales. The defendant was seeking early release to help provide live-in care for his 80 year old mother who was suffering from worsening dementia, requiring constant care. The court observed:
The Court finds that Mr. Shabazz does not meet this high bar [of proof to support compassionate release]. To be clear, the Court fully credits the assertions of Mr. Shabazz, his sister, and [his mother's] doctor with regard to [his mother's] condition. But Mr. Shabazz has not shown that he is the “only available caregiver” for his mother, nor is his situation so rare as to qualify as “extraordinary.” While the Court is deeply sympathetic with the plight of Mr. Shabazz, his mother, and his sister, this case simply does not present the kind of “extraordinary and compelling” circumstances required to reduce a defendant's sentence under [18 U.S.C. ] § 3582(c).
In U.S. v. Wiman (USDC Indiana, 9/22/21), granted release for a man who had served more than 6 years of a 110 month sentence for armed bank robbery, based on evidence of the defendant's diagnosis of Parkinson's related dementia. The court observed:
Mr. Wiman is 73 years old. He has been diagnosed with Parkinson's disease and Parkinson's dementia. Those conditions are progressing, and he has recently been transferred to a federal medical center so that he can reside in a memory disorder unit. Over the past several months, his medical records show that he has ongoing gait problems and has fallen multiple times despite using a walker. BOP medical staff also report that Mr. Wiman requires assistance with activities of daily living. Finally, BOP medical staff report that Mr. Wiman is occasionally confused.
Importantly, Parkinson's disease is a progressive disorder that cannot be cured [citing Mayo Clinic website]. While medications can improve symptoms, those symptoms worsen as the condition progresses over time. That is, there is no reason to believe that Mr. Wiman's condition will improve. To the contrary, it will likely continue to deteriorate. . . .