If someone commits a crime, but suffers brain damage and has no memory
of the crime, will they get punished?
The U.S. Constitution, and most state constitutions, do not forbid the government from punishing someone for a crime that they can't remember. This could, of course, be a factor that influences how a prosecutor chooses to exercise prosecutorial discretion or how a judge chooses to exercise the judge's sentencing discretion.
At noted by Cain Goldhardt in the comments, the U.S. Supreme Court held in Madison v. Alabama (2019), in a 5-3 decision, that the U.S. Constitution does not prevent the death penalty from being carried out, even in cases where the convicted murderer can no longer remember committing the crime (the defendant's case was actually the subject of merits rulings of the U.S. Supreme Court in both 2017 and in 2019). The underlying facts were as follows (per the link):
Vernon Madison (August 22, 1950 – February 22, 2020)1 shot police
officer Julius Schulte twice in the back of the head in Mobile,
Alabama in April 1985. Schulte was mediating a domestic disturbance
between Madison and his ex-girlfriend; Madison also shot and injured
her. . . . Madison had severe strokes in 2015 and 2016, resulting in
vascular dementia and inability to remember killing police officer
Schulte in 1985. Prior to his death, he was blind and had suffered a
significant mental decline; he only remembered the alphabet up to the
letter G and had slurred speech. The strokes caused physical damage as
well, leaving him incontinent, unable to walk without a walker, and
with slurred speech. However, according to the psychologist appointed
by Alabama courts seeking his execution, he understood that he would
be executed and the reason for that.
This case was not entirely black and white, however, and the mental state of the prisoner at the time of an execution is not entirely irrelevant (also from the link):
In Dunn v. Madison, in November 2017, the Supreme Court unanimously
overturned a 2-1 decision by the 11th Circuit, which had stopped the
execution on the basis that Madison "does not rationally understand
the connection between his crime and his execution". The Circuit Court
was overruling a state court decision that had denied Madison's
petition on the basis that Supreme Court precedent only barred
execution if he lacked "understanding he is being executed as
punishment for a crime". The Supreme Court did not rule on the merits
of the case, but ruled that the Circuit Court overstepped its
authority under the Antiterrorism and Effective Death Penalty Act of
1996, which set the standard for which federal courts can overturn a
lower court's decision. . . .
The Supreme Court decided to hear the case in February 2018. Oral
arguments were held on October 2, 2018. At oral argument, Alabama
Deputy Attorney General Thomas Govan surprised some observers as well
as Justices by agreeing with defense counsel Bryan Stevenson that
dementia could be a form of incapacitation sufficient to meet the Ford
and Panetti standards prohibiting the execution of some incapacitated
inmates. Govan argued only that Madison's condition did not meet those
tests because he still had the cognitive ability to understand why he
was being executed, even if he could not recall the crime. Stevenson
argued that Madison was disabled beyond solely memory loss and thus
his execution would violate the Eighth Amendment's prohibition of
cruel and unusual punishment.
In a 5-3 opinion, authored by Justice Kagan, the Court held that the
Eighth Amendment may permit executing a prisoner even if he or she
cannot remember committing his or her crime, but it may prohibit
executing a prisoner who suffers from dementia or another disorder,
rather than psychotic delusions. The Court held that if a prisoner is
unable to rationally understand the reasons for his sentence, the
Eighth Amendment forbids his execution.
Justice Alito in dissent, joined by Justice Thomas and Justice
Gorsuch, would not have reached this question, stating that Madison
presented only the first question (whether a state can execute a
prisoner who cannot remember committing his crime) in his petition.
The Court remanded the case for the lower court to determine whether
Madison was able to rationally understand the reasons for his
Madison died of natural causes in prison before he was executed.
This case did not disturb, however, the U.S. Supreme Court's prior precedents in Ford v. Wainwright, 477 U.S. 399 (1986) and Panetti v. Quarterman, 551 U.S. 930 (2007), which, per the Madison v. Alabama link above, reached the following holdings:
In Ford v. Wainwright, the Supreme Court held in 1986 that executing
the insane is not allowed due to the Eighth Amendment, and in Panetti
v. Quarterman, they held in 2007 that to be sentenced to death, an
inmate must understand "the meaning and purpose of" his death
An inability to understand a sentence of incarceration as a punishment for a crime, under the standard reaffirmed in Madison v. Alabama, is also grounds for granting compassionate release of a prisoner from federal prison. A recent Colorado trial court opinion explains the relevant law:
The Sentencing Commission has identified four categories of
extraordinary and compelling reasons that may warrant a sentence
reduction: (A) medical condition of the defendant; (B) age of the
defendant; (C) family circumstances; and (D) other reasons. See
U.S.S.G. § 1B1.13, cmt. n.1. Mr. Lochmiller argues that his medical
conditions – specifically, advanced dementia and/or Alzheimer's
disease – qualify as an extraordinary and compelling reason for a
sentence reduction. Docket No. 699 at 6-8. The Sentencing Commission
has explained that a defendant's medical condition may be an
extraordinary and compelling reason where:
(i) The defendant is suffering from a terminal illness (i.e., a
serious and advanced illness with an end of life trajectory). A
specific prognosis of life expectancy (i.e., a probability of death
within a specific time period) is not required. Examples include
metastatic solid-tumor cancer, amyotrophic lateral sclerosis
(ALS), end-stage organ disease, and advanced dementia. (ii) The
defendant is (I) suffering from a serious physical or medical
condition, (II) suffering from a serious functional or cognitive
impairment, or (III) experiencing deteriorating physical or mental
health because of the aging process, that substantially diminishes the
ability of the defendant to provide self-care within the environment
of a correctional facility and from which he or she is not expected to
See U.S.S.G. § 1B1.13, cmt. n.1(A).
Mr. Lochmiller's medical records indicate that he has suffered from
dementia since at least 2014. See generally Docket No. 698. The
evidence before the Court is that Mr. Lochmiller's dementia is severe
and that it is worsening. The government concedes that Mr.
Lochmiller's dementia qualifies as a serious medical condition. Docket
No. 701 at 4. This determination is consistent with the Sentencing
Commission's policy statement explicitly identifying “advanced
dementia” as a medical condition that can qualify as an extraordinary
and compelling reason to reduce a defendant's sentence. See U.S.S.G. §
1B1.13, cmt. n.1(A). There is no information that Mr. Lochmiller is a
danger to the safety of any other person or to the community pursuant
to 18 U.S.C. § 3142(g). See id. § 1B1.13(2). Accordingly, the Court
finds that Mr. Lochmiller has demonstrated an extraordinary and
compelling reason warranting a sentence reduction.
B. Section § 3553(a) Factors
Next, the Court must consider whether the factors outlined in 18
U.S.C. § 3553(a) support a sentence of time served – at this point,
more than 100 months’ incarceration.
The government contends that the § 3553(a) sentencing factors
“compel” the Court to deny Mr. Lochmiller's request for a sentence
reduction. Docket No. 701 at 4. In particular, the government relies
on §§ 3553(a)(2)(A) and (B), which require the Court to consider “the
need for the sentence imposed to reflect the seriousness of the
offense, to promote respect for the law, [ ] to provide just
punishment for the offense, [and] to afford adequate deterrence to
criminal conduct.” Mr. Lochmiller's crimes were serious. As the Court
noted at sentencing, the Ponzi scheme established by Mr. Lochmiller
was “particularly cruel,” as Mr. Lochmiller used his talents to take
hard-earned money from hard-working people who had earned it during
the prime of their lives. See Docket No. 676 at 45-46. At the
sentencing hearing, the Court heard from numerous victims of Mr.
Lochmiller's scheme as to how his actions caused them suffering.
However, in terms of affording adequate deterrence to others, there is
no reason to believe that granting compassionate release to someone
with advanced dementia who is 100 months into a 405-month sentence
will fail to provide general deterrence. It is hard to imagine someone
who is aware of this order creating a Ponzi scheme based on the
assumption he or she will get out of prison early based on medically
Moreover, there is no reason to believe that Mr. Lochmiller, if
released, would pose a danger to the public. He now lacks the mental
capacity to perpetrate the type of crimes he was convicted of. Indeed,
he struggles with the things most people take for granted, such as
making telephone calls or speaking in complete sentences. In January
of this year, he was seen tearing up a photograph of he and his wife.
When asked why he did it, he responded that the man in the
picture is not him and he did not know “that lady.” Docket No. 707 at
The most important § 3553(a) factor regarding Mr. Lochmiller's motion
is the need for a sentence that provides “just punishment for the
offense.” Continued incarceration of Mr. Lochmiller does not serve a
punitive purpose if he does not know that he is being punished or why.
Cf. Madison v. Alabama, ––– U.S. ––––, 139 S. Ct. 718, 728, 203
L.Ed.2d 103 (2019) (noting that a “prisoner's inability to rationally
understand his punishment” removes the “retributive purpose” from a
prisoner's execution). At the time Mr. Lochmiller was sentenced, the
Court found that he deserved a sentence of over 33 years, which, for a
64-year-old man, was in all likelihood a life sentence. Now, however,
Mr. Lochmiller's mental condition has dramatically changed. When
committing his crimes, Mr. Lochmiller could look a retiree in the eye
and take her life savings, knowing she would never get them back.
Today, Mr. Lochmiller looks at his own face in a photograph and does
not recognize himself. Docket No. 707 at 2. Courts considering
compassionate release have acknowledged that a prisoner's severe
medical conditions can outweigh the purposes of continued
incarceration, even for serious offenses. See United States v. Gray,
416 F. Supp. 3d 784, 790 (S.D. Ind. 2019) (granting compassionate
release to seriously ill defendant despite the seriousness of his
conduct because “further incarceration in his condition would be
greater than necessary to serve the purposes of punishment”). Here,
the Court is not persuaded that the continued incarceration of Mr.
Lochmiller in his condition promotes respect for the law, provides
just punishment, or affords deterrence to criminal conduct. In sum,
given his mental condition, reducing Mr. Lochmiller's sentence to time
served after 100 months’ incarceration is sufficient, but not greater
than necessary, to accomplish the goals of sentencing established by
18 U.S.C § 3553(a).
U.S. v. Lochmiller, 473 F. Supp. 3d 1245, 1247–49 (D. Colo. 2020)
It follows, a fortiori, that there is no U.S. constitutional impediment to imprisonment when a convicted criminal can no longer remember the crime, but is capable of understanding that he or she is being punished with incarceration for a crime.
It is plausible that one or more state courts could at some time hold that the continued imprisonment or execution of a convicted criminal under these circumstances could violate that state's constitution. But, as of 2022, no state has done so. See Michael L. Zuckerman, "When A Prison Sentence Becomes Unconstitutional", 111 Geo. L.J. 281, 326 (2022) (urging relief from sentences under state constitutions in circumstances like this one). In particular, California, which is identified as the jurisdiction of interest in the question, has not done so.
At least 43 law review articles, mostly criticizing the decision, have discussed this issues posted by Madison v. Alabama, however, providing ample justification for a state court seeking to interpret its state constitutional protections more broadly than the federal constitution in these circumstances in some future case.
Related legal considerations
There are also other caveats to the statement is that the U.S. Constitution does not require that a criminal defendant be able to remember the crime to be punished for it.
While a criminal defendant need not be able to remember the crime to be prosecuted in court for a crime that the criminal defendant committed (e.g., because the defendant was on drugs or blackout drunk at the time), a criminal defendant must be competent to stand trial during the trial. The standard for competency to stand trial is whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402 (1960) (per curiam), cited with approval in Indiana v. Edwards, 128 S. Ct. 2379, 2383 (2008).
Indeed, the crime committed while blackout drunk example helps explain the justification for allowing people to be punished for crimes that they don't remember committing. Just because you don't remember committing the crime anymore, this doesn't mean that you aren't still the kind of bad person who would reoffend and harm others in similar future crimes. We also don't want to encourage people to commit crimes after intentionally putting themselves into a state where they are unlikely to remember having committed those crimes.
Also, it is a defense to a criminal charge that the criminal defendant lacks sufficient mental capacity to form the requisite mens rea (i.e., intent) to commit the crime at the time the acts that would otherwise constitute a crime are carried out by the defendant.
Likewise, it is a defense that the criminal defendant was prevented by a mental illness from knowing the difference between right and wrong at the time that the acts that would otherwise constitute a crime were committed in most (but not quite all) U.S. jurisdictions. This affirmative defense to a criminal charge is called the insanity defense.
And, relatedly, there is a minimum age (which varies considerably from state to state) of full adult crime criminal culpability, a concern based upon an ill developed sense of right and wrong and the consequences of one's actions at a tender age.
The inspiration for the question and the pardon power
The question's inspiration related to the plot of Final Fantasy XIV: Stormblood in which there a a character named Yotsuyu who is a totally amnesiac, whose sentence for a serious crime is commuted for mental incompetence.
It is worth recalling that in most U.S. jurisdictions either the governor, a parole board, or both, acting together (or the U.S. President, in the case of federal crimes), has the power to commute a criminal sentence (i.e. reduce a sentence for a crime that is currently being served or will be served in the future, as opposed to a pardon for a crime for which the sentence has been fully served already which is much more common). This is what happened in the video game that inspired the question.
An inability to remember committing the crime, accompanied by good reason to think that the convicted defendant will behave better in the future (in contrast to the usual case where a traumatic brain injury cases a person's previously more law abiding conduct to become worse than it was prior to the injury, see, e.g., here), would be a very plausible basis upon which to petition the appropriate person or persons for clemency in the form of a reduced sentence for the crime.
This highly discretionary approach to cases like these can respond to these questions in a flexible manner weighing the pros and cons of the decision on a wholistic case by case manner, that courts are ill equipped to evaluate in this way, if politicians with this power are brave enough to do so.