17

Say that Bob is a horrible person who commits murder, theft, and a bunch of other bad stuff. Before getting caught, he shoots himself in the head. Miraculously, he survives, but with a severe case of amnesia where he's basically a new person with no memory of who he was or anything he did.

In that case, will this "new Bob" get charged with and punished for anything the original Bob did? Or will "new Bob" be let go and have a new life?

Assume that Bob's amnesia is truly genuine, and not just him pretending to get out of consequences (e.g. a zillion experts weighed in and found that he truly has severe amnesia and doesn't remember anything of who he was or what he did).

Morally, I'm sure many might have opinions on this, but I'm wondering what the law and court system would be compelled to decide in such a case.

P.S.: The impetus for this question is Stormblood.

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  • 25
    This isn't a far-out scenario. It happens regularly when somebody is drunk, particularly in drunk driving, domestic violence, or assault cases. When they sober up, they have little to no idea what happened.
    – user71659
    Oct 29, 2023 at 19:16
  • 8
    A better question is under what legal theory would you think that such a person would go free? Certainly remembrance of the act is not an element of any crime I can think of.
    – Tiger Guy
    Oct 30, 2023 at 13:57
  • There's a case of this in The Man Who Mistook His Wife for a Hat.
    – Shalom
    Oct 30, 2023 at 16:16
  • 3
    It seems like the underlying question is, "is today's Bob still the same person as the Bob that committed the crimes"? I don't know the answer to that philosophically, but I think the law would say he is still the same person. Oct 30, 2023 at 16:40
  • 4
    @Shalom, mens rea is a part of many criminal acts, but this is the state of mind at the time of the act, not if the accused remembers it later.
    – Tiger Guy
    Oct 30, 2023 at 19:12

4 Answers 4

43

Unless Bob is unfit to stand trial, the trial will go on.

"Unfit to stand trial" is defined in the Criminal Code as:

unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to

(a) understand the nature or object of the proceedings,

(b) understand the possible consequences of the proceedings, or

(c) communicate with counsel.

You have not inserted any facts that indicate unfitness to stand trial.

The post-offence retrograde amnesia does not remove liability for the offences. For a person to be found not criminally responsible by reason of mental disorder, the condition must have been present during the offences.

Example

See R. v. Morrissey, 2007 ONCA 770. The accused fatally shot someone and then shot himself in the head, resulting in retrograde amnesia that included the events immediately prior to the killing. The expert psychiatrist reported:

Mr. Morrissey has some recollection of events on the morning of the shooting, but very little recollection of anything after about [30-45 minutes prior to the shooting]

The Court of Appeal said:

amnesia has never been considered, by itself, to be a basis for declaring the accused unfit for trial or for relief from prosecution or conviction. The jurisprudence in Canada, the United Kingdom, Australia and the United States is consistent in this regard

There are strong policy reasons for concluding that a claim of memory loss respecting the critical events in question, by itself, ought not to provide the foundation for a stay of proceedings -- regardless of the cause of that disability. For one thing, such a loss of memory is a prevalent claim (30-40 per cent of people charged with a violent crime, perhaps more, claim to be affected by amnesia in relation to the crime). For another, it is an easy claim to make and a difficult one to disprove.

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  • 3
    I suppose the difference between the hypothetical and R v. Morrissey is that in the latter, the defendant still has a cognitive connection to his past self in a likely premeditated murder mindset. The former, where the defendant has lost all connection to his past self, is an interesting question where all philosophical nuance gets turned up to eleven.
    – user3509
    Oct 30, 2023 at 15:59
  • 2
    In the US there might be some trouble with the right to be able to assist in own defense.
    – Joshua
    Oct 30, 2023 at 18:36
  • @AxiomaticNexus It still triggers the last bit of Jen's answer... It is nearly impossible to disprove the claim of amnesia, and extremely easy to fake...
    – Questor
    Nov 13, 2023 at 17:16
15

Or will "new Bob" be let go and have a new life?

I think that outcome is very unlikely.

There's no particular requirement that those in the custody of the criminal justice system actually remember their crimes.

There's also the question about whether we are talking about mere amnesia of the crime, or whether we are talking about someone who is now seriously intellectually disabled.

The immediate question is likely to be whether Bob is fit to stand trial. If he is, he will be convicted and sentenced in the usual way. If he isn't fit, he's likely to be detained under legislation relating to the criminally insane or those who are thought dangerous through some defect of mind. Psychiatric custody, in other words.

One way or another, Bob won't retain any immediate independence. If he was detained without conviction, and became manifestly docile during years in custody being observed, he may ultimately be released with medical supervision.

But if there was any sign of a return to criminality, he'd be potentially taken back to psychiatric custody again - with doctors simply saying that the new evidence supersedes the decision to release, and that he obviously remained dangerous.

7

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 sentence.

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 sentence.

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 recover.

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 documented dementia.

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 2.

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.

1
  • Really? A case where they tried to execute a Black man who could not even remember the whole alphabet, for having killed a White police officer, after an initial conviction was overturned because the prosecutors excluded Black people from the jury? And then the judge (White, naturally) overruled the jury verdict of life in prison and imposed the death penalty? I don't know, the case seems very black and white to me.
    – Obie 2.0
    Nov 1, 2023 at 4:34
4

Since it's not possible to prove that someone doesn't remember something you clearly cannot possibly "let someone off" just because they assert that they can't remember the events.

If you did every criminal would suddenly and spontaneously develop targetted amnesia any time they got caught!

It doesn't matter whether Bob is faking or not ... because the next criminal will be.

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  • I don't think the justification given here is stable in light of continuing technical advancements -- fMRI is a thing -- so this is a rationale that might not be suited for long-term jurisprudence. Oct 30, 2023 at 23:34
  • 4
    Are you seriously arguing "no we can ... because we have tech that can read people's minds"?
    – Brondahl
    Oct 30, 2023 at 23:56
  • 4
    Post-event amnesia (claimed or fake) has nothing whatsoever to do with responsibility in the moment.
    – Brondahl
    Oct 31, 2023 at 11:10
  • 1
    Note for comparison that the polygraph has been around since the early 1900s, has not acheived a conclusive evidence-base, and is not accepted as admissable in (UK) court (nor in all US states, based on 30-seconds of Googling). So I'd offer that citing the hypothetical future existence of fMRI-based "is the defendant lying" evidence, in a legal context is ... optimistic.
    – Brondahl
    Oct 31, 2023 at 15:35
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    @Brondahl - While fMRI, and especially in combination with PET scans, are very good at some things, like which areas of the brain are more active at any one moment, they can only point to a possibility of the general nature of the thought based on what people report when that area scans positive (e.g. "I'm very happy.") To say we may be close to being able to read minds with those modalities is pure fiction. (I'm a physician, interested but by no means an expert in neuroscience. Oct 31, 2023 at 18:19

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