Mental disorder and the death penalty in international law

My name is Saul Lehrdfreund. I am the co-executive director of the Death Penalty Project in the UK. We are a legal action NGO and we have spent the last 30 years providing free legal representation and assistance to prisoners facing the death penalty around the world. I’m going to talk now about mental disorder, sentencing and the death penalty. And I’d like to begin by discussing the history of the common law prohibition on the execution of the mentally disordered as a cruel and unusual punishment.

For many centuries, at least since the 16th century, the common law has prohibited as cruel and unusual punishment, the execution of persons who were of unsound mind in the form of mental illness and those suffering from idiocy, now turned intellectual disability. In the United States, the Supreme Court, in the very famous landmark case of Ford v. Wainwright, recognized the common law prohibition and placed significant reliance on the impressive historical credentials of the Commonwealth Bar against executing a prisoner who had lost his sanity. The Supreme Court confirmed that the Eighth Amendment prohibited cruel and unusual punishment and this included the insane, as it does not serve the punitive purposes of retribution, deterrence or incapacitation.

The court went further in the landmark case of Atkins’ in Virginia, where a majority held that the Eighth Amendment likewise precludes execution of those who are intellectually disabled. What about international law? Well, there is a strong international consensus that the execution of those with mental disorder is unlawful. This is derived from numerous sources, including a series of United Nations resolutions, reports and decisions of U.N. bodies, as well as international and domestic jurisprudence, revealing a very high degree of consensus that those with psychosocial disabilities, mental illness, mental disorder and insanity, as well as intellectual disabilities, should be spared from the death penalty.

International law prohibits individuals in this group from being sentenced to death, and no one in this category should be executed, irrespective of the nature or severity of the crime. In 1971, the United Nations began its advocacy on behalf of mentally disordered persons with a Declaration on the Rights of the Mentally Retarded. Since 1984, a succession of measures aimed at protecting those suffering from mental illness and intellectual disabilities have been taken. In 1984, the Economic and Social Council adopted the safeguards guaranteeing the protection of the rights of those facing the death penalty.

In 1989, ECOSOC further clarified that safeguard 3 which prohibits the execution of persons who have become insane, should include the elimination of the death penalty for persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence or execution. In 1993, the UN special rapporteur on extrajudicial summary or arbitrary executions recorded that international law prohibits the capital punishment of mentally retarded or insane persons. In 1996, ECOSOC reiterated its call for full implementation of the safeguards, in part due to concerns for the lack of protection from the death penalty of those who are intellectually handicapped.

In 2005, the UN Human Rights Commission adopted Resolution 59 of that year, urging all states that still maintain the death penalty not to impose the death penalty on a person suffering from mental or intellectual disabilities or to execute such a person. The United Nations Human Rights Committee publishes interpretations of the provisions of the International Covenant on Civil and Political Rights in the form of general comments. These general comments draw heavily on the case law from the Human Rights Committee. A particular relevance to the issue of the death penalty is the general comment on the right to life under Article 6 of the Covenant.

Two provisions of the covenant are specifically relevant to the execution of individuals with a mental illness and disability. First, Article 6, which prohibits the arbitrary deprivation of life, and secondly, Article 7, which bans cruel, inhuman and degrading treatment and punishment. When these provisions are read together with the safeguards and other sources, the imposition of the death penalty and the execution of those with mental disorder, is clearly unlawful. In General Comment 36, The Human Rights Committee has made clear that state parties must refrain from imposing the death penalty on individuals who face special barriers in defending themselves, on an equal basis with others, such as persons who serious psychosocial and intellectual disabilities impeded their defense.

They should also refrain from executing the persons that have diminished ability to understand the reasons for their sentence. Recently, the Inter-American Commission on Human Rights has confirmed that while the American declaration does not expressly prohibit the imposition of the death penalty in the case of persons with mental disability, such a practice is in violation of the rights recognized in the American declaration. The commission has further explained that because of its special duty to protect persons with mental disabilities in death penalty cases, the state has an obligation to have some procedures in place to identify those accused or convicted persons who have a mental disability.

States also have an obligation to survey all records and information in their possession concerning the mental health of a person accused of a capital offense. The state must also provide any indigent person with the means necessary to have an independent evaluation done of his or her mental health, which evaluation must be done in a timely manner. In 2014, in the case of Chauhan & Anr v. Union of India, the Indian Supreme Court cited with approval, the safeguards and the references in the report of the special rapporteur on extrajudicial summary or arbitrary executions to the prohibition on the imposition of capital punishment on those with mental disorder.

The case is significant because the Indian Supreme Court drew heavily on international standards to reach the conclusion that the execution of persons suffering from mental illness was unconstitutional. I’d now like to turn to implementation and enforcement of the customary international norm. The general principle is that the presence of mental disorder should operate at every stage of the judicial process to protect defendants from the death penalty. It should bar trial in, if at all, if severe enough. It should operate as a defense to murder when it satisfies the test for insanity or diminished responsibility.

Where the death penalty is discretionary, it should operate as a mitigating factor at the sentencing stage and if demonstrably present at the time of the offense or at the time of sentence, it should bar the imposition of the sentence. It should also operate as a critical factor at the mercy stage and justify the grant of pardon or clemency wherever it can be shown to have been present at the time of the offense or the time that mercy is considered. Finally, mental disorder should quite independently bar execution, even if it was not present before.

The unfortunate reality, however, is that many retentionist countries are simply unable to protect those with mental disorder from the imposition and/or the execution of the death penalty. These are some of the realities. Many countries lack the legislative provisions to protect mentally disordered persons from the death penalty, especially those who develop mental illness post conviction. Thank you very much.