Mental disorder and capital sentencing in international law

This lecture or conversation concerns the relevance and importance of mental disorder at the sentencing stage. And I’d firstly like to make some general observations on mental disorder as a mitigating factor. Mitigating factors contextualize the accused to aid the court in assessing their culpability, providing an insight into an individual’s historical, social, cultural, emotional, biological and psychological context. They provide a dynamic and cohesive narrative of a person which is not restricted to fixed distinctive events. Mental disorder is as such recognized as one of the most important mitigating factors at the sentencing stage. The general principle is that any mitigating factor should be accepted unless negated by the state or rejected by the judge.

I’d like to focus now on skepticism, and I assert that there’s no need for skepticism whenever experts are engaged. An initial barrier to the investigation of mental disorder has been undue suspicion about the offender’s motives. The offender might be malingering in order to be spared a death sentence, but that fundamentally misunderstands the role of expert, because mental impairment of some form or other is particularly prevalent in prisoners facing the threat of execution. The psychiatrist is not wholly reliant on the self reporting of the offender. Ascertaining an offender’s mental state and or capability for reformation, is a sophisticated process that goes beyond the face to face examination.

In addition to their professional experience in recognizing and treating mental disorder on a daily basis, psychiatrists may consult with family members. They would examine medical records, school records, employment records, social care records and other background information to build up a comprehensive biographical picture of the offender, their offending, its causes and interactions. When it comes to risk, psychiatrists use various standardized assessment to assist them in drawing conclusions. The death penalty is also overwhelmingly disapproved in relation to people with mental disorder and intellectual disabilities, because they are often at a huge disadvantage throughout the criminal justice process. For example, they are vulnerable to giving false confessions, particularly when under pressure. In addition, they’re less able to assist their lawyers, preparing a defense.

They can be less articulate or presentable, impacting on a jury’s impression, and also their words and behaviour in court may be interpreted by judges and the wider public as demonstrating a lack of remorse. Besides considering the aggravating and mitigating factors to determine whether an offense is death eligible, the judge will also be focusing on the offender’s capacity for reform. This is because even when the facts of the case are exceptionally serious, the prospect of reform is a conclusive argument in its own right against imposing a death sentence. The question presents obvious difficulties because the court is essentially asked to see into the future and yet to make a decision that could be irrevocable.

Where, however, the answer is not so clear. How does a judge tackle this very difficult question of whether an offender is capable of or beyond reform? The Judicial Committee of the Privy Council has ruled in an appeal from Belize that expert evidence must be obtained in every discretionary capital case. The board held that it is the need to consider the personal and individual circumstances of the convicted person, and in particular the possibility of his reform and social re-adaptation, which makes the social inquiry and psychiatric reports necessary for all such sentence hearings. The rationale is that professional assistance that provides some insight into the character and psyche of the individual whose execution is being contemplated, is indispensable to the sentencing court.

And without such expert evidence, a judge simply cannot be expected to reach a properly reasoned and informed view as to whether the offender has a reasonable prospect of reform. Does the degree and type of disorder impact on mitigation? Mental disorder is different from other potentially mitigating factors in one important respect, and that is because in common law, mental disorder is an absolute bar to execution. The degree and type of mental disorder that preclude the death penalty are not always clear. Dealing firstly with mental illness, it is well established that an offender suffering from schizophrenia or other serious psychosis should not be executed.

But even where an offender’s mental illness is only moderately severe, it may well provide a cogent reason for not imposing the death penalty, even when that disorder has not qualified the offender for a defense or partial defense. In the case of Reyes from Belize, the chief justice of Belize held that the presence of depressive illness was crucial to the non imposition of the death penalty, even though a defense of diminished responsibility had been rejected by the jury at trial. The understanding is that a person who has reduced ability to process information rationally or exercise self-control as a result of some mental illness can be regarded as less culpable than a person not operating under those handicaps.

Turning to mental impairment, there is international consensus that an IQ below a certain level merits a diagnosis of intellectual disability, such that imposing or carrying out the death penalty would be cruel and inhuman. Where the line should be drawn is not universally agreed. Two of the most authoritative collections of psychiatric diagnostic criteria are provided in the World Health Organization’s International Classification of Diseases and the American Psychiatrist Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). Both these sources state that intellectual disability will usually be present in persons possessing an IQ of 70 or less. What about key procedural safeguards in capital sentencing? At a minimum, fairness in the conduct of discretionary capital proceedings requires the following procedural protections.

One, if the prosecution seek the death penalty in any case, they must give advance notice of that fact. Secondly, a separate hearing date should be scheduled for sentencing. So the evidence may be gathered as assessments carried out and reports prepared. Thirdly, a psychiatric assessment and or a psychological assessment must be conducted in every case, not only where there are behavioural signs of mental disorder. Fourthly, there must be funding available to the state and the defense to carry out these investigations and assessments and for the defendants to be able to present evidence in rebuttal. And finally, the prosecution are under a duty to disclose all evidence relevant to the issue of sentencing.

For example, medical records or social care records within this state’s possession. So just some concluding remarks. The scarcity of suitably trained mental health professionals and a lack of resources to commission psychiatric reports across many jurisdictions is one of the primary reasons why medical evidence is not made available in so many capital trials. In some cases, the failure to run a mental health defense at trial is due to the negligence of the individual lawyers or a failure by the state to provide the resources for a psychiatric examination. As critical is the failure of the state to meet the duty to disclose to the defense all medical records and information suggesting a history of mental disorder.

The duty applies even if the defendant does not ask for the information and extends to the full mental history of anyone facing a capital charge. The judiciary and members of the legal profession need to cooperate and engage with the mental health professionals whose assessments, report and evidence are critical. Medical experts will not only need to participate actively within the criminal justice process, but also need to have the necessary skills, resources and detailed instructions to enable them to do so. Ultimately, the onus is on the state to ensure that the norm protecting mentally disordered individuals from the death penalty is enforced without exception.

If this cannot be effectively guaranteed, international law demands that the death penalty should be excluded as a penal sanction. Thank you for listening.