Mental Health and the Death Penalty

October 10th was World Mental Health Day. It was also World Death Penalty Day. The overlap between the two is one that is often overlooked, even though a defendant’s state of mind often has implications in his or her culpability for the crime. If mentally vulnerable, defendants may lack the criminal intent required for the offense, they may lack the ability to fully comprehend the links between the crime and the punishment imposed, they may be unable to effectively assist their legal counsel, and their capacity for reasoning may be altered – ultimately affecting their right to a fair trial.

From an overarching legal perspective, mental disorders in criminal cases include intellectual disability, mental illnesses and insanity. The first is defined as having ‘significant limitations’ in day-to-day social, practical and behavourial skills. Mental illnesses are defined as medical conditions which disrupt a person’s thinking, feeling and moods; including diagnosis of schizophrenia, depression and bipolar disorder; and insanity refers to a severe form of mental illness in which individuals are unable to comprehend their punishment or the purpose of it. The latter can specifically implicate cases of death penalty, as the defendant may be found incompetent to stand a free and fair trial and can plea for not guilty for reasons of insanity.

For prisoners suffering from mental disorders to be identified and properly protected from executions, it is necessary for there to be a mental health assessment undertaken by a qualified professional. Customary international law prohibits the execution of prisoners who are ‘insane’, while some human rights bodies argue that those with intellectual disabilities and mental illnesses should not be subjected to the death penalty either. Several resolutions have been adopted to urge states not to execute any person suffering from ‘any form of mental disorder’. Yet, many countries, including Pakistan, continue to do so.

There is little data to accurately indicate the number of individuals with severe mental disorders that are executed around the world. For one, of the countries still proscribing the death penalty, prisoners rarely have access to (or are simply denied) proper mental health assessments. Their mental illnesses may therefore go undocumented, and consequently untreated. There is also disagreement within the legal statures of independent states as to what qualifies as a mental disorder.

In theory, Pakistan permits the defense of legal insanity, but the lack of mental health training in the criminal justice systems means that individuals never get diagnosed. In 2016, Pakistan’s Supreme Court ruled that schizophrenia does not qualify as a ‘permanent’ mental disorder under the country’s legal definition, in the case of a prisoner on death row who was diagnosed with schizophrenia and psychosis. Earlier this year, the Chief Justice referred to international legal systems has having ‘unequivocally forbidden’ the execution of mentally ill persons; and while this statement is one step in the right direction, ambiguity in the legal systems understanding of what constitutes as mental illness under mental health laws, and the lack of qualified mental health professionals assisting our legal systems will continue to impede such cases.

Prisoners on the death row can also develop mental health problems while they are incarcerated and waiting to be executed. Being held on death row is terrifying, to say the least. Majority of prisoners live with the uncertainty of life or death for many years, waiting for legal decisions, and many times under life-threatening prison conditions. Some prisoners in Pakistan have been on the death row for over a decade, if not more. The isolation and years of living within the confinements of both certainty (of execution) and uncertainty (of when) is directly linked to sharp deterioration in prisoner’s mental and physical state.

International law recognizes the mental anguish associated with the fear of execution, which can cause a prisoner’s mental health to depreciate over time. More recent jurisprudence has introduced the idea of ‘death row phenomenon’, which speaks directly to the unique psychological impact on prisons who live under the ‘shadow of execution’. There have been numerous cases of prisoners on the death row having committed suicide. In one case in Pakistan, a prisoner was acquitted a year after he had been found dead in his cell. It is therefore not surprising that the demarcation of prolonged incarceration on death row has been constituted as cruel and inhuman punishment – prohibited by international human rights treaties.

Pakistani law makes 27 crimes punishable by death. Whether or not the death penalty finds justification as a punishment in modern day justice systems is a debate for another time; but death row is no place for individuals that are mentally vulnerable.

Published in the Daily Times on October 15th, 2018.