Customary international law prohibits the execution of prisoners who are insane.1 However, international human rights norms go further by recognizing that the prohibition extends to prisoners with any form of severe mental disability.
In 1989, the UN Economic and Social Council clarified its earlier Safeguards as requiring 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.”2 In 1996, the Council reiterated its call for full implementation of the Safeguards, in part because of concerns for the lack of protection from the death penalty of those who are severely mentally disabled.3
It has been widely recognized that the execution of severely mentally ill prisoners is cruel, inhuman and degrading. In the case of Francis v. Jamaica, the Human Rights Committee held that the incarceration on death row of a prisoner whose mental health had “seriously deteriorated” amounted to cruel, inhuman or degrading treatment in violation of Article 7 of the ICCPR.4 Further, the Committee made clear in Sahadath v. Trinidad and Tobago that the issuance of an execution warrant in the case of a mentally ill prisoner violates Article 7 of the ICCPR.5 In a series of annual resolutions urging full compliance with the Economic and Social Council Safeguards, the UN Commission on Human Rights called on retentionist countries “[n]ot to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person.” The European Union has likewise declared that the execution of persons “suffering from any form of mental disorder . . . [is] contrary to internationally recognized human rights norms and neglect[s] the dignity and worth of the human person.”6 The prohibition on executing the severely mentally ill is thus an established norm of international law.
Mental illness is distinct from intellectual disability. Intellectual disability involves inherent deficiencies in intellectual functioning from birth and limitations in adaptive skill areas necessary to cope with the requirements of everyday life.7 By contrast, mental illness is defined by the National Alliance on Mental Illness as a medical condition that disrupts a person’s thinking, feeling, mood, ability to relate to others and daily functioning. Serious mental illnesses include major depression, schizophrenia, bipolar disorder, obsessive compulsive disorder (OCD), panic disorder, post traumatic stress disorder (PTSD) and borderline personality disorder.
Despite widespread acceptance that the execution of the mentally ill is unacceptable, mentally ill defendants continue to be sentenced to death.8 Many countries have inadequate laws protecting the mentally ill from the death penalty, largely because they focus on criminal liability as opposed to punishment. For example, many countries provide that individuals who are severely mentally ill may not be found criminally liable, but they lack legislative provisions to protect mentally ill people from capital punishment. Thus, individuals who develop a mental illness after being convicted may still be vulnerable to execution. Still, there is little data to indicate whether individuals with mental illnesses are executed in practice. One major barrier to documenting the incidence of mental illness among condemned prisoners is the dearth of qualified forensic psychiatrists in retentionist states.9
In some countries, such as the United States, only those offenders with severe mental illnesses are excluded from capital punishment. The test to determine an offender’s “competency” to be executed varies; in the United States an offender may not be executed if he lacks a rational and factual understanding of the meaning and purpose of his execution.10 Many severely mentally ill offenders have been executed after courts have determined that they are nonetheless “competent” to be executed.11 Others have been confined on death row for long periods while the authorities wait for them to regain their competency. U.S. authorities have also, in certain cases, sought to forcibly medicate condemned prisoners to “restore” their competency to be executed.
Francis v. Jamaica, Communication No. 606/1994, U.N. Doc. CCPR/C/54/D/606/1994, U.N. Human Rights Committee, Aug. 3, 1995.
Sahadath v. Trinidad and Tobago, Communication No. 684/1996, U.N. Doc. CCPR/C/74/D/684/1996, U.N. Human Rights Committee, Apr. 15, 2002.
Nicola Brown et al., Capital Punishment and Mental Health Issues: Global Examples, p. 383, St. Louis U. Pub. L. Rev., Vol. 25, 2006.
Julie D. Cantor, M.D., Of Pills and Needles: Involuntarily Medicating the Psychotic Inmate When Execution Looms, p. 119, Ind. Health L. Rev., Vol. 2, 2005.
Lyn Suzanne Entzeroth, The Illusion of Sanity: The Constitutional and Moral Danger of Medicating Condemned Prisoners in Order to Execute Them, p. 641, Tenn. L. Rev., Vol. 76, 2009.
Zhiyuan Guo, Approaching Visible Justice: Procedural Safeguards for Mental Examinations in China’s Capital Cases, p. 21, Hastings Intl. & Comp. L. Rev., Vol. 33, 2010.
Liliana Lyra Jubilut, Death Penalty and Mental Illness: The Challenge of Reconciling Human Rights, Criminal Law, and Psychiatric Standards, p. 353, Seattle J. for Soc. Just., Vol. 6, 2007.
Last updated on December 20, 2011.
1 U.N. ECOSOC, Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, para. 3, E.S.C. Res. 1984/50, U.N. Doc. E/1984/92, 1984 (the death penalty shall not be carried out on persons who have become insane); William A. Schabas, International Norms on Execution of the Insane and the Mentally Retarded, pp. 95-117, Criminal Law Forum, Vol. 4, p. 95, 1993 (finding “no empirical evidence that any state actually executes the insane, even though many have no legislative provisions to this effect”).
2 U.N. ECOSOC, Implementation of the Safeguards Guaranteeing Protection of Rights of those Facing the Death Penalty, p. 51, para. 1(d), ECOSOC Res. 1989/64, U.N. Doc. E/1989/91, 1989 (emphasis added).
3 U.N. ECOSOC, Implementation of the Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty, ECOSOC Res. 1996/15, U.N. Doc. E/CN.15/1996/15, Jul. 23, 1996).
4 U.N. Human Rights Committee, Francis v. Jamaica, Communication No. 606/1994, U.N. Doc. CCPR/C/54/D/606/1994, Aug. 3, 1995.
5 U.N. Human Rights Committee, Sahadath v. Trinidad and Tobago, Communication No. 684/1996, CCPR/C/74/D/684/1996, Apr. 15, 2002.
6 European Union, Delegation of the European Commission to the USA, EU Memorandum on the Death Penalty, presented to U.S. Assistant Secretary of State for Human Rights, http://www.eurunion.org/eu/EU-Memorandum-on-the-Death-Penalty-February-25-2000.html, Feb. 25, 2000.
7 Human Rights Watch, Beyond Reason: The Death Penalty and Offenders with Mental Retardation, http://www.hrw.org/reports/2001/03/05/beyond-reason-0, Mar. 5, 2011.
8 Roger Hood & Carolyn Hoyle, The Death Penalty: A Worldwide Perspective, p. 203, Oxford University Press, 4th ed., 2008.
9 Roger Hood & Carolyn Hoyle, The Death Penalty: A Worldwide Perspective, p. 207, Oxford University Press, 4th ed., 2008.
10 Panetti v. Quarterman, 551 U.S. 930, 960, U.S. Supreme Ct., 2007.
11 Death Penalty Information Center, Examples of Mentally Ill Inmates Who Were Executed, http://www.deathpenaltyinfo.org/mental-illness-and-death-penalty#executions, last accessed Dec. 20, 2011.