21 September 2016

Disability and the death penalty

Yesterday a man called Imdad Ali, a former electrician in Pakistan, was due to be executed. According to the NGO Reprieve, he has a “mental illness”, and thanks to their campaigning, the authorities have temporarily delayed his hanging. He has an appeal hearing on September 27th.

Lethal injection chamber, USA. (c) Associated Press.Lethal injection chamber, USA. (c) Associated Press.

I have always had great admiration for human rights defenders working in NGOs on abolishing the death penalty, and for lawyers arguing cases in court. I am an associate at Doughty Street Chambers, where colleagues Edward Fitzgerald QC, Keir Starmer QC and Joe Middleton have been involved in some of the leading cases and campaigns in the Caribbean and Africa. I was privileged to attend a think-tank meeting last week organised by the Open Society Foundations where I was invited to share some thoughts from a disability rights perspective, and I was asked to write up these thoughts, so here goes as an abolitionist and an ally.

Two starting points. The first is that if we believe the death penalty should be abolished, it is a good idea to restrict the application of the death penalty to any group, whatever that group. And the second is that while it’s good to lobby for the removal of antiquated concepts like “insanity” or “mental retardation”, a lawyer representing someone at risk of being executed is duty-bound to focus on the one singular goal of saving the client’s life (assuming that is what the client wants), and in doing so the lawyer should use words and arguments that have the most chance of reaching that objective.

There is a high degree of consensus in international human rights law that those with psychosocial disabilities (in the death penalty literature you will find the terms mental illness, mental disorder and insanity used a lot) or intellectual disabilities (death penalty terms include mental retardation) should be spared the death penalty. This means that no one should be sentenced to death (i.e. at the sentencing stage) and that no-one found to be in those categories should actually be executed, irrespective of what happened at trial and sentencing. In 1989 ECOSOC issued a resolution about this, and in 2005 the UN Commission on Human Rights called on governments “not to impose the death penalty on a person suffering from any mental or intellectual disabilities or to execute any such person”.

Beyond squeamishness, I think the death penalty is overwhelmingly disapproved of in relation to people with psychosocial or intellectual disabilities for two reasons. First, penal goals such as retribution and deterrence are not served by executing people with psychosocial or intellectual disabilities because they are limited in their ability to appreciate the consequences or wrongfulness of their actions or inactions. That sentence was loaded with assumptions, but that’s how the argument runs.

Second, the way that the issue of mental health or disability was handled during the investigatory and trial process may render a conviction unsafe. People with psychosocial or intellectual disabilities are massively disadvantaged throughout the criminal justice process. They are vulnerable to giving false confessions. They are less able to assist counsel in preparing a defence. They are more likely to provide a confession under pressure. Their words and behaviour in court may be interpreted by juries and judges as demonstrating a lack of remorse. These issues aired in the US Supreme Court case of Atkins v Virginia in 2002.

Another well-placed fear is that a jury can favour their own pure speculation over professional opinion (Brexit, anyone?). This well-placed fear has led courts to go down the professional route. Sure, it’s fine for lawyers and judges look to mental health professionals for guidance, but what has happened is that mental health professional opinion is often viewed as definitive.

The problem with this approach is that there’s an “enormous degree of subjectivity”, with insanity, limited mental competence and mental disorder being deployed. These are fluffy concepts, and even lawyers arguing cases sometimes have no idea what these terms mean. In the Caribbean the death penalty test is whether, “at the time of the act in question, the defendant was labouring under such a defect of reason, due to a disease of the mind, as either not to know the nature and quality of his act or, if he did know this, not to know that he was doing wrong.” What on earth does all of this mean? Probably different things to each person in the same court-room. These are not clinical terms, so psychiatrists will give varying opinions for the same defendant. There is no water-tight test to tell us whether a person has a psychosocial disability or not, and the same is true for intellectual disability.

Outside the death penalty debate are some useful statements. The UN Convention on the Rights of Persons with Disabilities (CRPD) tells us that disability is an “evolving concept”. So there are lively discussions about whether diabetes or obesity can constitute a disability. But because death is so definitive, the fact we can’t shine a bright line between those who have psychosocial or intellectual disabilities and those who don’t becomes really problematic. Children and pregnant women are the two other groups whom international rights law wants to save from the death penalty and those groups do not suffer from fluffy definition syndrome.

For people with intellectual disabilities, courts tend to use IQ tests. These produce a singular number, condensing a person’s array of cognitive skills and talents into a number. IQ tests are notoriously unreliable, but worse still, judges have used them as if one point difference is definitive: a person with an IQ of 69 is intellectually disabled and lives, but a score of 71 results in his death.

This was the issue in the 2014 US Supreme Court case of Hall v. Florida. At stake was Florida’s rigid bright-line rule, where death penalty kicked in at an IQ of 70. The Court said that this, “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” Because, “[s]ociety relies upon medical and professional expertise to define and explain how to diagnose the mental condition at issue,” the court effectively delegated death decisions to mental health professionals. This may be well-intentioned, but what a cop out.

Why would we turn to psychiatry for the answers when the profession hasn’t exactly been forthcoming with suggestions in other critical areas of social justice like how to abolish unmodified ECT, how to restrict forced medication and how to clamp down on shackling and restraints? In a death penalty case if we don’t get the desired answer from one mental health professional, we can shop around until we get what we want (disadvantaging people with intellectual disabilities who generally can’t pay for these reports).

Delegating to medicine what is ultimately a question for law produces the worst possible outcomes: for the client whose life depends on unreliable tests, for the fragile reputation of psychiatry complicit in facilitating the application of the death penalty, and for the justice system because a judicial determination as to who we can kill is so utterly grotesque: it demeans the legal profession and all of us.

There are two additional complicating sub-factors. First, the vast majority of people in prisons have mental health issues, and people with intellectual disabilities are grossly over-represented. Shouldn’t we assume that all death row prisoners have mental health issues? In Japan the guards come round each week on a certain day at a certain time in the morning to announce those who are going to be executed that day. If I went through that each week for several years I’d be a nervous wreck. So what’s the point even testing for mental health issues? Isn’t a more sensible approach to assume that every death row prisoner has one? The logical answer would be for governments to remove the death penalty from the statute books, but for too many governments prefer dogma and populism over rationality and justice.

A second problem is the role of medics. In 1989 the World Psychiatric Association declared that participation by psychiatrists in the death penalty was unethical and in 1996 it said that psychiatrists should not participate in executions or in assessments of competence to be executed. The cloud of medical ethics hangs over all mental health professionals who participate in determining whether someone is “sane enough” or “capacitous enough” to be killed, and there is an even greater question mark over the morality of psychiatrists who medicate to execute. All of these professionals should be kicked out of the profession. What’s the World Psychiatric Association doing to hold its member associations to account?

So can international human rights law – especially the CRPD – help restrict the application of the death penalty? My preliminary view is no in one way and yes in another.

The focus of Article 12 of the CRPD is on is equality, creating a level decision-making playing field. It says everyone has the right to legal capacity, the authority to take decisions. It mandates access to support systems for those who need assistance. In a death penalty case, lawyers for the State could argue that medicate to execute is assistance, the outcome of which is equality, because the person will no longer have delusions/hallucinations and will on an equal basis as others be fit for execution. The UN CRPD Committee says that supports cannot be imposed, so competent judges should give this argument little favour. I can’t yet see how the CRPD can help establish a restriction of the application of the death penalty from people labelled with disabilities, and my fear is that disability rights arguments could be hijacked by the other side.

Article 5 of the CRPD (non-discrimination) coupled with Article 13 (access to justice) is going to be more promising. These provisions uphold fair trial and due process rights, and mandate supports for people vulnerable to being bullied or otherwise disadvantaged by the system. Lawyers can creatively use CRPD arguments to augment their arguments, but these are not new or novel rights: they are regular safeguards that probably already exist. Watch the webcast of Edward Fitzgerald QC arguing these very points in the Privy Council in May in the case of Hernandez v Trinidad and Tobago (the judgment is not yet out).

So disability rights arguments can certainly help during the process and at sentencing, but we need to figure out whether and how the CRPD can help with eradicating the death penalty, or with restricting its use. Scholars, legal and mental health practitioners and activists: what are your views?

The CRPD was written to equalise the lives of people with disabilities upwards: into inclusion, participation and democracy. The death penalty is the opposite of those things. It is anachronistic, pointless, cruel and vile. Our focus should be to save lives in each and every case – irrespective of the person’s disability – and to eradicate the death penalty in all countries. For more information on death penalty and disability, see this briefing paper. To help eradicate the death penalty, please support The Death Penalty Project and Reprieve