Mental Disability, Factual Innocence and the Death Penalty
Crime and Criminal Justice in Asia (Kim & Liu eds., 2013)
22 Pages Posted: 8 Sep 2013
Date Written: July 25, 2013
The death penalty is disproportionately imposed in cases involving defendants with mental disabilities. This paper seeks to explain why and how this state of affairs has come to be, to identify factors that have contributed to this shameful policy morass, to focus on the reality that factually innocent defendants with mental disabilities have been sentenced to death, and to offer some potentially ameliorative suggestions.
Assuming, as we must, that the death penalty remains constitutional in multiple Asian nations, the choices of whom we execute, how we exclude (or do not exclude) certain classes from the category of “potentially executable”, the ways that mentally disabling conditions are constructed in the trial and penalty phases of death penalty cases, and the assumptions we make about individuals at every stage of the death penalty process are of significance to scholars, policy makers, and informed citizens alike.
This paper will first consider the susceptibility of persons with mental disabilities to falsely confess, and then at other impediments to a fair trial caused by such disabilities, including issues related to the question of competence to be executed. Finally, it will consider the extralegal factors (that I call “sanism” and “pretextuality”) that contribute to this problem.
Keywords: Mental disability, death penalty, counsel, actual innocence, false confessions, competence to be executed
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