Legal And Ethical Issues Involved In Sentencing Mentally Disordered Offenders

Legal And Ethical Issues Involved In Sentencing Mentally Disordered Offenders. An Evaluation of Current Legislation and Legislative Proposals In Light Of These Concerns

This Research Paper provides background on the ethical and legal plight of sentencing mentally disordered offenders and highlights some of the issues which have generated comment or concern. It will study the current legislation on sentencing the legally insane, evaluating both local and international law in an effort to capture the concept behind the legislation. At the end of the paper the aim will be to offer well researched legislative proposals that seek to modify the issues highlighted.

It’s a fact that most people can attest to knowing a mentally ill person. The proximity of the relationship may or may not be close but it shows that the mentally ill are as much a part of society as the mentally sane in a great way. They are referred to as crazy, retarded, demented and insane; the names society brands them with are quite as many as they are crude and highlight just how little most people understand about the mentally ill.

The earliest explanation of what we now refer to as psychopathology involved the possession by evil spirits and demons. Many believed, even as late as the sixteenth and seventeenth centuries that the bizarre behavior associated with mental illness could only be an act of the devil himself. To remedy this, many individuals suffering from mental illness were tortured in an attempt to drive out the demon. When the torturous methods failed to return the person to sanity, they were typically deemed eternally possessed and were executed.
There is limited evidence by which to judge the existence or nature of mental disorders in early man prior to written records although there is evidence from Neolithic times of the practice of trepanation , possibly as an attempt to cure ailments which may have included mental disorders.
Limited notes in an ancient Egyptian document known as the Ebers papyrus appear to describe disordered states of concentration and attention, and emotional distress in the heart or mind.
Ancient Hindu scriptures known as Ramayana and Mahabharata contain fictional descriptions of depression and anxiety states. Mental disorders were generally thought to reflect abstract metaphysical entities, supernatural agents, sorcery or witchcraft.
Among the Chinese Mental disorders were treated mainly under Traditional Chinese Medicine by herbs, acupuncture or “emotional therapy”.
Some ancient Greek scholars proposed that disease was caused by an imbalance in four humors of the body. Hippocrates, influenced by humoral theory, proposed a triad of mental disorders termed melancholia, mania and phrenitis . He spoke of disorders such as phobia, and is credited with being the first physician to reject supernatural or divine explanations of illness.
He believed that disease was the product of environmental factors, diet and living habits, not a punishment inflicted by the gods, and that the appropriate treatment depended on which bodily fluid, or humor, had caused the problem. He objected to speculation about the etiology of madness (that it was seated in the heart and diaphragm or “phren”) and favored instead close behavioral observation.
Plato argued that there were two types of mental illness: “divinely inspired” mental illness that gave the person prophetic powers and a second type that was caused by a physical disease.
Aristotle, who studied under Plato, abandoned the divinely-caused mental illness theory, and proposed instead that all mental illness was caused by physical problems.
Socrates considered positive aspects of mental illness including prophesying; mystical initiations and rituals; poetic inspiration; and the madness of lovers.
Physician Celsus argued that insanity is really present when a continuous dementia begins due to the mind being at the mercy of imaginings. He suggested that people must heal their own souls through philosophy and personal strength. He described common practices of dietetics, bloodletting, drugs, talking therapy, incubation in temples, exorcism, incantations and amulets, as well as restraints and “tortures” to restore rationality, including starvation, being terrified suddenly, agitation of the spirit, and stoning and beating. Most, however, did not receive medical treatment but stayed with family or wandered the streets, vulnerable to assault and derision. Accounts of delusions from the time included people who thought themselves to be famous actors or speakers, animals, inanimate objects, or one of the gods.
Under Islam, the mentally disordered were considered incapable yet deserving of humane treatment and protection. For example, Sura 4:5 of the Qur’an states “Do not give your property which God assigned you to manage to the insane: but feed and clothe the insane with this property and tell splendid words to him”. Some thought mental disorder could be caused by possession by a djin (genie), which could be either good or demon-like. There were sometimes beatings to exorcise djin, or alternatively over-zealous attempts at cures.
In Christian Europe madness was often seen as a moral issue, either a punishment for sin or a test of faith and character. Christian theology endorsed various therapies, including fasting and prayer for those estranged from God and exorcism of those possessed by the devil. Thus, although mental disorder was often thought to be due to sin, other more mundane causes were also explored, including intemperate diet and alcohol, overwork, and grief.

Today the actual definition of mentally ill remains somewhat unclear, containing elements deriving from different periods in the development of psychological and psychiatric study. In psychiatry mental disorder is defined as a significant impairment of an individual’s cognitive, affective and/or relational abilities which may require intervention and may be a recognized, medically diagnosable illness or disorder.
There are several types of mental illnesses. The symptoms and treatment of each vary from type to type. Mental disorders vary in severity some are mild and some so severe they interrupt with the daily activities of the sufferer making life quite difficult. Treatment also varies with some, therapy and counseling is sufficient but with others medication is needed with the counseling, some may even require hospitalization as they are a danger to themselves and to those around them.
There are generally accepted four types of mental illnesses .
1. Organic brain disorders.
2. Mood and anxiety disorders.
3. Personality disorders.
4. Psychotic Disorders

Mental illness can have a devastating effect on an individual, his or her family and friends and on the community in many ways. How it affects the individual is obvious, reduced ability to care for oneself, strong negative emotions, distorted thoughts, inappropriate behavior, and reduced ability to maintain a relationship are only a few possible outcomes. On friends and family, it can be a major responsibility to care for someone suffering from a mental illness, the emotional and behavioral components of some illnesses can be very difficult at times to understand and to deal with. Mental illness also affects the community due to the high incidence of homelessness and unemployment in some serious disorders such as schizophrenia.
These are the obvious effects of mental illness, but there are less obvious effects due to the misperception of the mentally ill. When most people hear the term mentally ill, many think of severe cases and associated these individuals with bizarre behavior, violence, and a lack of caring about themselves and the world. In this sense, people with mental illness are in most cases almost dehumanized. They are avoided and feared. Herein lays the problem. Their treatment by society and by the law needs to be re-examined.
A mentally ill person can, in extreme cases, be a threat to society. Major criminals are often found to be mentally unstable in most cases. This leads to public hazards as the individual engages in covert behavior, trying to put in order what he or she sees as disordered.
There are many public and social problems imposed by the mental illness. These include incapacitation of individuals incapable of their own basic needs. They have disrupted family relations, often due to burdens of care, disruption of ordinary day-to-day activities or threats of harm. They also have disruptive influences in society and may be public nuisances and may engage in offensive and antisocial behavior posing threat to the lives and safety of others.
Mentally retarded criminals are especially vulnerable and frequently taken advantage of during legal proceedings. Because of their limited cognitive abilities, unreliable memories, and characteristic suggestibility, it is very difficult for these defendants to comprehend abstract legal concepts and to assist in their own defense by helping their lawyers to develop the facts of the case. Those who suffer from mental retardation are at times eager to please, especially persons of authority, as well as unable to cope with stressful situations. As a result, many even make false confessions.
In addition, because mentally retarded individuals are unable to understand the proceedings, it is not uncommon that the defendants alienate judges by smiling, sleeping, staring off in court, or otherwise acting in a way that may be interpreted as callous and unremorseful. Others with mental retardation are ashamed of their disabilities and try to hide them, preventing their defense and the judge from fully appreciating the effect their condition has on their conduct. Mentally retarded defendants, especially those who are not financially well-off, are often represented by ineffective counsel; courts often appoint advocates who are “too inexperienced, overworked, or uninterested” to properly defend their clients.
Finally, mentally retarded defendants face bias in the criminal justice system—including, the police, defense advocates and judges —who are vastly ignorant of the nature and significance of mental retardation, are often more concerned with the political and professional consequences of obtaining a “victorious” sentence than seriously considering the effect this.
There is, therefore, concern that sane persons might find themselves stripped of certain basic rights. The aim of this paper is to highlight the ethical discrepancies in law that haunt the sentencing of the mentally ill.

The objectives of sentencing can be summarized as retribution, deterrence and rehabilitation . Retribution is satisfied when the assailant is successfully sentenced as a punishment for his wrongs. It’s based on the notion that he owes a measure of suffering to those he wronged and thus deserves punishment.
Deterrence seeks to move all other men to conform to social norms. He serves as an example to the rest, that if they don’t comply to the law they will be punished.
Rehabilitation is the most important objective; teaching the wrong doer that he made a mistake and through his imposed sentence help him better himself to be able to live among society.
Sentencing the mentally ill poses a difficult ethical and moral problem; most human beings have the will to choose between right and wrong once they step outside these limits blame and punishment may be imposed upon them. We cannot blame or impose punishment upon those lacking responsibility.
At the same time the wronged person may feel the person pardoned by the law as a result of his insanity as having gotten off easy. There needs to be some sort of balance. All men may be equal before the law but as it is in the case of a child who commits a crime, the mentally disordered are hardly capable of understanding the full extent of their actions. Punishing them without considering their condition is quite unethical and doesn’t fulfill any sense of moral judicial victory.
The mentally ill are defined in law as persons lacking the required degree of intelligence, reasoning power and foresight of consequence. If they were held criminally responsible he would be made to suffer harsh sanctions without serving the purpose of individual deterrence. It might also fail to serve general deterrence in that most men won’t be able to identify with the offender as he is so different from most men that the crime can be attributed to the difference.
On retribution the individual is seen to act as a result of forces beyond his control. He is less likely to be blamed than to be helped to restore balance between him and society. He is seen as sick rather than evil and as a result of his illness. If a man cannot make the calculations or muster the feelings demanded of him deterrence can only be effective with persons who can understand signals directed to them by the law.

The issue is the question of fairness the sense that it’s unjust and unfair to stigmatize the mentally ill as criminals and punish them for their crimes. The criminal law exists to deter and to punish those who would or who would choose to do wrong. If they cannot exercise choice, they cannot be deterred and it’s unethical to punish them. The mentally ill may have the element of actus reus but they lack the mens rea needed. In situations where mens rea is existent it is of a highly diminished level such that they should not be judged on the same note as a man in his full mental capacities.
The mentally disordered are entitled to be held responsible for their actions, but their conditions may be relevant in sentencing and might result in mitigation on grounds of less moral blameworthiness, or aggravation because of constituting a danger to the public. The legal system should accommodate them.

The following literature was relied on.
I. Blackstone’s Criminal Practice 2006
This book focuses on criminal practice in the U.K it gives a breakdown of criminal law setting out the elements of criminal law, defenses, sentencing guidelines and penalties. It’s extremely useful on studying the similarities and differences between Kenyan and U.K sentencing law.
II. Criminal Law Text And Materials C.M.V Clarkson And H.M Reating 4th Edition
C.M.V Clarkson and H.M.Reating deal with the basics of criminal law. The book gives information on criminal law defenses delving into the defense of mental illness from the perspective of different authors and judgments from different judges
III. Mental Health Act U.K 1983
The Mental Health Act 1983 makes provision for the compulsory detention and treatment in hospital of those with mental disorder. The Act is in ten parts, among them
• Application of the Act (the scope)
• Compulsory admission to hospital and Guardianship
• Patients concerned in criminal proceedings or under sentence
Consent to treatment
IV. Mental Health Act U.K 2007
Although the structure of the Mental Health Act 1983 remains intact, some significant changes have been made to it by the 2007 legislation. They include:
? The introduction of a simplified definition of mental disorder that will apply throughout the Act, and the abolition of the current four separate categories of mental disorder
? A requirement that appropriate treatment must be available if patients are to be subject to detention or the new provisions for supervised treatment in the community
? The introduction of supervised community treatment, which will be available for patients following an initial period of detention and treatment in hospital
? The replacement of the Responsible Medical Officer with a Responsible Clinician, who need not be a consultant psychiatrist (but must be an ‘approved clinician’)
? The replacement of the Approved Social Worker with an Approved Mental Health Professional; in addition to registered social workers other mental health professionals will be able to take on the role of AMHP after suitable training
V. Mental Health Act L.O.K 1991
The Mental Health Act Cap 248 seeks to consolidate and amend the laws relating to persons suffering from mental disorders for the custody of their persons, management of their estates; for management and control of mental hospitals; and for connected purposes. Section 38 of the act which deals with court procedure merely gives provisions on the court session being proceeded on camera
VI. Criminal Procedure Act
The Criminal Procedure Act provides if the defense of lunacy is adduced at the trial or if it appears to the court, in so far as finding the accused guilty is concerned that he did the act but was insane so as not to be responsible for the act or omission the court makes a verdict of guilty but insane. When such a finding is made the court is required to make a report to the president. In the meantime the accused is remanded in custody. The president or minister may order such person to be detained in a mental hospital or prison or such suitable place of custody