SENTENCING MENTALLY DISORDERED OFFENDERS

• Published date: 01 December 2011
• Author: CHUA Hui Han, Eunice LLB (Hons) (National University of Singapore), LLM (Harvard University); Assistant Registrar, Supreme Court of Singapore.
• Date: 01 December 2011

Lessons from the US and Singapore

Mentally disordered offenders pose a unique challenge to criminal justice systems. Worldwide there is an observable trend of having a significant and rising number of mentally disordered offenders in prisons and other detention facilities. This article seeks to address how mentally disordered offenders are sentenced in the US and in Singapore, and discusses whether the present approach to sentencing suitably addresses the broad goals of the criminal justice system while taking into account the situation of mentally disordered offenders.

I. Introduction

1 Mentally disordered offenders pose a unique challenge to criminal justice systems. Worldwide there is an observable trend of having a disproportionately high prevalence rate of mental disorders in prisons and other detention facilities as compared to the general population.1 In the US, according to the findings of a Justice Centre study released in 2009, of more than 20,000 adults entering five local jails, 14.5% of the men and 31% of the women (which taken together comprised 16.9% of those studied) had serious mental illnesses, defined as the presence of one or more of the diagnoses of bipolar disorder, schizophrenia and major depression.2 This was a rate more than three to

six times that found in the general population.3 A survey by the Bureau of Justice Statistics released in 2006 found that more than half of all prison and jail inmates reported symptoms of a mental disorder.4 Although figures of the size of the mentally ill population in Singapore‘s prisons are not publicly available, in 2006, the Singapore Prison Service reported that it was currently experiencing an increase in the number of prisoners with mental health problems and chronic illnesses.5

2 These figures and trends prompt questions as to how appropriately mentally disordered offenders are being convicted and sentenced. This article, however, focuses on sentencing rather than conviction for a number of reasons. First, it would appear that a greater number of mentally ill accused persons choose to plead guilty rather than try to escape conviction by challenging the Prosecution‘s evidence on whether they had the requisite mental state to commit the offence they were charged with or relying on the defence of insanity or unsoundness of mind.6 Second, of those who do try, many will fail and fall to have their sentences passed upon. Third, it is well known that one of the primary concerns of persons facing a criminal charge is the sentence they will be liable for.7 This probably applies to a greater degree to the mentally ill who are, in most cases, more vulnerable to punishment. Finally, much has been written on the interplay between mental illness and criminal responsibility and this author can do no better than refer the reader to those excellent sources.8

3 In summary, this article seeks to address how mentally disordered offenders are sentenced in the US and Singapore and discusses whether the present approach to sentencing suitably addresses the broad goals of the criminal justice system while taking into account the situation of mentally disordered offenders. Because decision makers in the US and in Singapore are faced with similar sentencing options yet take different approaches towards selecting the appropriate sentence for a mentally disordered offender, useful lessons can be gleaned through a comparative examination of their successes and failures.

II. Mental illness and the principles of sentencing

4 As a preliminary matter, it is helpful to set out a framework in which to consider how mental illness should feature in the process of sentencing (regardless of whether or not the offender qualifies for any exceptions or defences in the criminal law relating to diminished responsibility or unsoundness of mind).

5 The four classic principles of sentencing are retribution, deterrence, incapacitation and rehabilitation.9 Retribution is a corollary of desert and proportionality10 - it requires commensurate punishment for wrongful actions where punishment is deserved.11 This notion of sentencing “addresses the offender as a moral agent, as having the capacity to evaluate and to respond to an official evaluation of their conduct”.12 Deterrence, in contrast, has an eye on the future and may be described as consequentialist.13 Deterrence may be particular, applying to the criminal himself to prevent him from committing further crimes by giving him an unpleasant experience he will not want to endure

again, or general, applying to all members of the community as a warning lest they suffer the same fate.14 The third principle, incapacitation, also known as restraint or public protection, is based on the perceived need to protect society from persons deemed dangerous,15 usually because of their past criminal conduct or a characteristic of their person. A sentence based on incapacitation depends on a prediction of future dangerousness of criminals and translating that into a period of time during which they need to be isolated from their communities. Finally, rehabilitation seeks to provide convicted criminals with appropriate treatment such that they may be returned to society so reformed that they will not desire to commit further crimes.16 Like deterrence and incapacitation, rehabilitation seeks to prevent crime,17 but through a different strategy - rehabilitation is concerned primarily with changing the offender‘s behaviour such that the identified antecedent cause for criminal conduct may be removed.

6 Going through these principles of sentencing, it becomes immediately apparent that they may at times conflict and the court will have to prioritise one or more of them over the others. This is particularly so when a mentally disordered offender is involved. Depending on how the four principles are weighed and balanced, the presence of a mental disorder may be regarded as an aggravating (tending to increase the severity of a sentence) or a mitigating (tending to decrease the severity of a sentence) factor.

7 Focusing on retribution, the presence of a mental disorder ought to have a mitigating effect to the extent that the mental illness affects the criminal‘s moral agency. Because mental illness is so varied - some mentally disordered people have impaired understanding,18 whereas others may suffer affective disorders that reduce their ability to control their actions19 - and occurs to different degrees, this will essentially be a matter of judgment for the court to make based on the totality of the evidence. In each case, it will be for the court to justify why punishment is deserved. The retributive principle also contains a proportionality requirement that relates to the nature of the crime committed and its effects on society. The proportionality principle operates to ensure that mentally disordered offenders are not detained

under criminal law exceeding the period that a non-disordered offender would be detained for the equivalent offence.20

8 Deterrence, both specific and general, will usually be neutral considerations. There will be no value imposing a more severe sentence for the purposes of specific deterrence because mental illness may render offenders “undeterrable” in the sense of being unable to understand the significance of punishment as a result of their mental illness affecting their thought processes or because they will be unable to control their future behaviour by reason of their mental illness.21 Likewise with general deterrence because those of the public at large who are mentally ill may not be able to comprehend the warning meant for them and, even if able to comprehend, may be themselves “undeterrable”. However, it is possible to imagine exceptional scenarios where the offender has sufficient comprehension and control despite the presence of a mental disorder such that specific deterrence may be of some relevance. Similarly, general deterrence may also feature in that scenario where the ability to understand the significance of punishment and to control future behaviour applies generally to all those with the same mental disorder.

9 Rehabilitation would, akin to retribution, augur for a less severe sentence for mentally disordered offenders. It is well known that prisons are not the ideal environment for psychiatric treatment. Overcrowding endemic in present-day prisons tends to result in greater violence, a lack of privacy, excessive noise, and other stressful conditions that negatively affect the mentally ill who are vulnerable to emotional and psychiatric problems.22 Thus, to the greatest extent possible, rehabilitation would mean choosing a sentence such as probation over imprisonment. Where imprisonment is unavoidable, a more lenient sentence ought generally to be imposed, unless it can be shown that the particular offender would respond positively rather than negatively to treatment in a prison environment. Even if this was the case, the principle of proportionality ought to serve as a check on the imposition of lengthy sentences for the purposes of compulsory treatment.

10 As for incapacitation, it may, in theory, have either a mitigating or an aggravating effect on sentence depending on the circumstances. If the offender‘s mental illness is treatable expediently, then it would be unjust to detain the offender longer than necessary to administer the

cure because the need for incapacitation would have been removed. On the other hand, if the mental illness is incurable and the risk to society posed by the offender is great, then, in theory, it is possible that a disproportionately long sentence may be required. However, this should rarely be the case in reality. First, predictions of future dangerousness, upon which a lengthy sentence would have to be based, are of doubtful value.23 In fact, the American Psychiatric Association has frequently contended that long-term clinical predictions of...