Effective defence

October 29, 2017


PEOPLE with serious mental illnesses are among the most vulnerable defendants in the criminal justice system. They are at risk of being wrongfully punished for crimes they did not commit, and more harshly punished for behaviour caused by mental illness. They are less able to assist in their own defence, show remorse, or ask for mercy. And the stigma surrounding mental illness means that when mentally ill defendants act or speak in bizarre ways, the reaction is more likely to be fear instead of sympathy.

With the help of professionals who have studied and treated mental illness, our understanding of mental illness has greatly improved in recent years. We have a new appreciation for how the symptoms manifest in thought, judgement, and behaviour. Treatments are vastly improved. Science has also given us more information about the causes of mental illness eg, we now understand the poor are at greater risk for developing a mental health disorder because of constant exposure to stressful events, dangerous living conditions, exploitation and poor health.

WHO estimates are that one in four people will be affected by a mental disorder in their lifetime. Chances are that someone you know, perhaps even in your own family, lives with mental illness, which can be disruptive and debilitating. But when mental illness and the criminal justice system intersect, it can become a matter of life and death.

The mentally ill are less able to assist in their own defence.

Imdad Ali is a case in point. He suffers from paranoid schizophrenia, one of the most severe mental illnesses. It is a brain disorder that affects how a person thinks, behaves and feels. Hallucinations, both visual and audible, are common. Thinking is disorganised, delusional, and chaotic, and can cause confused physical movements. It can be a terrifying experience for someone with the illness, and for those who care about him. It almost certainly means diminished responsibility, but Imdad Ali was given the most severe punishment, a death sentence in 2001. His disease was dismissed as irrelevant to the criminal behaviour he was convicted of committing. He is now languishing on death row in solitary confinement, which has been proven to worsen mental health conditions. His case continues to be under review.

The increasing number of mentally ill defendants creates an urgent need for new legal safeguards and other changes that will prevent the kind of injustice Imdad Ali suffered from ever occurring again. One of the most important protections is to ensure that all mentally ill defendants have the assistance of a skilled, effective defence lawyer. Such an advocate will ensure the judge has the relevant information about the defendant, including mental health evidence, before a decision is made about guilt or punishment. For this task, the assistance of a mental health expert is also needed.

In the US, where I work as a capital defence lawyer, my colleagues and I attend training seminars each year that focus on mental health issues of our clients. It is also our practice to consult mental health experts in our cases. These experts examine our clients, diagnose and testify in court about how mental illness symptoms affect our clients’ behaviour. This is information highly relevant to the court’s determination about culpability and punishment.

The US capital defence community now requires mental health expertise for all death penalty cases. The legal performance standards reflecting this requirement have helped lawyers understand this and other important principles of effective representation. Our experience has shown that better defence representation leads to more accuracy, fairness, and justice in death penalty cases. It also provides the most vulnerable defendants, such as the mentally ill, with the special protections they require. US judges also use these standards to make informed decisions about who’s qualified to defend a death penalty case, and what resources and experts are needed. Other countries that use the death penalty have also created similar performance standards. Earlier this week, senior lawyers with the Punjab Bar Council thoughtfully discussed the benefits of creating their own standards for death penalty cases, a reflection of their commitment to the integrity of Pakistan’s legal system.

Any ‘justice’ system worth its name must carefully balance its obligations to society with its responsibilities to protect individuals. This requires a continuous process of reflection and change. Today, we understand more about mental illness than ever before. That knowledge should now be reflected in the creation of better legal protections for the mentally ill, protections that will prevent injustices and ensure the kind of fair and just legal system that benefits us all.

The writer is a death penalty defence lawyer and adjunct professor, George Washington Law School.

Published in Dawn, October 29th, 2017