Above: Illustration by Anthony Lawrence

By Inderjit Badhwar

In a recently published cover story in this magazine, the prolific Professor Upendra Baxi touched on a subject that most legal analysts shy away from: The trial and conviction of mentally ill persons. Should they be treated with extra doses of dignity and leniency?

The courts have not spoken with resounding clarity on this subject not because of any lack of resolve or will but rather because of the complex and multifarious medico-legal and social dimensions of this subject.

For example, as Baxi notes, in Accused X v State of Maharashtra, Justices NV Ramana, Mohan M Shantanagoudar and Indira Banerjee (delivered on April 12, 2019), of the Supreme Court grappled with several perplexing aspects of criminal justice and mental health. Largely leaving the matter of sentencing guidelines to the legislature, the Court favoured working with a framework of reasoned judicial discretion privileged by judicial directions.

Justice Ramana was succinct and to the point when deliberating on how culpability can be assessed in sentencing those with mental illness. He asked: “Is treatment better suited than punishment?” In a constitutional democracy, as Baxi so aptly observes, such questions are critical for professional as well as public discourse.

The larger question of whether to abolish or retain the death penalty did not concern the Court here. “Nor did it require any elaborate examination whether the crime committed and death sentence awarded fell outside the ‘rarest of the rare’ situation,” Baxi wrote. “Both the trial and the High Court had decided that the heinous crime of statutory rape and murder of two girls coupled with an earlier record of such crimes deserved death.

“However, the appeal was based on two narrow grounds: first, no separate hearing on the sentence was given by the trial court in direct contravention of Section 235 (2) of the Code of Criminal Procedure (CrPC) and second, the award of the death sentence was contrary to the
three-judge Bench decision in Shatrughan Chauhan (2014) followed by a four-judge Bench decision of this Court in Navneet Kaur (2014). These decisions ruled that the execution of persons suffering from mental illness or insanity violates Article 21 of the Constitution as this would be a ‘supervening circumstance meriting commutation of the death sentence to life’.”

Baxi’s excellent discourse on this subject is a must-read, and I would recommend it to all legal practitioners, students, and dispensers of justice. In the course of scanning related articles, as part of broader research on the subject, inspired by Baxi’s piece, one stands out for its clarity, universality and scholarship.

I summarise below the salient points from a large study made on this subject by the prestigious Rand Corporation. The title is itself a giveaway: “Criminal Justice Policies Toward the Mentally Retarded Are Unjust and Waste Money.” Written by renowned American criminologist Dr Joan R Petersilia, the article concludes:

• Arrest and Prosecution. Persons with mental retardation often make no attempt to disguise what they have done. In fact, in trying hard to please authority figures, they may confess to what they have not done. And they have little protection against this, as they often waive their Miranda rights (without understanding what they are doing).
• Pretrial Incarceration. Bail is typically available only for those with jobs or with stable living situations; mentally retarded persons often lack both.
• Plea Bargaining, Court Processing, and Sentencing. Since persons with mental retardation tend to provide more incriminating evidence to prosecutors than other defendants, they are less successful at plea bargaining. When they go to trial, their testimony may be viewed as less credible because aggressive prosecutors can make them appear unreliable. Probation is commonly granted to persons with higher intelligence and greater educational and work achievement, so the mentally retarded serve jail or prison sentences at higher rates.
• Incarceration, Parole, and Recidivism. Persons with mental retardation are typically housed with the general prison population, where they are often abused or victimised. They tend to rely on physical responses to physical threats and are thus often reclassified to higher security levels. That, together with a poor record of programme participation and an inability to impress parole boards on interview, makes them less likely to be granted parole as early as the average inmate. Once released, mentally retarded persons often have problems meeting their parole requirements and find it more difficult than the average inmate to get a job.

The net result is that persons with mental retardation are not afforded an opportunity to respond to the challenges thrown at them by the criminal justice system in a way that is functionally equivalent to that of more intelligent arrestees. As a result of this inequity, the typical mentally retarded offender costs the public more for incarceration than does the average person convicted of similar crimes.

• The system fails these individuals, and thus the public, usually because it ignores them. It does not routinely identify them as mentally retarded at any phase of the process. And routine screening would be required for identification, since persons with mental retardation often try to conceal their disabilities. But even when a judge suspects a mental disability, he or she cannot usually act on this suspicion because there are few provisions to treat the retarded any differently (although many provisions target the mentally ill).
• Failure to identify persons with mental retardation makes it difficult to assess the scope of the problem. The best recent estimate suggests that mentally retarded persons make up approximately four percent of the prison population. Some 21,000 mentally retarded persons in California alone are on probation or parole or are incarcerated in juvenile or adult facilities—a number that would seem worthy of policy attention. Yet this population has drawn almost no scholarly, public or policy interest.
• A few cities—Boston, Fort Worth and Cleveland among them—do have programmes that aid the transition of the mentally retarded parolee or probationer to society. And programmes in New Jersey and Pennsylvania divert certain convicts to carefully supervised probation. Programmes offering daily structure and work to mentally retarded participants seem to reduce considerably their re-arrest rates. These efforts raise hopes for broader implementation of programmes to serve this population. The objective of such programmes is not to excuse mentally retarded offenders from punishment but to recognise their special needs and, in doing so, foster their return to law-abiding behaviour and save taxpayers’ money.
• Offenders with mental retardation represent a more promising target group for intermediate sanctions. For the reasons mentioned above, they tend to serve long sentences relative to others who commit similar crimes. And, because it appears they can be safely supervised under intermediate sanctions and their recidivism reduced, costs can be lowered further.
• If the potential savings are not enough to induce states to change the way they handle offenders with mental retardation, they are likely to face litigation under the Americans with Disabilities Act. That federal law, signed in 1990, bans discrimination based on disability. In reports interpreting the Act, the US Department of Justice staff has made it clear that states cannot ignore the needs of prisoners with mental retardation. They must instead review all prison programmes to ensure that they are accessible to and usable by disabled inmates. In California, private organisations have already filed a class action lawsuit against the governor and the state department of corrections to force compliance with the Act. This case could set precedent and, if nothing else, should considerably raise the profile of the issue.
• Whether states take action to save money or to comply with a court order, much more needs to be known to ensure that the actions taken will serve justice, the taxpayer and the offender with mental retardation. All prisons will have to begin assessing incoming inmates for mental disabilities, as those in Texas now do, so the scope of the problem can be discerned. And more information will be needed regarding the characteristics of offenders with mental retardation and their crimes, how persons with mental retardation become involved in the criminal justice system and who provides advocacy services on their behalf, among other things.