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Mental Illness, Sentencing and the Death Penalty
A close look at the commutation of a death sentence to life imprisonment on the grounds of post-conviction mental illness yields a few legal observations on the reasoning for commutation. What makes post-conviction onset of mental illness a factor for commutation is not that the person is no more culpable, but that the mental illness in prison in addition to punishment is “punishment plus.”
On 12 April 2019, the Supreme Court commuted the death sentence of accused X,1 who was on death row for 17 years, to life imprisonment till the end of his natural life without remission, on grounds of his post-conviction mental illness. The central question that the Court sought to answer focused on the “assessment of culpability for sentencing to death those with mental illness.” Though the Court reaches the right conclusion in commuting the sentence, the Court fallaciously characterises “post-conviction” mental illness as a “mitigating” factor, rather than a commuting factor. Even in its consideration of mental illness as a mitigating factor, the Court introduces a “test of severity,” which, rightly or wrongly, is generally applicable at the stage of execution of the death sentence, rather than when the Court is imposing or reassessing the sentence.
This article argues that the Court’s introduction of a threshold, formulated as a “test of severity,” is contrary to the role of mitigating factors, and is incompatible with their scope and concept. As envisaged in the foundational Bachan Singh framework, mitigating factors are meant to contextualise the accused and to aid the court in assessing their culpability. They cannot be restricted by qualifying standards.
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