How can we improve the sentencing system for people with mental disabilities to prevent side effects that threaten public safety?

In May 2016, a murder in a restroom at Gangnam Station sparked controversy when the killer was given a reduced sentence because he suffered from schizophrenia. The case highlighted the problems with the sentencing system for the mentally disabled, raising concerns about unclear legal standards and increased recidivism.

 

On May 17, 2016, at around 1:20 a.m., Ms. A (23, female), an office worker, was found stabbed to death in the public restroom of a shopping mall near Gangnam Station on Seoul Subway Line 2 in Seoul, South Korea. The killer, a man in his 30s from Ssangmyeonbu, stabbed the victim, who had been waiting in the restroom for about an hour before the crime, several times to death. The fact that a member of the public was the target of the crime and the brutal method used by the perpetrator caused a stir in public opinion at the time. As a result, on May 30, at the murder trial held at the Seoul Central District Court Criminal Division 24, the prosecution sought life imprisonment for Kim. Given that the death penalty has been effectively abolished in South Korea, life imprisonment was considered a reasonable punishment as it is the most severe penalty. However, the issue came up again on October 14th. The court sentenced him to 30 years in prison in the first trial, finding him incompletely responsible because he suffered from schizophrenia. The verdict reignited a debate that had been dormant for some time.
While the system of leniency for the mentally and physically disabled has been around for a long time, it has recently been rekindled by the revelation of its flaws. In the recent shooting at the Opaesan Tunnel, it was revealed that the shooter was mentally disabled. The number of crimes committed by the mentally disabled in South Korea has been on the rise recently, and the problems with the sentencing system have become controversial. By 2021, the number of mentally ill offenders increased to 8,764, and the percentage of mentally disabled offenders who committed violent crimes rose from 9.4% in 2017 to 13.2% in 2021. This, coupled with unclear legal standards, suggests that crimes committed by the mentally disabled are becoming a social problem, and it is time to raise awareness.
The legal basis for reduced sentences is Article 10 of the Korean Penal Code. According to Article 10 of the Korean Penal Code, (1) a person who is incapable of discriminating between things or making decisions due to a mental or physical disorder shall not be punished, and (2) a person who is incapable of the foregoing due to a mental or physical disorder shall have his or her sentence reduced. ③ The provisions of the preceding two paragraphs shall not apply to the acts of a person who foresees the occurrence of danger and voluntarily causes a mental or physical disorder. To summarize, the degree of reduction in sentence is differentiated between those whose judgment is impaired compared to the average person (mental disorder), those who have completely lost their judgment (loss of judgment), and those who have judgment but are weak (weak judgment). The rationale for this system of reduced sentences is based on the “responsibility principle” of criminal law, which states that mentally ill people cannot be held accountable because they did not exercise their judgment when committing a crime. Since they cannot be held accountable, they cannot be punished accordingly. This can be seen as equity in the sense that the mentally ill are socially vulnerable.
However, this system of reduced penalties has been subject to various problems in its implementation. First, the basis for determining mental disorder is unclear and relies too heavily on the discretion of judges. The law divides mentally ill people into those who are “incapable of discriminating between things or making decisions” and those who are “incapable of making decisions” according to the degree of mental disorder, but it does not mention specific criteria to distinguish between the two. This makes it difficult for judges to make consistent judgments in different cases. Under Korean law, a mentally ill person is defined as a person with mental illness, personality disorder, alcohol or drug addiction, or other non-psychiatric disorder. However, this is a very vague and broad definition, and it is difficult to distinguish between mentally and physically disabled people using this simple definition. This raises the need to categorize the mentally ill and set different penalties accordingly.
It is also problematic that the law does not include any exemptions for those with mental illness. Unlike alcohol or drugs, mental illness is not a voluntary mental disorder, so Article 3 cannot be applied. Instead, according to the Supreme Court’s precedent, “the mental disorder stipulated in Article 10 of the Criminal Code is a biological factor, [emphasis added] and even if a person has a mental disorder, he or she cannot be considered mentally disabled if he or she had normal ability to distinguish objects or control his or her behavior at the time of the crime.” In other words, even if a person has a mental illness, he or she may not fall under the mental disorder stipulated by the law depending on the circumstances of the crime. However, even in this case, there is a limitation that the exemption is determined by the judge’s judgment without specific criteria. In a typical crime situation, it is difficult for a judge to determine the ability of the suspect to recognize objects and control his or her behavior at the time. Therefore, it can be said that a reduction in sentence is almost certain if there is a mental disorder. The risk of reverse discrimination against people without mental illness is that all crimes committed by people with mental illness are considered accidental.
The imperfections of the law have a serious side effect: abuse. The lack of clear criteria makes it difficult to identify ordinary criminals who are pretending to be mentally ill, and therefore risks becoming a de facto “get out of jail free card” for criminals without mental illness as well as those with mental illness. According to statistics from the Ministry of Justice last year, the number of requests for psychiatric evaluation at the National Legal Hospital (Gongju Treatment Center) has tripled over the past 20 years, from 205 in 1995 to 604 in 2014. Between 2010 and 2014, 1,101 defendants who underwent psychiatric evaluation were sentenced to treatment instead of imprisonment, accounting for 34.2 percent of the total. This shows that the system designed to provide equity for people with mental illness has become a desperate strategy to reduce sentences. We shouldn’t mistake “protection” for vulnerable people for “preferential treatment” that encourages them to commit crimes.
Those in favor of maintaining reduced sentences for the mentally disabled argue that mentally ill offenders should not be denied the opportunity to rehabilitate. The argument is that it would be inhumane to hold them unconditionally accountable for a momentary mistake that was accidental and accidental, and at the same time not give them a chance to make amends. For this argument to be convincing, we would need to see sentenced criminals reflecting on their crimes and working to prevent them from happening again. The reality is that this is not the case. Statistics show that as of 2014, the recidivism rate for mentally ill offenders was a whopping 64.7%. This compares to a recidivism rate of 45.3% for all offenders. In particular, 15.7% of mentally ill offenders were repeat offenders with nine or more prior convictions. This suggests that the sentencing system is not doing a good job of rehabilitating offenders. Instead of giving them a chance to reform, it gives them one more chance to commit a crime.
What about overseas? In the United States, for example, the Model Sentencing Guidelines categorize mental illnesses according to the severity of the disorder, and the degree of sentencing varies. In particular, special mental illnesses such as psychopaths and sociopaths are not subject to reduced sentences because they are considered to have decision-making capacity. In South Korea, on the other hand, both psychopaths and sociopaths are included in the category of mental disorders and are subject to the same mitigating factors. In addition, even if a person is sentenced to a reduced sentence due to mental disorder, he or she will be placed in a secure mental health facility beyond the maximum period of time he or she would have been detained if convicted. This is in contrast to South Korea, where the length of time in a mental health facility is determined during the sentencing process. The U.S. sentencing system also serves as a deterrent to abuse due to the long periods of incarceration.
In South Korea, the reduced sentencing system has been linked to higher recidivism rates as people are released into society without sufficient treatment. Rather than imposing unconditional sentences on people with mental disabilities because they cannot be held accountable, it is necessary to promote fundamental solutions. In this context, this would mean liberation from mental illness. However, the current treatment period for mentally ill people in prison in Korea is short, and there is an absolute lack of budget and manpower for treatment. The government should recognize the seriousness of crimes committed by the mentally ill and prioritize measures to improve the current poor treatment conditions. The state has an obligation to actively intervene in the treatment and rehabilitation of patients, rather than leaving it up to them to rehabilitate themselves through prison sentences based on equity alone. While it is important to implement accountability in criminal law, the first role of the state should be to rehabilitate people and protect the vast majority of law-abiding citizens from crime.
At a time when parents say they are afraid to raise children, South Korea is now a society where the entire population is exposed to multiple crimes. This can be attributed to an inherent sense of insecurity. However, as crimes against the mentally ill, such as the “don’t ask, don’t tell” crime, are becoming more and more of a social problem, it is time to be alert and seek solutions. One of the first things that needs to be reconsidered is the sentencing system for the mentally ill. Like any other law, it may have started with good intentions. However, its implementation has revealed various problems and is contrary to public sentiment, so it is time to put a stop to it. South Korea needs to shed the stigma of being a “light sentencing country” and become a country where people feel safe and protected and where crime is not tolerated. To do so, the government will have to take an active role and restore public trust.