A guide to defending mentally ill individuals facing the death penalty

The following are extracts from Representing Individuals Facing the Death Penalty: A Best Practices Manual, written by Death Penalty Worldwide, a project affiliated with the Center for International Human Rights at Northwestern University School of Law, and the law firm of Fredrikson & Byron, P.A.

The manual aims to provide lawyers with legal arguments and strategic guidance in their representation of individuals facing the death penalty around the world. It sets forth the best practices in the defense of capital cases, based on the experiences of advocates around the world, international human rights principles, and the jurisprudence of both national courts and international tribunals.

The complete manual is available to download here.


P. 22 – 32

The use of the death penalty has been progressively restricted around the world, and a number of categories of persons have become ineligible for death sentences, including persons who are insane. Those who suffer from mental disorders or disabilities may also be ineligible for execution.

If a defendant has a mental disability or other vulnerability, he may have been susceptible to the influence of others and may have been more likely to confess to a crime. Studies show that individuals with intellectual disabilities are particularly prone to giving false confessions. Such individuals may not understand their right not to answer questions or to ask for a lawyer. Police can easily lead them through each step of the crime and suggest answers that would inculpate them.

Requirements for the insanity defense, sometimes called the defense of mental disorder, vary by jurisdiction. Generally, however, a lawyer must prove not just that his client was mentally ill, but that at the time of the crime, the accused was incapable of distinguishing between right and wrong or was incapable of controlling his behaviour.

Mental illness or mental disabilities can affect a client’s judgment and behavior, even where they do not meet the legal definition of “insanity.”

In all cases, you should consider retaining a mental health expert to assess your client’s mental health through testing and a clinical interview. In many countries, the court will appoint a mental health expert at no expense if there are serious questions about a defendant’s sanity or competence. The need for a mental health evaluation, however, goes beyond these threshold questions. As we described above, mental disabilities may arouse compassion in sentencing even when they do not rise to the level of insanity or incompetence. In some jurisdictions, your client may be entitled to a psychiatric evaluation as a matter of right if defense counsel uncovers some evidence that the client may be mentally ill. For example, in Dacosta Cadogan v. Barbados, the Inter-American Court of Human Rights held that Barbados had violated an offender’s right to a fair trial by failing to inform him that he had the right to a psychiatric evaluation carried out by a state-employed psychiatrist in a death penalty case. You must not, however, rely on the court to identify whether a mental health evaluation is needed. If a client suffers from a disability that is not immediately apparent, such as serious depression, you may be the only one in a position to identify the potential disorder and request an evaluation.


P. 33 – 40


Depending on the type of mental disability your client possesses and the jurisdiction in which you are practicing, your client’s mental disability may relieve him of criminal liability, disqualify him from death penalty eligibility, or serve as a mitigating factor in sentencing procedures. It is often extremely difficult for lawyers to assess whether their clients have a mental disability.

If you can determine that your client was insane at the time the crime in question was committed, you may be able to prevent trial in the first place: in many, if not most legal systems, insanity is grounds to eliminate criminal responsibility altogether. If your client is mentally incompetent, you may be able to argue that he is ineligible for the application of the death penalty, as international law proscribes the execution of individuals with such conditions. Even if your client’s mental disability is not severe or is not significant enough to make him ineligible for the death penalty, it may serve as a critical piece of mitigating evidence during sentencing procedures.

Many courts have held that individuals have a right to a mental health assessment prior to being sentenced to death.

There are no universal standards guiding mental health assessments for legal purposes, but the Diagnostic and Statistical Manual of Mental Disorders (DSM IV-TR) is a widely respected resource. Published by the American Psychiatric Association, it catalogs mental health disorders for children and adults and is used in many countries outside the United States.

The case of Uganda v. Bwenge Patrick is an excellent example of the use of mental disabilities as mitigating factors in a sentencing procedure. There, Uganda’s High Court re-sentenced a former death row inmate who had been imprisoned for seventeen years. The Court gave special significance to evidence surrounding the defendant’s impaired mental state at the time of the offence, his history of alcohol addiction, the fact that he had maintained strong ties with his family throughout his long incarceration, his good relations with other prisoners, his remorse, and the lengthy period of time he had already served in prison. Based on these mitigating factors, the High Court found that the offender did not merit a death sentence, and it re-sentenced him to the seventeen years already served, along with an additional year in prison followed by a year of probation.

Nearly all of the central international human rights mechanisms provide for a right to an adequate standard of living and health care, and the U.N. Standard Minimum Rules for the Treatment of Prisoners mandate that the standards set by these mechanisms should be applied unwaveringly in prisons.

You should ensure that your client is assessed by a mental health professional as soon as he is admitted to prison[x]. This allows medical staff to identify any pre-existing medical conditions to ensure that appropriate treatment is provided, identify disabilities or injuries that may be developing or may have been sustained during initial detention, and it will allow staff to analyze the mental state of the prisoner and provide appropriate support to those who may be at risk for self-injury. You should also ensure your client receives periodic examinations, including daily checkups if he complains of illness.

If your client cannot afford the necessities of his defense, you should request assistance from the court. This includes relief from payment of court fees, as well as funds to secure a mental evaluation and other experts,[xii] if not already provided by the court and if you believe they are necessary.

The United States Supreme Court has recognized childhood deprivation and abuse, mental disabilities, and good conduct in prison as important mitigating factors. Evidence of mental disorders or mental illness—even if insufficient to support a defense of diminished responsibility— mitigates strongly against the death penalty. The UN Commission on Human Rights has called upon countries to avoid executing any person suffering from any form of mental disorder or disability. In 2002, the U.S. Supreme Court cited an international consensus that “mentally retarded offenders are categorically less culpable than the average criminal.”


P. 60 – 64

Mitigating Evidence

A defendant who does not meet the definitions of insanity previously described may nonetheless suffer from a mental disability that makes him less culpable for his crime. Such conditions include low intelligence, post-traumatic stress disorder, schizophrenia, bipolar disorder, mental retardation, fetal alcohol syndrome, poisoning by pesticides or lead, or a brain injury caused by accidents or beatings. Tests and psychiatric evaluations may be needed to establish that these conditions exist.

Mental health evidence may show that the defendant suffered from impaired judgment or impulse control, that he was vulnerable to mood swings and outbursts of anger, or that he has difficulty understanding or communicating with other people. None of these factors may rise to the level of an insanity defense that would completely excuse his crime, but they can help you to explain the commission of the crime and to inspire empathy for the defendant.

Practice Tip: Understanding the mitigating value of mental disabilities

It is not easy for lawyers and judges to grasp the mitigating value of mental disabilities that do not easily fit the legal definitions of “insanity” or “incompetence.” The case of Joseph Kamanga (the name of the defendant has been changed to protect his privacy) in Malawi illustrates this point. Kamanga was convicted and sentenced to death in 2009 for killing his uncle’s maid by striking her in the head with a footstool. Kamanga argued that the victim’s death was not intentional. He testified that at the time of the crime, he was suffering from massive, debilitating headaches. His mother and aunt testified that he had suffered from headaches and inexplicable rages for some time, despite seeking treatment from a traditional healer.

Kamanga’s legal aid lawyer argued that he was insane at the time of the crime, but failed to offer any expert testimony in support of his defense. The court rejected the defense and convicted Kamanga of murder. The defense failed to argue that Kamanga’s mental impairment should be considered in mitigation of sentence, and limited its mitigation presentation to Kamanga’s youth and lack of prior convictions. The court sentenced Kamanga to death without discussing any mitigating factors. This is a good example of how lawyers often fail to recognize how a mental disability relates to their client’s moral culpability. It also illustrates how many judges fail to grasp the concept of mitigation.

*The name of the defendant has been changed to protect his privacy


P. 65 – 80

Investigate the basis for your client’s conviction and sentence

In Pitman v. The State, the Judicial Committee of the Privy Council admitted two expert psychological evaluations and multiple affidavits from the appellant’s relatives demonstrating the appellant’s diminished mental capacity. The Court admitted the evidence after finding that it was credible, that it constituted prima facie evidence that “the extent of the appellant’s intellectual handicap is substantial and such as to require proper investigation by the court,” and finally, that the defense offered a reasonable explanation for the failure to adduce medical evidence at trial.

Similarly, in Solomon v. State, the Privy Council admitted new evidence suggesting the appellant, convicted of murder, did suffer “or at least may have suffered” from a depressive illness at the time of the incident. At trial, there was passing mention of the appellant’s depression, but no investigation into his mental state and no medical testimony. After trial, upon reviewing new evidence that the appellant had been hospitalized for depression prior to the incident, that he attempted suicide after his arrest, and that he was diagnosed with depression one year after the incident, the Privy Council set aside the conviction and remanded the case to The Court of Appeal of Trinidad and Tobago to examine issues regarding the appellant’s mental state.

Death Row Phenomenon

Article 7 of the ICCPR provides that “[n]o one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.” Other human rights treaties contain identical language.

Over the last two decades, a rich body of jurisprudence has developed in support of the notion that prolonged incarceration on death row (also known as “death row phenomenon”) constitutes cruel, inhuman, or degrading punishment. These decisions have prompted scores of articles by legal commentators and mental health experts.

In Pratt & Morgan, the Privy Council held that a delay of 14 years between the time of conviction and the carrying out of a death sentence in the case of a Jamaican prisoner was “inhuman punishment.” The Privy Council further concluded that “in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute ‘inhuman or degrading punishment.’” In Soering v. United Kingdom, the European Court found that prisoners in Virginia spend an average of six to eight years on death row prior to execution. The court determined that “[h]owever well-intentioned and even potentially beneficial is the provision of the complex post-sentence procedures in Virginia, the consequence is that the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death.”

More recently, the Supreme Court of Canada considered evidence that death-sentenced inmates in the state of Washington (United States) took, on average, 11.2 years to complete state and federal post-conviction review, when weighing the legality of extraditing two men to the United States to face capital charges. The court acknowledged a “widening acceptance” that “the finality of the death penalty, combined with the determination of the criminal justice system to satisfy itself fully that the conviction is not wrongful, seems inevitably to provide lengthy delays, and the associated psychological trauma.” Relying in part on this evidence, the court held that the Canadian Charter of Rights and Freedoms precluded the defendants’ extradition, absent assurances the United States would not seek the death penalty.

The Ugandan Supreme Court has also embraced these arguments, holding that a delay of more than three years between the confirmation of a prisoner’s death sentence on appeal and execution constitutes cruel, inhuman or degrading treatment or punishment in violation of its national constitution. The Zimbabwe Supreme Court has held that delays of 52 and 72 months between the imposition of a death sentence and execution constitute inhuman punishment. And in 2010, the European Court on Human Rights expanded its rule from Soering in Al Saadoon & Mufdhi v. United Kingdom. There, the Court found that the United Kingdom had violated its obligations under Article 3 of the European Convention merely by exposing the applicants to the threat of capital punishment.

These examples demonstrate that, arguably, the prohibition against lengthy confinement on death row as cruel, inhuman, or degrading treatment has attained binding force as customary international law.


Your client may have developed a severe mental illness after he was sentenced to death. The United Nations Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, which received almost unanimous support from U.N. state party members, prohibit the imposition of the death penalty “on persons who have become insane.” In 1989, the Economic and Social Council expanded this protection to cover “persons suffering from…extremely limited mental competence, whether at the stage of sentence or execution.” The U.N. Commission on Human Rights has likewise urged retentionist countries “not to impose the death penalty on a person suffering from any form of mental…disabilities or to execute any such person.” And the European Union has declared that the execution of persons suffering from any form of mental disorder is contrary to internationally recognized human rights norms and violates the dignity and worth of the human person.

International law may not require that your client is formally found to be mentally ill for this prohibition to apply. In Francis v. Jamaica, the Human Rights Committee held that issuing an execution warrant for a mentally disturbed individual who was examined and found not to be “insane” amounted to cruel, inhuman or degrading treatment in violation of Article 7 of the ICCPR.

If you suspect your client’s mental health has deteriorated during his stay on death row, you should seek a stay of execution and seek assistance from a qualified mental health professional. See Chapter 5, “Defending Vulnerable Populations.”