In this blog post, we will look at the current state and problems of the system for reducing sentences for the mentally and physically disabled, and consider ways to improve it to protect the safety of the public.
At around 1:20 a.m. on May 17, 2016, office worker A (23, female) was found dead in a public bathroom in a shopping mall near Gangnam Station on Line 2 of the Seoul Subway. The perpetrator was a 30-something man who was a complete stranger to the victim. He waited in the bathroom for an hour before stabbing the victim several times with a knife and killing her. The victim was a random person, and the brutal method used by the perpetrator caused a huge public outcry at the time. As a result, the prosecution sought life imprisonment at the final hearing of the murder case of the suspect Kim, which was held on May 30 in the Criminal Division 24 of the Seoul Central District Court. In South Korea, where the death penalty has been effectively abolished, life imprisonment is considered a reasonable punishment as it is the most severe punishment. However, the issue resurfaced on October 14. The court sentenced him to 30 years in prison in the first instance, citing that he suffers from schizophrenia and therefore has an incomplete capacity to be held accountable. This ruling reignited public opinion, which had been quiet for a while.
The system of reducing sentences for the mentally and physically disabled has existed for a long time. However, the problems of this system have recently come to light, and the controversy has resurfaced. The recent shooting incident in the Opae Mountain Tunnel also revealed that the perpetrator was mentally and physically disabled. Recently, crimes committed by the mentally and physically disabled have been on the rise in South Korea, and the problems of the system of reducing sentences are being debated. By 2021, the number of mentally ill criminals had increased to 8,764, and the proportion of mentally ill criminals who committed violent crimes also increased from 9.4% in 2017 to 13.2% in 2021. This, along with the ambiguity of legal standards, suggests that crimes committed by the mentally and physically disabled are emerging as a social problem, and there are growing calls for caution.
The legal basis for the reduction of sentence is found in Article 10 of the Korean Criminal Code. According to this article, ① the acts of a person who is unable to discern objects or make decisions due to a mental or physical disorder shall not be punished, and ② the acts of a person who is unable to discern objects or make decisions due to a mental or physical disorder in the preceding paragraph shall be punished with a reduced sentence. ③ The provisions of the preceding two paragraphs shall not apply to the acts of a person who foresees the occurrence of a risk and voluntarily causes a mental or physical disability. In summary, the degree of mitigation is divided into three categories: a state of impaired judgment (mental or physical disability), a state of complete loss of judgment (mental or physical incapacity), and a state of impaired judgment but not complete loss of judgment (mental or physical weakness). The basis for this mitigation system lies in the “responsibility principle” of criminal law, which holds that a mentally ill person cannot be held responsible for committing a crime because their judgment is not functioning properly. Since they cannot be held responsible, it is argued that corresponding punishment is not possible. In terms of the fact that mentally ill people are socially vulnerable, this can be seen as a way to ensure fairness.
However, this mitigation system has revealed various problems in the process of implementation. First, the criteria for determining mental disability are unclear and overly dependent on the discretion of the judge. According to the law, mentally ill persons are divided into those who are “unable to distinguish between objects or unable to make decisions” and those who are “mild” depending on the degree of mental disability, but no specific criteria for distinguishing between the degrees are mentioned. Therefore, it is difficult for judges to make consistent judgments on various cases. Under Korean law, a mentally ill person is defined as a person with a mental illness, personality disorder, alcohol or drug addiction, or other non-psychiatric disorder. However, this is a very vague and broad definition, making it difficult to distinguish between the mentally ill and the mentally disabled with such a simple definition. This has led to calls for the need to subdivide the mentally ill and establish different punishment standards accordingly.
In addition, the fact that there is no provision for the reduction of sentence for the mentally ill is also pointed out as a problem. Unlike alcohol or drugs, mental illness is not caused by the person’s own will, so ③ cannot be applied. Instead, according to the Supreme Court’s precedent, “The mental disorder stipulated in Article 10 of the Criminal Act is a biological factor, [omitted] Even if a person has a mental disorder, he or she cannot be considered mentally or physically disabled if he or she had normal object discrimination ability or behavior control ability at the time of the crime.” In other words, even if a person has a mental illness, he or she may not be considered mentally or physically disabled under the law depending on the circumstances of the crime. However, even in this case, there is a limit to the fact that whether or not an exemption is granted is determined by the judge’s judgment without any specific criteria. It is not easy for a judge to determine the suspect’s ability to distinguish objects and control his or her actions in a general criminal situation. Therefore, it can be said that a reduction in sentence is almost certain when there is a mental disorder. There is a risk that the reduction in sentence for crimes committed by a mentally ill suspect, who sees all crimes as accidental, will be a reverse discrimination against people without mental illness.
The imperfection of the law has serious side effects, such as abuse. This is because it is difficult to identify ordinary criminals who pretend to be mentally or physically disabled because there are no clear standards. Therefore, there is a risk that it will become a de facto “get-out-of-jail-free” card for criminals with mental illnesses as well as those without mental illnesses to receive a reduction in their sentences. According to statistics from the Ministry of Justice last year, the number of requests for psychiatric evaluations at the National Forensic Hospital (Gongju Treatment and Custody Center) has increased threefold from 205 in 1995 to 604 in 2014. Among the defendants who underwent a psychiatric evaluation between 2010 and 2014, 1,101 were given a treatment order instead of a prison sentence, accounting for 34.2% of the total. This shows that the system designed to ensure fairness for the mentally ill has fallen into a strategy of reducing sentences. “Protection” for the socially vulnerable should not be mistaken as a “privilege” that enables them to commit crimes.
The position that maintains the mitigation system for the mentally and physically disabled argues that criminals suffering from mental illness should not be deprived of the opportunity for rehabilitation. It is argued that it may be inhumane to unconditionally hold someone accountable for a momentary mistake caused by an accidental accident and not give them a chance to make up for it. For such an argument to be convincing, it would be necessary for the criminals who received a reduced sentence to show that they are reflecting on their crimes and making efforts to prevent them from recurring. However, the reality is different. According to statistics, the recidivism rate of mentally ill criminals was as high as 64.7% in 2014. This is much higher than the recidivism rate of 45.3% for all criminals. In particular, 15.7% of the mentally ill criminals were repeat offenders with nine or more previous convictions. This suggests that the system of reducing sentences is not fulfilling its role of rehabilitation to induce the rehabilitation of criminals. Rather than giving them a chance to reflect, it has given them another chance to commit a crime.
What about overseas? In the United States, for example, the Model Penal Code classifies mental patients into different categories of mental and physical disorders and provides different degrees of mitigation. In particular, special mental patients such as psychopaths and sociopaths are not included in the mitigation category because they are deemed to have the ability to make decisions. In South Korea, on the other hand, both psychopaths and sociopaths are included in the category of mental and physical disorders and are subject to the same sentencing guidelines. Even if they receive a reduction in sentence due to mental and physical disorders, they are sent to a secure mental health facility for a period of time that would have been served if they had been convicted and imprisoned. This is in contrast to South Korea, where the length of stay in a mental health facility is determined during the sentencing process. This system of sentence reduction in the United States also has the effect of preventing abuse of the long period of stay.
In South Korea, the sentence reduction system appears to be increasing the recidivism rate by sending people back into society without receiving sufficient treatment. Rather than unconditionally reducing the sentences of mentally and physically disabled people because they cannot be held accountable, it is necessary to seek fundamental solutions. The fundamental solution here would be to free people from mental illness. However, the current situation in South Korea is that the treatment period for people with mental illness is short, and there is an absolute shortage of budget and manpower for treatment. The government should recognize the seriousness of crimes committed by people with mental illness and prioritize measures to improve the current poor treatment environment. The state has an obligation to actively intervene in treatment and lead to the rehabilitation of the patient, rather than leaving the rehabilitation to the patient himself by considering only fairness. While it is important to implement the responsibility principle of criminal law, the first role of the state is to induce the rehabilitation of the people and protect the majority of good people who comply with the law from crime.
At a time when parents say that raising children is scary, South Korea has become a society where the entire population is exposed to various crimes. This may be due to a chronic lack of safety awareness. However, as crimes committed by mentally ill people, such as “no questions asked crimes,” are increasingly emerging as a social problem, it is time to be alert and seek solutions. Among them, the first thing to reconsider is the mitigation system for people with mental and physical disabilities. This, too, like any law, may have started with a good intention. However, as various problems have been revealed in the process of implementation and it is against the public sentiment, it is now necessary to put a brake on its implementation. South Korea must shed the stigma of being a country where “commuting is easy” and become a country where the people are protected safely and where crimes are not tolerated. To this end, the government, as the main actor, must actively take the initiative and restore the public’s trust.
