Death lingers in the prison cell. Another day of incarceration with no knowledge of when, if ever, the death warrant will be executed. Waking each day, expecting the release of execution which never seems to come; eventually, the days blur into one endless period of torment.
The Death Row Syndrome (also known as the Death Row Phenomenon) describes a situation where a prisoner who has been sentenced to death has had their execution date severely delayed, but remains incarcerated in harsh conditions.[1] The consequence is not only physical deterioration, but also mental deterioration— with the prisoner experiencing intense anxiety to such an extent that they are reduced to a state of ‘little more than the living dead’.[2]
The implementation of the death penalty in circumstances where a prisoner is diagnosed with the Death Row Syndrome will constitute cruel, inhumane or degrading treatment under article 7 of the International Covenant on Civil and Political Rights (ICCPR).[3] The ICCPR is one of the key transnational instruments governing the treatment of persons facing or sentenced to death.
The decision of Soering v United Kingdom is the first significant judicial treatment of Death Row Syndrome.[4] In this case, Soering claimed that a combination of factors— delay in the appeal system, his age and mental condition, together with the harsh conditions of death row and the method of execution— would result in the Death Row Syndrome during his period of incarceration, constituting a violation of article 3 of the European Convention for the Protection of Human Rights (couched in similar language to that used in the ICCPR).[5] The European Court of Human Rights found that the circumstances pleaded could expose Soering to the Death Row Syndrome, and this in turn would trigger article 3.
However, the number of cases in which anyone has successfully appealed the implementation of the death penalty on the basis of the Death Row Syndrome are few, and, in fact, have decreased in recent years. Indeed, the Death Row Syndrome is not widely recognised at law.[6] There are several reasons for this.
First, lawyers face significant obstacles to obtaining the requisite diagnosis. A diagnosis of a mental illness such as major depressive disorder may not necessarily suffice. In many cases, this is exacerbated by the labyrinthine prison rules that make access to the prisoner by anyone, other than their lawyer of record, incredibly difficult.
Second, mental illness must be coupled with cruel and harsh prison conditions to qualify as Death Row Syndrome. These may include the risk of contracting a terminal disease, overcrowding, hygiene and cleanliness, or even corruption within the prison. These factors can cause the prisoner’s emotional integrity, mental wellbeing, and health to deteriorate.[7]
Third, there may be a lack of data about a country’s death-row population, or a lack of trial records which make it near impossible to prove, with evidence, that an incarcerated person has experienced delay in their execution.[8]
Another challenge for an argument dependent on Death Row Syndrome is that in some cases courts have, tragically, responded by expediting execution— rather than giving due consideration to the prisoner’s plight.[9]
As a result, the prisoner’s lawyer may instead resort to alternative, if related, arguments, such as inordinate and unreasonable delay in the implementation of the death penalty being a violation of article 7 of the ICCPR and/or any applicable constitutional provisions.
In some cases, it may be possible to argue that a prisoner has experienced ‘double punishment’. For example, in Indonesia, a fixed term of imprisonment cannot exceed 20 years. If a person sentenced to life imprisonment has served at least 20 years and the State still intends to execute him or her, there is an argument that the State is effectively imposing two separate punishments for a single offence.
Unfortunately, such lines of reasoning have not been sufficiently argued, nor decided or reported, by the courts of many jurisdictions in Southeast Asia. As a result, it is unclear which courts would be receptive to these arguments.
This is deeply concerning for a number of reasons, but most importantly in the context of prisoners whose mental illnesses have been catalysed by the very fact of their imprisonment at the hands of the State. Such experiences raise serious questions as to the access (or, in most cases, lack of access) to mental health care and support systems within prisons. This is particularly the case where the death-row inmate was convicted following a trial deficient of due process and fair trial guarantees.
The reality is that prisoners have been, and may continue to be, executed in circumstances where they are mentally ill but have not had the opportunity to establish their condition at law.[10] Thus, even if the law contains adequate protections for the mentally ill, there is no guarantee that these will be upheld and enforced.
Consequently, the correction of these issues may not be achieved through law reform. However, the need remains for a combined effort to persist in advocating for the rights of the mentally ill, particularly those on death-row who would be vulnerable to the Death Row Syndrome.
Left waiting long enough on death row, prisoners surely ‘must, by now, be more a vegetable than a person, and hanging a vegetable is not a death penalty’.[11] The question is, how long will the neglect go unchallenged?
References:
[1] Patrick Hudson, ‘Does the Death Row Phenomenon Violate a Prisoner’s Human Rights Under International Law?’ (2000) 11(4) European Journal of International Law 833, 833-4. For the lived experiences recounted, see: Byung-Chul Yoo, ‘Qualitative Study on the Death-row Syndrome’ (2015) 27(1) Korean Journal of Criminology 163, 187.
[2] Ibid 835-6. See also Caycie D Bradford, ‘Waiting to Die, Dying to Live: An Account of the Death Row Phenomenon from a Legal Viewpoint’ (2010) Interdisciplinary Journal of Human Rights Law 77, 84.
[3] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[4] [1989] ECHR 14.
[5] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).
[6] For example, on its recognition in America see Patricia Cooper, ‘Competency of Death Row Inmates to Waive the Right to Appeal: A Proposal to Scrutinize the Motivations of Death Row Volunteers and to Consider the Impact of Death Row Syndrome in Determining Competency’, (2009) 28(2) Developments in Mental Health Law 105, 119-124.
[7] Sher Singh & Ors v State of Punjab [1983] 2 SCR 583, 591 (Chandrachud CJ); Roger Hood, The Death Penalty: A Worldwide Perspective (Oxford University Press, 2nd ed, 1996) 39.
[8] See, e.g., De Freitas v Benny [1976] AC 239, [243].
[9] See, e.g., Earl Pratt & Ivan Morgan v Jamaica [1994] 2 AC 1, 35; Khakhi v The State [2010] PLD 1, 130 (regarding Sharia law); Shatrughan Chauhn v Union of India & Ors (2014) 3 SCC 1, [54]; Attorney General v Susan Kigula & Ors [2009] UGSC 6. See also Kealeboga N Bojosi (2004) ‘The Death Row Phenomenon and the Prohibition Against Torture and Cruel, Inhuman or Degrading Treatment’ 4(2) African Human Rights 303, 310.
[10] See, e.g., the case of Rodrigo Gularte who was executed in 2014 after serving 10 years on death row, despite since receiving a retrospective diagnosis of paranoid schizophrenia: Amnesty International, Flawed Justice: Unfair Trials and the Death Penalty in Indonesia (Report, 2015) 7 <https://www.amnesty.org/download/Documents/ASA2124342015ENGLISH.PDF>. See also State of Connecticut v Ross, 269 Conn 213 (Conn, 2005); ‘Court Rejects “Death Row Syndrome,” Narcisissm Defence, Allows Execution’ (2005) 23(6) Mental Health Law Report 54.
[11] Rajendra Prasad v State of Uttar Pradesh [1979] 3 SCR 78, 130 (Krisna Iyer J).
Samira Lindsey is completing her LLB (Hons), BA (International Relations) and DipLang (Indonesian) at Monash University. Since 2018, Samira has provided research assistance to academics at Monash University’s Faculty Law and Swinburne’s Faculty of Business Law. She is currently working as a barrister’s assistant at the Victorian Bar and as a paralegal at an international law firm. In 2019, Samira completed an in-house placement with the Monash Anti-Death Penalty Clinic. In 2020, Samira co-authored a publication with academics entitled ‘Drug Offences and the Death Penalty in Malaysia: Fair Trial Rights and Ramifications’ published by Monash University. Since 2020, Samira has been fortunate to provide pro bono assistance to barristers and lead a new anti-death penalty initiative at the Law Institute of Victoria.