Cognitive disability is not well accommodated in criminal justice systems. Yet, people with cognitive disability are overrepresented in these systems. Unfitness to plead law is one legal mechanism that is purported to assist when a person with cognitive disability is charged with a crime. The aim of such laws is claimed to be to prevent an individual with cognitive disability to have to engage in a trial process.
It has been said that unfitness to plead law exists in an effort to ensure the right to a fair trial for people with disability. However, in practice, once an individual is found unfit to plead, they do not get the opportunity to engage with the trial process at all and are not afforded the same rights to due process and procedural fairness. In addition, it is common that once an individual is found unfit to plead, they are detained for longer than they could have been if they were convicted – in some jurisdictions, they can even be held indefinitely.
This presents several human rights challenges. The first is that, if the aim is to preserve the right to a fair trial for people with cognitive disability, that aim is often not being met. The second is that people with cognitive disability who are found unfit to plead are being denied their right to legal capacity – to be recognised as a person before the law with rights and responsibilities and to be recognised as a decision-maker. The third is that people with cognitive disability are often not being provided the support necessary to engage with the criminal justice system in such a way that would facilitate a fair trial and the recognition of the right to legal capacity.
The right to a fair trial includes, among other elements, the right to procedural due process and the right to be free from discrimination in the trial process. The right to procedural due process includes the right to test the case against you, the right to confront and cross-examine witnesses, the right to free legal assistance, and the right to be informed of the charges against you in a language you understand, among others. In many jurisdictions, once a person is found unfit to plead, they often end up in limbo with no clear process for testing the case against the person, no appropriate legal assistance provided, and no accessible detention facilities available. Alternatively, in some jurisdictions, there are processes in place and once an individual is found unfit, they are funnelled into a ‘special’ trial process, in which evidential rules are different and the individual is often largely excluded from the trial process. While this is arguably more favourable than a state of limbo, these special processes often do not afford the individual the same level of protection for his or her right to due process as a normal trial would.
The right to legal capacity mandates that all people are respected as decision-makers on an equal basis and requires states to provide support to exercise legal capacity – to make legal decisions. Unfitness to plead laws purport to avoid an unfair trial by not forcing people to undergo a trial process on the basis that they cannot sufficiently understand the charges against them and cannot meaningfully participate in the trial process. If states met their obligations to provide support to people with cognitive disability to exercise their legal capacity in the context of the criminal justice system, it could obviate the need for unfitness to plead laws. Instead people with cognitive disability who are charged with a crime would be respected as equal before the law, they would be provided with the support needed to engage in the trial process, and their rights to both legal capacity and a fair trial could be met in many instances.
The Unfitness to Plead project at the University of Melbourne provided an evidence base for implementing support for people with cognitive disability charged with a crime. The crux of the issue is that human rights law applies to people with cognitive disability in the exact same way that it applies to people without cognitive disability. Under current unfitness to plead law, people with cognitive disability are not having their rights to a fair trial or legal capacity realised on an equal basis with others. Providing support at the time of an individual being charged with a crime is one way to avoid findings of unfitness. Law reform is also needed to ensure that people with cognitive disability are not subject to a separate and unequal form of justice.
Featured image credit: Courtroom by 12019. CC0 Public Domain via Pixabay.