In this blog post, we will examine the current state and issues of the sentence reduction system for the mentally ill and explore ways to improve it to ensure public safety.
At approximately 1:20 a.m. on May 17, 2016, Ms. A (23, female), an office worker, was found dead from stab wounds in a public restroom of a commercial building near Gangnam Station on Seoul Subway Line 2. The perpetrator was a man in his 30s whom the victim had never met before. He had been waiting in the restroom for an hour before the crime, then stabbed the victim multiple times with a knife when she entered to use the restroom, killing her. The fact that an ordinary member of the public was the target of the crime, combined with the brutal methods used by the perpetrator, caused a major public outcry at the time. Consequently, at the final hearing for the murder charges against the suspect, Mr. Kim, held on May 30 before Criminal Division 24 of the Seoul Central District Court, the prosecution sought a sentence of life imprisonment. Given that the death penalty has been effectively abolished in South Korea, life imprisonment is considered the most severe punishment and was viewed as an appropriate sentence. However, the issue resurfaced on October 14. The court sentenced him to 30 years in prison at the first trial, citing his schizoaffective disorder (schizophrenia) as grounds for diminished criminal responsibility. This ruling reignited public outrage that had been dormant for some time.
The system of reduced sentences for the mentally ill has existed for a long time. However, recently, the flaws in this system have come to light, reigniting controversy. In the recent Opae Mountain Tunnel shooting incident, it was revealed that the perpetrator was mentally ill. Crimes committed by the mentally ill are on the rise in South Korea, and the problems with the reduced sentencing system are becoming a subject of debate. By 2021, the number of offenders with mental disorders had risen to 8,764, and the proportion of offenders with mental disorders committing violent crimes also increased from 9.4% in 2017 to 13.2% in 2021. This suggests that crimes committed by individuals with mental disorders are emerging as a social problem, compounded by the lack of clarity in legal standards, and calls are growing for greater vigilance.
The legal basis for sentence reduction is found in Article 10 of the Korean Criminal Code. According to this provision: ① Acts committed by a person who, due to a mental or physical disability, lacks the capacity to discern right from wrong or to form a decision, shall not be punished; and ② Acts committed by a person whose capacity under the preceding paragraph is impaired due to a mental or physical disability shall be subject to a reduced sentence. ③ The provisions of the preceding two paragraphs shall not apply to acts committed by a person who, foreseeing the danger, intentionally caused their own mental or physical disability. In summary, the law distinguishes between a state of impaired judgment (mental or physical disability) compared to the general public and cases of complete loss of judgment (mental incapacity) or cases where judgment is present but impaired (mental weakness), applying different degrees of sentence reduction accordingly. The basis for this sentencing reduction system lies in the “principle of criminal responsibility” under criminal law, which holds that a person with a mental disorder cannot be held “responsible” for a crime because their capacity for judgment was not exercised at the time of the offense. Since they cannot be held responsible, corresponding punishment is deemed impossible. Given that people with mental disorders are socially vulnerable, this can be viewed as an effort to ensure fairness.
However, this sentencing reduction system has revealed various problems during its implementation. First, the criteria for determining mental disability are unclear, and the system relies excessively on judicial discretion. According to the law, individuals with mental disorders are classified based on the degree of their mental disability into those “lacking the ability to discern right from wrong or to make decisions” and those “whose condition is mild,” but no specific criteria for distinguishing these degrees are mentioned. Consequently, it is difficult for judges to make consistent rulings across various cases. Under Korean law, a person with a mental disorder refers to someone suffering from psychosis, personality disorders, alcohol or drug addiction, or other non-psychotic disorders. However, because this definition is very vague and broad, it is difficult to distinguish individuals with mental disabilities based on this simple definition alone. Consequently, there is a growing need to subdivide categories of people with mental disorders and establish different sentencing standards accordingly.
Furthermore, the absence of an exemption clause for sentence reduction regarding individuals with mental disorders is also pointed out as a problem. Unlike alcohol or drug use, mental disorders do not result from the individual’s own will, so Paragraph ③ cannot be applied. Instead, according to Supreme Court precedents, “mental disability as defined in Article 10 of the Criminal Code is a biological factor; [omitted] even if a person has a mental disorder, they cannot be considered mentally disabled if they possessed normal capacity to discern right from wrong or control their actions at the time of the offense.” In other words, even if a person has a mental illness, they may not fall under the legal definition of mental disability depending on the circumstances of the crime. However, even in such cases, there is a limitation in that the decision on exemption is left to the judge’s discretion without specific criteria. It is not easy for a judge to assess a suspect’s ability to discern right from wrong and control their actions in a typical criminal situation. Therefore, it can be considered almost certain that a sentence reduction will be granted if mental disability is established. Treating all crimes committed by suspects with mental illness as impulsive acts and reducing their sentences risks creating reverse discrimination against those without mental illness.
The imperfection of the law leads to the serious side effect of abuse. This is because the lack of clear criteria makes it difficult to distinguish ordinary criminals who feign mental disorders. Consequently, there is a risk that this could become a de facto “get-out-of-jail-free card” not only for those with mental illnesses but also for criminals without them. 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) over the past 20 years has increased approximately threefold, from 205 cases in 1995 to 604 cases in 2014. Among defendants who underwent psychiatric evaluations between 2010 and 2014, 1,101—accounting for 34.2% of the total—received treatment custody instead of prison sentences. This demonstrates that a system designed to ensure fairness for those with mental illnesses has degenerated into a surefire strategy for reducing sentences. We must not allow “protection” intended for the socially vulnerable to be misunderstood as a “privilege” that enables them to commit crimes.
Those who advocate for maintaining the sentencing reduction system for the mentally ill argue that we must not deprive criminals suffering from mental illness of the opportunity for rehabilitation. They contend that it could be inhumane to hold individuals unconditionally accountable for a momentary lapse resulting from an accidental incident without tolerating it, and at the same time, to deny them even the chance to make amends. For this argument to be persuasive, offenders who receive reduced sentences must demonstrate remorse for their crimes and make efforts to prevent recidivism. However, the reality is different. According to statistics, as of 2014, the recidivism rate for offenders with mental illnesses reached a staggering 64.7%. This is a significantly higher figure compared to the 45.3% recidivism rate among all criminals. Notably, among offenders with mental illnesses, 15.7% were repeat offenders with nine or more prior convictions. This suggests that the sentence reduction system is failing to fulfill its role in rehabilitating criminals. Rather than providing an “opportunity for reflection,” it has effectively granted them yet another “opportunity to commit a crime.”
What about other countries? In the United States, for example, the Model Penal Code classifies mental disorders into specific categories based on the nature of the illness and applies different levels of sentence reduction accordingly. In particular, individuals with specific mental disorders such as psychopathy or sociopathy are deemed to possess decision-making capacity and are therefore excluded from eligibility for sentence reduction. In contrast, South Korea classifies both psychopaths and sociopaths under the category of mental disability and applies the same sentencing reduction system to them. Furthermore, even when a sentence is reduced on grounds of mental disability, the individual is committed to a secure mental health facility for a period exceeding the maximum duration they would have been incarcerated had they received a guilty verdict. This stands in stark contrast to South Korea, where the duration of confinement in a mental health facility is determined during the sentencing process. This U.S. sentencing reduction system also effectively prevents potential abuse stemming from long periods of confinement.
In Korea, the sentencing reduction system appears to contribute to high recidivism rates, as offenders are released into society without having received adequate treatment. Rather than granting unconditional sentence reductions to individuals with mental disorders simply because they cannot be held accountable, it is necessary to seek a fundamental solution. Here, a fundamental solution would mean liberation from mental illness. However, for mentally ill individuals currently facing sentencing in Korea, not only is the treatment period short, but there is also an absolute shortage of budget and personnel for treatment. The government must recognize the seriousness of crimes committed by the mentally ill and prioritize measures to improve the current poor treatment environment. The state has a duty not merely to consider fairness and shift the burden of rehabilitation onto the patients themselves through sentence reductions, but rather to actively intervene in treatment to guide their rehabilitation. While it is important to uphold the principle of criminal responsibility, the state’s primary role is to foster the rehabilitation of citizens and protect the majority of law-abiding, decent citizens from crime.
At a time when parents say they are afraid to raise children, South Korea has become a society where the entire population is exposed to various crimes. This may be due to a chronic lack of awareness regarding safety. However, as crimes committed by individuals with mental illnesses—such as “random violence”—increasingly emerge as social problems, it is time to remain vigilant and seek solutions. Among these, the first thing that must be reconsidered is the system of reduced sentences for those with mental disabilities. Like any law, this system likely began with good intentions. However, as various problems have emerged during its implementation and it runs counter to public sentiment, it is now necessary to put the brakes on its enforcement. South Korea must shed the stigma of being a “country where leniency is easily granted” and become a nation where citizens are safely protected and where crime is not tolerated. To this end, the government, as the primary actor, must take the initiative to actively restore public trust.
