In this blog post, we take an in-depth look at whether the current legal system, which does not punish crimes committed by individuals with mental disabilities, is truly fair and reasonable.
Do humans control and determine their own actions? This question—namely, the existence of free will—has long been a subject of debate with no definitive answer. Whether or not free will exists plays a significant role in various fields such as ethics, religion, and science, and it is particularly relevant in the legal sphere, which is closely tied to everyday life. Generally, people believe that their actions result from their own judgments and decisions, rather than being dictated by uncontrollable external circumstances. Furthermore, the current Criminal Code of the Republic of Korea also operates on the assumption that free will exists in ordinary individuals. This is evident in Article 10 of the Criminal Code regarding persons with mental or physical disabilities. The following is the text of Article 10, Paragraph 1 of the Criminal Code of the Republic of Korea.
“No punishment shall be imposed for the acts of a person who, due to mental or physical disability, lacks the capacity to discern right from wrong or to form a decision.”
Under the above criminal law, persons with mental or physical disabilities are deemed to lack “the capacity to form a decision”—that is, to lack free will—and are therefore not punished. Conversely, persons without such disabilities are deemed to possess free will and are thus subject to punishment. However, there is significant controversy surrounding this provision of the Criminal Code. For example, there was the “Sang-yoon Incident” last December, in which a teenage student with a Level 1 developmental disability threw a 2-year-old child 10 meters down, resulting in the child’s death. This case concluded with the court acquitting the perpetrator, ruling that he was mentally disabled and lacked the capacity to make decisions. Far from being punished, the student did not even receive a sentence of therapeutic detention or an electronic ankle monitor. Many people were deeply saddened that the loss of a small, young life ended with no one being punished despite the existence of a perpetrator, and a petition campaign was even launched. Therefore, I believe it is unjust to refrain from punishing individuals with mental disabilities for the following reasons.
First, considering the various purposes of punishment, it is wrong to issue an acquittal based solely on the presence or absence of free will. Let’s return to the original question. Suppose the claim that humans are “beings without free will”—acting not by their own judgment but simply due to their surroundings and brain chemistry—is correct. In that case, crimes would be like sneezes: actions committed involuntarily and beyond one’s control, for which no one can be held accountable. But does that mean all punishment should be abolished? No. If we refrain from punishing everyone simply because they lack responsibility, it would lead to tremendous social chaos. In other words, punishment does not serve only the function of holding someone accountable for the harm caused. It also serves to reform criminals, isolate them from society to prevent recidivism, and deter others from committing crimes by setting an example. These functions of punishment still apply even if humans lack free will. First, isolating criminals from society creates an environment that prevents crimes from occurring. Furthermore, rehabilitating criminals or instilling a sense of caution in others also serves as an environmental factor that influences individuals’ values and beliefs, thereby bringing about behavioral changes. In other words, even if humans lack free will, punishment is absolutely necessary for the purpose of preventing recidivism. Therefore, even in the case of mentally disabled individuals who lack free will, it is necessary to punish them if they commit a crime to prevent further harm.
In response, those who advocate for acquittals for the mentally disabled argue, “Since mentally disabled individuals lack free will, their criminal acts are not actions taken for malicious intent or personal gain, and therefore they should not be punished.”
However, let us consider the difference between a member of the general public who intentionally breaks the law with malicious intent and one who breaks the law merely by mistake without any malicious intent. Of course, there is a clear difference in the severity of the crime between one committed with malicious intent and one committed accidentally, and punishments are imposed accordingly. However, the fact remains that both crimes are subject to punishment regardless of the presence or absence of malicious intent. Therefore, criminal acts committed by individuals with mental disabilities must also be punished regardless of malicious intent.
Second, failing to impose punishment could actually lead to discrimination against people with mental disabilities and threaten their human rights. The state creates laws to protect individuals from harm and maintains order by ensuring compensation even if harm occurs. Under the law, all people are equal, which allows people to feel safe, trust one another, and refrain from breaking the law. But what if there are people to whom the law does not apply? In that case, others would be unable to trust that person, feel anxious, and avoid them. Of course, it is wrong to view everyone exempt from the law as a potential criminal and shun them, but no one would be willing to approach them while risking harm for which they could receive no compensation. Furthermore, since these individuals are not even subject to electronic monitoring, making it impossible to know whether they have ever committed a crime, people end up viewing all individuals with mental disabilities through a biased lens. In fact, in early November, approximately 300 residents staged a protest against the establishment of a vocational training center for people with developmental disabilities in Jeogi-dong, Dongdaemun-gu, leading to the suspension of construction. Citing the previously mentioned “Sang-yoon incident” as an example, they expressed fear of the unpredictable behavior of people with developmental disabilities, who already struggle with impulse control, and added that they were even more concerned because the perpetrator in that incident—who had a developmental disability—was acquitted. When crimes committed by people with mental disabilities go unpunished, many people, driven by the anxiety that they too could become victims, stop viewing the perpetrator as an individual and instead see them solely as a “person with a mental disability.” Consequently, this causes the general public to go beyond mere fear and develop hostility toward people with mental disabilities, leading to discrimination against them.
Of course, some argue that the perception of people with mental disabilities as potential criminals—and the resulting anxiety and avoidance—is misguided. Consequently, they argue that improving public perception is necessary to prevent discrimination, rather than punishing people with mental disabilities. However, people’s anxiety is not entirely unfounded. In fact, experts state that if crimes committed by individuals with mental illnesses are left unaddressed, they are highly likely to lead to random acts of violence. According to the Supreme Prosecutors’ Office, the recidivism rate for offenders with mental illnesses is 65.9%, which is significantly higher than the 41% recidivism rate for the general criminal population. Given such a high recidivism rate, if these individuals are not punished, isolated from society, or rehabilitated, the general public will inevitably feel anxious and avoid people with mental disabilities. In particular, since these individuals often commit random acts of violence spontaneously without any specific motive, people become even more fearful, thinking they could become victims themselves at any time and in any place. Crimes that go unpunished in this way are highly likely to recur. Therefore, it is only natural for people to fear and avoid those who go unpunished.
For the two reasons mentioned above, punishing individuals with mental disabilities is an essential measure, both for their own sake and for the sake of the general public. If they are punished in accordance with the objectives of rehabilitation and isolation from society—which are intended to prevent recidivism—the anxiety of the general public will be alleviated, and consequently, the number of people who avoid or discriminate against them will naturally decrease. Therefore, in the current situation where the crime rate among the mentally ill is on the rise, Article 10, Paragraph 1 of the Criminal Code should be repealed, and punishment should be imposed on the mentally ill as well, in order to create a more equal and safer society.
