Problems and improvement measures in the criminal legal response system for criminals with mental disorders: Focusing on treatment such as treatment and custody
Authors:   Korean Association of Public Safety and Criminal Justice, Choi Yong Sung 
Published: January 2024

From the murder case at a PC room in Gangseo-gu in 2018 to the recent stabbing incidents at Sillim Station and Seohyeon Station, violent incidents by people with mental disorders (including people with mental disabilities related to various addictions such as alcohol or drugs, or people with mental disabilities equivalent to it) continue to occur, leading to high-risk situations such that blind spots in the social safety net still exist due to the lack of a management and supervision system for people with mental disorders in society. In addition, crimes committed by people with mental disorders have increased significantly since 7,304 cases in 2018, increasing to 8,902 cases in 2021, and the recidivism rate has reached 64.3%, meaning that people are immediately released into society without receiving continuous treatment after the end of treatment custody or treatment order (tentative termination). It has been pointed out that there is no judicial treatment and management system for mentally disabled people who have returned to society. Even though violent crimes committed by the mentally disabled are still emerging as a social problem, criminal justice agencies are not reviewing the causes of the crime of the mentally disabled and moving forward with therapeutic treatment but are instead taking measures that focus on repeated surveillance, isolation, and institutionalization. The current treatment and custody law has no provisions for treatment linkage, cooperation, and collaboration between criminal justice agencies and mental (health) medical institutions for therapeutic treatment. Moreover, as criminal justice agencies focus on surveillance, isolation, and institutionalization due to insufficient legislation on treatment linkage, social concerns that mentally disabled people may be stigmatized as potential criminals are increasing, and the need to prevent crimes by mentally disabled people and improve the criminal legal response system is also increasing. Keeping the above situation in mind, this study reviewed the legislative examples of the United States, Germany, and Japan and the limitations of the criminal legal response system for mentally disordered criminals, focusing on the treatment perspective, such as treatment and custody, under the current Medical Treatment and Custody Act. As a result, the following problems were found: First, a lack of connection between the treatment order after the end of treatment and custody; Second, the absence of maintenance and management after the end of the treatment order; Third, the absence of mandatory diagnosis before the execution of the treatment order, and Fourth, a lack of connection and cooperation between the criminal justice system and the mental (health) medical system, and Fifth, the reduction of the target of treatment orders leads to more violent crimes. Therefore, to solve this problem, it is necessary to 'improve' criminal legal response measures, such as harmony and cooperation between the criminal justice system under the Medical Treatment and Custody Act and the mental (health) medical system under the Mental Health and Welfare Act, and more effective treatment of criminals with mental disorders. Accordingly, revision of the Medical Treatment and Custody Act and related criminal law amendments were presented as improvement and legislative measures. However, to more effectively achieve the criminal policy purpose of preventing crimes by mentally disabled people and preventing recidivism within the legislative system between criminal justice and mental (health) medical care proposed in the amendment to the Medical Treatment and Custody Act, it is judged to introduce the followings measures: First, specialization of therapeutic treatment, second, strengthening the ability to respond to mental health problems, third, the right of probation officers to apply for administrative hospitalization, fourth,