Chapter 2. Vulnerable Defendants This chapter focuses on Safeguard Three which states that persons below the age of 18 at the time of the crime shall not be sentenced to death, and nor shall pregnant women, new mothers or “persons who have become insane.” This chapter considers how the application of the death penalty in China protects the vulnerable from execution. As is the case in other countries that have not yet abolished the death penalty, one of the difficulties in respecting Safeguard Three is the lack of clear procedures in assessing mental health. Forensic medical assessments are a major source of contestation in criminal procedure. China, also, has no prohibition against the execution of the mentally ill and it would be possible for someone who becomes insane following the commission of the offence to be executed. This chapter concludes with comments on how the use of the death penalty in China discriminates against the poor. International Law The rationale for Safeguard Three appears to be that the imposition of the death penalty on the most vulnerable defendants is a disproportionate and cruel punishment. The Special Rapporteur on Torture and other Cruel, Inhuman and Degrading Treatment or Punishment has described “the imposition and enforcement of the death penalty in the case of persons with mental disabilities as particularly cruel, inhuman and degrading”. In the vast majority of countries young offenders are punished with greater leniency than adults in recognition of their relative immaturity and their potential for rehabilitation. Iran is now an outlier in continuing to sentence children to death. The prohibition against executing pregnant women and new mothers acknowledges the effect of the punishment on innocent children. The Additions to the Safeguards, agreed in 1989, call on retentionist countries to establish a maximum age beyond which a person may not be sentenced or executed. The prohibition against executing persons who have become insane is difficult to implement in practice because of the lack of coherent standards for mental health assessment. There remains a degree of subjectivity in determining whether an individual is “insane”. There is also a wide spectrum of terminology used to discuss insanity and the death penalty reflecting different standards of mental health assessment. The Additions to the Safeguards, 1989, state that the death penalty should be eliminated for persons suffering from “mental retardation” or “extremely limited mental competence, whether at the stage of sentence or execution.” In the 2010 ECOSOC Report, the Secretary-General emphasized that the “insane” requirement in Safeguard Three is distinct from the doctrine of diminished responsibility, reporting that the Safeguard “is often confused with the related but different questions of responsibility for the crime itself and application of an insanity defence, and of fitness to stand trial, where a person is unable to participate in the trial for mental health reasons.” The right to an impartial tribunal often implicates issues of equality and non-discrimination. The UN Human Rights Council has expressed concern at the discriminatory application of the death penalty in relation to gender, sexual orientation, race, religion, disability and economic status. The 2018 21