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A Major Victory in Decriminalizing Mental Illness

Written by Bruce Cruser

Bruce Cruser has been Executive Director of Mental Health Virginia since 2016, bringing a background in social work and community corrections, and many years of leadership experience in local and state government.

March 21, 2021

Virginia increases justice for those with a mental health, developmental or intellectual disability

A highlight from the recent state legislative session was passage ofHB2047 & SB1315 (Delegate Jeff Bourne and Senator Jennifer McClellan) – Consideration of mental condition during criminal proceedings.

Current law prevents a judge or jury from hearing evidence about a defendant’s mental illness related to intent to commit a crime until after the person has been found guilty.

Virginia’s current process results in defendants with serious mental illness spending more days in jail at every step in the judicial process, and has a disproportionate impact on people of color and low income.

This significant change in criminal procedure will modernize our criminal justice process by allowing evidence of mental illness, developmental and intellectual disabilities to be considered prior to sentencing. It will bring Virginia in line with many other states. The new legislation:

  • Allows defendants with mental illness (as well as intellectual or developmental disabilities) to introduce evidence in court pertaining to their diagnosis and how it may have impacted their mental state at the time of the alleged offense.
  • Nullifies a Virginia Supreme Court ruling from 1985 that banned the introduction of such evidence during a trial.
  • Requires judges to consider mental illness, intellectual disability, and developmental disability during the bail and trial process.
  • Requires training for court-appointed lawyers to help them understand the unique responsibility of representing defendants with such conditions.
  • Requires the defense to provide notice to the prosecution of their plans to introduce this evidence.
  • Provides that someone found not guilty under this provision could still be civilly committed under a Temporary Detention Order if they currently meet commitment criteria.

Several advocates worked hard for these bills to become law, from the criminal defense, disability and mental health perspectives. UVA Law School students were instrumental in the drafting. A key advocate in the final passage was Anna Mendez, MHAV Board President and Executive Director of the Charlottesville MHA affiliate, Partner for Mental Health.

A recent poll from Data for Progress shows that 66% of Virginia voters support allowing Virginia judges and juries to consider evidence about a defendant’s mental state and mental illness in a criminal trial. Support is bipartisan, with similar numbers among Democrats, Republicans and Independents.

Richmond attorney Stephen Benjamin, past president of the National Association of Criminal Defense Lawyers, told the Richmond Times Dispatch:

“This bill recognizes what we have come to learn — that there are many degrees of mental illness or developmental disability or aspects of the autism spectrum disorder that can bear on a person’s mental state at the time that they acted in a way that led to criminal charges.”

Delegate Jeff Bourne (D-Richmond), sponsor of the House version of the bill, said:

“…Criminal justice reform must center the lived experiences of those who have been unduly targeted by the system, and Virginia has been over-incarcerating individuals with these conditions for too long. The passage of these bills is an important step toward decriminalizing mental illness and ensuring that those involved in our justice system receive fair trials.”

Delegate Carrie Coyner (R-Chesterfield) a member of the House Courts Committee:

“Individuals deserve the ability to offer evidence of their inability to have the intent to commit a crime, and our system did not provide judge or jury with the ability to take mental illness into consideration until sentencing.  Our jails are not structured to provide treatment and many people end up getting worse while in jail, not better.  I am hopeful we decrease our burdens on our jails while also helping people get the treatment they need.”

Senator Creigh Deeds (D-Bath), sums up the significance of the legislation:

This bill allows a person’s whole story to be told in the guilt phase of a trial. Its passage is one of the more remarkable changes we’ve made to criminal justice. If we are serious when we decry treating those who suffer with a mental illness as criminals, this bill is necessary and logical, and will help us build a more just society.”

We thank the bill sponsors, committee members, and advocates for working so hard to pass this important legislation.

Bruce Cruser, Executive Director

Mental Health America of Virginia

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