Virginia may factor in ID and mental illness - Sentencing

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Virginia lawmakers are advancing legislation that would allow more defendants in criminal cases to present evidence that they suffer from mental illness or intellectual disabilities.

Current state code bars judges and juries from hearing such testimony before the sentencing phase of a trial except in cases in which a defendant pleads not guilty by reason of insanity — a defense that’s difficult to raise in Virginia and, if accepted, can result in indefinite detention in a state mental hospital.

“This is particularly important for people who have autism or who are on the spectrum who often just don’t have an intellectual understanding of what certain behavior is,” said Sen. Jennifer McClellan, D-Richmond, who is carrying the legislation in the Senate. “Under current Virginia law, there’s no way for that to be considered at the guilt or innocence phase.”

The legislation is backed by mental health and disability advocates, who say the law’s current prohibition too often traps people with mental health conditions in the criminal justice system.

So far, it’s winning strong bi-partisan support. The House version, sponsored by Del. Jeff Bourne, D-Richmond, advanced from the chamber’s Courts of Justice Committee unanimously, though Republicans in the Senate have taken a more skeptical view.

Lawmakers in both chambers agreed to narrow the definitions to focus on serious mental illnesses and or disabilities, though debate about how precisely those should be defined continues.

Advocates stressed that the legislation stops short of creating a broad defense of diminished capacity. Instead, they said it would allow defendants accused of crimes that require specific, criminal intent to present evidence that their mental state precluded such thoughts.