Giving Defendants The Right To Disclose Their Mental Illness In Court: Radical Change In Virginia

(3-8-21) Virginia legislators recently passed legislation that will allow defendants to introduce evidence about their mental state at the time of an alleged crime. One of the key advocates who pushed for passage was Anna Mendez,  president of Mental Health America in Virginia and the organization, Partner in Mental Health.   Does your state allow defendants to disclose a mental illness during a trial?

Increasing  Access to Justice for People with Mental Illness – The Most Significant Change to Virginia Criminal Procedure in Recent History

By Anna Mendez

On Saturday, February 27, 2021, the General Assembly passed legislation (see bill below) that will allow 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.

This legislation also requires judges to consider mental illness, intellectual disability, and developmental disability during bail and sentencing and requires training for court-appointed lawyers to help them understand the unique responsibility of representing defendants with such conditions. It nullifies a Virginia Supreme Court ruling from 1985 that banned the introduction of such evidence during a trial.

The harm caused by 1985 court ruling is incalculable. For 36 years, the accused were denied a necessary tool to defend themselves.

Inequity in Virginia’s System

Virginians with mental illness are significantly over-represented in our local jails and state prisons, and Black and Brown Virginians remain more likely to be incarcerated due to their mental illness than they are to receive clinical care to address their mental illness. As a direct-service and advocacy organization serving individuals with mental illness in the greater Charlottesville area, Partner for Mental Health believes that decriminalizing the experience of mental illness is an essential component of comprehensive criminal justice reform.  We were thrilled to work with state Senator Jennifer McClellan (D-Richmond) and Delegate Jeff Bourne (D-Richmond) in passing this new legislation now heading to the governor’s desk for signing.

The law is designed to make our system more equitable.

Wealthy defendants, who are almost exclusively white, have been able to have their mental illness considered pre-trial thanks to the aggressive representation of their privately retained attorneys who could secure favorable plea deals. Black and Brown defendants with mental illness have been far less likely because they often have to rely on the overworked and under-supported public defenders and not offered favorable plea deals. Our new legislation not only works to help decriminalize mental illness, it also works to advance racial justice.

“Individuals with mental illness, autism, and intellectual and developmental disabilities are some of the most vulnerable in our criminal justice system,” Sen. McClellan said. “[This legislation] will modernize our criminal justice process to more fairly address Virginians with these conditions. I applaud the advocates who worked with us to pass this transformative criminal justice reform measure that had such strong bipartisan support from Virginia voters. This is a giant leap forward in decriminalizing mental health conditions.”

Opposition In State Capitol Revealed Prejudices Toward Those With Mental Illnesses

Despite broad voter support, Senator McClellan and Delegate Bourne faced loud calls from some of their colleagues in the General Assembly to not allow individuals with mental illnesses to introduce evidence about their mental status at the time of an offense. They supported allowing those with intellectual or developmental disabilities the right, but not Virginians with mental illnesses.

Opponents claimed letting defendants introduce evidence about their mental illnesses could lead to them being acquitted and having a negative impact on public safety.

This showed me that many of our elected officials didn’t understand our state’s involuntary commitment laws.  I spent hours explaining that an individual with a mental illness who was acquitted because of our legislation, still would be subject to the civil involuntary commitment process, just as he was prior to criminal trial. I explained that most individuals with mental illnesses are not dangerous and if someone is, that individual could be temporarily detained/committed and would not simply be released to the streets.

Treatment Vs. Jails

Criminal justice reform must include the decriminalization of mental illness, and permitting introduction of evidence pertaining to a defendant’s mental state during the fact finding portion of trial is an important step toward building a more just system of criminal adjudication.

My organization and I are so grateful for work Senator McClellan and Delegate Bourne did to make sure Virginians with mental illness have an option to introduce important information about their illnesses when it is germane to their defense.

“The criminalization of people with mental illnesses is a main contributor to the increase in mass incarceration in Virginia and our country,” Delegate Jeff Bourne said, after the bill he co-authored, passed. “As with incarceration generally, Black and brown people are disproportionately affected. Seeing this play out in my district and in the communities I represent is why I fought so hard to keep the mental illness portion in this bill. In too many cases, people are confronted by police and then put into prisons when they would be better served receiving mental health treatment outside of the justice system. With the passage of this bill, people will be able to tell their full stories in the courtroom and juries will be able to fully assess the case with all the facts in place. Not only does this lead to fairer trials, but it is an important step toward decriminalizing mental illness in Virginia. I am extremely grateful for all of our partners and advocates who helped us tremendously along the way, including Partner for Mental Health, who worked tirelessly to get this legislation passed and brought their expertise to us in the General Assembly.”

Though both the House and Senate, it was a Democrat majority that pushed for passage, but decriminalization of mental illness should be a non-partisan issue. 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. The Data For Progress poll shows that the support for the policy remains strong across party lines – with more than 60% of Democrats, Republicans and Independents each supporting McClellan and Bourne’s reform bills. Delegate Carrie Coyner (R-Chesterfield) was one of the first Republican Delegates to publicly support this legislation.

“More and more individuals are coming into the criminal justice system suffering from mental illness, and we had an opportunity to keep people out of the criminal justice system and receive the help needed to combat mental illness,” Delegate Coyner said.  “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), the General Assembly’s champion of mental health reform, summarizes the importance of this legislation best by saying, “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.”

COPY OF Virginia Bill: HB2047SB1315 as passed

About the author:

Anna Mendez is the Executive Director of Partner for Mental Health in Charlottesville, Virginia and the Board Presidents of Mental Health America of Virginia.  She is a Fellow-in-Residence at the University of Virginia Equity Center where her research focuses on the decriminalization of mental illness. She serves on the Board of the Charlottesville-Albemarle Therapeutic Docket, a jail diversion program for defendants with mental illness and was recently appointed to Virginia’s Marcus Alert Implementation Team, a group of first responders and mental health professionals charged with developing a statewide non-police response system for 911 calls related to behavioral health crises. She chairs the Mental Health America of Virginia Public Policy Committee and frequently serves as a consultant to state agencies on issues related to improving Virginia’s mental health service system. She lives in rural eastern Albemarle County with her husband and their six year old daughter and believes that Virginians deserve an anti-racist mental health service system that is easily accessible and provides the full continuum of evidence based and person centered care. She can be reached at:




About the author:

Pete Earley is the bestselling author of such books as The Hot House and Crazy. When he is not spending time with his family, he tours the globe advocating for mental health reform.

Learn more about Pete.