Virginia law bars evidence of mental illness unless an accused pleads Not Guilty by Reason of Insanity. That’s wrong, and here’s why.
Undoubtedly, there is a fundamental misunderstanding of mental illness in the United States. The stigma attached to those who suffer creates an ongoing barrier to understanding the true nature of mental illness and how it affects human choice and behavior. Nowhere is this stigma more pronounced than when someone is accused of committing a crime in Virginia.
Our society often treats those suffering from mental illness as dangerous and our laws prioritize criminalization over support, treatment, and empathy. As a direct result, our jails operate as de facto mental health hospitals, and those suffering find themselves labeled criminals, all but guaranteeing an endless cycle through the system.
What can we do to help alleviate this stigma? We can delve into the minutiae of our laws to try to understand the fundamental flaws and misplaced assumptions our criminal laws impose. Then we can push for change.
This article seeks to raise awareness of one flawed Virginia rule – the prohibition of evidence of mental illness in criminal cases where the Accused refuses to plead Not Guilty by Reason of Insanity (“NGRI”). This complicated issue does not lend itself to quick sound bites, and we may anticipate resistance in the political arena as a result.
Nevertheless, if you care about change, we urge you to learn more about this issue and to reach out to your state legislature to support change.
A few basic points you need to know about Virginia criminal law
To understand Virginia’s rule, we need to take a step back to understand a few basic points of criminal law:
Under the United States and Virginia Constitutions you must be guilty of every element of a crime to be convicted. The Government bears the burden of proving every element of your crime beyond a reasonable doubt.
An element of every crime is mens rea. Stated simply, for almost every offense, you must have intended to commit the crime for which you were charged to be convicted.[1]
In response to a criminal charge, you can plead various ways: 1) guilty, 2) not guilty, 3) not guilty, but you agree that there are enough facts to convict you (nolo contendre) , and 4) not guilty by reason of insanity or mental defect (NGRI).
Pleading NGRI is an admission that you had the mens rea (or intent) to commit the crime for which you are accused, but that intent was the product of a mental illness. If you are found NGRI, there is a complex post-trial procedure, which could lead you to being held in a mental hospital for a long period of time. In many instances, the consequences of an NGRI are more severe than an actual conviction would have been. And under Virginia law, a NGRI finding is not expungeable, so that finding will forever remain on your record.
If you refuse to plead NGRI, and exercise your right to trial, no evidence whatsoever of mental illness is admissible for any reason, including whether you intended to commit the crime.
The History of the “Stamper Rule” in Virginia
Virginia prohibits the use of mental health evidence in non-insanity cases. To be clear, you will not find this rule in any statute passed by elected officials. Instead, it is found in Virginia Common Law, which is a body of judicial decisions written by judges over decades that form our rules. The seminal case is Stamper v. Commonwealth, 228 Va. 707 (1985).
Written in 1985, Stamper involved an attorney accused of possessing and selling marijuana to a confidential informant. Among other defenses, the Accused sought to introduce evidence that he was a “manic-depressive, in a manic state on the date of the offense.” Therefore, he lacked the mens rea (or intent) required to be convicted. The Stamper Court barred him from presenting evidence of his mental illness, finding that his failure to plead NGRI made such evidence inadmissible.
Like any other written opinion, the Stamper court provided its legal analysis for barring the Accused’s evidence of mental illness. Reading this opinion today, the Court’s reasoning is remarkable. Indeed, the Court explicitly bars juries from considering advancements in mental health science because to learn would be too difficult:
There is, however, a more fundamental reason for the exclusion of [mental illness] evidence. The state of knowledge in the fields of medicine and psychiatry is subject to constant advance and change. The classifications and gradations applied to mental illnesses, disorders, and defects are frequently revised. The courts cannot, and should not, become dependent upon these subtle and shifting gradations for the resolution of each specific case. Instead, the common law, many years ago, fixed a stable and constant standard of mental competence as the criterion for the determination of criminal responsibility.
Stamper, 228 Va at 716. The Court goes on to state:
A person whose mental state falls outside the borderline drawn by that standard is deemed legally insane. All persons inside that borderline are “presumed to be sane, and to possess a sufficient degree of reason to be responsible for [their] crimes. For the purposes of determining criminal responsibility a perpetrator is either legally insane or sane; there is no sliding scale of insanity. The shifting and subtle gradations of mental illness known to psychiatry are useful only in determining whether the borderline of insanity has been crossed. Unless an accused contends that he was beyond that borderline when he acted, his mental state is immaterial to the issue of specific intent.
(Citations Omitted, Stamper, 228 Va. At 710-711).
Stamper is emblematic of the stigma society places on mental illness. Rather than seeking to understand mental illness and how it affects each individual and each case, Stamper created an easily applicable, one-size-fits-all rule. This rule shows an outright disrespect for mentally ill people accused of crimes and prohibits juries from considering the complete facts of cases where mental health evidence is clearly relevant.
Stamper violates an Accused’s Constitutional right to a full throated defense.
In America, in theory, you must be proved guilty beyond a reasonable doubt of every element of a crime to be convicted. Of course, this includes mens rea. Under Stamper, absent an NGRI plea, an Accused is unconstitutionally barred from presenting a full defense when mental illness is otherwise relevant:
The “channeling” of mental-abnormality evidence into legal-insanity claims is no remedy for the inconsistency because the mens rea variant is a claim entirely distinct from legal insanity, even if the evidence used is similar for both claims. In the former case, the defendant claims, “I didn’t do it”; in the latter, the claim is, “I did it, but I’m not responsible.” How can it be fair to permit the prosecution to use abnormality evidence to [prosecute, convict, and punish a defendant] but to prevent the defendant from using credible and probative evidence that he or she did not commit the crime charged in the first place?
University of Pennsylvania Carey Law School, Mental Disorder and Criminal Justice, Stephen J. More (2018).
Determining why someone did what they did (i.e., their intent) is inherently complex. This is especially true when considering intention within the context of mental illness. While barring evidence of mental illness may be the easy thing to do, it doesn’t make it the right thing.
Our Constitution gives everyone charged with a crime the right to fully defend themselves. This should include evidence that when someone committed an alleged crime, they lacked the intent necessary to be guilty because of their mental illness. In other words, they should be allowed to prevent the jury with evidence that demonstrates that they are not guilty.
In practice, Stamper results in more guilty pleas than treatment.
As discussed above, a Virginia NGRI plea leads to complex, often, unpredictable results. If you plead NGRI, you will likely be forced through many mental health and medical evaluations. If found NGRI, you face a potentially lengthy civil commitment, which could exceed any jail sentence you would otherwise receive.
Because of the stigma attached to mental illness, an NGRI finding in many ways is a worse “scar” than an actual criminal conviction upon your record. As a result, there are endless anecdotes from defense counsel who will attest that many mentally ill individuals seek non-NGRI guilty pleas because of the uncertain consequences of an insanity plea.
The least cynical view of our current NGRI framework is that it encourages mental health treatment. In practice, this framework becomes a cost-benefit-analysis that frequently leaves mentally ill people with criminal records rather than care.
One last point to be made is what happens to a person’s criminal record when seeking an NGRI plea. Recently, the Virginia Supreme Court ruled that NGRI findings are not expungeable. For those who are compelled to plead NGRI to admit evidence of their mental illness, their offense remains on their record permanently, regardless of whether they succeed at trial. Indeed, the stigma of their mental illness will scar them for the rest of their lives.
So, what can you do to help push for change?
In this era of criminal justice reform, fortunately, there is hope that we can solve these problems. Currently, there are several bills before our legislature that seek to undo Stamper. One is being carried in the House by Delegate Bourne, HB 2047. A similar bill is being carried in the Senate by Senator Favola, SB 1383. We urge you to read this bill and call your state legislature to voice your support, both for of this bill and any other bill that seeks the same outcome.
The time is now to push for change. Stamper is a stain on our courts, and it’s time to free our judges and juries from its unscientific rule.
[1] For example, imagine someone accused of assault. At trial, they plead not guilty because they were simply defending themselves. Therefore, their intention was not to harm the other person, but to protect themselves from harm. A judge or jury must ultimately decide that person’s intentions.
This article was authored by James Abrenio of Abrenio Law. James is also a past board member for the National Alliance of Mental Illness of Northern Virginia.