By a vote of 23 – 17, the Virginia State Senate has approved a bill that, if enact­ed, would ban cap­i­tal pun­ish­ment for defen­dants with severe men­tal ill­ness. With the sup­port of all nine­teen Democratic sen­a­tors and four Republicans, the bill passed the GOP-con­trolled Senate on January 17, 2019. It now moves on to the Commonwealth’s House of Delegates, which is com­prised of 51 Republicans and 49 Democrats. 

SB 1137 defines severe men­tal ill­ness as ​“active psy­chot­ic symp­toms that sub­stan­tial­ly impair a person’s capac­i­ty to (i) appre­ci­ate the nature, con­se­quences, or wrong­ful­ness of the person’s con­duct; (ii) exer­cise ratio­nal judg­ment in rela­tion to the person’s con­duct; or (iii) con­form the person’s con­duct to the require­ments of the law.”However, the bill excludes dis­or­ders that are ​“man­i­fest­ed pri­mar­i­ly by repeat­ed crim­i­nal con­duct or attrib­ut­able to the acute effects of vol­un­tary use of alco­hol or any drug.”Under the pro­pos­al, the deter­mi­na­tion of severe men­tal ill­ness would be made in the sen­tenc­ing phase of tri­al, after the defen­dant already has been con­vict­ed. The jury (or the judge, if the defen­dant waives the right to a jury tri­al) would decide if the defen­dant has proven ​“by a pre­pon­der­ance of the evi­dence” that he or she was severe­ly men­tal­ly ill at the time of the offense. A defen­dant found to be severe­ly men­tal­ly ill would be sen­tenced to life with­out parole. The bill also pro­vides for indi­gent defen­dants with men­tal ill­ness claims to receive assis­tance from a men­tal health expert appoint­ed by the court. 

The bill’s spon­sor, Sen. Barbara Favola (D – Arlington), called the pro­pos­al ​“a vehi­cle for us to admin­is­ter jus­tice in a way that’s humane and, I would say, in a way that reflects the val­ues of Virginians.” Sen. Scott Surovell (D – Fairfax), said the men­tal ill­ness exemp­tion would have lim­it­ed impact in Virginia because of the decline in death sen­tences across the state, but was a nec­es­sary men­tal-health reform. ​“The real­i­ty is we have a bro­ken men­tal health sys­tem in this coun­try,” he said. ​“We have a bro­ken men­tal health sys­tem in this state. We don’t give it enough mon­ey.” Senate Minority Leader Richard Saslaw (D – Fairfax), who called him­self ​“a pret­ty strong pro­po­nent of cap­i­tal pun­ish­ment,” sup­port­ed the bill, say­ing that, when it comes to defen­dants who are severe­ly men­tal­ly ill, ​“prob­a­bly we ought to think twice.”

Virginia is sec­ond only to Texas in the num­ber of exe­cu­tions car­ried out since 1976, but it has had a sharp decline in the use of the death penal­ty in recent years. No one has been sen­tenced to death in Virginia since 2011, and just two men remain on the state’s death row. In July 2017, lawyers for William Morva, a seri­ous­ly men­tal­ly ill death-row pris­on­er suf­fer­ing from a delu­sion­al dis­or­der that his lawyers said left him unable to dis­tin­guish his delu­sions from real­i­ty, unsuc­cess­ful­ly sought a com­mu­ta­tion from Governor Terry McAuliffe. Previously, Governors James Gilmore and Timothy Kaine com­mut­ed the death sen­tences of Calvin Swann and Percy Walton, cit­ing con­cerns about seri­ous men­tal ill­ness. Other states are also con­sid­er­ing leg­is­la­tion that would ban the death penal­ty for seri­ous­ly men­tal­ly ill defen­dants. In 2017, bills were intro­duced in sev­en states, includ­ing Virginia, call­ing for such mea­sures. The American Bar Association in 2016 issued a white paper in sup­port of a mental-illness exemption.

(Laura Vozzella, Bill to ban death penal­ty for severe­ly men­tal­ly ill clears GOP-con­trolled Va. Senate, The Washington Post, January 17, 2019; Patrick Wilson, Va. Senate pass­es bill to bar death penal­ty for seri­ous­ly men­tal­ly ill, Richmond Times-Dispatch, January 17, 2019.) See Recent Legislative Activity and Mental Illness.

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