When Mental Illness Doesn't Matter to Virginia Prosecutors


  • It has long been settled that persons deemed legally insane or incompetent should not be held to account for allegations of criminal conduct. This affects an exceedingly small group of profoundly sick individuals who require treatment, not punishment.

  • Many Virginia prosecutors commonly reject findings of insanity or unrestorable incompetency, even in the face of consensus by mental health experts.

  • Real prosecutorial reform, consistent with the 21 Principles for the 21st Century Prosecutor, demands better: prosecutors should treat mental illness, not criminalize it.

In Virginia, we decided long ago that there are two groups of people so profoundly disabled due to mental illness that they should not be held to account for their crimes: those who are insane and those who are incompetent. In a just society, and a just criminal system, it would seem that these small groups of people who suffer from severe mental illness or severe cognitive limitations should be sent to treatment, not prison—just as the law provides. Unfortunately, many prosecutors, including those in Arlington and Fairfax Counties and the City of Alexandria, mount aggressive challenges whenever experts find defendants insane or incompetent to stand trial, even when they have no evidence whatsoever to rebut the findings of mental health professionals. In doing so, these prosecutors invite questions as to whether they simply don’t accept how the law views this small group of vulnerable individuals, and whether they would rather incarcerate persons with mental illness than see them receive help.

Not Guilty By Reason of Insanity

The first group are people who are found to be not guilty by reason of insanity (NGRI). People who are found NGRI have to be evaluated by one or two medical professionals. A judge or a jury then has to agree that the person did not know the difference between right and wrong or did not understand the consequences of their actions at the time due to their mental illness. People who are found NGRI are committed to a state institution and evaluated at various times by the medical staff there. The staff makes recommendations to a judge and the person is only released after a judge finds him to no longer be dangerous, based on medical advice and after hearing from a defense attorney and prosecutors.


UnrestorablE Incompetence to Stand TriaL

The other circumstance where mental illness precludes punishment is where persons charged with crimes have been found unrestorably incompetent to stand trial. Someone is incompetent to stand trial when they are so profoundly ill that they can’t even understand what’s going on in court: when they don’t know basic information about the court process or cannot assist their attorney in their own defense (such as by being able to listen to and understand legal advice, or rationally discuss the allegations). The person goes through a lengthy process which includes being evaluated by one doctor, then going to state provided treatment, which may include medication. Most people are restored to competency after this stage. Some people, however, due to the severity of their mental illness, severe autism, or a severe intellectual disability, can never be restored to competency. This is a very rare circumstance that only comes about with respect to deeply impaired individuals. A final doctor evaluates the person after treatment and will inform the court if they find that the person is not going to be able to be restored. Many people who are found unrestorably incompetent (“unrestorable”) are referred to proceedings to see if they should be committed to a state hospital.

In either case, a person found NGRI or unrestorably incompetent has to be evaluated to see if they should remain in a state institution before they can be released.

Insane or Unrestorably Incompetent?
Virginia Prosecutors Object—Even Without Evidence

Some cases, such as when two experts disagree whether a person is NGRI or unrestorable to competency, are appropriate for litigation. Prosecutors in Fairfax and Alexandria, however, are known to dispute NGRI findings even when both doctors who were assigned to evaluate the person find that he was insane—“both” meaning the defendant’s expert AND the prosecutor’s own hand-picked psychologist or psychiatrist. Prosecutors in Fairfax and Arlington also challenge findings that a person is unrestorable to competency even when a state-employed mental health professional has found the person unrestorable after long period of exhaustive state-provided psychiatric treatment. It should be noted that Virginia’s forensic psychiatric evaluators and treatment personnel are very well-regarded, so this is not a matter of the Commonwealth’s Attorneys distrusting their judgment—rather, it appears to be a reflection of their philosophical stance that the mentally ill must be punished, just like everyone else, despite not being morally responsible for their acts, or not even understanding the reason for the punishment to which they are subjected.

These hearings lead to a large financial cost as witnesses have to come to court at state expense—often many of them. Prosecutors in these jurisdictions have tried to prosecute people who have IQs under 60, severe autism spectrum disorder, or who have very severe mental illness, such as schizophrenia. In one instance, on the morning of the hearing challenging the finding of unrestorable incompetency, the defendant was in court, still hearing the voices of military personnel coming from the side of his mouth, directing him as to what to do in his court case.

The alternative for these cases was not immediate release, but instead it was for these people to go to treatment. Yet the prosecutors still objected—they wanted punishment, no matter how sympathetic the individual or how compelling the explanation for his or her conduct.

Principle Four: Treat Mental Illness, Don’t Criminalize It

We cite Fairfax and Arlington because they have contested primaries in 2019, but truly, these practices exist throughout courthouses in Virginia. It goes without saying that prosecutors should treat mental illness, not criminalize it. In fact, this is Principle Four of the 21 Principles of the 21st Century Prosecutor—the gold standard for prosecutorial reform [to learn more about prosecutorial reform, Get Informed here]. Voters across Virginia, and especially in Arlington County/Falls Church and Fairfax County, have a choice. They can choose to continue supporting prosecutors who aggressively prosecute people with severe mental illness and intellectual disabilities, or they can choose to elect prosecutors who are committed to sending people facing these difficulties to state monitored treatment.

People with these disabilities need help, not prison. We hope you will consider these issues when you vote in the primaries on June 11.