Ettinger: McClellan’s Criminal Reform Bill a ‘Good Step Forward’

By Eve Ettinger

March 2, 2021

Bill from Sen. McClellan requires courts to allow evidence concerning a defendant’s mental condition at the time of the offense.

The General Assembly focused on mental health last week, changing how pre-existing conditions are considered during criminal proceedings. The proposal –initially introduced by gubernatorial candidate and state senator Jennifer McClellan–will have significant ramifications for the future of restorative justice measures once Gov. Northam signs it into law. 

The bill does three things. It ends a 1980s law banning defendants from introducing evidence about their mental illness, autism or intellectual/developmental disability. Previously in Virginia, a defense team couldn’t argue over how a mental illness may have impacted their client’s mental state at the time of the alleged offense.

Also, it requires a judge to consider those conditions at both bail and sentencing hearings. Third, it sets up training for court-appointed lawyers to help them understand the unique considerations of representing people with such conditions.

The Case of Matthew Rushin

Matthew Rushin, a young man from Virginia Beach, is one current case that could have benefited from this soon-to-be law. His autism made him vulnerable to an extreme panic reaction after a small parking lot fender bender. He ended up hitting two other cars head on, injuring four people and Rushin himself.

His condition of echolalia, which causes someone to mimic sounds and words said to them, meant that when someone yelled at him on the scene of the accident that he could have killed someone, he spiraled. Witness accounts are conflicted, but officers understood him to be talking about how he should be dead or wanted to kill himself, and interpreted the situation as attempted murder and a failed suicide attempt.

His trial was hampered by the defense’s inability to introduce his autism and developmental disability into evidence, and he was sentenced to 50 years in prison. 

Luckily for Rushin, the current governor of Virginia is empathetic, and extended to him a conditional pardon–he’ll be out later this month, but is currently recovering from COVID-19 in the facility where he’s being held. His mom, Lavern Rushin, celebrated the passage of this new bill on her Facebook page, thanking Sen. McClellan for championing this issue on behalf of her son and others like him.

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Not an Uncommon Situation

Cases like this are not particularly uncommon–but mental health as a factor in criminal prosecutions is an element that has previously not been permitted as part of the evidence submitted for consideration. Rates of mental illness present among those incarcerated are incredibly high–some 24% of inmates reported a major depressive disorder to the Bureau of Justice Statistics (I’m surprised that number is that low, honestly), and 14% met the threshold for “serious psychological distress.” 

One of the issues that comes up often in the mental health community is the conflation of mental illness with violence in the popular imagination. People in my community will say things like “I have OCD/schizophrenia/depression and never [shot up a church or a school or hit my partner]”–and this is correct. Mental illness does not excuse violent behavior.

But mental illness can make certain populations much more vulnerable to the whims of our carceral justice system in moments of crisis, and having this new law in place will offer some modicum of protection against that possible future. Rather than increasing stigma and suggesting that violence is tied to mental health, having this new defense available will allow those who are most vulnerable to being misunderstood to have the assurance of some basic rights in criminal proceedings. 

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The Case of William Morva

William Morva could also have benefited from a law like this. He was the last man to be executed by the Commonwealth, back in 2017. Morva’s execution was protested widely by local advocates and even the relatives of his victims, to no avail. Morva’s mental state was well-documented during his incarceration as a subset of schizophrenia, delusional disorder, and his mental wellness had been in significant decline before the incidents leading up to his arrest. 

As for the charge? Morva was on trial for murdering hospital security guard Derrick McFarland and Montgomery County Deputy Sheriff Corporal Eric Sutphin.

However, the jury was not informed of Morva’s mental illness or history of delusions during the trial at all–something that would have been quite different had this new law been in place during his initial 2008 sentencing. This seeming miscarriage of justice caused local outcry and a series of appeals began, but were eventually fruitless.

While this new law will do little at present to help those already unjustly incarcerated who are suffering mental illnesses relevant to their convictions, it’s a good, solid step forward toward improving the future of justice in Virginia. 

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