Bill requiring consideration of autism, mental illness in criminal justice system passes in Virginia

RICHMOND, Va. (WRIC)- Advocates say a law that bars Virginia courts from fully considering a person’s disability or mental illness is causing defendants with autism to fall through the cracks.

A recently passed bill would require judges to take these conditions into consideration in more stages of the criminal justice system. Some prosecutors fear there could be unintended consequences.

Matthew Rushin, a Black male with autism from Virginia Beach, is expected to be released this spring after originally being sentenced to 50 years in prison. Rushin, 22, was expected to serve a reduced term of 10 years when he was granted a partial pardon by Gov. Ralph Northam.

Rushin was convicted on two counts of malicious wounding and one count of hit-and-run resulting in personal injury in 2019. Prosecutors accused him of intentionally hitting another car head on during an alleged suicide attempt, causing one passenger to suffer severe brain damage.

Lavern Rushin, Matthew’s mother, argued it was an accident. She cited several symptoms of her son’s autism to explain his reaction, including seizures and sensory overload.

“Invisible disabilities are still disabilities. It matters because none of those invisible disabilities that Matthew had were taken into consideration,” she said. “Prison is not a cure for someone that is autistic. This has actually destroyed Matthew.”

The Rushin family is not alone.

Brian Kelmar, a co-founder of Legal Reform for People Intellectually and Developmentally Disabled, said he has heard thousands of similar stories.

“In Virginia, I probably know hundreds and some parents don’t even want to talk about it because they think they’re the only ones this is happening to,” Kelmar said.

Kelmar’s son, Blake, also has autism. He was convicted of a sex-related offense at the age of 19, which has hurt his ability to seek employment and housing. Blake told 8News he wasn’t given a chance to explain how his disability influenced his behavior.

“I think this [bill] will make a difference for people to truly understand someone as a whole,” Blake told 8News. “I think it’s about time we treat people as individuals.”

Kelmar brought his concerns to Sen. Jennifer McClellan (D-Richmond), who introduced a bill addressing the issue. Del. Jeff Bourne (D-Richmond) has a similar proposal in the House.

The legislation requires a judge to consider a defendant’s disability/mental illness at bail and sentencing stages. It adds training for court-appointed attorneys to provide clients with these conditions with a more rigorous defense.

The bill also repeals a state law that currently bans defendants from introducing evidence about their mental health conditions/disabilities, and how it may have impacted their ability to form criminal intent at the time of the alleged offense.

“Virginia does not adequately weigh mental condition-related concerns and explicitly bars consideration of them in the guilt phase of trials,” McClellan said during a Senate Judiciary Committee meeting.

As it stands, lawmakers say these conditions can’t be taken into account until the sentencing phase, unless a defendant pleads ‘not guilty by reason of insanity.’

“The ‘not guilty by reason of insanity’ standard in Virginia is so high,” said Sen. Creigh Deeds (D-Bath). “This creates some middle ground that I think reflects the reality of the people I see in court frequently.”

“Allowing this evidence just at sentencing quite frankly is missing the entire game,” said Sen. Joe Morrissey (D-Richmond). “By that time, the person has been found guilty.”

“This is a huge change in the criminal justice system,” Sen. John Edwards (D-Roanoke) said.

Not everyone is on board with the change.

The bill passed unanimously in the House of Delegates and won bipartisan support in the Senate, though twelve Republicans and one Democrat voted against it.

Lawmakers agreed to narrow the definition of mental illness in the bill but the version that cleared the Senate wasn’t succinct enough for Sen. Ryan McDougle (R-Hanover).

“With mental illness as broadly defined as it is, it’s opening Pandora’s box as we go through this process. We’re going to see some issues,” McDougle said.

The bill also got push back from the Virginia Association of Commonwealth’s Attorneys.

Williamsburg and James City County Commonwealth’s Attorney Nate Green supports several elements of the legislation. However, he opposes making mental-illness-related evidence admissible in court if a defendant isn’t pleading ‘not guilty by reason of insanity.’ Green said could allow people with severe mental health conditions to be released after committing serious crimes.

“This is a bill that doesn’t address mental illness in the criminal justice system, it ignores it. These individuals could be acquitted outright without the ability for the community to be protected by mandating that these individuals get treatment,” Green said.