That difficult — sometimes terrifying — moment when someone’s psychosis or neurological disorder sparks an act that brings police to the scene has become a focus of attention for the General Assembly.
It is a moment that can often end with a felony charge of assault and battery on a law enforcement officer — a charge that can dog a person for the rest of his or her life and means a mandatory six months behind bars upon conviction.
Sometimes, the consequence has been grimmer.
Irvo Otieno, 28, a mental health patient from Henrico County, died of asphyxiation in March 2023 after Henrico deputies transferred him from jail to Central State Hospital.
His death there, as deputies and hospital staff restrained him, led the General Assembly last year to enact a measure to make sure people in police custody because of a mental health crisis have access to family members, as Otieno did not.
Now, legislators are looking at still other ways to make the moment of crisis safer, including thinking about the felony assault charge.
“It’s just cruel and unusual punishment,” said state Sen. Jennifer Boysko D-Fairfax. “I’ve heard about this from so many people … there are so many times someone with a mental illness will lash out or someone with a neuro-cognitive disorder just can’t cope,” Boysko said. “You can get this charge by throwing an onion ring at an officer.”
It’s a big worry, too, because a conviction on the felony charge, if a judge does not reduce it to a misdemeanor, means an individual cannot get some of the benefits that people with mental illness or a disability often rely upon for care and support, Boysko said She has reintroduced a proposal, Senate Bill 1013, a measure that Gov. Glenn Youngkin vetoed last year, that aims at finding an alternative path.
It’s one of a package of bills and budget proposals — including one from Youngkin — that try to deal with the moment of mental health crisis in a diff erent and more humane way.
Under Boysko’s bill, people with a mental illness, neuro-cognitive disorder, dementia or intellectual or developmental disability, such as autism, could argue against a felony charge of assault and battery — even if the assault itself is undisputed — by making a case that it was the result of the disability.
Affirmative defenses
Lawyers call this an affirmative defense, and it crops up only rarely in Virginia criminal or traffic law.
In 2021, the legislature said individuals accused of prostitution could raise an affirmative defense that they were victims of sexual trafficking and were coerced into the off ense.
In 2012, the legislature said proof of a concealed weapons permit was an affirmative defense against a charge of carrying a concealed weapon.
A 2003 law said parents had an affirmative defense against a charge of abandoning a baby if they could show they left the infant at a hospital or emergency services agency in order to assure the baby’s safety.
In 1999, the General Assembly said drivers who did not obey a police officer’s signal had an affirmative defense if they could show they believed they were pursued by someone other than a law enforcement officer.
‘Not a free pass’
“It’s not a free pass,” Boysko said. Anyone raising the defense would have to prove that their acts were the result of their mental illness or disability “by a preponderance of the evidence,” a caveat that is not detailed in the other sections of the criminal code that allow affirmative defenses.
Del. Vivian Watts, D-Fairfax, who introduced the affirmative defense idea in the 2024 session, said she thinks the moment of mental health crisis is drawing more and more attention in the General Assembly.
“There are just too many people with mental illness ending up in jail or prison,” she said.
She has introduced House Bill 1712 that says it’s not necessary to arrest a person subject to an emergency custody order, a temporary detention order or involuntary admission to a hospital. These are the court or magistrate orders that say individuals who are at substantial risk of hurting themselves or others, or who are so delusional that they cannot keep themselves safe, can be held against their will.
The idea is to let a mental health expert assess the person’s state and, if necessary, to commit them to treatment, generally but not always in a hospital. An emergency order is usually what brings a person into an emergency room. A detention order allows a person to be held for up to 72 hours for an assessment, treatment and a hearing by a special magistrate to decide if the individual needs to be committed to a hospital for up to 30 days, though those hospital commitments can be extended.
Watts’ bill would also require the state Department of Criminal Justice to write regulations on arresting and prosecuting people with mental or behavioral health disorders and would mandate training on this for law enforcement officers.
Commissioner of Behavioral Health Nelson Smith wants to take the pressure off people in the moments that follow after a police officer or deputy brings them to an emergency room.
That is an aim of his push for a program that allows Special Conservators of the Peace to take over from police or deputies once a person reaches a hospital.
Police and deputies spend an average of 59 hours waiting in an E.R. with individuals under a detention order until a state hospital bed becomes available. They can wait 28 hours for a private bed to come free.
“You’re there with someone in uniform, body armor, a gun — you can imagine that could set someone off,” Smith said.
Smith thinks specially trained peace conservators — they would get some 40 hours of mental health training — will be able to ease people in distress through the often upsetting first steps on a path to getting the care they need.
Youngkin’s proposed amendments to the current two-year budget call for $35 million to launch this effort.
“We love, love, love this idea,” said Dana Schrad, executive director of the Virginia Association of Chiefs of Police.
She said police chiefs are eager to find ways to ease the tension and pressure of interactions with people in distress.
“We do a lot of training,” she said. “But you know, walking up, you can’t always tell if some is, say autistic, and you can’t always know if behavior is because of a mental illness.”
Police need the ability to arrest and charge people, while courts already have the ability to consider an individual’s disability as a factor when considering what to do, she said. She added that the chiefs do not think the affirmative defense language is needed.
“This is what courts do now,” she said.
Last year, Youngkin vetoed the affirmative defense bill, saying it “significantly reduces the protections afforded to law enforcement,” and erodes prosecutors’ discretion in deciding what do with assault cases, adding that it “sends the wrong message at precisely the wrong time.”
Watts is proposing another measure to clear pathways for people with mental illness when charged with felonies. House Bill 1713 would allow general district courts, where defendants come for their first appearance to face charges, but which can only make final decisions on misdemeanors, to assign cases of people charged with felonies to one of Virginia’s handful of behavioral health dockets.
These dockets put criminal charges on hold while a judge orders and monitors what is often more than a year of mental health treatment. If individuals comply, they can stay out of jail and often find a new kind of mental stability; if they don’t, that can mean jail and conviction. While Richmond has both district court and circuit court behavioral health dockets, most of the localities offering the docket limit it to people charged with misdemeanors.
For mental health advocates, all of the initiatives offer hope that has often been hard to find.
“They all support moving individuals with a serious mental illness to appropriate treatment as soon as possible,” said Bruce Cruser, executive director of Mental Health Virginia.
“Diverting them away from the criminal justice system or from going deeper into that system deescalates crisis-related behavior (and) reduces further illness and the risk of injury,” he said.
Dave Ress (804) 649-6948 dress@timesdispatch.com