11 October 2022

How to Screw Up a Statute: Va. 19.2-271.6

Every so often a law comes along that is so poorly written that it can't even be laughed off. Still, you know what they call a mistake made by a legislature? They call it a law. Va. Code sec. 19.2-271.6 is a law allowing evidence of mental defect not rising to insanity to be used at trial.  Here is the meat of the statute:

B. In any criminal case, evidence offered by the defendant concerning the defendant's mental condition at the time of the alleged offense, including expert testimony, is relevant, is not evidence concerning an ultimate issue of fact, and shall be admitted if such evidence (i) tends to show the defendant did not have the intent required for the offense charged and (ii) is otherwise admissible pursuant to the general rules of evidence. For purposes of this section, to establish the underlying mental condition the defendant must show that his condition existed at the time of the offense and that the condition satisfies the diagnostic criteria for (i) a mental illness, (ii) a developmental disability or intellectual disability, or (iii) autism spectrum disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association.

On its face, the statute appears to be self-contradictory. It both states that the mental evidence offered is not evidence concerning an ultimate issue of fact and that it must tend to show the defendant didn't intend to do the crime. Intent, of course, is an element of most crimes. About the only way you can logically resolve the conflicting language is to limit the introduction of this evidence to the sentencing phase of a trial (or assume the General Assembly was trying to encourage illegal jury nullification). 

If it is part of the sentencing hearing then the lessened intent makes sense even if it did not address an ultimate issue of fact. For example, although an 8 year old may know the difference between right and wrong we do not hold her to the same level of culpability as we do a 27 year old. She intended her act, but her lack of maturity means that we take into consideration a lack of understanding of consequence attached to the intent. The same analysis can be done for those claiming a mental defect and can be a consideration during sentencing.

How did we get here?

Well, as best I can suss out by reading the language, this statute appears to be a Frankenstienish mashing of a Guilty But Mentally Ill (GBMI) statute with the Kansas' Not Guilty By Reason of Insanity (NGRI) law.

Guilty But Mentally Ill statutes exist in at least 12 States and were created as a reaction to John Hinckley being found NGRI after he shot President Reagan because he was obssessed with Taxi Driver and Jodie Foster. They vary widely in wording but generally follow a theme as follows:

1. GBMI is a lesser included of NGRI pled at the same time.

2. The jury is given the option of Not Guilty, NGRI, GBMI, and Guilty.

3.  If the defendant is found GBMI she receives a normal sentence except mental treatment is ordered during the incarceration.

Notably, under subsection F of the Virginia statute the General Assembly disassociated it from the Virginia NGRI statute. Additonally, it neither offered GBMI as a possible verdict nor set any conditions for such a sentencing. All it did was take the kind of evidence relevant to a GMBI finding and state it was relevant without stating what it was to be used for.

And then it threw in the Kansas standard for NGRI. I'm not an expert on Kansas law, but after Kahler v. Kansas was decided my notes stated:

Kahler v. Kansas, MAR20, USSC no. 18-6135: (1) A State does not have to use the ability to know the difference between right and wrong in an action [the crime] as its insanity standard. (2) Kansas’ standard of whether the defendant was capable of forming the intent needed for the crime is constitutional.

 For those of you who want to discuss this using erudite terminology, discussion of this sometimes describes it as the mens rea approach to insanity (as apposed to the moral capacity approach to insanity which we usually shortcut as the M'Naghten test). In any event, for some reason someone thought that including a mens rea approach to the introduction of mental defect would be a good idea without including instructions as to how to use it.

Remedy: 

(1) Currently, the only way this statute makes sense is as a sentencing statute requiring mental defect evidence to be introduced as it could have affected intent.

(2) Split the statute.

(a) Create a mens rea insanity statute:

19.2-169.5.01 - A person whose mental state is such that he is unable to form the intent to do the criminal act he is accused of shall be found not guilty by reason of insanity and have his case disposed of in the manner set forth in chapter 11.1 of this title.

(b) Change 19.2271.6 into a GBMI statute:

B. In any criminal case where the defendant has asserted he is not guilty by reason of insanity, evidence offered by the defendant concerning the defendant's mental condition at the time of the alleged offense, including expert testimony, is relevant even should it fall short of admissibility for an assertion of insanity, and shall be admitted if such evidence (i) tends to show the defendant had a mental condition which affected his choice to perform the criminal act and (ii) is otherwise admissible pursuant to the general rules of evidence. For purposes of this section, to establish the underlying mental condition the defendant must show that his condition existed at the time of the offense through expert testimony.

All evidence under this statute shall be subject to and disclosed as part of the the defendant's notice requirements for a claim of insanity at time of the offense.

 . . . 

H.  If a defendant is found guilty but mentally ill he shall be sentenced in accord with the sentencing limitations imposed by statute after due consideration of the discretionary sentencing guidelines. While he is incarcerated the defendant shall receive mental counseling and care until such time as an order from the sentencing court removes this requirement based upon medical testimony.

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Next time, I'll include my motion invoving the statute as it is currently written.

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