W. Lawrence Fitch, a professor at the University of Maryland Law School and a reporter for the Criminal Justice Standards Project on mental health issues in criminal cases, urged the Criminal Law Subcommittee of the Virginia House Courts of Justice Committee last month to approve H.B. 1522, legislation to close a gap in how the law handles mental illness and the death penalty. The bill would define severe mental illness and provide that a defendant in a capital case who had a severe mental illness at the time of the offense is not eligible for the death penalty. The measure also would establish procedures for determining whether a defendant had a severe mental illness at the time of the offense and provides for the appointment of expert evaluators. In his Jan. 30 statement submitted to the subcommittee, Fitch explained that competency to stand trial has to do with whether a defendant can go to trial in the first place, and the insanity defense has to do with whether a defendant can be found guilty at all. Neither, however, addresses what penalty a mentally ill defendant should receive once convicted. Noting that H.B. 1522 would fill that gap, he said, “We believe it is important to have the ultimate punishment off the table, but allow life without the possibility of parole, for those defendants who are deemed competent to stand trial and do not satisfy the very narrow insanity defense standards, but whose behavior was severely impacted by their mental illness when they committed their crime.” He also cited several issues surrounding cases where mentally ill defendants face serious charges: jurors often think that mental illness should mean an increase in the defendant’s punishment; mentally ill individuals are more likely to be wrongly accused; mentally ill defendants may not be able to make informed choices in waiving certain rights; and a trial may agitate a mentally ill defendant and affect jurors’ perception of the individual’s level of dangerousness. “Resolving these issues fairly is a complex and evolving challenge for both the mental health and legal professions,” he noted. “Because the issues are, as yet, unresolved, and because so much hangs in the balance in capital cases, we believe an exemption from the death penalty must be established with severe mental illnesses.” Fitch emphasized that while the ABA does not have a policy that either supports or opposes the death penalty generally, the association adopted policy in 2003 opposing capital punishment for severely mentally ill defendants.