In Virginia, people suffering mental health crises too often become felons when police intervene

The law must distinguish deliberate, malicious acts from involuntary ones arising from disabilities. The former must be punished; the latter must be treated.

February 9, 2023 12:05 am

(Stock photo via Getty Images)

Life has never been easy for Johnny, but each May and June are an ordeal. It was in June two years ago when Johnny spiraled into a mental health crisis, this one requiring police intervention.

Violence isn’t Johnny’s nature in spite of abuse he allegedly suffered at the hands of his birth parents before he was removed from them at age 8 and put into foster care. Though there was every expectation that he would be hardened, bitter and mean, he’s a sweet, gentle and self-deprecating young man of 20 with a childlike view of the world, say Kim and Jim Spencer, who adopted Johnny at age 11.

So much hardship, however, isn’t without a sometimes painful legacy.

“Every year since we first met him, we knew that he had ups and downs. We knew that he had a mental illness and he’s been given a million different diagnoses. It’s been really difficult to get people to understand how his mind works. You can look at the brain of someone who has been through trauma and their brain has changed,” Kim said.

She would know. Kim is a career mental health professional and co-owner of a Richmond-based firm that provides community-based support services for adults with intellectual and developmental disabilities.

On that night in late June of 2021, the dark forces that torment Johnny near the start of each summer were exacerbated by a home renovation project that disturbed his sense of a familiar “safe space” and he went into a full-blown crisis, Kim and Jim said.  

Unable to calm him and or find a mental health crisis intervention number, Kim did the only thing left to her: she called the Hanover County 911 emergency response number. Johnny had knocked the phone from her hand and crushed it, she said. In the melee, Jim suffered a cut above his eye that required two stitches to close.

When police arrived, Jim said, “It looked like a SWAT squad. We have a long driveway and there were five or six of them running up the driveway,” he said. “The head officer stopped and talked to us a minute and Kim kept telling them our son was having a mental health crisis and that they needed to approach carefully, [to] try to calm him down.”

In her own work with people with mental health issues, Kim learned the perils of not approaching individuals in crisis the correct way.

“I’ve gotten my glasses knocked off my head, I’ve been punched, I’ve been kicked because, I now know, I approached that person in a way I shouldn’t,” she said.

What the Spencers described was a takedown. Officers tried to talk to Johnny whose words were incoherent. They surrounded him. Then they rushed him and tackled him.

“That didn’t go well at all,” Jim said.

From the ensuing struggle, Johnny was charged with several counts of assaulting the officers, charges that have yet to be adjudicated at trial.

Johnny has no memory of the incident. And that’s common for people in the grips of a psychotic episode they didn’t cause and couldn’t control. That encounter and a revocation of his bond because he was found in possession of a knife resulted in Johnny spending most of his time since then either in custody or in Central State Hospital.

That’s just one incident – one family known to this writer – yet it presents two distinct public policy issues to unpack. 

First, there’s Virginia’s longstanding failure to adequately address mental health needs. Historically, the state’s infrastructure for dealing with residents with intellectual disabilities has been shamefully underfunded and its institutions understaffed.

 This manifests in sad but quiet ways such as the increasing number of homeless people, especially in Virginia’s urban centers. Encounters such as Johnny’s leave individuals and their families scarred for years, but it largely escapes society’s notice.

Occasionally, however, it bursts forth in horrifying headlines: a delusional, angry student whose violent fantasies presaged the massacre of 32 people one April morning in 2007 at Virginia Tech; a state senator who was nearly killed in a knife attack by his son who was in the grips of a suicidal mental health crisis in 2014; a biology teacher who had removed his clothes in a crisis moment was shot dead as he charged toward police officers along a busy Richmond freeway in 2018.

Each of those heartbreaking, news-making instances resulted in changes to Virginia law. Rarely do encounters such as Johnny’s.

Second, we place an enormous burden on police officers who encounter mentally ill people at risk to themselves or others. Officers enter their dangerous and low-paid profession to enforce the law and keep the peace in an increasingly lawless and violent world. They’re not mental health counselors and they often respond to standoffs with the mentally ill the only way they know how – much as they would a cornered criminal.

Virginia’s General Assembly made efforts to help police deal with people having mental health emergencies after the encounter that left the teacher, Marcus David Peters, dead. Del. Jeff Bourne, D-Richmond, in whose district the tragedy occurred, won passage in 2020 of a law named for Peters. It provides for a mental health response to behavioral health emergencies like Peters’s – and Johnny’s.

Three years later, according to the Department of Criminal Justice Services and the Department of Behavioral Health and Developmental Services, the Marcus Alert System is operational in five regions: Virginia Beach, Richmond, Bristol and surrounding Washington County, Prince William County and in the region including Madison and Fauquier counties and the cities of Warrenton and Culpeper. Broader deployment was blocked with subsequent legislation that exempted localities of fewer than 40,000 residents.

This year, Bourne introduced a bill to “de-felonize” violence that police sometimes encounter from people having mental health crises. His legislation never got a committee hearing in the Republican-controlled House. Similar bills have also perished before legislative committees controlled by both parties.

Presently, anyone convicted of attacking a police officer in Virginia is guilty of a Class Six felony, punishable by up to six months in jail. It doesn’t matter the circumstances, whether perpetrators are aware of or in control of their actions, or even whether the officer was injured.

That’s where legislating gets tricky. Understandably, no lawmaker is eager to cast a vote that would essentially make it open season on officers by people who could later try to escape accountability by claiming mental incapacity.

But Bourne’s bill had safeguards against such loopholes. The legislation would have required validating a genuine mental health crisis claim to set aside a felony charge, including medical evidence and expert testimony under oath in court. Now past Tuesday’s deadline for House bills to win House passage and with no comparable Senate legislation, the measure is effectively done for this year.

That’s brutal for people like Johnny. The bad hand life and disability dealt him long ago becomes immeasurably tougher if he must also bear a felony conviction over a regrettable act outside his conscious control, that he can’t even remember, and that caused no significant or lasting injury or damage.

The law must distinguish deliberate, malicious acts from involuntary ones arising from disabilities. The former must be punished; the latter must be treated. That happens only if a compassionate Virginia demands it.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Bob Lewis
Bob Lewis

Bob Lewis covered Virginia government and politics for 20 years for The Associated Press. Now retired from a public relations career at McGuireWoods, he is a columnist for the Virginia Mercury. He can be reached at [email protected]. Follow on Mastodon: @[email protected]