In The Politics of Autism, I write:
But what is equal treatment? This question raises the “dilemma of difference,” as legal scholar Martha Minow explains. “When does treating people differently emphasize their differences and stigmatize or hinder them on that basis? And when does treating people the same become insensitive to their difference and likely to stigmatize or hinder them on that basis?”[i]
[i] Martha Minow, Making All the Difference (Ithaca: Cornell University Press, 1990), 20.
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.
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.