Mental Illness and the Death Penalty

Should someone be subject to the death penalty if they were seriously mentally ill at the time of their crime?  The question was before the Virginia General Assembly again this year.  It is enormously complex, legally and morally.

The US Supreme Court has given us some guidance, but no clarity.  In Atkins v Virginia (536 U.S. 304), the Supreme Court ruled that the state can not execute a person with an intellectual disability, and in 2009 the Court directed that a state can not execute someone who is mentally ill at the time of the execution (Panetti v. Quarterman,127 S. Ct. 2842 (2007). 

The issue being considered by the legislature is different, however.  It sometimes happens that, with some mental health treatment in a prison, a person with a mental illness may recover enough that he is no longer mentally ill at the time of a scheduled execution.  In other words, the state might be able to treat someone enough to be able to execute him. The question becomes, should they?

The Virginia General Assembly had two bills before it this year to eliminate the death penalty for someone who is seriously mentally ill.  Delegate Leftwich brought HB 1522 and Senator Favola brought SB 1348.  Both bills were defeated in committee.  But advocates for people with mental illness vowed to fight on, in the hopes that one day Virginia will stop executing people who were mentally ill when they committed the crime.


The Rights of Blind Parents

This week at the Virginia General Assembly, a House subcommittee considered a bill that would protect the rights of blind parents.  Witnesses testified about the fear that new parents who are blind face, when social workers or hospital staff make assumptions about their ability to be parents if they are blind.   Advocates asked for specific language in the law, making it clear that someone could not lose their constitutional parental rights simply because they are blind.

The advocates who had been working on the proposal had not heard of  any opposition to the bill, but lawyers from a Family Law coalition objected to the creation of special protections for blind parents, and the House subcommittee killed the bill.

During the debate, one of the committee members asked whether this is not already addressed by the Americans with Disabilities Act.  The lawyers opposing the bill felt that it was.  The ADA, now more than 20 years old, does prohibit state and local governments from discriminating on the basis of disability, so in theory, it ought to already restrict a court or a social service agency from acting solely on the basis of a parent’s disability.

And yet, it happens.  A few years ago, blind parents in another state lost custody of their own child simply because the blind mother was having difficulty breast-feeding the infant.  Here in Virginia not so long ago, a friend of mine feared the same outcome when ill-informed hospital staff quizzed the new mother about her resources.  She was well prepared for the scrutiny, however, and ended up teaching the hospital staff about adaptive techniques and resources  used by blind parents.

It may be that blind parents need to use child-rearing techniques that differ from those used by  sighted parents.  Or it may be that sighted parents could learn from some of the techniques used by blind parents!  Couldn’t “jingle shoes” help a busy parent keep track of a child’s activities, whether the parent is blind or not?  You can read about other resources used by blind parents in a publication created by the National Federation for the Blind, called Parenting without Sight:

We know that parenting  is hard enough, without the extra burden of discrimination by well meaning state agencies.  We hope that a solution can be found in the future.



Minimum time in custody

Currently, when a person is experiencing a mental health crisis and is taken into “emergency custody,” that person may be determined to be in need of some further care in order to avoid harm.  In Virginia’s crisis mental health process, the person is evaluated by a mental health professional and a special justice may then place the individual in “temporary” custody, for a maximum of 72 hours.  During that 72 hours period, treating professionals try to determine whether the person is immediately dangerous.  If so, within those 72 hours, the treating hospital can seek an additional order from the court, this one for involuntary  commitment, if the person is not willing to get treatment voluntarily.

That’s the process, very broadly, in Virginia.  The Virginia Legislature is considering  proposals to adjust  aspects of that process.  Some, like HB 1975, seek to establish a minimum amount of time that a person can be held, in addition to a maximum amount of time.  HB 1975 says that a person held on a temporary detention order must be held for a minimum of 23 hours.

It is a complex issue that the General Assembly considers almost every year.  The thinking is that often, someone in crisis needs a short period of stabilization — some opportunity to be away from a stressful situation, perhaps, or to get some medication.  Proponents of the bill believe that, with a period of stabilization, no further hospitalization will be needed.  But, they note, sometimes a hospital may rush someone to a hearing, because of scheduling challenges.

Opponents worry about requiring a minimum amount of time for a hold, especially when a person may not be in any need of continued treatment after a few hours.

At the dLCV, we have not taken a position on these “minimum” time bills in the past, because the mental health community is divided on the topic.  We are interested in your opinion.  What do you think?

Attendant Care Overtime, over time

Early in 2016, the United States Department of Labor issued new rules that clarify the kinds of job categories that were entitled to receive overtime pay if the employee worked more than 40 hours.  For the first time since the passage of the Fair Labor Standards Act, DOL made it clear that people employed as home health care attendants are covered by the law.  If an attendant works more than 40 hours, the attendant is entitled to overtime pay.

In anticipation of the new rules, which became effective January 1, 2016, Governor McAulliffe included funding in his proposed state budget last year, that would allow the Department of Medical Assistance Services to pay for up to 56 hours a week of overtime pay for home healthcare attendants employed under Medicaid’s Consumer Directed Waiver.  The legislature promptly removed all funding for overtime pay. And some consumers then faced crisis.

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2017 Virginia General Assembly

It is that time again in the Commonwealth!  The 2017 legislative session in Virginia will begin on January 11th at noon.  This is a “short” session meaning that the legislature plans to be in session for 45 days, rather than the 60 days of the “long” session that meets on even-numbered years.

During the “short” session, the legislature will consider amendments to the already adopted two year budget, will request studies to be completed on different topics and will debate substantive changes to the Virginia code.

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Janet Reno

When the Americans with Disabilities Act was still a very young law,  the Department of Justice filed its first lawsuit, against the Becker CPA Exam review course.  Some people who wanted to take the review course for the CPA exam, and who were also deaf, had requested that Becker provide sign language interpreters for the course, and Becker refused.  DOJ tried to negotiate with the respected review course, but Becker did not budge.  So, late in 1992, DOJ filed its first ADA lawsuit.

A year and a half later, the parties reached a settlement, with Becker agreeing at long last to provide interpreters to students who needed them, and paying monetary awards to the named complainants. The complainants were finally able to fully participate in the review course, and when they then took the CPA exam, they passed at a rate even higher than others.

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Employing people with disabilities is just good business

When you employ someone with a disability, you add a dimension of diversity that you can not acquire any other way.  That perspective can prove to be very valuable to any business.  But in addition, there may be bottom line savings and benefits for your business when you support employment for people with disabilities.  Businesses accommodating people with disabilities may qualify for some of the following tax credits and deductions. More detailed information may be found in the IRS publications referenced below. Continue reading