Magazine article Developments in Mental Health Law , Vol. 1, No. 1
Insanity Acquittees Now Get Automatic Hearing
After acquittal by reason of insanity in a Virginia court, defendants are confined indefinitely, potentially for life, under [section]19.2-181 of the Virginia Code. The 1980 Virginia General Assembly amended this statute to require a hearing shortly after a defendant is acquitted by reason of insanity and is committed to the state hospital, usually Central State Hospital's Forensic Unit.
Under the old law, a defendant was hospitalized without a hearing. After six months, if he requested a hearing, he could receive one, but no more frequently than once a year. In this hearing, the burden was on the defendant to prove by a preponderance of the evidence that he was both nondangerous and "sane." Under Virginia law, a defendant who succeeded in proving that he was not mentally ill, but failed to convince the court that he was non-dangerous, continued to be hospitalized indefinitely. Blalock v. Markley, 207 Va. 1003, 154 S.E.2d 158 (1967).
The hospital was only required to request a hearing when it believed that the defendant was "safe and sane." In this hearing, the standards for release and the burden of proof were the same as in a hearing requested by the defendant.
The amendment to [section]19.2-181 leaves the procedure unchanged except to assure the defendant of at least one relatively prompt hearing after hospitalization. This is particularly important where, for various reasons, neither the defendant nor the hospital requests a hearing. The amendment does not specify the standards for release or burden of proof, but it seems fair to infer that they are identical to those in the hearings requested by the hospital or defendant.
It is doubtful that this minor change in the Virginia practice of confining individuals after acquittal by reason of insanity will permit the practice to survive constitutional scrutiny.
Recently, a patient in the Central State Forensic Unit brought an action before a federal court in Norfolk, Virginia, challenging the procedure by which he was confined. Although the case is still undecided, the court said in a preliminary matter:
Due process is served only if, before commitment [after acquittal by reason of insanity], the defendant receives a hearing before an impartial judicial officer, at which he is present with counsel and has the opportunity to be heard, to confront and cross-examine the witness against him, and to offer evidence of his own. See Dorsey v. Solomon, supra, 604 F.2d at 274-75; Powell v. Florida, supra, 579 F.2d at 330. These procedural protections are available to persons who face involuntary commitment to a mental institution by reason of their conviction for certain offenses, Specht v. Patterson, 386 U.S. 605, 610 (1967), and we can see no reason why they should not apply with equal force to persons who face involuntary confinement by reason of their acquittal on the grounds of insanity. In addition, the state bears the burden in any such hearing to prove by clear and convincing evidence, Addington v. Texas, 441 U.S. 418 (1979), not only that the defendant is mentally iii, but also that he cannot live safely in freedom by himself or with the help of family or friends. O'Connor v. Donaldson, 422 U.S. 563, 576 (1975); Warren u. Harvey, supra, 472 F. Supp. at 1068-69.
Harris v. Ballone, No. 80-686-N, memorandum order at 3 (E.D. Va. June 17, 1980)
Virginia General Assembly Moves on Commission Findings
Created by House Bill 1935, in the 1977 session of the Virginia General Assembly, the Commission on Mental Health and Mental Retardation studied the public care of the mentally disabled citizens in Virginia for three years and in the 1980 session sponsored House Bill 95 implementing most of the Commission findings. …