Defendants who argue compellingly that they committed a crime as a consequence of a past traumatic brain injury often go free in Vermont. That's because the state's courts have no way of dealing with such cases.
Judges cannot order defendants with TBI to be incarcerated, hospitalized or placed under state supervision — in contrast to those found incompetent to stand trial due to a mental illness or cognitive deficiency. As Seven Days reported last March in "Why Brain Injured Defendants Often Go Free," judges often have no choice but to let a defendant with TBI walk, even if he or she has committed numerous violent or sexual offenses and remains a threat to public safety.
But that could change this year. On Friday, Rep. Warren Van Wyck (R–Ferrisburgh) presented legislation to the House Judiciary Committee that would let judges order a brain-injured defendant to be committed to the custody of the Vermont Department of Mental Health, just like someone diagnosed with schizophrenia. And, like a person with mental illness, he or she could be tried for the crime if later deemed competent to stand trial.
Van Wyck says he introduced the bill after hearing from a constituent whose family member was involved in a TBI case in Addison County. The Ferrisburgh lawmaker said he's also heard from local police and attorneys that some offenders use their TBIs as a “get-out-of-jail-free card.”
Van Wyck emphasizes that the goal of H.555 is to both protect the public and respect the fact that TBI victims have a disability. Their criminal charges would still be dismissed, he says, "but it gives the state options for dealing with them.”
As Seven Days reported last year, Addison County Superior Court Judge Helen Toor invited the Brain Injury Association of Vermont to train local attorneys on TBIs after she had to dismiss charges against three defendants accused of aggravated assault, repeated stalking and sexual assault on a child. All successfully argued that their TBIs were the cause of their violent or inappropriate behavior.
As Toor told Seven Days at the time, no one knows how many brain-injured defendants slip through the cracks of the criminal justice system in this way because no one tracks that data.
But one such Vermont defendant did make international headlines: Roger Pion, shown above with his defense attorney, David Sleigh. The Newport farmer became an overnight internet folk hero after he crushed seven Orleans County sheriff’s vehicles with his monster tractor. While it was widely reported at the time that Pion was angry at the police about a recent pot possession charge, Sleigh later confirmed that his client was found incompetent to stand trial, in part, because of a history of concussions.
At Friday morning's hearing before the House Judiciary Committee, Vermont Mental Health Commissioner Paul Dupre seemed lukewarm on the idea of allowing judges to order TBI victims into his care and described the problem as a "fairly complex issue." Dupre told the committee he's concerned that it's "not appropriate" to use the state's limited number of psychiatric beds for brain-injured patients, for whom involuntary mental health treatment may not even be appropriate or necessary.
Interviewed later, Dupre said that although H.555 may not be the right fix for the problem, "it got a good conversation going." He noted that the committee has asked Jay Batra, the Department of Mental Health's medical director, and Susan Wehry, commissioner of the Department of Disabilities, Aging and Independent Living, to look into how other states are dealing with this problem and report back on their findings.
File photo courtesy of Jennifer Hersey Cleveland/The Caledonian-Record.