One thousand more cops underground won’t make or keep the subways safe. Nor can 2,000 or 3,000 — because at its root, the cause of many random, dangerous acts in the subway is not a criminal justice problem. The victims of Jose Gonzalez, James Melbourne, Rigoberto Astwood Lopez, like many others, were harmed because our mental health system failed to treat people living with the most serious forms of mental illness before they became violent. Amending the standard for involuntary commitment, as called for by Gov. Cuomo, is one reform needed to begin to fix the system.
There are many broken parts in the mental health system, but for the most desperate and dangerous cases, the system will not be fixed unless elected officials and the public come to terms with New York’s standard for involuntary commitment under the state’s Mental Hygiene Law. For people living with certain untreated serious mental illnesses, who can present real and immediate harm to themselves, loved ones, police and sometimes unsuspecting strangers, the current standard makes no sense.
The way it works under the Mental Hygiene Law, a seriously mentally ill individual can be involuntarily committed to care under emergency circumstances where that person’s behavior demonstrates to a physician, a likelihood that “serious harm to self or others” will result unless the person is committed to a psychiatric facility. While the standard seems reasonable, in reality, someone often has to get hurt before a commitment happens, one way or another.
If a person in crisis survives a violent episode, involuntary “commitment” may happen, but almost always it’s in a jail or prison, instead of a psychiatric facility, as only about 10% of people arrested are diverted to mental health court. That’s a solution that is sometimes too little and always too late. Many mental health courts are only open to those charged with nonviolent crimes and in any case, their existence means someone with mental illness fell through the cracks.
The current standard of commitment defines a risk of physical harm to one’s self “as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself or herself.” Danger to others means “a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.” In either case, by definition and design, the behavior must reach a level of dangerousness and violence before anything is usually done.
As is, the standard protects neither those with a serious, untreated mental illness who end up homeless, delusional and living in the subway, nor the eventual victim, should a person become violent. Nor, as some would argue, does the current standard necessarily protect the civil rights of people with mental illness, when the do-nothing approach leads to incarceration or death.
The governor has proposed an additional ground to support involuntary commitment where an individual is “experiencing such complete neglect of basic needs for food, clothing, shelter or personal safety as to render serious accident, illness, or death highly probable if care by another is not taken.” This additional option would give physicians the ability to order humane care for someone who is delusional and unaware of either reality or the existence of a mental illness before tragedy strikes. And, for the record, it is important to note that the Law already includes limitations on the length of commitment and layers of oversight to protect individual agency and civil rights.
To keep all New Yorkers safe in subways and elsewhere, the state must not only amend the Mental Hygiene Law but should also follow the governor’s lead and extend Kendra’s Law to provide for involuntary Assisted Outpatient Treatment (AOT) where needed. The governor’s proposal renews Kendra’s Law and amends it to allow for the extension of an AOT order where a person cannot be readily located or is experiencing a substantial increase in symptoms within six months of the expiration of the order.
Finally, state legislators should provide increased funding and streamlining of licensing for crisis stabilization centers, as called for by the governor, to spur the development of crisis stabilization centers across the state. These centers offer immediate services to those in substance use and mental health crisis without referral, including direct drop-offs by law enforcement and other first responders.
Amending the standard of involuntary commitment isn’t the only fix needed and its use should always be a last resort, reserved for very few, like those who are paranoid, delusional, seriously ill and living homeless and desperate in the subway. Sadly, it is an obvious and necessary first step, and one that clearly needs to be taken. At this point, it’s past time, the pendulum has swung too far.
Roberts, a former town judge, is executive director of the Greenburger Center.
