Prisons are filled with people diagnosed with mental illness. By some tallies, more than one-third of those incarcerated suffer with mental health problems. Jails are becoming the de facto mental institutions of our day, with staffs ill equipped to that population.
While most people arrested for crimes are poor, mental illness is the great leveler. It affects people from all walks of life, whether rich or poor, from good family backgrounds or broken homes, educated or high-school dropouts.
Being arrested following a psychotic break is shocking for both the person and his family. Criminal court is not a nice place. It’s crowded, foul-smelling, and impersonal. The person arrested — someone’s child, spouse, or sibling — is reduced to a docket number, cuffed, fingerprinted, indicted, and potentially jailed. It doesn’t matter if he went to Yale or Oberlin — it will be a fight to get him out of jail if the alleged crime was serious.
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Some examples I’ve seen include a young woman in the throes of psychosis opening a can of lighter fluid in a crowded pharmacy believing aliens were after her; a young man suffering with schizophrenia stabbing his father to death because voices told him to; or the guy who hadn’t slept for days and tried to break into the New York Times building on a CIA mission. Then there’s the big cases that impact the law and change things forever. Take Andrew Goldstein, a young man suffering from psychosis who pushed a complete stranger in front of a subway in 1999, killing her.
Goldstein’s case prompted a change in how New York (and now 45 other states) treat the mentally ill before a crime occurs. Rather than wait for a psychotic episode which can lead to an arrest, parents, loved ones, and others can apply to a court to get the person help up front.
In New York, it’s called Kendra’s law, named after Kendra Webdale, the young woman Goldstein pushed in front of a subway. The law designated the formation of Assisted Outpatient Treatment (AOT) programs which, if ordered by a judge, compel outpatient treatment for a person suffering from serious mental illness before the illness prompts violence.
The petition is initiated in court by designated parties — the person’s parents, spouse, roommate, doctor, children, or siblings, to name a few. Once granted, the person is assigned an AOT to monitor his behavior, provide counseling, and recommend medication. The length of supervision varies state to state, but generally runs for at least six months, although it can be longer. In New York, if the person fails to comply, he can be hospitalized for 72 hours.
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The AOT is a way to avoid compelled institutionalization or criminal court for the loved one. The state (at least those states with sufficient funding) pays for the services should the person lack insurance.
Because one of the hallmarks of mental illness is an inability of the sufferer to recognize the sickness (anosognosia) or agree to take medication, their families and friends often feel helpless and hopeless. They’re also, however, in the best position to recognize the tell-tale signs of encroaching psychosis — not sleeping for days, rapid and frenzied speaking, disorganized thinking, agitation, or self-harm, for example.
AOT laws are in place in 46 states. (The four exceptions are Massachusetts, Connecticut, Maryland, and Tennessee.) While they differ in detail, they share general features — the person must be suffering and diagnosed with a serious mental illness; designated people such as parents, adult children, siblings, roommates, spouse, doctors, etc., may initiate a petition in court; a doctor must agree that the person needs care, and some type of hearing will be held.
Last week, Andrew Goldstein was released from jail after serving 19 years of a 23-year sentence. He’ll need mental health treatment the rest of his life. The next place states must take action is in setting up (and funding) transitional services to assure that people suffering mental illness once out of custody get continued help.
Kendra Webdale’s brother was quoted as saying, “Kendra was the kind of person who would have helped the kind of person who would have done this.” At the time of the crime, her father called the incident “random.” “It could have been anyone and any place.”
The mentally ill are not evil or inherently dangerous. This is a misperception. However, if signs of serious uncontrolled mental illness become apparent, and the person affected shuns psychiatric help, family members can do something thanks to Kendra’s law and laws like it.
Nobody wants to see their loved one end up in the system fighting an uphill battle to get out of jail. So-called mental-health courts do not dispense get-out-of-jail-free cards just because the person suffered a psychotic break. Once a crime is committed, the go-to criminal court reaction is jail, not treatment. Getting treatment before anything serious happens can hopefully head off suicide, violence or compelled hospitalization.
New York alone is reported to have 3,158 patients under Kendra’s court orders but according the executive director of Mental Illness Policy Org. D.J. Jaffe, “We guess there should be around 8,000.”
The number of available state beds and funding for the mentally ill is far lower than what’s needed. Based on a statistical map provided by the Treatment Advocacy Center (a fabulous site with state-specific information on laws, referrals, and what to expect if arrested), some states like Nevada, Utah, and Arizona have only 300 public psychiatric beds while the number of mentally ill in those states number in the tens of thousands. New York has among the greatest number of public psychiatric beds, approximately 3,300, but that’s out of an estimated 513,636 people in the state suffering with severe mental illness. (Of those, approximately 13,500 are incarcerated.)
Health care professionals report that AOTs motivate people to continue treatment and cut back on the number of civil commitments in states with sufficient programs and funding.
I’m sure there are negative stories out there about people who were compelled to have psychiatric care when they felt they didn’t need it. Kendra’s law and laws like it are not a panacea. As a lawyer, I’d recommend doing whatever’s possible first without the help of a court order which automatically big-foots independent choices.
However, in some cases of serious mental illness, compelling outpatient treatment is a very good choice to help a loved one.
Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.