I am a part time NYC resident who has spent a lot of time over the past 35 years meeting and over time have approached and gotten to know several of the homeless residents both in the area where my office is located and in my residential neighborhood, both for humanitarian reasons but and also to form my own conclusions regarding the “problem” and potential “ solutions” which ameliorate it. I have gotten to know individuals whose homelessness had all the different causes of which everyone is aware and pontificates about - addiction ( alcohol and/or narcotics) , personal illness, loss of employment , abuse ( physical and/or mental), family dysfunction, being thrown out by parents ,runaways and mental illness. I have attended NA and AA meetings with some of them ,and some have managed to get and stay clean and even find shelter and get meaningfully employed. I have on occasion even gotten them to their medical appointments and methadone clinics ( definitely a topic for another day). I have done this because I believe that my philanthropic effects should be personal involving my time and talent) as well as institutional support provided by my donations. But the toughest cases by far in my estimation are those with severe illness ( often terminal) but who still value their liberty and who often deeply distrust both social services and the medical establishment ( often for understandable reasons) and those with severe mental illness. THIS CONCLUSION IS ABSOLUTELY CORRECT, treating severe mental illness involves the system devoting a huge amount of time and money to the effort and that can only be done in the huge majority of cares by forcefully incarcerating those individuals for extended periods of time ( perhaps all their natural lives) . I have visited institutionalized individuals ( first as a college student over 60 years ago taught by a psychiatrist practicing at such an institution) and later in various circumstances involving advanced dementia , and understand how difficult it is to avert that this may be the least bad solution.
But I ask (rhetorically)- is liberty that will almost inevitably cause you to harm not only oneself but in all probability others really liberty and who does it benefit except the- do.gooders and feel-gooders who can walk away from the inevitable results.
My thanks to everyone who has liked this comment. It was so long that I doubted that many people would read it. It reinforces that the time I take to post comments is worthwhile. Hope to have my own Substack online soon. Will introduce myself in the initial post. Thanks again.
A challenge with involuntary commitment is that this small subset may not be fit to leave for a long time, if ever, but people hear "treatment" and want them to be cured someday. That's just not how mental illness works unfortunately.
The right to refuse treatment is a legal doctrine in which people cannot be compelled to have treatment for their illnesses even if their refusal leads to adverse outcomes. The Supreme Court found that a person could not be compelled into life-saving treatment. This right was further enumerated in Washington v. Glucksberg; “We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.”
If a person is not a danger to themselves or others and can live independently, the government shall not force them into a facility against their will. The Supreme Court found this in O'Connor v. Donaldson; “In short, a State cannot constitutionally confine, without more, a non-dangerous individual who is capable of surviving safely in freedom by himself…” Accordingly, a person in a crisis can only be placed into an involuntary Conservatorship if they are an immediate danger to themselves or others.
The precedents set by Washington and O'Connor place significant limits on what the state can do when its servants encounter a chronically homeless person. The police, fire, and other health services are limited in their actions to mitigate the situation. Unless officers see an unlawful event more significant than a misdemeanor, they can only provide information and minimal aid to these homeless persons. It leads to cases such as this: the police find a person unsheltered in sub-freezing weather. While having a reasonable expectation that the person will die due to exposure, the police cannot prevent that end via an involuntary hold of the person.
We ought to work to expand the state’s ability to protect people whose mental illnesses endanger themselves. Personal autonomy and the right to refuse treatment are important bedrocks of all people's rights, but as with all rights, these are not absolute. It is the case that someone who is suffering from a mental illness that includes the inability to see that disability is not a person whose rights are protecting them. Without returning to the 1960s style of incarceration of the mentally ill, an expansion of conservator policies like that being instituted in California is necessary. When a person is gravely disabled, not only is it reasonable, but it's a moral imperative that the community safeguard that person. We need to expand the concept of only having the state be able to intercede when a person is a danger to themselves or others but also when it's reasonable to perceive that the person is gravely disabled due to their mental illness. We should observe the policy around California’s extension of 5150’s involuntary hold to include the “Gravely Disabled." California is leading the way, and this policy should be extended nationally.
I cannot speak specifically to New York, but, unfortunately, in many states, the danger posed needs to be imminent. This has an oddly paradoxical effect where you can place a person on a hold and then have them released by the time they have a hearing because the jail/hospital has been able to stabilize them.
Similarly, I have had people engaging in some pretty scary behavior, including failed quasi-suicidal attempts, not meet the imminent standard. Finally, police, who are by nature generalists, are often not as good at articulating these incidents in a way that meets the legal standards, and mental health professionals (who are more capable in this regard) often have ethical objections to forced treatment.
The end result is a highly dysfunctional system that does not work well for the community or the people suffering from mental illness.
The courts really have established that you cannot force treatment, period. And you’re right about police being generalists, with a bias towards seeing everything as a crime. So cities are doing interesting things, including Albuquerque, New Mexico. They’ve created a whole new cabinet-level position in which they have alternative response units, often comprised of a social worker and a paramedic, to be the first responders to a person who is behaving erratically. The police are aware and can react quickly if the situation escalates.
It remains the case, though, that they cannot compel a person to go to the local behavioral health hospital. And given the laxity of the loitering laws here in New Mexico, they cannot even compel the person to move from where they are if it's the case that they are not an immediate danger to themselves or others.
The issue revolves around imminent threats; courts have established that a person's autonomy takes precedence unless there's an immediate threat to themselves or others, rather than a possible or even increased risk. This is what California aims to change through its broadened interpretation of grave disability. This term refers to individuals with mental health disorders who cannot meet their essential needs for food, clothing, or shelter. Neely would undoubtedly qualify under this definition. However, it's likely that this amendment to California's temporary commitment laws will face challenges in the courts.
I don't understand this sentence in the context of the story:
"The state can’t imprison people who aren’t criminals, and it can’t turn mental illness and drug dependence into a crime, a conundrum at the nub of every facile political dispute pitting the civil rights of people with homelessness against perceived threats to public safety."
Neely was a criminal - he pleaded guilty to felony assault. And while mental illness and drug dependence are surely not crimes, much of the behavior that may be associated with them can be. Which is why the prisons and jails are filled with drug addicts and mentally ill people.
The real issue here was the DAs office and courts giving a violent felon the option to have his record expunged upon completion of a residential treatment program. That should never be on the table for any violent offender.
I don't know that that's the "real" issue. The issue is that he left the program and ended up back on the streets, where he was a danger to himself and others.
But as a violent felon, he should have never had the opportunity to walk away. He should have been incarcerated - whether that be in a prison or a mental health facility. The fact that he was deemed an appropriate candidate for a residential program indicates that the court system in NY is a large part of the problem.
The older I get, and especially now that I have kids, I find myself pining for an American Lee Kuan Yew. I only half joke that I’m willing to negotiate away some civil liberties in exchange for order.
"One problem with secure treatment facilities, as Miller notes, is that Medicaid is barred by federal law from paying for psychiatric treatment in secure settings."
I don't believe this is true, or at least not the whole truth. There are many locked psychiatric facilities around the country that are funded with Medicaid.
You're right, I misdescribed the law -- what the law prohibits is Medicaid funding for the care of patients aged between 21 and 64 in facilities with at least 16 beds that primarily provide mental health care. The practical effect on care in secure facilities is the same -- if the state is going to commit someone to a mental hospital, Medicaid can't pay for it (and can't pay for that person's care at all). But I've corrected the piece to accurately explain why.
These are the cases that most strongly test the foundations of liberty in our country; it feels wrong to "imprison" someone on the chance that they'll hurt someone else, but some people (like Jordan Neely) are clearly better off in care than "free".
Just a heads up, in one of the earlier grafs you say "the government sent Penny for inpatient treatment and told him he’d be imprisoned if he didn’t continue receiving it" instead of Neely.
Regardless, good article and pretty well encapsulates my thoughts on this matter as well.
I am not disagreeing with the thesis of this article but I recently visited a facility that housed people who were involuntarily committed for mental health treatment but had not been prosecuted for any criminal behavior and while they were safe and housed and fed they were living in dormitory rooms with 3 other people with limited access to time outside and access to a communal tv room as their primary activity and I honestly felt that I would rather take my chances on the streets than live like that long term.
There are few long-term committed people in the country, and they tend to be found criminally insane. Under the current system, you may get a 72-hour hold, after which the person has the right to question the hold. If the doctors at the facility still think that a person is dangerous to themselves or others, they can hold them for another two weeks. But then, generally, after two weeks, the case has to go in front of a court for a longer commitment.
I’m quite familiar with these issues but the facility I was touring is for people who are being held longer term after having been conserved in a court proceeding. They have legal representation and due process rights but there has been pressure within the policy sphere to expand the criteria for making someone subject to such a conservatorship in order to address the very real problems of the mentally ill homeless population. I was simply observing that my experience of being there made me think that I would rather be off medication on the streets than in that place for a meaningful amount of time (this was not somewhere that people are taken for a 72 hour hold) and that thought made me better understand why some people say they prefer living on the streets to some of these programs.
I would be curious to see which state this is in, given that civil commitments are extremely hard to obtain in most states.
There are “locked wards” where people go by choice to be treated for their addictions or a minor child is committed by the family. But that is consensual.
The courts have been very clear on this: as soon as you're no longer an immediate danger to yourself or others, you cannot be held.
I am familiar with state run facilities in the Midwest that house involuntarily committed patients, either probate or involved in the criminal justice system due to their status as not guilty by reason if insanity, or incompetent to stand trial. The length of stay is somewhere around a year before going to community based housing/care.
Somehow CMS dollars are used to help fund them...although Josh is right that generally Medicaid is cut off for these involuntarily committed patients.
Yes, these folks were found to meet that standard and so I am not saying that they didn’t pose a threat to themselves or others but here in California there has been an effort to expand the class of people who are subject to these conservatorships and I am sympathetic to the advocates (many of whom are the parents and family members of seriously mentally ill individuals) who want these changes but I also wonder if the public is willing to fund treatment beds that don’t feel so prison like.
Have a read of the longish post ubove, that's the extention of the LPS 5150/5250 holds - adding the gravely disabled. And as for funding, y'all in California just passed Prop. 1. which "Authorizes $6.38 Billion in Bonds to Build Mental Health Treatment Facilities for Those With Mental Health and Substance Use Challenges; Provides Housing for the Homeless."
I am a part time NYC resident who has spent a lot of time over the past 35 years meeting and over time have approached and gotten to know several of the homeless residents both in the area where my office is located and in my residential neighborhood, both for humanitarian reasons but and also to form my own conclusions regarding the “problem” and potential “ solutions” which ameliorate it. I have gotten to know individuals whose homelessness had all the different causes of which everyone is aware and pontificates about - addiction ( alcohol and/or narcotics) , personal illness, loss of employment , abuse ( physical and/or mental), family dysfunction, being thrown out by parents ,runaways and mental illness. I have attended NA and AA meetings with some of them ,and some have managed to get and stay clean and even find shelter and get meaningfully employed. I have on occasion even gotten them to their medical appointments and methadone clinics ( definitely a topic for another day). I have done this because I believe that my philanthropic effects should be personal involving my time and talent) as well as institutional support provided by my donations. But the toughest cases by far in my estimation are those with severe illness ( often terminal) but who still value their liberty and who often deeply distrust both social services and the medical establishment ( often for understandable reasons) and those with severe mental illness. THIS CONCLUSION IS ABSOLUTELY CORRECT, treating severe mental illness involves the system devoting a huge amount of time and money to the effort and that can only be done in the huge majority of cares by forcefully incarcerating those individuals for extended periods of time ( perhaps all their natural lives) . I have visited institutionalized individuals ( first as a college student over 60 years ago taught by a psychiatrist practicing at such an institution) and later in various circumstances involving advanced dementia , and understand how difficult it is to avert that this may be the least bad solution.
But I ask (rhetorically)- is liberty that will almost inevitably cause you to harm not only oneself but in all probability others really liberty and who does it benefit except the- do.gooders and feel-gooders who can walk away from the inevitable results.
My thanks to everyone who has liked this comment. It was so long that I doubted that many people would read it. It reinforces that the time I take to post comments is worthwhile. Hope to have my own Substack online soon. Will introduce myself in the initial post. Thanks again.
A challenge with involuntary commitment is that this small subset may not be fit to leave for a long time, if ever, but people hear "treatment" and want them to be cured someday. That's just not how mental illness works unfortunately.
The right to refuse treatment is a legal doctrine in which people cannot be compelled to have treatment for their illnesses even if their refusal leads to adverse outcomes. The Supreme Court found that a person could not be compelled into life-saving treatment. This right was further enumerated in Washington v. Glucksberg; “We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.”
If a person is not a danger to themselves or others and can live independently, the government shall not force them into a facility against their will. The Supreme Court found this in O'Connor v. Donaldson; “In short, a State cannot constitutionally confine, without more, a non-dangerous individual who is capable of surviving safely in freedom by himself…” Accordingly, a person in a crisis can only be placed into an involuntary Conservatorship if they are an immediate danger to themselves or others.
The precedents set by Washington and O'Connor place significant limits on what the state can do when its servants encounter a chronically homeless person. The police, fire, and other health services are limited in their actions to mitigate the situation. Unless officers see an unlawful event more significant than a misdemeanor, they can only provide information and minimal aid to these homeless persons. It leads to cases such as this: the police find a person unsheltered in sub-freezing weather. While having a reasonable expectation that the person will die due to exposure, the police cannot prevent that end via an involuntary hold of the person.
We ought to work to expand the state’s ability to protect people whose mental illnesses endanger themselves. Personal autonomy and the right to refuse treatment are important bedrocks of all people's rights, but as with all rights, these are not absolute. It is the case that someone who is suffering from a mental illness that includes the inability to see that disability is not a person whose rights are protecting them. Without returning to the 1960s style of incarceration of the mentally ill, an expansion of conservator policies like that being instituted in California is necessary. When a person is gravely disabled, not only is it reasonable, but it's a moral imperative that the community safeguard that person. We need to expand the concept of only having the state be able to intercede when a person is a danger to themselves or others but also when it's reasonable to perceive that the person is gravely disabled due to their mental illness. We should observe the policy around California’s extension of 5150’s involuntary hold to include the “Gravely Disabled." California is leading the way, and this policy should be extended nationally.
But Jordan Neely was dangerous to others. He had a record of violence toward strangers.
I cannot speak specifically to New York, but, unfortunately, in many states, the danger posed needs to be imminent. This has an oddly paradoxical effect where you can place a person on a hold and then have them released by the time they have a hearing because the jail/hospital has been able to stabilize them.
Similarly, I have had people engaging in some pretty scary behavior, including failed quasi-suicidal attempts, not meet the imminent standard. Finally, police, who are by nature generalists, are often not as good at articulating these incidents in a way that meets the legal standards, and mental health professionals (who are more capable in this regard) often have ethical objections to forced treatment.
The end result is a highly dysfunctional system that does not work well for the community or the people suffering from mental illness.
The courts really have established that you cannot force treatment, period. And you’re right about police being generalists, with a bias towards seeing everything as a crime. So cities are doing interesting things, including Albuquerque, New Mexico. They’ve created a whole new cabinet-level position in which they have alternative response units, often comprised of a social worker and a paramedic, to be the first responders to a person who is behaving erratically. The police are aware and can react quickly if the situation escalates.
It remains the case, though, that they cannot compel a person to go to the local behavioral health hospital. And given the laxity of the loitering laws here in New Mexico, they cannot even compel the person to move from where they are if it's the case that they are not an immediate danger to themselves or others.
The issue revolves around imminent threats; courts have established that a person's autonomy takes precedence unless there's an immediate threat to themselves or others, rather than a possible or even increased risk. This is what California aims to change through its broadened interpretation of grave disability. This term refers to individuals with mental health disorders who cannot meet their essential needs for food, clothing, or shelter. Neely would undoubtedly qualify under this definition. However, it's likely that this amendment to California's temporary commitment laws will face challenges in the courts.
I don't understand this sentence in the context of the story:
"The state can’t imprison people who aren’t criminals, and it can’t turn mental illness and drug dependence into a crime, a conundrum at the nub of every facile political dispute pitting the civil rights of people with homelessness against perceived threats to public safety."
Neely was a criminal - he pleaded guilty to felony assault. And while mental illness and drug dependence are surely not crimes, much of the behavior that may be associated with them can be. Which is why the prisons and jails are filled with drug addicts and mentally ill people.
The real issue here was the DAs office and courts giving a violent felon the option to have his record expunged upon completion of a residential treatment program. That should never be on the table for any violent offender.
I don't know that that's the "real" issue. The issue is that he left the program and ended up back on the streets, where he was a danger to himself and others.
But as a violent felon, he should have never had the opportunity to walk away. He should have been incarcerated - whether that be in a prison or a mental health facility. The fact that he was deemed an appropriate candidate for a residential program indicates that the court system in NY is a large part of the problem.
The older I get, and especially now that I have kids, I find myself pining for an American Lee Kuan Yew. I only half joke that I’m willing to negotiate away some civil liberties in exchange for order.
"One problem with secure treatment facilities, as Miller notes, is that Medicaid is barred by federal law from paying for psychiatric treatment in secure settings."
I don't believe this is true, or at least not the whole truth. There are many locked psychiatric facilities around the country that are funded with Medicaid.
You're right, I misdescribed the law -- what the law prohibits is Medicaid funding for the care of patients aged between 21 and 64 in facilities with at least 16 beds that primarily provide mental health care. The practical effect on care in secure facilities is the same -- if the state is going to commit someone to a mental hospital, Medicaid can't pay for it (and can't pay for that person's care at all). But I've corrected the piece to accurately explain why.
Is that restriction by statute or regulation?
These are the cases that most strongly test the foundations of liberty in our country; it feels wrong to "imprison" someone on the chance that they'll hurt someone else, but some people (like Jordan Neely) are clearly better off in care than "free".
Just a heads up, in one of the earlier grafs you say "the government sent Penny for inpatient treatment and told him he’d be imprisoned if he didn’t continue receiving it" instead of Neely.
Regardless, good article and pretty well encapsulates my thoughts on this matter as well.
I am not disagreeing with the thesis of this article but I recently visited a facility that housed people who were involuntarily committed for mental health treatment but had not been prosecuted for any criminal behavior and while they were safe and housed and fed they were living in dormitory rooms with 3 other people with limited access to time outside and access to a communal tv room as their primary activity and I honestly felt that I would rather take my chances on the streets than live like that long term.
There are few long-term committed people in the country, and they tend to be found criminally insane. Under the current system, you may get a 72-hour hold, after which the person has the right to question the hold. If the doctors at the facility still think that a person is dangerous to themselves or others, they can hold them for another two weeks. But then, generally, after two weeks, the case has to go in front of a court for a longer commitment.
I’m quite familiar with these issues but the facility I was touring is for people who are being held longer term after having been conserved in a court proceeding. They have legal representation and due process rights but there has been pressure within the policy sphere to expand the criteria for making someone subject to such a conservatorship in order to address the very real problems of the mentally ill homeless population. I was simply observing that my experience of being there made me think that I would rather be off medication on the streets than in that place for a meaningful amount of time (this was not somewhere that people are taken for a 72 hour hold) and that thought made me better understand why some people say they prefer living on the streets to some of these programs.
I would be curious to see which state this is in, given that civil commitments are extremely hard to obtain in most states.
There are “locked wards” where people go by choice to be treated for their addictions or a minor child is committed by the family. But that is consensual.
The courts have been very clear on this: as soon as you're no longer an immediate danger to yourself or others, you cannot be held.
I am familiar with state run facilities in the Midwest that house involuntarily committed patients, either probate or involved in the criminal justice system due to their status as not guilty by reason if insanity, or incompetent to stand trial. The length of stay is somewhere around a year before going to community based housing/care.
Somehow CMS dollars are used to help fund them...although Josh is right that generally Medicaid is cut off for these involuntarily committed patients.
Yes, these folks were found to meet that standard and so I am not saying that they didn’t pose a threat to themselves or others but here in California there has been an effort to expand the class of people who are subject to these conservatorships and I am sympathetic to the advocates (many of whom are the parents and family members of seriously mentally ill individuals) who want these changes but I also wonder if the public is willing to fund treatment beds that don’t feel so prison like.
Have a read of the longish post ubove, that's the extention of the LPS 5150/5250 holds - adding the gravely disabled. And as for funding, y'all in California just passed Prop. 1. which "Authorizes $6.38 Billion in Bonds to Build Mental Health Treatment Facilities for Those With Mental Health and Substance Use Challenges; Provides Housing for the Homeless."
https://lao.ca.gov/BallotAnalysis/Proposition?number=1&year=2024
It may be cruel to point this out, but while Neely could probably not be deterred, he’s been incapacitated from further mayhem.