The question is not (I repeat, not) whether people who are suffering from mental illness and homelessness need and deserve societal care and concern. They do. They do for their sake. They do for our sake. They do. But as passionately as some want to either help them out of compassion or be rid of them out of annoyance, there remains one thing that we learned all too well following the Willowbrook scandal (thanks, Geraldo) and the horrors of forced institutionalization of the mentally ill. They, too, have rights.
Ironically, we superimpose our sensibilities and rationalizations on the mentally ill. We blame the lack of community mental health resources. We blame the lack of affordable housing. Makes complete sense, except that it fails to explain why people choose not to take available medication and refuse public accommodations. That anyone would make these choices seems to us, well, nuts. And it is. And they are.
This is why so many of us, with the best of intentions and great sympathy (not empathy, as the kids say, because it’s a lie they tell themselves), want something to be done to help them whether they want it or not, because we can see how badly they need the help and it hurts to see mentally ill people suffering and making crazy choices because they’re crazy mentally ill. How is it possible that people have a right to be so very wrong?
New York City Mayor Eric Adams has a plan.
If the circumstances support an objectively reasonable basis to conclude that the person appears to have a mental illness and cannot support their basic human needs to an extent that causes them harm, they may be removed for an evaluation. Case law does not provide extensive guidance regarding removals for mental health evaluations based on short interactions in the field. But it does suggest that the following circumstances could be reasonable indicia of an inability to support basic needs due to mental illness that poses harm to the individual: serious untreated physical injury, unawareness or delusional misapprehension of surroundings, or unawareness or delusional misapprehension of physical condition or health.
Case law is, however, fairly clear that that the only basis for involuntary seizure of the mentally ill is when, by clear and convincing evidence, they can be proven to be a danger to themselves or others. Isn’t merely not taking meds, eating food out of dumpsters, going for weeks without washing and sleeping in a cardboard box dangerous enough?
The Supreme Court ruled in the landmark 1975 case O’Connor v. Donaldson that mental illness alone is not a justification for indefinite custodial confinement, and that “a State cannot confine, without more, a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”
“May the State fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different?” Justice [Potter] Stewart
Potterwrote in the Court’s majority opinion. “Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s liberty interest.”
In other words, it’s not enough that they’re mentally ill and homeless to lock ’em up for the own sake. That they are living on the street does not make them dangerous, either to themselves or others.
Adams is also calling on the state legislature to amend New York’s involuntary commitment law, Kendra’s Law, to clarify that “likely to result in serious harm” encompasses basic survival needs such as shelter and food.
Mayor Adams’ attempt to expand the definition of danger to mean depriving them of the “freedom” to live in a cardboard box flies in the face of their right to choose not to be forced to take meds, not to be forced to live in public accommodations, not to be subject to “indefinite custodial confinement” because they refuse to be institutionalized.
And to be clear, Mayor Adams might not be doing this for completely altruistic purposes.
The mayor’s plan comes at the end of a year in which random attacks in the subways and streets, many of them attributed to homeless people with mental illness, have put many New Yorkers on edge. Mr. Adams and Gov. Kathy M. Hochul have both rolled out numerous programs to address the issue, including adding outreach teams and clearing encampments, to try to convince people to move to shelters.
Mr. Adams has said that people with mental illness were largely responsible for an increase in crime in the subway, though most crimes overall are not committed by people who are unhoused or mentally ill, and most mentally ill or homeless people are not violent.
And then there are a host of collateral problems with this notion. There are no beds for them. There is no place to warehouse them. There aren’t adequate mental health practitioners to care for them even if there were places to put them. And then, the cops.
Mr. Adams has acknowledged that New York did not have enough psychiatric beds to accommodate everyone, and said the city would start training police officers about responding with compassion.
Police and the mentally ill do not work well together. If you have to train someone to be compassionate, they’re not compassionate. But worse still, police tend to get quickly annoyed by people who are not compliant and are not known for their patience with the uncooperative. And when the mentally ill are forced to act in ways they don’t want to, they can become sufficiently difficult that the police perceive them as a threat and use force, including deadly force, to end the interaction.
And finally, should it really be left up to cops to decide who is mentally ill, who deserves to be taken into custody and confined? Is there any chance they will pull an Adrian Schoolcraft and use this to taint their enemies, those they hate or just piss them off, as mentally ill and needing involuntary confinement? The potential for abuse is obvious, so do we really want to trust cops to make even the initial call?
Do we want to help the mentally ill, the homeless, the people who live on the street, eat from dumpsters and exist in a world of their own delusions? Of course. But that doesn’t mean there is an answer, or that Mayor Adams’ solution is lawful, hard as that may be to accept.