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Amid Fears of Crime and Mental Illness, States Move to Expand Forced Treatment

Advocates of assisted outpatient treatment say it could reduce homelessness and mass shootings. Critics call it incarceration by another name.

Empty hospital hallway
Cory Mogk | Unsplash

In 1999, a 32-year-old woman, Kendra Webdale, died in New York City after being shoved in front of a subway train. The man who pushed her, Andrew Goldstein, had been released from a mental hospital just over two weeks earlier.

The media outrage that followed Webdale’s death blamed New York’s mental health system—and the state’s elected officials—for allowing Goldstein to go free in the days before her killing.

“Bedlam on the streets,” a New York Times headline declared. The accompanying story described Goldstein as a “ticking time bomb” who should have a disclaimer on his forehead: “If off medication, run for cover!” Though crime in the U.S. had had reached its lowest levels in decades, the New York Post wrote that New Yorkers were living in fear of being pushed in front of a train by “a crazed attacker.”

The New York legislature responded by passing Kendra’s Law, which gave courts the power to force people with “a history of lack of compliance with treatment for mental illness” into “assisted outpatient treatment”—or AOT—which usually entails a compulsory regimen of psychiatric medication. People who fail to comply with these orders can be detained by law enforcement and face possible involuntary hospitalization.

Two decades later, more than 40 states have enacted some form of AOT legislation. A 2016 study estimated that at least 9,000 people are under AOT orders nationwide, including more than 3,000 in New York alone. Proponents point to statistics showing reduced rates of hospitalization, arrests, and homelessness among people who receive AOT orders, but research also suggests that compulsory treatment is no more effective than voluntary treatment—and, in some cases, may even cause harm.

Now, amid worsening crises of mental health, addiction, and homelessness, several states, including New York, Washington, and California, are in the process of expanding their use of AOT, even as mental health advocates raise concerns that there aren’t enough voluntary treatment options.

“There’s always this rush to force treatment as the answer, but … we don’t have enough treatment services for people who explicitly are like, ‘I want these services,’” said Kimberly Mosolf, an attorney with Disability Rights Washington, which has opposed the state’s effort to expand AOT. Many states, including Washington, have “an underfunded, outpatient community-based mental health system,” she added.

In the decades leading up to the passage of Kendra’s Law, New York, like many other states, had sharply reduced its mental hospital population in a wave of “deinstitutionalization,” enabled by the development of the first effective antipsychotic medications. Between 1953 and 1999, the number of people in New York’s psychiatric institutions dropped from 93,000 to just 6,000. As people left these facilities, however, states often failed to provide support. Many people ended up on the streets or entangled in the criminal legal system. By 1999, there were more than three times as many people with mental illness in jails and prisons as there were in state hospitals.

Some mental health experts argued that the turn away from compulsory treatment during the second half of the 20th century was a historic mistake driven by an uninformed concern for civil rights. “Hundreds of thousands of vulnerable Americans are eking out a pitiful existence on city streets, underground in subway tunnels or in jails and prisons because of the misguided efforts of civil rights advocates to keep the severely ill out of hospitals and out of treatment,” psychiatrist E. Fuller Torrey and attorney Mary Zdanowicz wrote in a 1999 op-ed.

In 1998, Torrey founded the Treatment Advocacy Center (TAC) to push policymakers to expand the use of involuntary treatment. The organization soon became the leading advocate for the adoption of AOT programs nationwide, pushing AOT as a solution for homelessness, addiction, crime, and even mass shootings. TAC found numerous allies, including major psychiatric organizations, legislators on Capitol Hill, and the National Sheriffs’ Association.

Today, AOT represents a small portion of a vast apparatus of state-mandated mental health treatment. There are no official figures, but researchers estimate that more than 1 million people in the U.S. are subject to involuntary psychiatric detentions each year, most lasting for no more than a few days at a time.

Unlike involuntary hospitalization, AOT—which typically lasts several months to as long as one year, with the possibility of renewal—allows people with mental illnesses to remain in their communities while receiving treatment. Nonetheless, civil liberties advocates say that AOT and psychiatric detention both rest on the premise that some individuals need to be compelled to engage with treatment.

“It can be a very traumatic, difficult experience to be forced to do something,” Mark Cooke, a lawyer with the ACLU of Washington, said. “If things don’t go well, how are you going to enforce it? And is that going to compound trauma for people?”

But proponents of AOT say that a court order is the only way to get some people into treatment. The premise of AOT rests partly on the concept of the “black robe effect”—the idea that people who resist psychiatric care will be more likely to comply if they have to meet with an authority figure, such as a judge.

Data from New York show that people who received AOT are less likely to be hospitalized, become homeless, or engage in harmful behavior. However, other studies suggest that these results may have more to do with direct access to mental health services than with the compulsory nature of AOT. A 2017 systematic review of studies on AOT found little evidence that AOT patients had better outcomes than people who received voluntary care.

Nonetheless, amid growing concerns over homelessness and crime, legislators in multiple states have passed or considered laws that further empower courts to require counseling, evaluation, and medication.

In New York, Gov. Kathy Hochul recently signed a budget that expands eligibility for AOT orders and allows courts to renew orders within six months after they expire if a person experiences an increase in symptoms of mental illness. The original law required that someone exhibit “violent behavior” to qualify for a renewal; Hochul’s budget eliminates this requirement.

For Harvey Rosenthal, CEO of the New York Association of Psychiatric Rehabilitation Services, the new budget presents a conundrum. “I’ve been calling it a tale of two budgets,” he said. Rosenthal noted that the budget includes crisis response reforms and wage increases for mental health workers, but he said he finds the expansion of AOT troubling.

“It’s about coercion and criminalization,” Rosenthal said.

Part of the logic behind the expansion of Kendra’s Law is that it will improve community well-being. However, critics say placing forced treatment of the mentally ill side by side with other public safety measures promotes the idea that people suffering from psychiatric disorders present a unique threat to the broader populace. In reality, people with serious mental health problems commit only about 3 to 5 percent of all violent crime. “Candidly, it’s an election issue and some mentally ill people have been cast as violent,” Rosenthal said.

Another issue, according to critics of AOT, is that there is a general lack of mental health services that might keep people out of crisis in the first place.

When the Washington legislature considered SHB 1773, a bill to expand the use of AOT, earlier this year, peer support groups, civil liberty organizations, and disability rights proponents said that the legislation would lead to an influx of cases that Washington’s state hospitals were unequipped to handle. In 2018, the state’s largest psychiatric hospital lost $53 million of federal funding after it was found in violation of regulatory standards.

Advocates also say that critical gaps in other services, such as housing, can make it harder for individuals to complete court-ordered treatment.

“I do not have funding for, nor is funding provided for, housing,” said Joshua Wallace, who heads Peer Washington, a community-based group that provides mental health support and other services. “There were some people who … could not be released because there was no housing for them. That’s like 200 people who continue to be held against their will.”

Under Washington law, people under civil commitment orders cannot be released into unsafe or unhoused environments.

“If they weren’t homeless when they went in there, they likely lost their home while they were in there. So no place to release, no release,” Wallace said.

Despite these concerns, the legislature approved SHB 1773 in March, with nearly unanimous support.

In California, lawmakers are looking to expand AOT as a tool to manage growing frustrations about the state’s unhoused population. In March, Gov. Gavin Newsom unveiled a proposal to invest $12 billion in reimagining the state’s mental health care system, including the creation of so-called Community Assistance Recovery and Empowerment (CARE) Courts, which could compel as many as 12,000 people into forced treatment. The California State Senate approved the legislation at the end of May; it’s currently awaiting a hearing in the Assembly Committee on Appropriations.

The $65 million CARE program would offer participants no guarantee of housing, according to an open letter published by Human Rights Watch, though Newsom’s budget would include specific plans for what is being calledmental health housing.”

“A lot of the folks that are targeted for this are people that are experiencing homelessness or at risk of homelessness,” Andrew Imparato, the executive director of Disability Rights California, said. “And it’s not clear how the housing aspect of this CARE plan is going to work.”

Imparato worries that CARE Courts will give the state new powers to forcefully remove unhoused people from the public view, under the pretense of providing medical care.

“The politics in California around people who are unhoused—they’re nasty. Every elected official is under pressure to ‘do something’ about homelessness,” Imparato said. “And I really feel like CARE Courts are a way of saying, ‘Well, we need to try something.’”

The Human Rights Watch letter echoed those concerns, saying, “These state actors could place those who disobeyed their commands into the CARE Court process and under the control of courts.”

Instead of increasing states’ reliance on forced treatment, policymakers could expand funding for peer-respite centers, says Stefanie Kaufman-Mthimkhulu, executive director of the peer support collective Project LETS. These centers provide crisis intervention along with support from mental health care workers who have direct experience with being shuffled through psychiatric and drug treatment systems themselves. Peer respites often work directly in and with communities that have high rates of mental health and addiction problems, but they function less as an arm of the state and more as a guiding hand between social services and patients.

These centers offer a holistic set of services in areas such as suicide prevention, drug counseling, and connections to more traditional off-site resources while allowing patients to have more control over deciding how long they stay and when crisis intervention is necessary.

Peer support systems such as respite centers have also been found to reduce hospitalization rates and inpatient intervention, although there is no research directly comparing their outcomes with AOT.

Just as importantly, Kaufman-Mthimkhulu said, peer-led treatment programs allow people with mental illnesses to retain their autonomy while receiving the support they need.

“The reality is … that a cage and imprisonment doesn’t only have to be inside of a physical cell that is outside of your home or outside of your community,” Kaufman-Mthimkhulu, who has experienced involuntary hospitalization, said.

“So, if somebody is being told they can and can’t leave, what they can and can’t put in their body, if someone is being told that they have to see a provider … all of those things, to me, are incarceration.”