By Andrea Flink
UWS resident Michelle Go was shoved off a subway platform to her death last month by a man previously convicted of violent crimes, repeatedly hospitalized for psychiatric issues, and declared incompetent to stand trial due to mental illness in 2019.
In December, 2021, another man reportedly with a slew of prior arrests and a history of mental illness, allegedly brutally assaulted two women on the Upper West Side, yet was freed again without bail.
What is wrong with our justice system that allows people who are dangerous to themselves or others back on the street where they could inflict further injuries or death? More importantly, how can we fix it?
Efforts have been made. The heartbreaking irony of Michelle Go’s death is that, more than two decades ago, another young woman named Kendra Webdale was shoved to her death off a subway platform by a man with untreated schizophrenia in a tragically similar homicide, leading New York State to enact Kendra’s Law with the goal of avoiding similar incidents.
Kendra’s Law established a system of “Assisted Outpatient Treatment” (AOT), which is court-ordered and mandatory, and intended for people who have had repeated hospitalizations or violent episodes and are unlikely to voluntarily adhere to treatment and live safely in the community without supervision.
Though proven effective, the program is underutilized. In fact, according to the New York Times, court records revealed that doctors attempted a Kendra’s Law intervention on Martial Simon, Michelle Go’s attacker, in 2009, though records that would show whether the order was issued are sealed. Anecdotal reports indicate that Mr. Simon likely would have again been eligible for AOT if only someone had petitioned the court.
Brian Stettin, Policy Director at Treatment Advocacy Center and former Assistant NYS Attorney General, helped draft Kendra’s Law two decades ago and stated in an interview that he believes the city must figure out why all people who are eligible for Kendra’s Law relief aren’t receiving it.
“The goal should be nothing less than to have every single city resident who meets the criteria on a given day under an AOT court order,” Mr. Stettin said. He calls for every person discharged from a psychiatric hospital stay and every person under psychiatric treatment coming out of jail to be reviewed for AOT eligibility, and says those who reach the end of their court-ordered period should be re-evaluated for extension.
Despite the success of AOT in reducing re-arrests and hospitalizations, and the fact that the program has been found to significantly reduce mental health service costs and total state costs, several New York groups, including the NYCLU, oppose Kendra’s Law as violative of civil liberties by forcing people to undergo treatment. According to the NYCLU, “[p]eople with mental and behavior health issues should have control over their treatment decisions — including what medication they take, what therapy sessions they attend, where they live, and what other mental health programs they participate in.”
Mr. Stettin disagrees. “These activists don’t see the irony of their position: Abandoning the severely mentally ill to lead lives of unremitting torment, or freeze to death, or rot in a prison cell, is the ultimate denial of their civil rights.” He also disagrees that a better answer is to make sure people know about treatment opportunities and continue to offer treatment on a voluntary basis: “Some people don’t know they’re ill. So, no matter how much you make this information known, if someone doesn’t know they’re ill, they’re not going to ask for help….A lot of people will wind up in prison or dead before they come to realize their need for treatment.”
New York’s controversial bail rules also play a part in returning dangerous people to the street. Although Darrell Johnson, the alleged assaulter of two women on the UWS, reportedly had 15 prior arrests and a history of mental illness, the judge overseeing his case claimed neither side provided him with enough information to consider ordering bail. Under New York’s 2020 bail reforms, judges can’t automatically hold a defendant pending trial for certain misdemeanors or non-violent felonies, and these attacks were charged as misdemeanors since Johnson did not use a weapon.
Retired Acting New York Supreme Court Justice for the 9th Judicial District Barbara Zambelli, who oversaw criminal trials and mental health court cases for 33 years, noted in an interview, “Even prior to bail reform judges were not technically allowed to consider whether a defendant was likely to commit another violent offense if released. We could only take into account whether a defendant is likely to appear. I’ve always felt judges should be able to consider that. Of course, if you look at a rap sheet, you worry that something else will happen, so of course it’s in the back of your mind and a genuine concern.”
When asked why judges in New York can’t take into account the likelihood of a defendant committing another crime if released, Judge Zambelli replied, “You’ll have to take that up with the New York State legislature.”
Many New York criminal judges reportedly want more discretion in making determinations about bail, and Mayor Adams recently weighed in: “We must allow judges to take dangerousness into account. New York is the only state in the country that does not allow a judge to detain a defendant who poses a threat to the community. 49 other states, as well as the federal government, allow judges to consider a defendant’s dangerousness. New York must catch up.”
On the other side of the argument, in 2020, more than 100 pro-bail reform groups argued that “judges shouldn’t try to predict someone’s ‘dangerousness’ as a rationale to detain them,” the Daily News reported. “Adding ‘dangerousness’ to the bail law would codify racial profiling into pre-trial detention decisions…It is an invitation for bias…People of color would overwhelmingly bear the brunt of this misguided approach. According to a 2016 study, Black people were twice as likely as white people to be misclassified as ‘high risk.’ White people, meanwhile, were misclassified as low risk 63.2 percent more often than Black people.”
While experts may disagree over Kendra’s Law and bail reform, there is one area of growing agreement: unless we increase investment in supportive housing and services for the mentally ill, we won’t reduce violent crime by people with mental illness, no matter what steps we take to improve the criminal justice system. Kent Mackzum, Supervisor of Mental Hygiene Legal Service’s Bellevue Hospital office, summed up this position in an interview:
“What people don’t realize is that public safety can’t be had without investment in community resources. If someone with mental illness serves time and is released, without supportive services they may have another incident. Remember, even if you throw the book at someone, eventually, they still come back to the world. If you send someone upstate for six years, what’s going to happen when he’s released? What support system is out there?”
To expect our criminal justice system to be the primary resource for low-income people with mental illness is a huge and detrimental mistake, said Professor Heather Cucolo, who teaches criminal law and mental disability law at New York Law School, in an interview. “The courts can only do so much. It’s the legislature that needs to act to allocate sufficient funding and create appropriate laws and regulations. Without adequate resources, our jails and prisons become the primary facilitator for criminals with mental health issues.” [The treatment of people with mental illness in prison is] “abysmal, constitutionally inadequate, deficient, blatant disregard for constitutional protections that should be afforded individuals.”
Professor Cucolo continued, “the amount of rehabilitative measures that have to go hand in hand with treatment of mental illness don’t exist. Just by medicating and isolating persons with mental illness, we’re doing way more damage and detriment. That’s doing nothing to help and prepare them for an inevitable release back in society.”
Many believe the most urgent need is for supportive housing, because when people with serious mental illness roam the streets or shelter system, it is difficult to get them the sustained treatment they need and to ensure they adhere to their medications. Elliot Shapiro, former Assistant District Attorney and criminal defense attorney, said, “These people causing trouble are living on the ground. What if they had food and a place to live and counseling? They wouldn’t be on the subway, they’d be in the place where they live, but our culture isn’t willing to put the money in. These people don’t have the political power to demand that kind of resource. If we lock them up for 90 days they will still get out. They are citizens who demand special attention and resources and a lot of people aren’t going to like that, but that’s what it may take.”
NYC also needs additional inpatient psychiatric beds and services. Stettin noted that while the number of these beds in city-run hospitals has remained fairly steady, private hospitals have increasingly eliminated them in favor of more lucrative beds. The New York Times reported that while the number of adults in inpatient psychiatric beds dropped significantly from 2012 to 2019, “the number of people in dire need of help has not declined. From 2013 to 2020, the number of homeless people in New York City with serious mental illness jumped to about 13,200 from 11,500.” Stettin urges Mayor Adams to sit down with operators of private hospitals to figure out what incentives they need to make it worth their while to add more psychiatric beds.
Other measures afoot offer a more humane, effective way to respond to mental health crises and, if successful, could help keep people out of the criminal justice system. Daniel’s Law, introduced in the New York State legislature last session, would create a crisis-intervention model where trained mental health professionals, rather than police officers, respond to mental health emergencies.
Already, B-HEARD, a NYC pilot program, uses 911 to sends teams of EMTs/paramedics and mental health professionals to respond to certain mental health calls. Additionally, Correct Crisis Intervention Today-NYC is a broad coalition that has proposed a peer-led response to mental health crises. It would use a separate 988 hotline to summon CCIT teams to de-escalate purely mental-health crises. Ruth Lowenkron, Director of the Disability Justice Program at New York Lawyers for the Public Interest and a member of CCIT-NYC, noted in an interview that “at present, force is the default response to a mental health crisis.”
Though it is too late to save Michelle Go, Mr. Stettin remains hopeful: “If Mayor Adams will seize this moment to make severity of need the primary driver of how mental health treatment resources are allocated in New York City, Michelle Go will have one more thing in common with Kendra Webdale: She will not have died in vain.”