And Now They Are Coming for the Unhoused: The Long Push to Expand Involuntary Treatment in America

On November 29, New York City Mayor Eric Adams announced his administration’s 11-point legislative agenda, which seeks to enforce an expanded interpretation of the state’s existing mental hygiene laws governing forced treatment. In a speech unveiling the plan, Mayor Adams said: “A common misunderstanding persists that we cannot provide involuntary assistance unless the person is violent, suicidal, or presenting a risk of imminent harm. This myth must be put to rest.”

The administration’s agenda provides for the “involuntary removal” and hospitalization of persons who appear to be both “suffering from mental illness” and “in danger due to inability to meet their basic needs.” While affirming that the administration would try to get individuals to accept help voluntarily, Mayor Adams stated: “But we will not abandon them if those efforts cannot overcome the person’s unawareness of their own illness. In short, we are confirming that a person’s ‘inability to meet basic needs,’ to the extent that it poses a risk of harm, is part of the standard for mental health interventions.”

The announcement was immediately condemned by the disability community, homeless advocacy groups, and human rights organizations, and has resulted in a tsunami of coverage. But the voices of unhoused people have been less frequently heard in the public debate and reaction to the Adams administration proposal.

Lisa Ortega, formerly unhoused organizer with Take Back the Bronx, told Mad in America that involuntary removals of unhoused people were already happening in New York City. “A lot of people get put away involuntarily,” she said. “They get medicated immediately. And they can’t even fight back because they get medicated.”

She voiced fears that her Black and Brown unhoused neighbors would be further targeted under the new guidance. “If a homeless person just puts up their arm and says, ‘No, don’t,’ that’s considered ‘resistance,’” she said. “‘They’re ‘decompensating.’ They were ‘violent.’ They were ‘aggressive.’ This is more of a green light to just take people in.”

Ortega pointed the finger at the Adams administration and past administrations for producing conditions of poverty and houselessness in the city. “They’re the ones that are making people sick in the streets, putting them in the streets to begin with,” she said.

A Half-Century of Tug of War

According to Mayor Adams, this is the first time that a mayoral administration has issued official guidance on the “basic needs” standard. But efforts to loosen existing civil rights protections have a 50-year history, going back to the earliest years of the deinstitutionalization movement in the 1970s.

In 1971, schoolteacher Alberta Lessard was facing lifetime civil commitment to a Milwaukee public psychiatric facility and was being forcibly medicated when she called Milwaukee Legal Aid Services for help. Lessard became the plaintiff in a class-action lawsuit, launched on behalf of all persons involuntarily committed in the state of Wisconsin. The case went to the U.S. Supreme Court, which ruled in 1972 that Wisconsin’s civil commitment laws violated the Constitution.

Alberta Lessard being ejected from a Milwaukee courtroom, February 1980. Photo credit: George Holloshek

“Historically, persons alleged to be mentally ill have had the constitutional status of children,” wrote civil rights attorney Thomas K. Zander in 1976. Prior to the Lessard decision, mental health law operated under the doctrine of parens patriae, which views the state as a benevolent force intervening in the welfare of those deemed unable to help themselves.

Lessard held that people facing involuntary commitment to psychiatric facilities should be given the same due process rights as those facing the criminal legal system. The law enacted the strongest-ever standard for civil commitment: that of imminent danger to self or others, shifting the burden to the State to prove beyond a reasonable doubt that an individual’s deprivation of liberty was warranted. States across the country followed suit, adopting similar legal reforms.

The Lessard decision faced near-immediate pushback. In 1973, Wisconsin psychiatrist Darold Treffert began sharing anecdotes about people found not committable under the new laws, who went on to die by suicide, anorexia, and other causes. Treffert coined the term “dying with their rights on,” which has become an ongoing rallying cry among coalitions of medical authorities, family advocates, and policymakers across the country seeking to correct the pendulum swing towards civil rights. To this day, these coalitions continue to use Treffert’s strategy of invoking rare and horrific tragedies involving people designated as “severely mentally ill” as rationale for loosening inpatient and outpatient commitment standards.

Lessard did not specifically address the right to refuse medication, otherwise known as the right to informed consent. Zander, an adjunct professor of law at Marquette University, told Mad in America via email that there are no U.S. Supreme Court precedents that specifically recognize the right of civilly committed persons to refuse medication.

He explained that a handful of cases, including Washington v. Harper (1990), Riggins v. Nevada (1992), and Sell v. United States (2003), established that substantive due process limits the State’s authority to forcibly medicate incarcerated people and criminal defendants found incompetent to stand trial. He noted that in all due process matters, “the devil is in the details,” stating that “in applying that general principle to civilly committed individuals, state courts and federal district courts have gone in different directions as to how far they have limited the State’s authority to forcibly medicate.”

Despite the Lessard reforms, thousands of disabled people continued to be involuntarily warehoused in the 1970s and 1980s. The Americans with Disabilities Act of 1990 ushered in a new, anti-discrimination approach. In the mid-1990s, Lois Curtis and Elaine Wilson, both confined against their will in Georgia state institutions, became the plaintiffs in Olmstead v. L.C. The 1999 U.S. Supreme Court decision held that institutional confinement constituted a violation of Title II of the ADA, and established the unqualified right of disabled people to receive supports in the community. A wave of Olmstead cases that followed ushered in a second phase of deinstitutionalization.

Lois Curtis, center, presents President Barack Obama with a gift of her artwork in 2011. Photo Credit: Pete Souza.
The Rise of AOT

At the same time that Olmstead was being litigated, the high-profile 1999 New York City subway murder of Kendra Webdale by Andrew Goldstein set off a renewed backlash to the civil rights agenda, in the form of involuntary outpatient commitment. That same year, members of Ms. Webdale’s family, along with the newly-formed NAMI spinoff group, the Treatment Advocacy Center (TAC), successfully advocated for “Kendra’s Law,” the first involuntary outpatient commitment law in the United States. The name was euphemistically changed to “assisted outpatient treatment (AOT).” Despite the softened re-branding, Kendra’s Law reinvigorated the ongoing policy push to reframe “untreated severe mental illness” as a public safety issue.

The public safety approach has been gaining steady ground. In the 24 years since the TAC was founded by E. Fuller Torrey, AOT laws have been passed in 47 states and the District of Columbia, and the program has received federal funding.

AOT has been widely criticized not only for its infringement of rights, but its lack of efficacy. The 2001 Bellevue Study compared the outcomes of people compelled to accept outpatient treatment vs. those offered services voluntarily, and found no difference. A 2017 Cochrane Library review of AOT research affirmed the initial Bellevue findings, finding that compulsory outpatient treatment has “no clear difference in service use, social functioning or quality of life compared with voluntary care or brief supervised discharge.”

Almost from the start, the AOT program has been heavily disparaged for its glaring racial disparities. A 2005 New York Lawyers for the Public Interest (NYLPI) report examining Kendra’s Law implementation found that Black people were five times more likely, and Hispanic individuals were two and a half times more likely, to be subjected to a court order than their white counterparts. “We submit it is immoral and irresponsible to continue a system of compulsion that is so biased,” the report concluded.

New York’s Office of Mental Hygiene statistics, among the clearest AOT demographics data available to the public, illustrate that statewide disparities have persisted to this day. In New York City itself, the disparities only increase. The city’s population is 24% Black and 29% Hispanic, but 44% of those on AOT orders are Black people, and 32% are Hispanic people.

Source: New York’s Office of Mental Hygiene

“The AOT system compounds upon the already existing systems of oppression against Black and Hispanic New Yorkers. In this regard, the AOT system has become, perhaps unwittingly, more akin to the criminal legal system—an inherently racist system that primarily deprives people of color of their rights and liberties,” wrote Victoria Rodríguez-Roldán in a 2022 examination of AOT’s racial disparities. These disparities are by no means limited to New York, but are present in other cities. A March 2019 evaluation of San Francisco’s AOT program found that Black people represent nearly a quarter of those placed under AOT orders, while comprising just 5% of the city’s population.

Five of the eleven points in the Adams’ Administration’s legislative agenda propose policy fixes to remove “barriers to AOT.” The heavy emphasis on strengthening AOT in the Mayor’s plan is unsurprising, considering that in July of this year the administration hired Brian Stettin as senior advisor for severe mental illness. Stettin is the former policy director of the Treatment Advocacy Center; as Assistant New York State Attorney General, he was also a key player in the original conception and drafting of Kendra’s Law.

Involuntary Treatment Legislation Spreads Coast to Coast

Mayor Adams’ announcement is only the latest in a string of efforts to remove unhoused people from urban areas and to compel them to accept psychiatric treatment. “It’s an emerging era of re-institutionalization,” Vesper Moore, mad justice activist with the Kiva Center, told Mad in America.

In September, California governor Gavin Newsom signed the Community Assistance, Recovery and Empowerment (CARE) Act into law, which enacts a regime of CARE Courts. The legislation targets individuals diagnosed with psychotic disorders, ordering them to comply with a CARE plan for up to 24 months, with threat of being forced into a conservatorship if they do not.

The CARE Act was roundly condemned by people with lived experience, as well as civil rights, disability rights, and human rights organizations for its emphasis on coercion. In a statement, the California Association of Mental Health Peer Run Organizations (CAMHPRO) said: “This plan is not a new approach and a paradigm shift. In fact, it resorts to the same old default of the behavioral health system—forced treatment. A court order is forced treatment. Also, force is force, whether in a hospital setting or located in the community, in a home.”

Similar in tone and tenor to the CARE Act, there have also been a number of bills introduced into state legislatures that criminalize unhoused people for simply existing in public, in the form of so-called “camping bans,” and compel them to accept court-ordered treatment.

Many of these bills are based on model legislation called the “Reducing Street Homelessness Act,” created by the Cicero Institute, a conservative think tank founded by tech entrepreneur Joe Lonsdale. Lonsdale was mentored by Silicon Valley billionaire Peter Thiel, a major supporter of Donald Trump, along with other Republican candidates including JD Vance (R-Ohio) and Blake Masters (R-Arizona). Along with Thiel, Lonsdale is a co-founder of Palantir, a secretive CIA-funded software company whose technology has been used for migrant surveillance and predictive policing. While Silicon Valley has long projected a liberal image, a powerful cadre of entrepreneurs like Lonsdale and Thiel are focused on remaking a “new American right.”

In the past year, legislation modeled on the Cicero bill has gained traction, passing in Texas, Missouri, and Tennessee, whose bill is the first to make public camping a felony. Similar bills introduced in Wisconsin, Georgia, Arizona, and Oklahoma failed in recent legislative sessions. And liberal cities like Portland, Los Angeles, and San Francisco are also strengthening camping bans and criminalization.

Cicero’s model legislation seeks to expand existing criminalization efforts, making it illegal to camp on public land in any area other than designated parking areas or camping sites, punishable by up to one month in jail and/or a $5,000 fine. Those residing in designated camping facilities would be required to participate in mental health and/or drug treatment, including invasive drug testing. Failure to comply with treatment, including a positive drug screen, would result in “removal” from such facilities. What would happen to individuals after such removal is unspecified.

The bill also provides for “mental health supervision” petitions. Like the Adams proposal, these petitions hinge on the most expansive interpretation of involuntary treatment statutes, going even beyond the inability to care for oneself to having “a mental state that will deteriorate to a dangerous level without medical intervention.”

Cicero’s model bill also includes an AOT provision. After an individual’s 72-hour hold expires, providers are encouraged to place people under AOT orders “when appropriate.” Those failing to comply with their court-ordered treatment plan are also subject to up to one month in jail and/or a $5,000 fine. (While Cicero Institute and TAC staff have had policy conversations, there is no formal relationship between the two groups, Judge Glock, Cicero’s senior director of policy and research, told Mad in America.)

The Cicero bill shifts funding from permanent supportive housing efforts to temporary encampments. Joining other right-leaning think tanks such as the Manhattan Institute and the Heritage Institute, the Cicero Institute takes aim at Housing First programs, declaring them a “failure” and instead pushing for a mandated “treatment first” approach that employs a “carrot and stick.”

Advocates Respond: “It’s Just a Way to Remove Them From Sight”

When asked to respond to the claims of conservatives that the Housing First model has failed, and that a “treatment first” approach is preferable, Ortega told Mad in America, “Tell all those right wing motherf–ckers, ‘Give us your housing and then we’ll learn from you how to navigate that without a home…Give us your home and then we’ll watch you and we’ll note it. It’ll be a case study, how you maneuver that.”

Protestors rally at City Hall to condemn the Adams mental health plan, December 8, 2022. Photo credit: Vesper Moore

Kim Hopper, a medical anthropologist at Columbia University who has for four decades studied policies impacting unhoused people, repudiated assertions that Housing First has been a failure, noting that there simply isn’t enough permanent supportive housing to meet the demand. “The forces generating homelessness don’t come from ‘failed’ Housing First programs,” he told Mad in America. “They come from all sorts of structural factors that are making it impossible for people to afford the rent. Or they are being discharged from a variety of facilities with really poor follow-up plans that eventually land them on the street or in shelters. And once they’re in the shelters, they discover, ‘This is not a place I want to live.’”

According to Shams DaBaron aka “da homeless hero,” who is providing guidance to the Adams administration while not agreeing with all of its policies, partial blame for the current situation lies with Callahan v. Carey (1979), which affirmed the legal right to shelter in New York City. “[Callahan] gives us our shelter-industrial complex, and it also gives us our problems,” he told Mad in America. “Because instead of building supportive housing, instead of putting money towards psychiatric stabilization beds, they just put it towards shelters.”

“This is rooted in systemic racism. And this is by design. This is codified,” DaBaron added.

Lisa Ortega, center, at a 2016 rally against gentrification in the Bronx. Photo credit: DNA Info/Eddie Small

Advocates calling for “housing not handcuffs” warn that the strengthening of anti-camping bans and criminalization of unhoused individuals will inevitably increase deadly police encounters and exacerbate existing racial disparities, given that 40% of unhoused people in America are Black, despite comprising only 17% of the total population.

Theo Henderson, writer, unhoused organizer and host of the We the Unhoused podcast, told Mad in America that unhoused Angelenos received the Adams Administration announcement with alarm. “The same thing that they’re doing over in New York, they’re trying to implement here,” he said. “They already have dispatched and sent out people to go after unhoused people who are maybe in various stages of breaks from reality.”

Henderson, who has been organizing for the repeal of 41.18, the Los Angeles statute that criminalizes poverty and houselessness, clarified that a person does not even need to “appear mentally ill” to be threatened by police and/or removed in Los Angeles. “So let’s imagine that you’re unhoused and you’re waiting at the bus stop. Simple. Right? You’re not bothering anybody. You’re not hurting anybody. But someone gets it in their head to say, ‘Hey, this person is mentally ill.’”

In contrast to claims that such initiatives represent a compassionate response to poverty and houselessness, Henderson called anti-camping ordinances like 41.18 “soft fascism.” “Death and sanctioned violence should not be the solution for getting people to get help, because that’s not helping, that’s control and that’s violence.”

“I’ve heard the now ejected council member Nuri Martinez say: ‘We need to offer a carrot and a stick.’ These policies are not a damn stick, but a stone to stone people into accepting dangerous and incompatible services.”

“You’re basically putting your foot on the neck while they’re down, that’s your solution,” he added. “That’s what you feel is going to make sure people magically get off of substances, magically make people ‘sane,’ acceptable by society. When I say quiet fascism, this is what I mean.”

Henderson is clear that despite claims of empathy and care, these laws are about removing visible signs of homelessness and poverty from the streets. “They are definitely working at trying to penalize and imprison people that they claim have mental health issues, or even if they don’t. It’s just a way to remove them from sight. And that’s what’s so alarming. People don’t understand this is not about people not wanting to get help. It’s about them trying to target unhoused people because the Olympics are coming here.”

Questionable Legality

During a press conference following his November 29 announcement, Mayor Adams said: “This is not a new law. We are going to properly define and carry out the existing law and then partner with our partners in Albany to see what we need to correct.”

Ruth Lowenkron, director of the Disability Justice program at NYLPI, told Mad in America that the Adams proposal is “very confusing.”

“He’s saying, ‘All I’m doing is what the law allows,’” Lowenkron said. “But then he suggests that requiring a showing of dangerousness is a myth. And that’s not what the law says. The law does say, of course, that you have to have a showing of dangerousness. So it’s a little hard to pick out what he’s saying…What certainly appears to be happening is a loosening of standards and an assumption about who can and can’t take care of their basic needs.”

Lowenkron said it was still too early to determine what legal challenges the Adams Administration might face. She referenced a currently pending class-action lawsuit, Baerga v. City of New York, which accuses the city of violating individuals’ rights by sending cops to respond to people in mental health crises.

According to NYLPI’s website, “The plaintiffs include people who were arrested simply for having a mental health diagnosis—or even just being perceived as having a mental health diagnosis—and who were not a harm to themselves or others, but were nevertheless forcibly strapped to gurneys or otherwise restrained and taken against their will to a hospital.” In the context of that lawsuit, NYLPI has requested further information from the Adams Administration, Lowenkron said.

First They Came for…

The pandemic only served to deepen and magnify existing inequities and injustices in the U.S. As America’s already frayed social safety net continues to unravel with no end in sight, and society becomes increasingly polarized on almost every social issue, civil liberties have come increasingly under attack. This trend can be seen not only when it comes to mental health and houselessness, but in a spate of laws and rulings restricting the rights and movements of a variety of marginalized and oppressed groups.

A glaring example is the repeal of Roe earlier this year, which made abortion illegal in 11 states and overwhelmingly impacts pregnant people of color. But this trend can also be seen in a number of recent laws sharply restricting or outlawing the rights of transgender youth to pursue and receive gender-affirming care. What all of these laws have in common is an anti-democratic othering of people who are often already on the margins of society.

Henderson said that a major part of the battle is for the public’s imagination. “It’s housed people that voted these people in for these draconian policies. We need to have that conversation and that understanding. Why is it that you have to have a villain?”

“Society does not want to make the adjustments that are necessary,” he added. “People lack the emotional intelligence, the impetus to speak out against these injustices and say, ‘Hey, this is not going to work. This is harmful to people. We’re harming people already. Let us look for solutions that are with them at the table. And not only that, let’s stop demonizing them.’”

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Cover photo by Vesper Moore.

MIA Reports are supported, in part, by a grant from The Thomas Jobe Fund.

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