In January, 1999,a once-promising young man named Andrew Goldstein pushed a woman named Kendra Webdale into the path of an oncoming subway train. The press found that Goldstein was mentally ill and had not been receiving treatments.
State officials addressed the public outcry that ensued by seizing on what they saw as a solution -- court-ordered mental health treatment.
“How many more innocent bystanders like Kendra Webdale…must die before we do something?” Attorney General Eliot Spitzer asked.
Seven months after Kendra Webdale’s death, the state passed Kendra’s Law, which allows for forced treatment for people well enough to be living outside a hospital but with a history of being hospitalized or failing to comply with treatment. Under the law, someone (usually city health authorities) can petition the court to hold a hearing for such an individual, and if a judge finds the person meets certain criteria, that individual must follow a specific care plan for at least six months under threat of rehospitalization.
With the law set to expire June 30, Governor George Pataki has publicly endorsed making the law permanent, saying that the results "are clear -- Kendra’s Law works.”
Others disagree, arguing that the law needlessly and unfairly restricts a patient’s right to choose where and how to receive treatment. They also point to the irony of the case that led to the law -- Goldstein reportedly had sought out treatment but been denied care. They also point to a studyordered by state legislators at the time that offered little evidence to indicate involuntary treatment succeeded more than voluntary care in helping patients avoid hospitalization or arrest.
Rarely, however, do objections to Kendra’s Law stem from the link between mental illness and violent crime implicit in the law.
Mental Illness and Violence
Stories like the murder of Webdale grab headlines and influence public opinion about people with mental illness, but scientific studies paint a more complex picture.
One oft-cited studysuggested that people discharged from psychiatric hospitals were not more violent than average, unless they had a problem with drugs or alcohol. This is a big if: Former patients who had problems with drugs or alcohol were found to be five times more likely to act violently than a person without mental illness or substance abuse problems. And other studies have shown that many people with mental illness do struggle with drugs and alcohol.
A 2002 studyidentified three risk factors:
The study concluded that, if each of these three factors is present, a person with a severe mental illness has a 30 percent likelihood of acting violently within a one year period. But without these factors, the likelihood of violence dropped to two percent.
Another studypublished in 1995 found that, in New York, among those with mental illness, homeless people had a rate of violent crime 40 times higher than people with a place to live.
It’s easy for Jonathan Stanley to understand how someone with a mental illness can become violent. He remembers when he was symptomatic.
“For me and I think of a lot of people with a paranoid ideation -- when you think people are out to get you -- there’s no doubt in my mind there is a correlation,” between violence and mental illness, Stanley said.
Stanley, who has bipolar disorder, is an assistant director with the Treatment Advocacy Center, a national group which advocates for court-ordered, community-based treatment. Currently, 42 states have some form of court-ordered treatment, often called “assisted outpatient treatment.” Kendra’s Law wasn’t the first such law, but it is “a model for the nation,” Stanley said, because “what it’s got is procedures, it’s very detailed out on how to be used.”
The group argues that someone with a severe mental illness may not realize they are sick and need treatment, making a court order necessary. Another group, the state chapter of the National Alliance for the Mentally Ill, also supports the law.
Since the 1998 New York study, at least one other study has been published that found court-ordered treatment reduces violence, although the idea remains controversial among researchers.
But as far as improving the outlook of patients, a report issued by the New York State Office of Mental Healthfound Kendra’s Law to be effective, although it did not try to sort out differences between people undergoing voluntary outpatient treatment and those under a court order.
The National Alliance for the Mentally Ill has issued a report (In PDF Format) that includes interviews with family members, many of whom praised the program. At an April State Assembly hearing, while some patients argued court orders were not necessary, some family members of people with mental illness reportedlypraised the law.
“What Kendra’s Law does is it looks at a person and finds they are unable to survive safely in the community, and I always look at that to be more about their welfare than anything else,” Stanley said.
Kendra’s Law In Practice
A history of violence can be one of the criteria for applying Kendra’s Law, and, according to the state report, about 15 percent of 2,745 people ordered to receive treatment under Kendra’s Law had physically harmed someone in the 90 days prior to their court-order. After six months of the court-ordered treatment, commonly known as “assisted outpatient treatment,” only eight percent had gone on to harm others. (According to the latest figures, a total of 3,766 people have received court ordered treatment, most in New York City.)
“The reality I think is that the people who become subject to these orders don’t have a history of violence, significant violence,” said Marvin Bernstein, director of Mental Hygiene Legal Services, First Judicial Department, which oversees mental health civil cases in the Bronx and Manhattan.
The population affected by the law has mainly been living in psychiatric hospitals, at least in New York City, where most of the court orders have been issued, according to Bernstein.
“Virtually no applications are made for people living in the community,” Bernstein said, adding that most people in his district do not contest the orders, as they are eager to be released from the hospital. Cases in the Brooklyn and Queens, however, are contested more often, Bernstein said.
What Bernstein said he sees most are cases where the question is whether the person can take care of themselves, with any violent behavior “minor stuff that ordinarily wouldn’t come before a criminal court.”
“To me, the connection between the criminal justice system and people who might become involved with it except for Kendra’s Law is not very clear.”
After the initial court order, some find that they appreciate the program, Bernstein said. But others object to the intrusion of liberty, or the specifics of their treatment. After six months, another hearing takes place. Bernstein believes that “the courts tend to be fairly conservative: 'Why take a chance and change things?'” The average length of court-ordered treatment is 16 months, according to the state report.
Restricting Liberty
John Gresham, senior litigator for New York Lawyers for the Public Interest, finds many things wrong with the law, not the least of which is the intrusion on liberty.
“You are told, almost in all cases what medication to take,” Gresham said, no matter the side effects. “Your preferences be damned. “You lose confidentiality; you are in many cases told to go get therapy in a particular program, â€Thou shalt get group therapy at xyz clinic,’ you can be told to attend a day treatment program, you can be told where to live -- in many cases assigned a roommate. So you lose a lot of significant freedom.”
Gresham describes these as results of Kendra’s Law, although the law does make some provisions that the patient should be consulted on what plan is ordered for them.
His organization has written a report outlining their objections to the law(In PDF Format) — noting that black people are five times more likely than white people to receive court-ordered treatment. Another group, the New York Association of Psychiatric Rehabilitation Services, has also opposed making the law permanent.
Gresham does not discount the role that media values and public attitudes towards the mentally ill play in getting laws like Kendra’s Law passed.
Whenever he hears about a violent crime, he says “I kind of hold my breath to see if the person was mentally ill, and invariably it gets bigger play if [the person] was.”
He says this feeds into the notion that people with mental illness are a danger to society, “even though, if most people stop and think about, the vast incidents of violence involve people nobody would characterize as mentally ill.
“One of its consequences is that people resist recognition that they have a mental illness because it's freighted with so much stigma in a way that’s different if someone is told they have kidney disease.
“It leads to policies that strip people with mental illness of really basic rights, which no one would tolerate for any other illness.” Â
 Ronald York, a consultant who travels the country to help police unions with their contract negotiations, advises his clients to avoid criticizing the other side or complaining about how unfairly they are being treated. It is clear that New York's police unions are not among his clients: The Sergeants Benevolent Associationis spending two million dollars in advertising to criticize Mayor Michael Bloomberg, starting with a full-page ad in several newspapers:
"Since we understand that you are busy planning another â€Olympics 2012’ trip to Southeast Asia, we thought we'd clue you in on what's happening here in New York City,” says an ad headlined "An Open Letter To Mayor Bloomberg” signed by union president Ed Mullins. “Crime is on the rise in our subways and in our streets...The NYPD is facing the worst attrition crisis in its history...You say that the city can’t afford to pay the police a fair wage. That’s ridiculous...There’s plenty of money to pay a fair wage to police. You simply have chosen not to. You just approved a 7% rent increase for city landlords…Do you really think that landlords in the city deserve a bigger raise than cops?...Isn’t it about time that you started to fight as hard for your own police officers as you are for the 2012 Olympics?”
A spokesman for the Bloomberg campaign labeled the ad “a campaign of lies and inaccuracies against Mayor Bloomberg," in the Staten Island Advance.
“The negotiations of the city are very rude,” consultant York observes, politely.
Right now, actually, there are no negotiations. Arbitration hearings between city officials and the largest police union, the Patrolman’s Benevolent Association, began in November. The arbitration panel has been deliberating since March. A ruling for an average case would be delivered around July, a PBA spokesman said. This is not, however, an average case.
And so the police officers of New York continue to work without a contract; the 22,000 members of the PBA have been without one since 2002.
And if they never liked former Mayor Rudy Giuliani as much as the public thought they did, they certainly do not like the current mayor, and for much the same reason. The average officer was displeased with the salary increases under Giuliani, and they see Bloomberg as going one step further, slashing the department’s budget by nearly $280 million.
Union officials say the lack of salary increases is a major reason why the city's police force has shrunk by 2,400 officers since Bloomberg took office. These officers have fled to other police departments that offer higher salaries, the union says.
"It has become tougher being a New York City police officer during the Bloomberg administration because of the dangerous downsizing of the NYPD and the failure to recognize the need to pay police a competitive salary," Patrick Lynch, president of the Patrolmen's Benevolent Association, told Newsday.
New York police officers reportedly earn a starting salary of $36,878; the PBA has said that the average salary of a New York City police officer is about 10 percent less than the average salary of officers working in other large cities.
That is why, the union says, it rejected the city’s offer of a five percent salary increase spread out over three years.
The mayor counters that the city does not have the money to pay more. City officials also have asked the union to adopt cost-saving measures before they will consider pay raises.
“If the arbitrator were to give them more than the pattern [more than the other municipal unions, in other words] and there was no change in work rules that would let us generate the money, we’d just have to do it with fewer police officers,” Bloomberg reportedly said during his radio program.
One of the major cost-saving measures that city officials are requesting is an effort to reduce overtime. The city spent $237 million in fiscal year 2000 for police overtime, which was an extraordinary leap from the year before (46 percent higher than 1999). But five years later, Police Commissioner Raymond Kelly testified that, by the time the current fiscal year ends in June, overtime costs this year will have totaled $426 million.
PBA spokesman Al O’Leary says that it is not just city officials who have suggested changes to officers’ schedules to address the overtime issue; the union has done so as well. “Our members count and rely on overtime, because they are paid poorly. That shouldn’t be.” The City Council has proposed reducing overtime as a way of paying for 1,000 new officers.
The issue of overtime is a prickly one. Police misuse of overtime led to departmental disciplinary charges against 11 officers last month , and the independent Mayor’s Commission to Combat Police Corruption has unsuccessfully sought to study overtime practices, rebuffed by police officials who say the commission lacks the authority to review general administrative procedures.
Another group critical of police overtime practices has been the Citizens Budget Commission. The group also raised the idea that a leaner police force, rather than being a threat to the welfare of the city, might actually be more efficient. In a 2002 report , the Commission noted that New York had 625 police employees for every 100,000 people, ranking number two among large cities behind only Washington, D.C.
Crime has gone down in recent years even as fewer officers have been on the street.
Eli Silverman, a professor of police studies at John Jay College of Criminal Justice, however, noted that New York may differ from other large cities in two ways: the large tourist population, and the number of officers -- about 1,000, he said -- dedicated to anti-terrorism work.
Silverman was called on by the police union as an expert witness on police moralein 2002 during the last arbitration hearings between police and the city. Morale, he testified, was “particularly low.”
Since then, Silverman said, the feelings of police have only deepened.
O’Leary said that more money “would certainly encourage officers to stay,” but it “would have to be a very big award” to compete with other departments.
“The satisfaction with the job is almost entirely a function of economics.”
When Teresa M. Medina filed an application for asylum in the United States, she supplied a sworn statement that if forced to return to her native Philippines, she would "once more be subjected to persecution by the Communist Party of the Philippine/New People's Army (CPP/NPA)." She gave details of persecution, harassment and threats for refusing to broadcast anti-government, pro-Communist propaganda in her capacity as a newscaster.
Medina's case was heard first by an "asylum officer" who found her story incredible and then by an immigration judge, who agreed. The case of Medina v. Gonzales (previously known as Medina v. Ashcroft) is her appeal to the 2nd Circuit Court of Appeals in New York. The Court, which is often described as the "court of last resort before the Supreme Court of the United States," has dismissed Medina's petition for review, thereby allowing her deportation to go forward.
In an opinion by federal Judge Robert A. Katzmann, the three-judge bench agreed with the Board of Immigration Appeals that, in addition to the affidavit, Medina gave false testimony in her immigration interview. The judges found that false oral statements made under oath are included in the Immigration and Nationality Act definition of testimony, although not expressly defined by Congress; that the testimony was false; and that Medina did not meet the test of possessing good moral character. "Any alien," the opinion said, "who makes false oral statements under oath during an asylum interview with the subjective intent of obtaining immigration benefits is per se ineligible for suspension of deportation due to want of good moral character." Remaining in the United States is an immigration benefit.
At the interview Medina repeated under oath the same story of political persecution provided in the affidavit. Her stand against terrorism and banditry, her candor, prompted even more harassment from the CPP/NPA, she said, including harassing phone calls and threatening notes, all of which led her to believe she had no choice but to flee and go into hiding. While underground, the CPP/NPA began visiting and harassing her family, even warning them that, if ever discovered, she should be shot on sight, she said, according to the opinion.. The asylum officer deemed her as "not credible in material respects," a finding which the federal appeals court later called prescient. He declined to grant Medina asylum, and her case was then referred for a hearing before an immigration judge.
It became clear at the hearing that Medina's harrowing story of political persecution was a total fabrication. Confronted with prior testimony in which she had said she had worked only at the Hyatt Hotel in the Philippines from 1985 to the time she left that country, Medina admitted that her story was "made up" But she blamed it on her lawyer, saying he told her it was the way to achieve asylum. She "just wanted to be able to work here in the United States... . I didn't mean to lie,"she told the immigration judge.
Q. Ma'am, is this application, this statement, which mostly talks about your career of broadcasting for Eagle Broadcasting Station for 1987, and the troubles that you had as a result of that job, is that a lie? Is that made up?
A. Yes, it is made up.
According to Medina, her attorney told her that this should work for a political asylum status, that the story she adopted was a creation of her counsel (who was eventually replaced for ineffective assistance).
In order to become eligible for suspension of deportation, an alien must satisfy three statutory prerequisites: (1) she must have been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of her suspension application; (2) she must prove that during this period she was - and continues to be - a person of "good moral character;" and (3) she must be a person whose deportation would in the opinion of the Attorney General, result in extreme hardship to... a citizen of the United States or an alien lawfully admitted for permanent residence.
Even if Medina met the other requirements, during the period for which good moral character is required to be established, she gave false testimony for the purpose of obtaining benefits under the Immigration and Nationality Act. Any applicant who makes such false statements with the subjective intent of obtaining benefits such as remaining the United States must be deemed ineligible for suspension of deportation on the ground that she lacks "good moral character."
Moreover, the federal judges wrote,"...even if Medina's initial counsel provided ineffective assistance, this would not excuse Medina from her obligation to testify truthfully during the asylum interview, given that she took an oath to tell the truth during that interview and there is no reason to doubt that she understood all that the oath required.
It is expected that Medina will soon be deported to the Philippines. Immigration lawyers say there is no chance that the Supreme Court of the United States will hear her case.
Emily Jane Goodman is a New York State Supreme Court JusticeÂ