A constitutional analysis of Kendra's Law: New York's solution for treatment of the chronically mentally ill.

AuthorWatnik, Ilissa L.


On January 3, 1999, a young woman named Kendra Webdale was tragically pushed to her death in front of an oncoming Manhattan subway train by twenty-nine-year-old Andrew Goldstein, a diagnosed schizophrenic with a history of violence who failed to take his prescribed medication.(1) Other similarly tragic incidents occurred that year, including the April 6 police shooting of Charles Stevens, a man with a history of mental illness who swung a sword at passengers on the Long Island Railroad.(2) In another instance, on April 28, 1999, Edgar Rivera's legs were severed after Julio Perez, an untreated schizophrenic, shoved him into an oncoming subway train.(3)

In response to these tragedies, New York's Attorney General, Eliot Spitzer, proposed Assisted Outpatient Treatment ("AOT") legislation, which is the official name for Kendra's Law.(4) On August 27, 1999, New York Governor George Pataki formally signed this legislation, named in honor of Kendra Webdale, into law.(5) This statute allows particular individuals to petition the court to obtain an order for a mentally ill person to receive AOT if that person meets very specific and defined criteria.(6)

This Comment analyzes New York's approach to assisted outpatient commitment. Part I first provides a brief history of outpatient commitment in the United States and explains the legal foundation that allows a state legally to provide such an option for mentally ill individuals. Second, other states' statutory approaches to AOT are examined. Part II provides a detailed discussion of the way Kendra's Law will operate in New York, and a federal- and state-level constitutional evaluation and analysis follows. Part III provides policy justifications for, and potential barriers to, implementing Kendra's Law. Finally, Part IV discusses recent developments and cases arising under the statute.

This Comment argues that through Kendra's Law, New York has provided a less restrictive alternative than inpatient commitment for treating the mentally ill. Balancing the patient's liberty and autonomy interests against the State's police power and parens patriae interests leads to the conclusion that the State's interests outweigh the patient's interests. Under this analysis, Kendra's Law does not violate substantive due process. Furthermore, the procedural safeguards that are built into the statute lessen the likelihood of an erroneous deprivation of liberty. Ironically, Kendra's Law actually increases a patient's liberty in a system where the only alternatives would be either inpatient commitment or physical freedom subject to the mental imprisonment caused by the illness. Critics' central argument against the statute is that it violates a patient's right to determine her own course of treatment; however, Kendra's Law permits the patient to participate in the development of a treatment plan. Furthermore, it does not authorize involuntary medication, thereby upholding the state constitutional and common law right to refuse treatment. Finally, the most serious potential barrier to the successful implementation of Kendra's Law would be lack of adequate funding. It is uncertain at this time whether the budgetary provisions made for Kendra's Law will prove sufficient to carry out its objectives. The option for AOT is meaningless unless the resources are available to implement it.

Kendra's Law is crucial to preventing tragedies, such as the Kendra Webdale incident, from occurring again. An estimated one thousand homicides are committed each year by untreated mentally ill individuals.(7) In addition, the suicide rate among the mentally ill is ten to fifteen times higher than among the general population.(8) Fifty percent of mentally ill individuals suffer from a symptom called "lack of insight," which causes the person not to recognize her illness and, therefore, to refuse to take the medication necessary to treat it.(9) Proper implementation of Kendra's Law will target such individuals and treat them before their illness results in tragedy to themselves or others.

The need for a law such as Kendra's Law is evidenced by the ironic fact that Andrew Goldstein had twice attempted voluntarily to participate in the Bellevue Pilot Program (the precursor to Kendra's Law), but was turned away.(10) Although a law such as Kendra's Law would not have helped in the specific case of Andrew Goldstein, who had sought help on his own but was rejected due to lack of space at mental health facilities,(11) it would be a good place to start improving the lives of the mentally ill, as well as the public safety.


    1. Background of Outpatient Commitment

      AOT has developed as the direct result of deinstitutionalization in the United States.(12) The deinstitutionalization movement began in 1955, when the first effective antipsychotic medication--chlorpromazine, or Thorazine--was introduced.(13) The states were financially responsible for patients while they were in state hospitals, but were able to shift the burden to the federal government by discharging them.(14) Medicaid was enacted in 1965, and the federal government specifically excluded Medicaid payments for patients in state psychiatric hospitals and other "institutions for the treatment of mental diseases" ("IMDs").(15) The purposes of excluding the payments were both to foster deinstitutionalization and to shift costs back to the states, where the federal government considered the responsibility to lie.(16) In response, the states transferred massive numbers of patients to nursing homes and to the community, where Medicaid reimbursement was available.(17) As a result of the incentives created by Medicaid programs, more than ninety percent of state psychiatric hospital beds have been eliminated since 1960 and an estimated forty-four psychiatric hospitals closed nationwide in the 1990s.(18)

      Another explanation for the deinstitutionalization movement is "the inadequacy of treatment in most public mental hospitals."(19) Many of these facilities were overcrowded, physically decayed, understaffed, and had limited or nonexistent psychotherapy.(20) The community treatment approach was also

      motivated by the clinical recognition that institutional existence tends to foster passive and dependent behavior.... [This] approach recognizes the drawbacks of segregating the mentally ill from the rest of society, and instead seeks to assist patients in developing or maintaining their "basic social capacities" and to foster independence and initiative.(21) The 1960s deinstitutionalization movement was also motivated by a concern for the civil rights of patients, signified by the creation of more stringent standards for civil commitment and by procedural and substantive due process safeguards, such as the right to treatment in the least restrictive environment.(22) The doctrine of the least restrictive alternative (or least restrictive environment or setting) refers to treatment in a setting that preserves the individual's freedom and autonomy to the greatest extent possible.(23)

      The goals of the deinstitutionalization movement were to provide a continuum of community-based services for the mentally ill, with minimal use of institutionalized care, as well as to furnish treatment in the least restrictive settings and utilize preventive mental health care.(24) These goals, however, have not been fully realized. Many chronically ill individuals do not receive treatment and, as a result, "have become homeless or.... `transinstitutionalized' into nursing homes, prisons, and jails."(25) According to two prominent commentators in the field, Dr. E. Fuller Torrey and attorney Mary Zdanowicz, a pattern of violence among the mentally ill is the result of deinstitutionalization "gone awry:"

      The emerging pattern of violence is clear. And it is part of a larger pattern: increasing numbers of severely mentally ill individuals among the homeless population, incarcerated in jails and prisons for offenses committed while psychotic, and loitering in parks, public libraries and transportation stations. The pattern is the product of deinstitutionalization gone awry, the discharge of hundreds of thousands of mentally ill individuals from the nation's public psychiatric hospitals without ensuring that they get the medication they need to remain well.(26) This pattern of violence is real. By one estimate, mentally ill people commit about 1000 homicides a year, or about 5% of total national homicides annually.(27) Furthermore, about 20% of the 2.3 million adult Americans who suffer from bipolar disorder, also known as manic depression, and about 10% of the 2 million adult American schizophrenics commit suicide each year.(28) States have responded to this crisis in one of three ways--conditional release, outpatient commitment as a dispositional alternative, and preventive commitment.(29)

    2. Legal Foundation for Deinstitutionalization and Outpatient Commitment

      States derive their authority to order outpatient commitment from the police power or from the parens patriae power.(30) The police power justification rests on the theory that the State may enact laws to protect the public health, safety, and general welfare.(31) The parens patriae rationale empowers the State to protect those who cannot protect themselves.(32) Often the State's intervention is an extension of the police power or the parens patriae power because it is exercised in anticipation of future harm, rather than in response to an "`immediate threat to life or property.'"(33) This is true of Kendra's Law, which provides for AOT even if no act of violence has occurred, but where there is a likelihood of such an act occurring.(34)

      Although the realm of mental health care is left to the states, the Constitution and the Supreme Court provide a minimal level of protection to the mentally ill. In 1975, the Court addressed the due process limitations on a state's power to civilly commit a...

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