Resisting the Asylum's Pull

The debate about serious mental illness, including the one that swirls around Daniel Penny’s killing of Jordan Neely, has largely become a debate about coercion — when is it appropriate to force people to accept treatment when they do not want to accept it? In November, Mayor Adams announced a push to make greater use of legal authority under the state mental hygiene law to transport people to a hospital for psychiatric evaluation against their will because they cannot take care of their own basic needs. As stories about Neely’s tragic life have unfolded, newspapers and commentators have concluded that the mayor was right all along; indeed Adams himself used his first speech in the wake of Neely’s story to reinforce his commitment to that agenda. 

But if there is a lesson in Neely’s experience about society’s use of coercion in response to serious mental illness, it is that policymakers and practitioners should be more restrained in the way they use it, not less. The more often and indiscriminately coercion is the tool, the less likely it will be used wisely when it truly is the best option.

The public discussion of Neely’s death has paid close attention to his extensive history of interactions with the mental health and criminal justice systems. The attention given to the violence in his past can feel unseemly: he was the victim of homicide, not the perpetrator. But Neely’s past has become an unavoidable part of the public debate about serious mental illness in New York City, and it continues to be invoked to justify significant changes in mental health and criminal justice policy. Neely was different from the harmless but troubled people Adams evoked last November, for he had repeatedly frightened, threatened, or even assaulted strangers in public places (though it bears repeating that unlike Penny, he never killed anyone). 

Although the overwhelming majority of people with serious mental illnesses are not violent, there are exceptions. How should violence that does seem to be connected to mental illness be addressed?

In February, the New York Supreme Court gave one answer to that question when it provisionally resolved the most serious offense Neely had been charged with — punching a 67-year-old stranger outside a subway station and breaking her nose. Instead of going to prison for felony assault, Neely — in a deal with prosecutors and the judge, with all parties apparently in agreement — agreed to enroll in a 15-month residential treatment program that would provide care for his schizophrenia and his drug addiction, and result in the downgrading of those charges to misdemeanor assault. He had already spent more than a year in jail awaiting a resolution to his case. It often takes that long for Manhattan’s mental health court to line up scarce housing or treatment services for people selected for diversion programs.

He walked away from the program less than two weeks later. The judge who oversaw his case issued a warrant for his arrest, since one condition of his agreement was that he must not leave the program without permission. But apparently, no one went looking for him. He spent more than two months back on the streets before Penny killed him in a subway car where he had shouted that he wanted food and was ready to die.

For many people, including Neely’s own uncle, the horrible end to this story indicates that the courts should have treated Neely more forcefully. Some question why a man charged with felony assault after a string of similar offenses should even be eligible for diversion from prison.The program that negotiated Neely’s plea agreement explicitly intended to make diversion available to people accused of more serious offenses, and with good reason: Too many mental health courts restrict their attention to easy cases that would have never ended up in prison in the first place; they widen the net of criminal justice intervention rather than improving its quality as they promised they would.

Others insist that if someone like Neely is going to be diverted from prison, it should be to a locked facility from which he cannot simply walk away — to something more like the old-style psychiatric hospital than the kind of community-based care where he was sent. That interest in the old asylum model seems to be the endpoint of the current flirtation with a more coercive approach to serious mental illness.

We should not give up on community-based care so easily. It is naïve to believe that coercion will never have a place in society’s response to serious mental illness, particularly in the rare cases like Neely’s where illness is connected with violence. (Even in Trieste, Italy, where the city’s celebrated model of progressive psychiatry eschews locked doors and famously insists that “freedom is therapy,” a small number of people are involuntarily treated each year.) Yet it makes good sense to insist that coercion should always be viewed as a last resort — kept to an absolute minimum and used for limited and well-defined purposes.

When the government tries to save people from themselves over their own expressed objections, it takes on a very difficult task. The people being saved are no longer a partner in the project of making their own lives go well; the people tasked with saving them have to discern unilaterally what steps need to be taken, and they have to make sure that they actually are taken, overcoming the resistance of the person whose life they think they are saving along the way. That task can be particularly daunting in the mental health context. 

Psychiatrists know how idiosyncratic mental illness can be, how variable the effects of medication and other treatments are, and how much trial and error is involved in finding an effective approach. That process demands collaboration between patient and caregiver and candid feedback from patients. A relationship organized around controlling patients can make that all but impossible; their protests and refusals become just one more sign that they are sick and need to be coerced. The asylum model can encourage that dynamic, while a more open, community-based model of care aims to avoid it. 

Neely had committed serious violence that justified restricting his freedom, so he clearly should not have simply been allowed to walk away from a program selected as an alternative to incarceration. But that does not mean the only viable option was a locked psychiatric facility. 

Officials in New York have insisted that there is nothing that can be done when a person sent to community-based treatment by a court walks away from it. The New York Post quoted one unnamed official insisting that “the warrant squad has no way to find them, even if they looked,” suggesting that Neely’s saga illuminates “a glaring gap in New York law,” which gives officials too little authority to compel treatment in secure facilities.

That fatalism is unwarranted. In other cities, for example, Tucson, police or outreach workers regularly follow up even with people in court-ordered programs who miss a single outpatient appointment. Even in Trieste, mental health officials go to great lengths to reach out to service users who disengage from the supports they think these users need — though they try to minimize the need to involve the police in that outreach. That follow-up has to be built in as an essential ingredient of any program where some degree of noncompliance is predictable. 

How heavily the police should be involved in it and what exactly should be done when officials finally track down the person they are looking for are complex questions that need careful, case-by-case answers, but there is plenty of experience to indicate that the task is not hopeless.

To be sure, police and others charged with enforcing the terms of court-mandated treatment often find that the workload is overwhelming: There are just too many treatment petitions to enforce. Often, practitioners say, that is because they are being issued when they do not need to be, or because the most trivial violations get sent out for enforcement — for example, a doctor’s appointment missed, it turns out, because the city dial-a-ride service never showed up to transport the patient as scheduled. Enforcement becomes anemic because the universe of violations is too large.

That is what is so counterproductive about the cavalier way that New York City’s recent mental health strategy has resorted to coercion and mandates. At a time when the city cannot even enforce the terms of a court-mandated treatment program on a man with multiple serious assaults, it has encouraged mobile crisis workers and police officers to force more people into the mental health system even when they pose no threat to others and do not pose an imminent threat even to themselves — even when we have not systematically explored less coercive strategies for helping them. By doing that, it guarantees that there will be more court-mandated treatment orders than the system can possibly enforce.

Instead of trying to expand the reach of coercive psychiatry, cities like New York should focus more narrowly on cases like Neely’s where some degree of coercion is unequivocally justified, and even there, cities should be strategic about how exactly coercion ought to be deployed: Ideally, coercion is used when it is the last resort to sustain a person’s engagement with treatment and support, still affording that person as much freedom as possible to choose the form the treatment will take. Doing that is a matter of carefully refining the kind of community-based program the court arranged for Jordan Neely, not giving up on it in favor of the asylum or jail.