Published 1995. Reprinted with permission of the author.
by Paul Stavis and Amy Petragnani
In recent years, New York City has seen a number of violent acts by persons with mental illness:
- Reuben Harris was found not guilty (technically speaking, "not responsible by reason of mental disease or defect") for causing the death of an elderly woman by pushing her in front of a subway car; (1)
- the so-called "wild man" of the West Side, who committed a string of minor offenses (such as breaking car windows, harassing citizens) as well as some serious ones, including pushing a young girl in front of an oncoming truck, was civilly committed for psychiatric care and treatment; and
- the so-called "Staten Island Ferry Slasher," a person with mental illness who bought a broadsword in Times Square and attacked people on the Staten Island ferry boat which shuttles between New York City and Staten Island.(2)
There have been other such incidents within the past year, including a young man with mental illness pushing a young woman into the path of a subway train because of her attractive, but inexpensive, earrings; a man with mental illness who stabbed a young girl with a hypodermic needle on a subway, producing the fear that the needle might be contaminated with a disease such as HIV/AIDS; the "shoestore massacre" where a person with mental illness shot twelve people, killing all but one person, because he thought that his shoe order was late in arriving; and the mother who stopped taking her psychotropic medications and threw her baby out the window of her apartment building.
The law obviously has to play the pivotal role in protecting citizens from the violence of others, whether or not the perpetrators suffer from such intense mental illness that they are not responsible for their actions. After all, the legal significance of mental illness, as in a successful "insanity defense," goes to whether a person with mental illness is worthy of blame, and is therefore subject to being punished.
The law traditionally has made a distinction between the criminal and civil powers of the state to curb future violent acts of persons suffering from mental illness. The civil law authority of the state is principally aimed at treatment and protection from self-harm or harm to others. The criminal law also seeks to accomplish these goals, but what distinguishes it is that it also authorizes punishment and official stigmatization of the criminal. Before a person can be restrained against his will, there must be a strong showing of dangerousness or inability to survive predicated in the government's exercise of civil restraint for treatment of persons with mental illness.(3)
The New York Court of Appeals has issued a series of related decisions in recent months that have been hinged largely on drawing a distinction between insanity acquittees and involuntary civil committees, particularly with regard to continued retention of the former class of individuals. The question that remains, however, is whether this distinction is without a difference in law or fact.
The Solutions from Recent Court Decisions
The latest decision, entitled In the Matter of Francis S., involved a mentally ill individual with a history of drug and alcohol abuse, as well as countless dealings with the criminal justice system.(4) In 1987, Francis S. [hereinafter "S."] entered a plea of not responsible by reason of mental disease or defect to charges of assault and possession of a weapon in accordance with the provisions of Section 330.20 of New York's Criminal Procedure Law.(5) Following a psychiatric examination and initial hearing, wherein S. was found to be mentally ill but not suffering from a dangerous mental disorder, S. was civilly committed for a period of four months. In addition, the hearing court issued a five-year order of conditions, part of which required S. to comply with a treatment plan administered by the Office of Mental Health.
Throughout this five-year period, S. continuously failed to comply with the order of conditions, reverted to substance abuse, and was arrested several more times for similar incidents. The Commissioner of Mental Health therefore applied to the trial court for a recommitment order that sought to have S. placed in a secure facility because he was, in the words of the criminal procedure law, "currently" suffering from a dangerous mental illness and in need of continuing treatment. In the trial court, S. made a motion to dismiss the Commissioner's petition by challenging the meaning of "currently" in the state statute. S. also challenged the Commissioner's authority on constitutional grounds, arguing that retention deprived him of liberty without due process of law, since he was no longer dangerously mentally ill and did not require psychiatric treatment.
A hearing was held where "the primary source of disagreement was over whether S. currently suffered from a dangerous mental disorder requiring inpatient care."(6) The court ultimately determined that although it was "highly likely that upon release, S. would revert to uncontrollable behavior and relapse into substance abuse," it nevertheless "felt constrained under the authority of [the holdings of previous cases] to deny the recommitment application because, as a result of his present hospitalization and enforced medication, S.'s dangerous behavior had diminished."(7) In short, the trial court interpreted the statutory term "currently" to mean evaluating the patient's mental illness at the time of the hearing without regard for the effect that the treatment provided in suppressing anti-social or criminal behaviors, or the control of the individual which is inherent in and a result of being hospitalized in a psychiatric facility.
The Commissioner appealed to the Appellate Division, First Department which reversed the decision, holding that a finding of current dangerousness does not require examination only of a defendant's mental state as it currently exists and ignoring the effects of close supervision and routine medication. The court reasoned that a proper inquiry should certainly consider the patient's mental state as it currently would exist in the society where the patients seeks to be released, i.e., outside of the controlled atmosphere of a treatment facility, as well as considering the positive effects of the treatment being rendered in confinement. S. appealed this decision on several grounds.(8)
S.' constitutional challenge to the recommitment procedures of Criminal Procedure Law [CPL] Section 330.20(14) was that "if at the initial hearing after being found not responsible by reason of mental illness, the acquittee is found not to have a dangerous mental disorder, due process and equal protection principles prohibit the Legislature from denying the acquittee the procedural safeguards accorded other persons solely committed through the civil procedures of the Mental Hygiene Law."(9)
The Court of Appeals rejected this argument, based upon what it considered to be a clear legal distinction between the treatment of insanity acquittees and that of civil committees, with the following:
As we have repeatedly recognized, ... the provisions of CPL 330.20 for imposing orders of conditions through which the criminal court retains supervisory authority over insanity acquittees, and the section authorizing recommitment upon a finding that an acquittee has a dangerous mental disorder, reflect a legislative judgment that, having concededly once engaged in criminal conduct as a result of mental illness, the insanity acquittee continues to present a serious risk of recurrence of dangerous behavior derived from mental illness.... The plain purpose of a recommitment order within that statutory scheme is to keep a criminal acquittee previously found through one of these devices not to suffer from a dangerous mental disorder and, thus, not thereby subject to the CPL procedural devices, within the CPL's continued oversight, due to the potentiality of a dangerous mental disorder....
[A]s we have already held, equal protection principles do not prevent different treatment of insanity acquittees from other persons subject to civil commitment because acquittees may validly be regarded as a separate class, even when no longer diagnosed as having a dangerous mental disorder.(10)
S. also challenged the Appellate Division's decision on the ground that "current" dangerousness had not been established, since S. was stabilized at the time due to his hospitalization. The Court of Appeals, however, upheld the Appellate Division's definition of "currently dangerous." The Court found that "the Appellate Division majority quite properly based its determination that S. had a dangerous mental disorder on his history of prior relapses into violent behavior and of recurrent substance abuse and noncompliance with treatment programs upon release."(11)
This finding represents a dramatic twofold holding to permit retention or recommitment of an insanity acquittee. First, in the definition of "currently" as it applies to the determination of whether an insanity acquittee is "currently suffering from a dangerous mental disorder" under the Criminal Procedure Law, the court says that it is valid to look at past behavior, particularly likely relapses into violent behavior and likely substance abuse and not only the patient's diagnosis and behavior of the moment. Second, if the patient is likely to be violent and relapse into a mental illness, even if he does not currently suffer from a dangerous mental disorder, he may be recommitted. This is not only a departure from the law as it previously had been interpreted, but it also widens the gap between the treatment of insanity acquittees and civil committees.
In contrast, no court decision permits civil commitment for involuntary psychiatric care without the existence of mental illness proximate to the time of commitment.(12) In effect, the definition of "currently" as it applies to CPL 330.20 gives the government unique discretion to say that if a person is without continuing care and treatment, he or she is potentially, even if not actually, mentally ill. Thus, even if an insanity acquittee is not presently exhibiting violent tendencies within the controlled atmosphere of a secure facility and with treatment, the government can diagnose him as currently dangerous and deprive him of his liberty.
The Court of Appeals initially introduced this significant change in another decision issued only months before Francis S., the second in the series of recent decisions drawing a distinction between criminal and civil powers to control the future violent acts of the mentally ill. In the Matter of George L.(13) involved a defendant's challenge to a lower court's definition of the word "currently" as it is used in Section 330.20 of the Criminal Procedure Law. Relying on the precedent of the Court of Appeals, Matter of Torres,(14) the defendant argued that the word "currently" must be interpreted in its strictest sense. The defendant contended that since he had been taking medication "in the controlled environment of a psychiatric hospital,"(15) and his illness was in remission, he was in fact neither suffering nor could he be considered to be "currently suffering from a dangerous mental disorder."
In a strongly worded opinion which demonstrates a common sense approach to interpreting this statute, the Court rejected defendant's argument. It said that "the Legislature could not have intended that the word be read in its strictest sense, as individuals under the supervision of the Department of Correction or the Department of Mental Health during the course of CPL 330.20 proceedings ordinarily pose little current risk to themselves or others."(16) The Court went even further by stating that such an interpretation flies in the face of common sense and is essentially antithetical to the administration of justice:
To the extent that Torres might be read to indicate that the only relevant question pursuant to CPL 330.20 is whether a defendant, who has achieved "synthetic sanity" by virtue of receiving psychotropic medication, is dangerous as of the moment he is sitting in the courtroom, that interpretation is contrary both to common sense and to substantial justice. Indeed, [defendant's] argument would lead to the absurd conclusion that a defendant in a straightjacket, surrounded by armed guards, is not currently dangerous under the statute....
In short, compliance or lack of dangerousness in a facility does not necessarily mean that an individual does not suffer from a dangerous mental disorder.(17)
Therefore, these two decisions indicate that courts may look at past behavior in order to predict future dangerousness.(18) The Court was also very clear in emphasizing that this decision "does not extend to the necessarily higher procedural and substantive requirements for depriving an individual of his or her liberty interest in the context of an involuntary civil commitment."(19) Yet, the Court did not give any sort of rationale for the different treatment of these two classes of mentally ill individuals, i.e., where both may have a history of violence, both are found mentally ill, but where one was actually criminally prosecuted and the other faced a civil trial with a lesser standard of proof to be met by the government.
The third in this series of decisions, In the Matter of Oswald N.,(20) also asserts that there is a great distinction between insanity acquittees and civil committees, but again offers little or no rationale for this remarkable contrast. This particular case dealt with the narrow issue of whether a five-year order of conditions issued under Section 330.20 of the Criminal Procedure Law may be extended more than two times, or for more than a total of ten years.
The court reasoned that "the Legislature 'could not rationally have intended to subject the public to the enormous risk that would be created by abandonment of all supervision of an acquittee whose potential violent conduct is controllable only when medicated.'"(21) Indeed, maintaining this supervision over insanity acquittees was one of the major goals of the Insanity Defense Reform Act of 1980, based in part on the legislative recognition that "psychiatry cannot now guarantee the safety of the public from future dangerous acts of persons found not responsible and will most likely be unable to do so in the foreseeable future."(22)
Therefore, the court believed that the Legislature could not have intended to limit the order of conditions to a sum total of ten years. Furthermore, the Court denied that this amounts to a violation of equal protection or due process rights of insanity acquittees, stating once again without explanation, that "it is a 'widely and reasonably held view that insanity acquittees constitute a special class that should be treated differently from *** candidates for [civil] commitment.'"(23 )
Past Court Decisions Draw a Clearer Distinction
While the Court of Appeals' definition of the word "currently" as it applies to determining whether an insanity acquittee is currently mentally ill and therefore subject to continued retention in a secure facility signals a dramatic change in the law, the Court's legal distinction between insanity acquittees and civil committees has been recognized for some time. In fact, many courts, both federal and state, including the Supreme Court of the United States, have not wavered in the legal proposition that insanity acquittees "may validly be regarded as a separate class."(24)
For example, in 1983, the Supreme Court ruled that "when a criminal defendant establishes by a preponderance of the evidence that he is not guilty of a crime by reason of insanity, the Constitution permits the Government, on the basis of the insanity judgment, to confine him to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society."(25) In doing so, the Court relied on "the widely and reasonably held view that insanity acquittees constitute a special class that should be treated differently from other candidates for commitment."(26)
Similarly, in a 1977 case, People ex rel. Henig v. Commissioner of Mental Hygiene, the New York Court of Appeals stated that "CPL 330.20 deals with an exceptional class of individuals who may properly be treated somewhat differently from those who are not subject to the statute in that they have not been acquitted by reason of insanity."(27) Insanity acquittees cannot be punished in the traditional sense for their crimes, since they lack the necessary mental culpability. However, the undeniable fact remains that they have acted out in some violent, antisocial manner that would be punishable under the penal law but for their mental illness. These individuals have demonstrated their dangerousness, and society must be able to take some action apart from punishment to protect both the individuals and the communities they inhabit from future dangerousness. According to the Court, it seems that this actual outward manifestation of their violent tendencies, as opposed to latent tendencies that may exist in some civil committees, is sufficient justification to treat insanity acquittees somewhat differently from their civil counterparts.
An individual who has committed an act of violence, and has thus demonstrated his dangerousness, and who has successfully asserted an insanity defense, may quite properly be treated somewhat differently from other individuals who, although they may in fact be potentially equally dangerous as a result of mental problems, have not yet so vehemently demonstrated their dangerousness by violent antisocial behavior.(28)
This assertion has been echoed in other decisions as well, but it has been accompanied by little or no explanation.(29 )
However, the issue is not as black and white as it may appear. Indeed, "[p]ersuasive reasons may be advanced for the argument that no policy or constitutional justifications exist for significant distinctions between patients involuntarily committed under the Mental Hygiene Law and defendants automatically committed pursuant to CPL 330.20."(30) There are grey areas where, for practical purposes, the actual difference between an insanity acquittee and a civil committee is only a technical one.
For example, some involuntary civil committees have also had a history of committing violent, criminal acts.(31) Yet, for reasons such as a lack of resources or because the insanity of the individual may be so clear, prosecutors decline to prosecute certain individuals who either get lost in the system or are involuntarily committed under the civil law. As one commentator aptly notes, "[t]he key characteristic of violent acquittees in relation to [the state interest in fairly assessing the dangerousness of individuals] is not that they are as a group more dangerous due to mental illness than civil candidates, but that they have arrived at the commitment hearing by a different route, namely, through a criminal trial establishing the recent commission of a violent offense while in a state of mind of sufficiently doubtful sanity to preclude a finding of guilt."(32 )
While due process at a criminal trial is somewhat more stringent than at a civil trial (e.g., the criminal proof standard is "beyond a reasonable doubt," while the civil standard is "clear and convincing evidence"), these distinctions are esoteric in this context and certainly do not explain the differences in treatment of persons found to be dangerous due to mental illness in the respective systems.(33)
If "current dangerousness" is to be understood as a practical and meaningful concept, then there seems to be no reason, and the court decisions themselves pointedly lack any clear rationale, not to apply this concept to both criminal insanity acquittees and psychiatric civil committees.
As the Court of Appeals and other courts have noted, persons with mental illness that have propensities for dangerous behavior present the same potential danger to society or to themselves which cannot be determined with precision at any particular instant in time, especially when that instant time is when the patient is under psychiatric treatment within the controlled environment of a psychiatric facility. Indeed, there can be little question that such treatment and control greatly, perhaps totally, changes the condition of the dangerousness and "current" mental illness and is therefore the worst time to use as a predictive indicator.
As a matter of fact, in the majority of the celebrated cases discussed above, the patient seemed to have been stabilized after being psychiatrically treated in a closed setting, but once set free from such controls he or she soon reverted to the environment and conditions (usually including the use of powerful, illicit drugs or alcohol abuse) that were precursors to violent behavior. Typically, once freed from the control of treatment and the facility, these patients reverted to taking illicit drugs, ceased taking medicinal drugs, and once again exhibited the dangerous behaviors that mandated treatment or intervention by the police in the first place. As described by one court:
The cyclical pattern exemplified here of admittance - drug treatment - release - psychosis - readmittance - drug treatment - release, etc., although widely accepted as the modern approach to rehabilitating mentally ill persons, is unreasonable, since released mental patients (without medication or supervision) do violence to themselves and others.... [They are] a tragedy waiting to happen.(34)
Mental illness is not a static disease in most cases. Moreover, recent studies have shown that the best (and with some limited exceptions, perhaps only) predictors of violent behavior is past violent behavior.(35) Thus, while it would be morally inappropriate to stigmatize a violent or dangerous civil committee using the criminal law, there should be no prohibition from using that person's psychiatric treatment history as an important indicator of future behavior to decide the modality of future treatment.
The courts, albeit without a satisfactory rationale, have hit upon the right factors for the legitimate exercise of government power to restrain one category of violent individuals with mental illness. It remains to be seen whether the courts or the Legislature will either articulate an adequate distinction or approve application of the same principles of prognosticating dangerousness to civil committees.
1.In the Matter of R. H.: A Patient at Manhattan Psychiatric Center, NYS Commission on Quality of Care, April 1995.
2.Investigation of the Care and Treatment Provided to Juan Gonzalez by Presbyterian Medical Center Emergency Room, NYS Commission on Quality of Care, July 1986.
3.O'Connor v. Donaldson, 422 U.S. 563 (1975); Cooper v. Oklahoma, __ U.S. __, 64 U.S.L.W. 4255, 4261 (No. 95-5207, April 16, 1996).
4.1995 WL 761944 (N.Y. Ct. App. Dec. 28, 1995).
5.Section 330.20 of the Criminal Procedure Law governs the post-acquittal treatment of insanity acquittees in the State of New York.
6.Francis S., 1995 WL 761944, at *1.
7.Id. at *1-*2.
8.Of the arguments advanced by S. on appeal, including technical arguments, only those relevant to the issues of determining "dangerousness" are addressed here.
9.Francis S., 1995 WL 761944, at *3.
10.Id. at *3-*4 (citations omitted) (emphasis added).
11.Id. at *2 (emphasis added).
12.Matter of Torsney v. Gold, 47 N.Y.2d 667, 683, 420 N.Y.S.2d 192, 201 (1979):
An individual's liberty cannot be deprived by "warehousing" him in a mental institution when he is not suffering from a mental illness or defect and in no need of inpatient care and treatment on a ground which amounts to a presumption of a dangerous propensity flowing from, as in this case, an isolated, albeit tragic, incident.
13.85 N.Y.2d 295, 624 N.Y.S.2d 99 (1995).
14.166 A.D.2d 228, 560 N.Y.S.2d 440 (1st Dep't 1990).
15.George L., 85 N.Y.2d at 302, 624 N.Y.S.2d at 102.
16.Id. at 303, 624 N.Y.S.2d at 102.
17.Id. at 304, 624 N.Y.S.2d at 103 (citations omitted) (emphasis added).
18.However, this standard is somewhat demanding and cannot be solely based on "expert speculation" that the individual may relapse into dangerous behavior outside of the institutional setting. Id. at 307, 624 N.Y.S.2d at 105. According to the Court,
[t]he prosecution may meet its burden of proving that a defendant poses a current threat to himself or others warranting confinement in a secure environment, for example, by presenting proof of a history of prior relapses into violent behavior, substance abuse or dangerous activities upon release or termination of psychiatric treatment, or upon evidence establishing that continued medication is necessary to control defendant's violent tendencies and that defendant is likely not to comply with prescribed medication because of a prior history of such noncompliance or because of threats of future noncompliance."
Id. at 308, 624 N.Y.S.2d at 105.
19.Id. at 304 n.3, 624 N.Y.S.2d at 103-104 n.3.
20.87 N.Y.2d 98, 637 N.Y.S.2d 949 (1995).
21.Id. at 104, 637 N.Y.S.2d at 952.
22.Id., citing Report of N.Y. Law Revision Commission, 1981 N.Y. Laws 2261.
23.Id. at 105, 637 N.Y.S.2d at 952.
24.Francis S., 1995 WL 761944, at *4.
25.Jones v. United States, 463 U.S. 354, 370, 103 S. Ct. 3043, 3052-53 (1983).
26.Id. at 370, 103 S. Ct. at 3053.
27.43 N.Y.2d 334, 338, 401 N.Y.S.2d 462, 465 (1977).
29.See, e.g., In the Matter of Torsney,47 N.Y.2d 667, 420 N.Y.S.2d 192 (1979); In the Matter of Lloyd Z., 176 A.D.2d 807, 575 N.Y.S.2d 327 (2d Dep't 1991).
30.1981 N.Y. Laws 2262 (Report of N.Y. Law Revision Commission).
31.This statement is not meant to say that all mentally ill individuals have exhibited or may exhibit violent behavior. As Dr. Jeffrey Swanson, Ph.D., of Duke University explains, "'If the question is, Are most people with mental illness violent or not?, the clear answer is no,' ... 'If the question is, Are people with mental disorders more likely to be violent than people without mental disorders?, the answer is yes'...." "Link Between Violence and Mental Illness May Be Real," Psychiatric News, July 7, 1995, at 2, 22.
32.Warren J. Ingber, Note, Rules for an Exceptional Class: The Commitment and Release of Persons Acquitted of Violent Offenses by Reason of Insanity, 57 N.Y.U. L. Rev. 281, 297 (1982) (emphasis in original).
33.See Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804 (1979). In this case, the United States Supreme Court found that in order to involuntarily commit an individual for mental illness, the standard of proof must be greater than the "preponderance of the evidence" standard. However, an involuntary civil commitment does not constitutionally require the "beyond a reasonable doubt" standard, which is reserved for criminal cases.
34.Winters v. N.Y. City Health and Hosp. Corp., N.Y. L.J., Sept. 22, 1994, at 28, col. 4 (N.Y. County Sup. Ct., Justice Collazo).
35.See, Shah, P.J., et. al., "Hospitalized Insanity Acquittees' Level of Functioning," 22 Bull. Am. Acad. Psy. & Law 85, 91 (1994); Dr. Torrey, E.F., "Violent Behavior by Individuals with Serious Mental Illness," 45 Hosp. & Com. Psych. 653 (1994).