End Kendra’s Law Now: Racist, Classist Practices in Involuntary Psychiatry Persist

In addition to being subjected to forced drugging or other psychiatric procedures and products and psychiatric programming, human rights violations carried out through court-ordered and coercive forms of state-sponsored psychiatry are many. These include loss of liberty, forced labor, and prevention of personal economic and social development—meanwhile, staff and the State maintain their liberties and benefit from their involvement. In New York State, where Kendra’s Law is enacted, racist and classist trends in who is court-ordered into involuntary treatment are rampant. On June 29, 2017 Kendra’s Law was extended until June 30, 2022.1 This means we still have time to organize our calls for sunset of the law. We need to take Kendra’s Law off the books in New York State.

In the most recent data published by the New York State Office of Mental Health,2 in New York City 22% of people who have Assertive Community Treatment teams assigned to them are White, 22% are identified as “Other” and more than half (54%) of people are Black. Twenty-three percent are Hispanic. The Assertive Community Treatment program, one of the most coercive and intrusive psychiatric programs coordinated by New York State, utilizes the Assertive Community Treatment model, where members of a treatment team can enter any sphere of a person’s life: in their work, school, play, and/or home spaces.

The supposed purpose is to ensure that a person is complying with their treatment plan. Treatment plans include products, procedures, and programs a person must comply with to remain in the community and not subject to court-ordered institutionalization. Members of Assertive Community Treatment Teams determine what drugs the person the team is focused on are taking, where they are living, what they are eating, how sanitized/organized their home is, how they act or do not act toward or with others, whether or not they socialize enough or too much.

Statewide Assertive Community Treatment data for New York State as of June 4, 2019 shows nearly half of people (45%) are Black, 36% are White. Less than one-fifth of people (17%) are Hispanic.

Of 6,375 people currently in the program, 64% are male and 36% are female. The average age is 46.2 years. Six percent of people are 24 and younger, 46% 25 through 44 years old, 40% are 45 through 64 years old, and 8% are 65 or older.

One-third (34%) of people have less than a High School Diploma, one-third (33%) of people have a High School Diploma or equivalent, and 23% have some college or degree, 10% of people are not accounted for in the data.

Seven percent (7%) of people are currently employed.

The median length of time under an Assertive Community Treatment Team is 2.3 years, with 12% recorded as less than six months and 13% six months to one year. One-third of people are under the program one through three years. Seventeen percent of people are under a team for three to five years. One-quarter (25%) of people under Assertive Community Treatment Teams are subjected to the team’s involvement in their life for five or more years.

One-fifth of people in the Assertive Community Treatment program are under court-ordered Assisted Outpatient Treatment, Kendra’s Law.

Analyses of how psychiatric oppression is greater when other forms of racial, economic, and gender oppression exist have been made and have been the subject of consideration as New York’s Kendra’s Law continues to be challenged, still within a potential sunset period prior to becoming permanently etched into Mental Hygiene Law, with expenditures exceeding 32 million dollars a year.3

In addition to involuntary outpatient commitment being an assault on and targeting people who are living in or near poverty, the statistics demonstrate racial disparities—gross over-representation of people who are African American—in the application of involuntary outpatient commitment. In the competitive study that was awarded to Swartz, et al (2009) by New York State, commonly referred to as the Duke Study,4 the authors explain:

We find that the overrepresentation of African Americans in the AOT Program is a function of African Americans’ higher likelihood of being poor, higher likelihood of being uninsured, higher likelihood of being treated by the public mental health system (rather than by private mental health professionals), and higher likelihood of having a history of psychiatric hospitalization. The underlying reasons for these differences in the status of African Americans are beyond the scope of this report.

Staggering racial disparities were documented in the report by Swartz, et al. (2009):

Thus, overall, African Americans are more likely than whites to receive AOT. However, candidates for AOT are largely drawn from a population where blacks are over represented: psychiatric patients with multiple involuntary hospitalizations in public facilities. The answer to the question of whether AOT is being applied fairly must take into account all of the available data.

One decade ago, Swartz, et al. (2009) confirmed:

Since 1999 about 34% of AOT recipients have been African Americans who make up only 17% of the state’s population, while 34% of the people on AOT have been whites, who make up 61% of the population.

A decade later, as of June 24, 2019, the Office of Mental Health’s statistics show that statewide, 30% of people under Kendra’s Law are White; 37% are Black; 27% are Hispanic; 4% are Asian and 1%, Other. So the disparities have grown in the last decade.

Data published by the New York State Office of Mental Health gives us an indication of who is being subjected to court-ordered psychiatry while living in the community. Statewide, there have been 41,804 investigations conducted since 1999, 21,534 in New York City. Since 1999, 27,128 petitions have been filed for involuntary outpatient commitment, with 25,854 of the petitions granted—95%. In the period from June 24, 2018 through June 23, 2019, 1,445 petitions were filed, with 1,293 or 89% of petitions granted. It is important to note that even if a petition is not granted, there is an investigation, which nearly doubles how many people have been subjected to some aspect of court-ordered psychiatry.

Since 1999, 16,911 people have been under court-ordered psychiatry while living in the community, outside of the walls of the institution. This means these people are living under the threat of re-institutionalization at any moment for noncompliance with the treatment ordered.

Statewide, the average age of people under court order is 38.9 years old. Two-thirds of people under court order are male, one-third are female. Nearly three-quarters (74%) of people are single, 4% married, 1% “cohabiting with significant other,” 11% are divorced, 1% are widowed, and the relationship status of 8% of people under court ordered psychiatry is unknown.

As of June 24, 2019, 2,997 people are under an active court order in New York State. There have been 19,377 people statewide who have taken the route of supposed “service enhancements and/or voluntary agreements,” with 211 people under this arrangement between March 2019 and February 2019. From Swartz, et al. (2009):

For AOT to be ordered, individual candidates who are petitioned for AOT must meet legal eligibility criteria, and AOT must be deemed the least restrictive alternative. However, for some petitioned individuals, an alternative plan may be drafted in which the individual agrees to receive Enhanced Voluntary Services (EVS); in most cases, this plan includes being assigned to intensive case management (ICM) or assertive community treatment (ACT). Although voluntary, the agreement may have conditions of treatment participation designed to avoid a court order for AOT.

The process for initiating voluntary agreements and drafting enhanced service plans are not statutory elements of Kendra’s Law. However, they are used by many county AOT Programs either prior to initiating AOT or after a period of AOT. Some counties instituted formal procedures for voluntary agreements (i.e., legal documents), and other counties use less formal written or verbal agreements. While counties do not report to OMH the individual or identifying data on persons served under these voluntary agreements, the number of voluntary agreements has been acknowledged and reported in earlier program reports.

EVS First is primarily used in upstate counties and is thought to satisfy the least restrictive alternative requirement.

Statewide, 13,144 or 53% of people under court order have been subjected to a renewed order during the period of June 24, 2018 through June 23, 2019—843 people, or 52% of people under court order had the order renewed prior to its expiration.

Since 1999, the length of time people are under court order that is currently tracked includes 14% of people under court order zero through six months, 23% of people six through twelve months. 14% of people have been under the order twelve to eighteen months while 21% of people have been under the order eighteen to thirty months. Nearly one-third (29%) of people have been under court order for over 30 months. It is important to keep in mind that these numbers will continue to grow as time continues to pass and current orders have the capacity to be renewed.

One of the only ways to get out of the Assisted Outpatient Treatment program is not an attractive option: re-institutionalization, which during the twelve months ending June 23, 2019, 1099 people, or 23% of people under court order were institutionalized in New York State.

Less than half of people (42%) under court order escape a court order renewal because the criteria for renewal are not met.

Over-representation of people who are African American under Assisted Outpatient Treatment extends to over-representation of people of color in nearly all of the involuntary or heavy-surveillance programs that the Office of Mental Health administers, oversees, and evaluates. Notably, and further accentuating racial disparity and economic status, there is underrepresentation of people of color in psychiatric services which are voluntary in nature.

The over-representation of people of color in psychiatric programming that utilizes force—and limits if not completely eliminates opportunities for economic development for those individuals subject to it—while benefiting those staff of the program and the State, further contextualizes how it is that a psychiatric inmate (inside or outside of the walls of an institution) is essentially enslaved by psychiatry and why modern psychiatric slavery must be abolished. The fact that the United States of America has a long and deeply disturbing history of enacting systems of slavery begs the question of the legitimacy of court-ordered psychiatry, which Swartz, et al (2009) did not answer, but positioned in this way:

. . .whether AOT is generally seen as beneficial or detrimental to recipients and whether AOT is viewed as a positive mechanism to reduce involuntary hospitalization and improve access to community treatment for an under-served population, or as a program that merely subjects an already-disadvantaged group to a further loss of civil liberties.

This is the context for this work. Psychiatry and particularly court-ordered psychiatry is not only “a program that merely subjects an already-disadvantaged group to a further loss of civil liberties.” The legitimacy of the court’s power in society suggests that psychiatry must provide legitimate answers to legitimate diseases. However, the entire field of psychiatry rests on the idea of science with no actual biological proof for any disease it identifies, and a tremendous amount of data showing the injurious harm and death the treatments have the potential to cause.

Understanding the urgency of eliminating racist and classist practices in an already fraudulent field of psychiatry is imperative. The current situation with involuntary outpatient commitment is the context for historical work exposing the development of the asylum system as an arm of slavery. From a historical perspective, the creation of the asylum system in the nineteenth century is the development of “moral treatment.” However, “moral treatment” was often more about forced labor as a form of treatment than moral development or healing. H. L. Palmer in the September 30, 1900 Twelfth Annual Report to the New York State Legislature addresses this idea of labor as treatment, writing that “Idleness predisposes to self-centered thought and bemoaning of one’s fate, with a tendency toward prolonging the period of mental instability and possibly establishing a state of chronicity. It is at this time that employment serves its purpose.” Labor such as harvesting farm crops was seen as providing “mutual benefit to the patient in restored health, and to the hospital in the products of the soil.”5

Involuntary servitude was legalized as a form of punishment by the Thirteenth Amendment to the United States Constitution:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.6

It is imperative that we reposition the creation of the asylum system in the nineteenth century as a reach for social control over those the State could not charge with a crime and subject to involuntary servitude in prison.

If we position the asylum system being built adjacent to the prison complex, we find a story that offers the ways in which the United States government, using taxpayer resources, allowed for a continuation of slavery, by another name: “moral treatment” via psychiatry, which further complicates the realities of the racist and classist practices of mandated compliance with involuntary psychiatry.

Show 6 footnotes

  1. Senate Bill S06726. (2017). Extends Kendra’s Law to June 30, 2022. Retrieved from nyassembly.gov.
  2. New York State Office of Mental Health. Assertive Community Treatment Data. https://omh.ny.gov/omhweb/tableau/act.html
  3. New York State Office of Mental Health. Kendra’s Law: Final Report on the Status of Assisted Outpatient Treatment Resources to Provide Court-Ordered Treatment. https://omh.ny.gov/omhweb/kendra_web/finalreport/resources.htm
  4.  Swartz, M.S, Swanson, J.W., Steadman, H.J., Robbins, P.C. and Monahan J.. (2009). New York State Assisted Outpatient Treatment program evaluation. Duke University School of Medicine, Durham, NC. https://www.omh.ny.gov/omhweb/resources/publications/aot_program_evaluation/
  5. Palmer, H.L. (1900) Documents of the Assembly of the State of New York, p. 199.
  6. “The Constitution of the United States,” Amendment 13.

9 COMMENTS

  1. Yay, Lauren Tenney! You’ve produced a great and informative article that should serve people well in their struggles against coercive treatment practices in the state of New York. I imagine most other states to be in the same boat so-to-speak, Kendra’s Law serving as the model for forced treatment in the USA, and so this kind thing might serve as a model elsewhere for fighting force and deprivation of civil liberties across the continent. Thank you for uncovering the facts, and exposing the system as oppressive, biased, and wrong.

        • Someone Else

          Not really. The founding FATHERS, while expousing general concepts of “freedom” and “civil rights,” were very much stuck in developing a system ruled by the propertied classes of white men.

          Black people were declared to be 3 fifths of a human being, and women had no right to vote. The working class of laborers were terribly exploited AND the first 100 years of American expansionism and growth was built on the blood and sweat of the American slave system.

          There would be no U.S. imperialist empire without this oppressive history of slavery, and then, of course, we had the wholesale destruction of native peoples and their culture.

          This is just the beginning of a very sordid history of conquest and exploitation leading to the U.S. being the most powerful and wealthiest country in the world with LESS THAN 5% of the world’s population.

          And finally yes, it is the birthplace of biological psychiatry (psychiatry on steroids) that now dominates the entire planet with its oppressive labels, toxic drugs, and forced incarceration and control – “God Bless America.”

          Richard

        • Capitalism did not exist as a word in 1776 nor did the key tenets of western socialism or communism which were ideas borne of later philosophers, but most of the founding fathers were definitely pro-commerce and profit. Alexander Hamilton was a successful wealthy businessman. All were for the protection of private property (land capital) which is essential to the core of capitalism. Many did advocate for man being able to keep the fruits of their labor, while at the same time being slave owners. It’s pretty difficult to make an apples to apples comparison with end-stage capitalism as currently exists but the core concepts certainly were promoted and practiced by the founders.

  2. We find that the overrepresentation of African Americans in the AOT Program is a function of African Americans’ higher likelihood of being poor, higher likelihood of being uninsured, higher likelihood of being treated by the public mental health system (rather than by private mental health professionals)

    With an analysis of psychiatry as a tool of social control/repression, rather than “failed medicine,” it can be readily recognized that what has been omitted here is a higher likelihood of becoming rebels or revolutionaries” (or simply of not being effective cogs in the system’s machinery). This takes us back to the earlier marriage of psychiatry and slavery, and reminds us that this interrelationship was not an “analogy” but historical fact. The many people who now describe the prison system as the legacy of slavery must be consistent and include psychiatry as part of the prison system when making their generally incisive analyses in this area.