The city will for the first time provide mental health care for mentally ill inmates after they are released from jail, thanks to an agreement approved by New York County Supreme Court Justice Richard F. Braun on April 2, which comes after a lawsuit filed by mentally ill inmates themselves.
New York City jails yearly house 33,000 mentally ill pre-trial detainees, individuals not convicted or sentenced of a crime. The average stay in jail for these inmates is as long as 43 days.
While in jail, the city provides these inmates with mental health care and treatment. The care ranges from in-jail, outpatient treatment to placement in segregated mental health units or psychiatric wards. The inmates' treatment can include psychotropic medications and individual or group therapy.
Prior to the settlement, the inmates' care and treatment was terminated upon their release. Once released, the inmates were not provided with care, treatment, government assistance, housing referrals or other assistance to make the transition to society.
Instead, the released mentally ill inmates were taken by bus to Queens Plaza subway station between 2:00 and 6:00 am, given a buck, fifty and a roundtrip Metrocard.
In 1999, several of the inmates who were receiving mental health care during their confinement sued to stop this practice on their own behalf and all other mentally ill inmates.
The city fought the suit, using various legalistic arguments. It claimed that the inmates did not have legal standing in which to sue, since, it argued, even if the city was breaking the mental hygiene law, which required treatment and transition upon the inmates' release, only the state attorney general had the right to enforce that law. The city also claimed that the mental hygiene law applied to developmental centers, patients at psychiatric centers or patients at certain psychiatric inpatient services, but not to city jails.
In a curt decision on July 14, 2000, Justice Braun repudiated the city's arguments. Yes, he ruled, mentally ill inmates do have the authority to challenge the city's policy and enforce the mental hygiene law. And, he ruled, enforcing the mental hygiene law to prevent mental illness is a matter of "public concern" applicable to and enforceable by all, including those incarcerated.
The court ordered the city to continue to provide care to all inmates older than 18 suffering from a mental illness, if that inmate is unlikely to survive safely in the community without supervision, has a history of failing to comply with treatment, is unlikely to participate in the recommended treatment, may relapse, and would benefit from assisted outpatient treatment.
Justice Braun rejected the city's argument that the mental hygiene law did not apply to city jails. The state law, and city regulations, Justice Braun found, specifically provided for intervention and transitional services to released inmates at correctional facilities. The city appealed and the Appellate Division, First Department, the state's intermediate appellate court, upheld the decision.
This decision led to a settlement on January 8, 2003 between the parties, which the court approved on April 2nd.
Under the settlement, the city must provide discharge planning for inmates released from custody. Qualifying inmates are entitled to receive a wide range of mental health treatment and services upon release, including medication, referral to programs, substance abuse treatment and case management service. As part of the discharge planning, qualifying inmates also receive help in submitting applications for Medicaid, food stamps, social security, veteran's benefits and other public assistance benefits. The city has also stated that it would, "in most cases," release mentally ill inmates during daylight hours.
The settlement is valid for five years. During that time, two independent monitors, one chosen by counsel for the inmates and one by the city, will oversee the city's compliance. The monitors will report quarterly, develop performance goals and make recommendations.
Justice Braun's bold July, 2000 order should be recognized as the impetus for the settlement and for remedying a dangerous and compassionless policy of releasing mentally ill inmates in the middle of the night with no transitional assistance. The devastating effect the policy had on former inmates is difficult to ascertain, but, as Justice Braun noted in his order the former inmates were simply "return[ing] to the cycle of likely harm to themselves and/or others, through substance abuse, mental and physical health deterioration, homelessness, indigence, crime, re-arrest, and re-incarceration."
The injustice brought about by this policy has now been remedied though an 80-page settlement. The benefits will not only be felt by the individual former inmates, but also by society. Again, quoting Justice Braun's decision "[i]t is not only to the[ inmates'] benefit to provide them with a discharge plan but to that of all of us if such a plan can aid at least some of [the inmates] to become healthier and thus more productive members of society who are not harmful to themselves and/or others."
The case is: Brad H. v. City of New York, Index No. 117882/99 (Braun, J.) (N.Y.Cty.Sup.Ct.) (Attorneys: Christopher K. Tahbaz, Patricia G. Corley, Emily O'Neil Slater, Douglas Lasdon, Raymond H. Brescia, Heather Barr, John A. Gresham, John Beaglehole, Eileen Sullivan, Faune Devlin, Jeffrey K. Powell, for Brad H.; Michael A. Cardozo, Thomas C. Crane, Jeffrey S. Dantowitz, for NYC).
Jonathan Rosenbloom is the associate director of the Center for New York City Law at New York Law School
The 9/11 Killer
It was the kind of violent crime spree that many New Yorkers thought was a thing of the past: over seven weeks, in Brooklyn and Queens, four men were killed and another seriously wounded by a lone gunman. All the murdered men had been hard-working shopkeepers, holding down tough jobs on the night shift -- one at a laundry, another at a deli, two at small grocery stores. All were family men and immigrants -- from Russia, Guyana, India, and Yemen. Photos of grieving family members filled the newspapers, along with murky photos of the killer, wearing a baseball cap. The fact that the killer took little or no money simply added senselessness to the brutality of the crimes.
Now the police have a suspect, a 30-year-old Brooklyn man, Larme Price, who walked into the 77th Precinct station house in Brooklyn on a Friday night, offering to help find the killer. The following day Detective Tony Viggiani, a seasoned hostage negotiator, called him on his cell phone, asking for help. According to the New York Times, Price broke down, saying "I'm the guy you're looking for." Detective Viggiani kept talking while he and another detective jumped in a car and drove to the apartment on Eastern Parkway where Price's parents lived. Still on the phone, Price said that he had killed the four men in revenge for the World Trade Center attacks on September 11. He was looking for men of "Arabic descent." As it turns out, only one of the four was of Middle Eastern extraction.
This tragically nonsensical story seemed to deepen as his mother, Leatha Price, said her son had a history of drug abuse and mental health problems, exacerbated by September 11. The family's ongoing attempts to get him treatment were rebuffed repeatedly. On March 9, 2003, he had been seen and released by Woodhull Medical and Mental Health Center. On March 10, say police, he killed Albert Kotlyar, who had asked him to leave the Laundry King Superstore in Bedford-Stuyvesant since he was not doing any wash. Price told police he had been disrespected.
Price had eight prior arrests going back to 1989 for burglary, robbery, and assault. He has been charged with four counts of murder and two counts of attempted murder.
The Daily News pointed out that this is simply the latest in a long series of cases to raise questions about whether hospitals are properly handling dangerous, mentally ill people. Andrew Goldstein, for example, was shuffled through at least six mental health facilities before he pushed Kendra Webdale to her death in front of a subway train in 1999, the News recalled. Larry Hogue, the Wild Man of 96th Street, was finally institutionalized in 1997 after his one-man reign of terror on the Upper West Side.
When asked about Price, Roger Klingman, a spokesman for the state Office of Mental Health, said, "We are aware of the story, and we are looking into it."
HEARINGS ON TERRORISM BEGIN AT LAST
New Yorkers are finally getting their hearings. Nearly 19 months after the bombing of the World Trade Center, the National Commission on Terrorist Attacks began public hearings downtown on March 31. As the New York Times had pointed out on the first anniversary of 9/11, the government's failure to investigate was unprecedented for a disaster of this magnitude. A public inquiry into the sinking of the Titanic began the morning after the survivors arrived in New York City. "No inquiry remotely similar in scope, energy or transparency has examined the attacks of last Sept. 11," wrote the Times. "One year later, the public knows less about the circumstances of 2,801 deaths at the foot of Manhattan in broad daylight than people in 1912 knew within weeks about the Titanic, which sank in the middle of the ocean in the dead of night."
Similarly, the Warren Commission felt compelled to report its findings by the first anniversary of President Kennedy's assassination. Serious investigations were conducted into the military failure at Pearl Harbor in 1941, the explosion that destroyed the Challenger space shuttle, and airline disasters, such as the 1996 downing of the TWA Flight 800.
The Bush administration successfully blocked congressional hearings on 9/11 for six months, and repelled calls for a special commission of inquiry. While congressional hearings were eventually held behind closed doors, the promised public hearings were postponed time and again. Now they have begun at the Custom House, with public testimony that includes bitter but cogent censure of the government's ineptitude in the face of the many warnings it received that a violent attack was coming.
Mindy Kleinberg, for example, who lost her 39-year-old husband, asked, "Where was our government, its agencies, and institutions prior to and on the morning of September 11th?" She cited the cliché that intelligence agencies have to be right 100 percent of the time and the terrorists only have to get lucky once. But this is wrong on its face, she argued, because the 9/11 terrorists were not just lucky once: they were lucky over and over again. Her most startling accusation in her list of government blunders was that the Securities and Exchange Commission and American intelligence agencies failed to investigate the huge number of put options that were bought on American and United Airlines, the two airlines involved in the attacks, in the week before the attack. Speculators, who were gambling that in the short term the stock prices of both airlines would plummet, netted a profit of at least $5 million. The money remains unclaimed in the Chicago Exchange account. Why, she asks, were these aberrant trades not discovered prior to 9/11? Who placed these trades? Have they been investigated?
Mary Fetchet, another witness, lost her 24-year-old son Brad, who worked as an equity trader on the 89th floor of Tower 2. He called his father after the attack on tower one, shaken, but said that the Port Authority had told them to stay put in their office, "that the building is safe and secure." She notes that Rick Rescorla, Director of Security for Morgan Stanley told their employees to leave the building - to disregard the Port Authority's commands to evacuees to "return up to their offices." What were the failures, she asks, and who is accountable?
Brian Jenkins of the Rand Corporation argued that we have to "accept that we will live with some level of risk for years." Terrorists are planning further attacks, and the government cannot eliminate all sources of terrorist danger. But because intelligence is the first line of defense against terrorism, the New York Police Department in particular should be rebuilding its institutional intelligence capabilities. He argues that the rules put in place in the mid-1970s to correct the abuses of the 1960s impaired collection of intelligence by the early 1980s. By the 1990s, there was increased concern about terrorism, but police "collection capabilities remained low." Building more effective local intelligence-collection might be better than creating another federal entity since "local police know their territory" and local forces better reflect local populations.
Noting that New York had received only $11 million of the $556 million allocated for homeland security, Mayor Bloomberg urged that funds be distributed according to risk and threat analysis. If we distributed money for the military in the same way domestic security money has been allocated, said the mayor, "our troops in Iraq would have bows and arrows."
The commission was surprised by the low turnout of 60 or so people, which was far smaller than the 250 or more anticipated. But then the commission did not make it easy for people to come. Audience members were told to arrive at least 60 minutes before the start of the hearings, and that seating would be on a first-come, first-served basis. Members of the press, who were required to register three days in advance, were told to arrive at least 90 minutes early.
NEW YORK'S SENATOR MOYNIHAN DIES
Even as public hearings on terrorism finally began, New York's most relentless opponent of government secrecy, Daniel Patrick Moynihan, was buried in Arlington National Cemetery.
In Secrecy: The American Experience, he wrote that "government secrecy in its essence" produced its own pathology: "Departments and agencies hoard information, and the government becomes a kind of market. Secrets become organizational assets, never to be shared save in exchange for another organization's assets. Sometimes the exchange is in kind: I exchange my secret for your secret. Sometimes the exchange resembles barter: I trade my willingness to share certain secrets for your help in accomplishing my purposes. But whatever the coinage, the system costs can be enormous. In the void created by absent or withheld information, decisions are either made poorly or not made at all." This, of course, describes precisely the bureaucratic rivalries among the many agencies charged with protecting New York.
Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.
Fifty years after its creation, the Civilian Complaint Review Board has been granted the authority to perform independent investigations and prosecutions of civilian-alleged misconduct by police officers. A state court of appeals known as the Appellate Division, First Department has held that, for the first time, civilian complaints against police officers for misconduct may now be reviewed, investigated and prosecuted by an independent board comprised of civilians outside of the police department. The court, however, also ruled that the Office of Administrative Trials and Hearings, a distinct agency separate from the police department and the city's central independent tribunal, may not serve as the impartial adjudicator of the prosecutions. Instead, adjudication of police officer misconduct must continue to reside with the police department.
FIFTY YEARS IN THE MAKING
In 1953, the Civilian Complaint Review Board was created to be a place where people could file complaints of misconduct against New York City police officers. The original board had close ties to the police department, the very agency whose employees it was to investigate. For example, the board was comprised of three police department employees, deputy police commissioners, and based its investigations on reports prepared by the police department.
The original board did not independently investigate nor prosecute complaints of misconduct and had no actual authority to discipline any officers. It was solely empowered to review the police department investigatory reports and forward its findings and recommendations to the police department, which had the sole responsibility for prosecuting, adjudicating and determining the appropriate disciplinary action.
Since the board's creation, every attempt to dislodge the police department from investigating and prosecuting police officer misconduct complaints and to create an independent review process has been met by a lawsuit filed by the various police unions.
After several unsuccessful attempts, the board took its first step towards separating complaints of police officer misconduct from the police department in 1987, when six private (non-police) individuals were added to the twelve-member board.
The union unsuccessfully sued.
Six years later, the city council amended the New York City charter to make the board the city's first independent, police oversight agency, separating it from the police department and giving it the authority to investigate. The union again unsuccessfully sued. The new board was comprised entirely of non-police civilians, operating outside the police department with the authority to receive, investigate and recommend discipline to the police commissioner on complaints of force, abuse of authority, discourtesy and offensive language. But the board members could not themselves prosecute these cases.
ATTEMPT AT INDEPENDENT PROSECUTION AND IMPARTIAL REVIEW
Following the 1993 changes, the board, after making its investigation, was required to forward to the police department's internal disciplinary system any claim of misconduct it found "substantiated" for prosecution. The police department's internal system, not the board, then determined whether and how to prosecute the claims. The claims were also heard before the police department's internal Office of the Deputy Commissioner for Trials. That office would then recommend penalties to the police commissioner. The Civilian Complaint Review Board did not participate in the review process.
In January 2001 the mayor and police commissioner made two significant attempts to further remove police officer misconduct complaints from the police department's review. First, prosecution of misconduct complaints were removed from the police department and given to the board, which was now granted the authority to not only investigate disciplinary actions against police officers, but also to prosecute "substantiated" claims. Included in this authority was the board's power to obtain police officer's employment history and to negotiate pleas with officers charged with misconduct. Under the 2001 changes the board would no longer forward "substantiated" claims to the police department for prosecution. Rather, the board would prosecute formal charges against the officers.
Second, the new rules sought to remove the hearings and review of the prosecutions from inside the police department. The new rules required the board to bring the prosecutions of police officer misconduct before an impartial administrative judge at the Office of Administrative Trials and Hearings (OATH). The OATH judges were charged with making recommendations of discipline to the police commissioner. In April 2001 the police department and the board agreed that the board would start prosecuting cases before OATH after July 25, 2001.
UNIONS SUE
Prior to July 25th, several police unions sued the mayor, police commissioner, chair and director of the board, OATH and OATH's Chief Administrative Judge. The unions challenged both the board's expanded authority to independently prosecute officer disciplinary actions and the hearing of those actions before the impartial OATH tribunal. In a decision entered on October 15, 2001 Justice Leland G. DeGrasse upheld the new rules with one exception. Justice DeGrasse ruled that the board was properly authorized to prosecute complaints of police officer misconduct. Justice DeGrasse, however, ruled that police disciplinary hearings could not be heard before an impartial OATH judge, when those hearings may result in termination. State law, Justice DeGrasse stated, specifically required that only police department employees preside over disciplinary hearings where termination is a possibility.
On appeal, the First Department affirmed Justice DeGrasse's ruling as it pertained to the board. The board, the court held, may be granted the authority to perform independent prosecution of complaints of police officer misconduct; may obtain personnel records of officers under investigation; and may pursue plea bargains with police officers under investigation.
The court, however, altered Justice DeGrasse's ruling by holding that OATH could not serve as the impartial tribunal presiding over officer disciplinary hearings. State law, the court held, completely barred OATH from presiding over any police disciplinary hearings, which must be conducted by an individual who is employed by the police department.
GREATER EFFICIENCY, TRUST UNDER CIVILIAN CONTROL
The Civilian Complaint Review Board, then, has been granted the authority to perform independent investigations and prosecutions of civilian complaints claiming police officer misconduct. Impartial hearings of those complaints, however, must wait. The board's prosecution of police officer misconduct will be performed before a police department employee, who will recommend whether or not to discipline the officer.
It is important to note that the few cases that did process through the board and OATH prior to the court's 2003 decisions were processed more efficiently than those prosecuted by the police department. They also resulted in similar disciplinary actions. For example, in 2001 the board averaged 274 days to investigate complaints, while the police department averaged 558 days to prosecute substantiated claims. Similarly, in 2002 OATH was able to make recommendations on prosecutions within 77 days, while the police department averaged over 500 days. Moreover, the police department imposed discipline against an officer in over 75 percent of the cases where the board found the complaint to be "substantiated". The police department imposed OATH's recommended disciplinary action against an officer in 78 percent of the cases in 2002 and 98 percent in 2001.
While these statistics begin to express the increase in efficiency and accuracy that would be afforded civilian complaints if separated from the police department, they do not account for the improved relationship between the public and police department that would occur upon separating investigation, prosecution and adjudication of civilian complaints against police officers from the police department. The public's perception of the police department can only be enhanced by allowing an outside independent investigation and impartial review of police misconduct complaints. There is an obvious skepticism among the public, particularly in minority communities, that the police department does not give civilian complaints proper review and is incapable of disciplining its own. As the city's brief before Justice DeGrasse stated "[s]uch public perceptions corrode the relationship between the police and the community." The unions' continued attempts to thwart the creation of an independent investigation and impartial review of complaints of police officer misconduct creates another level of mistrust between police officers and the constituents they protect and serve.
The cases are: Lynch v. Giuliani, 2003 N.Y.App.Div. LEXIS 68 (1st Dep't); Lynch v. Giuliani, Index No. 111436/01 (N.Y.Cty.Sup.Ct.) (DeGrasse, J.) (Attorneys: Michael T. Murray, Richard A. Dienst, for Lynch; Michael D. Hess, Alan G. Krams, Scott Shorr, NYC). As of this writing, the judgment had not been entered, which would give the parties thirty days to appeal to the state's highest court.
Jonathan Rosenbloom is the associate director of the Center for New York City Law at New York Law School