Kendra’s Law – Getting Mental Health Treatment for Those Leaving Prison

By Jill K. Sanders, Esq.

Not everyone with a serious mental illness needs to be committed to a psychiatric facility. In fact, many (if not most) people with serious mental illness can function well in their communities with the proper treatment program. Since 1999, New York has had the ability get the courts involved; this law, called “Kendra’s Law,” allows a court to order certain persons with serious mental illness to comply with a mental health treatment plan.

One particular area of concern is to that ensure people leaving prison get the appropriate mental health treatment when they’re in their communities. This is particularly so when the formerly incarcerated person has previously committed a serious offense when not receiving proper mental health treatment. By utilizing Kendra’s Law, communities can feel safer knowing that returning citizens are receiving the appropriate mental health care.

What is Kendra’s Law?

Kendra’s Law is named after Kendra Webdale. Kendra was killed in 1999 when Andrew Goldstein, who was experiencing the symptoms of untreated schizophrenia at the time, pushed her onto the tracks in front of an oncoming subway train. Prior to the homicide, Goldstein had a history of hospitalizations and had been discharged several times with no real plan to maintain his mental health. A recent feature article by The Marshall Project talks about Goldstein, his crime, and his time in prison.

Kendra’s Law is codified in Mental Hygiene Law § 9.60. A petition must be filed with the court asking for an order for assisted outpatient treatment (“AOT”) for an individual with a serious mental illness. If disputed, a hearing may be conducted to establish whether AOT is appropriate or not. For a judge to issue an AOT order, the following must be established:

the person is suffering from a mental illness
the person is unlikely to survive safely in the community without such supervision
the person has a history of lack of compliance with treatment
the person is unlikely to voluntarily participate in the recommended treatment
the person is in need of treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to him or herself or others
it is likely that the person will benefit from AOT

Many of these factors are established by evidence from a physician who has treated or assessed the person. If the judge finds AOT warranted and appropriate, a plan for treatment (the AOT order) is then signed by the judge. Thereafter, the order can be renewed to extend the length of time the person must comply with the treatment plan. If a person does not comply, he or she will be involuntarily placed into a psychiatric facility for a period of time and evaluated for further treatment.

What Happens When Someone With a Serious Mental Illness is Leaving Prison?

The Department of Corrections and Community Supervision (“DOCCS”) can prepare a petition for AOT for parolees as part of discharge planning. If DOCCS believes that someone may not continue with mental health treatment after prison and as such that person may re-offend, petitioning the court for an AOT order can help to ensure that appropriate treatment continues while the parolee is living in his or her community.

Discharge planning for inmates leaving prison should take place between 60 and 90 days prior to an inmate’s release, and for those with serious mental illness this involves the cooperation of the NYS Office of Mental Health (“OMH”). In addition to services provided by DOCCS, the discharge planning services offered by OMH includes a case management referral as well as a day treatment or clinic referral for mental health or integrated mental health and substance abuse treatment. OMH will also provide additional assistance to homeless persons to get them into supportive housing. Between the efforts of DOCCS and OMH, inmates being released to their communities should have a place to live, a parole officer and a mental health case manager, and an established treatment plan – all designed to protect the community and to reduce the risk of recidivism.

For those inmates with serious mental illness who are not ready to be released to the community, DOCCS can also petition for commitment to a psychiatric facility. DOCCS can also refer sex offenders who may be likely to re-offend for civil commitment.

References:

John J. Lennon and Bill Keller, “A Turbulent Mind,” The Marshall Project, Sept. 3, 2018. Available at: https://www.themarshallproject.org/2018/09/03/a-turbulent-mind (last accessed September 4, 2018).
Urban Justice Center, When a Person With Mental Illness Goes to Prison (2010) Available at: http://www.naminys.org/images/uploads/pdfs/when-a-person-with-mental-illness-goes-to-prison.pdf (last accessed September 4, 2018).
Correction Law §§ 402, 404
Mental Hygiene Law Article 9 et seq.
Mental Hygiene Law Article 10 et seq.