Jordan Neely Needed to Be Institutionalized
Progressives are right to point out that he needed housing and care. But he only would have gotten it if forced to accept it.
Dear readers,
Last winter, Lisa Miller wrote a deeply informative cover story for New York magazine about the events in Jordan Neely’s life, leading up to his 2023 death at Daniel Penny’s hands on a New York City subway train. One through-line in the story is the immense amount of government resources that were thrown at trying to keep Neely out of trouble. Through police, courts, jails, homeless outreach, and treatment facilities, New York’s taxpayers spent lavishly on an effort to keep Neely alive, in mental health care, and not posing a danger to the public or himself. But it didn’t work because he was insane and he was not forced to accept the care he needed — except during a stint he spent in jail on Rikers Island, when he was successfully medicated.
Miller describes his 15-month stay on Rikers as follows:
Neely was beloved by the health-care staff at Rikers. He was quiet and could frequently be found lying on his bed. In an environment that breeds conflict, paranoia, defensiveness, and violence, Neely was gentle, earnest, and stable. He smiled and said “Good morning,” according to mental-health-care workers on his floor. K2 is everywhere in Rikers, but Neely was not a habitual user, nor did he get into fights. He took his prescription medication. He enjoyed art therapy and did his homework, filling out worksheets to help him learn cognitive behavioral techniques. There was something innocent and vulnerable about him, people who knew him said, which made him extraordinary. He engaged in therapy — rare in Rikers — and openly hoped it would help him. He would say, “Oh, I just don’t know if I’m making friends here,” one Rikers clinician told me. He occasionally did his Michael Jackson routines in his tan scrubs when the art therapist brought in a boom box.
The mental-health-care workers I spoke to at Rikers believe jail is more destructive than restorative or healing. (“I identify as an abolitionist,” one of them told me.) But they acknowledge the paradox. Neely was someone who “did better in jail than on the streets,” says the clinician. At Rikers, at least, “he was not totally on his own.”
The reason Neely ended up spending 2022 on Rikers Island was that he committed assaults against two women in 2021, causing serious injury to one of them. In early 2023, he ended up in an “alternatives to incarceration” court, where he pleaded guilty to felony assault, but instead of prison he was sent to a residential mental health treatment facility in the Bronx. The idea was that, if he completed his treatment successfully, his felony record would be expunged, and if he didn’t, he’d be sent to prison. But the treatment facility was not secure, and Neely walked out of it after two weeks, ending up back on the streets. A warrant was issued for his arrest, but he never got arrested — instead, he ended up in the altercation with Penny and died.
It’s sort of an odd thing — the government sent Neely for inpatient treatment and told him he’d be imprisoned if he didn’t continue receiving it. But it didn’t lock the door from the outside on the facility where he was being treated. The obvious question is why not: If the state is prepared to use the threat of prison to force someone into psychiatric treatment, why not make the psychiatric facility itself secure? One barrier to the use of secure treatment facilities is that Medicaid is barred by federal law from paying for care for residents in mental health care facilities with at least 17 beds, a decades-old rule that is intended to stop Medicaid from funding traditional mental institutions. But not using secure treatment has created a gap that people like Neely can fall through:
The reality for Jordan Neely and others like him is that he needed more intensive care than is available in any voluntary inpatient or outpatient program, and he required a more therapeutic kind of attention than exists in any locked one. The state can’t imprison people who aren’t criminals, and it can’t turn mental illness and drug dependence into a crime, a conundrum at the nub of every facile political dispute pitting the civil rights of people with homelessness against perceived threats to public safety. “There should be some transition from Rikers that maybe has a secure element to it but is also therapeutic,” says a person who met Neely during his stay in Rikers. “We’re killing ourselves to jerry-rig what doesn’t exist because it’s too much of a hot potato to talk about any kind of secure, residential, therapeutic environment.” [Neely’s friend Dwayne] Blizzard is clearer about this: “When he got locked up, that could have saved him.”
I do not have an opinion about whether Penny committed a crime when he killed Neely — on whether a “reasonable person” would have considered his actions to be excessive in the face of the threat Neely appeared to pose. I also don’t think the question is very important. People in situations like Neely’s face a tremendous number of dangers, and subway vigilantism is not high on the long list of reasons why they are likely to die tragically young; effectively, by failing to institutionalize him, the state was condemning Neely to death, and Penny’s chokehold just happens to be the way the death manifested. At the same time, bystander chokeholds are not a scalable response to the problem of violent and emotionally disturbed persons on our subway, and crazy people are a particularly unsuited group of potential offenders to try to rationally deter with the threat of violent response. Ultimately, the problems of the mentally ill homeless and the problems of subway riders who would like not to be harassed by them will not be addressed by correctly calibrating our rules about self-defense; addressing them will require the state to use more coercive power to force dangerously mentally ill people into treatment. Nor should it be the responsibility of ordinary members of the public to protect themselves from these people — we pay taxes (in New York, a lot of taxes) for a vast law enforcement and social services apparatus that is supposed to handle these problems for us.
But I do think it would behoove progressives with pat takes about how what Neely really needed was housing and care to know that he was offered these things over and over again by that extremely well-funded apparatus. If you wanted him to have housing and care, you needed to be prepared to force them upon him; and if you weren’t, then you don’t have a solution to the problems of people like him.
Very seriously,
Josh
Correction: An earlier version of this post misdescribed the nature of the federal “IMD exclusion,” which prohibits Medicaid from paying for certain mental health care. Medicaid is prohibited from paying for care for residents aged between 21 and 64 in facilities with at least 17 beds that primarily provide mental health care; the restriction is not specifically related to whether the facilities are secure.
I am a part time NYC resident who has spent a lot of time over the past 35 years meeting and over time have approached and gotten to know several of the homeless residents both in the area where my office is located and in my residential neighborhood, both for humanitarian reasons but and also to form my own conclusions regarding the “problem” and potential “ solutions” which ameliorate it. I have gotten to know individuals whose homelessness had all the different causes of which everyone is aware and pontificates about - addiction ( alcohol and/or narcotics) , personal illness, loss of employment , abuse ( physical and/or mental), family dysfunction, being thrown out by parents ,runaways and mental illness. I have attended NA and AA meetings with some of them ,and some have managed to get and stay clean and even find shelter and get meaningfully employed. I have on occasion even gotten them to their medical appointments and methadone clinics ( definitely a topic for another day). I have done this because I believe that my philanthropic effects should be personal involving my time and talent) as well as institutional support provided by my donations. But the toughest cases by far in my estimation are those with severe illness ( often terminal) but who still value their liberty and who often deeply distrust both social services and the medical establishment ( often for understandable reasons) and those with severe mental illness. THIS CONCLUSION IS ABSOLUTELY CORRECT, treating severe mental illness involves the system devoting a huge amount of time and money to the effort and that can only be done in the huge majority of cares by forcefully incarcerating those individuals for extended periods of time ( perhaps all their natural lives) . I have visited institutionalized individuals ( first as a college student over 60 years ago taught by a psychiatrist practicing at such an institution) and later in various circumstances involving advanced dementia , and understand how difficult it is to avert that this may be the least bad solution.
But I ask (rhetorically)- is liberty that will almost inevitably cause you to harm not only oneself but in all probability others really liberty and who does it benefit except the- do.gooders and feel-gooders who can walk away from the inevitable results.
The right to refuse treatment is a legal doctrine in which people cannot be compelled to have treatment for their illnesses even if their refusal leads to adverse outcomes. The Supreme Court found that a person could not be compelled into life-saving treatment. This right was further enumerated in Washington v. Glucksberg; “We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.”
If a person is not a danger to themselves or others and can live independently, the government shall not force them into a facility against their will. The Supreme Court found this in O'Connor v. Donaldson; “In short, a State cannot constitutionally confine, without more, a non-dangerous individual who is capable of surviving safely in freedom by himself…” Accordingly, a person in a crisis can only be placed into an involuntary Conservatorship if they are an immediate danger to themselves or others.
The precedents set by Washington and O'Connor place significant limits on what the state can do when its servants encounter a chronically homeless person. The police, fire, and other health services are limited in their actions to mitigate the situation. Unless officers see an unlawful event more significant than a misdemeanor, they can only provide information and minimal aid to these homeless persons. It leads to cases such as this: the police find a person unsheltered in sub-freezing weather. While having a reasonable expectation that the person will die due to exposure, the police cannot prevent that end via an involuntary hold of the person.
We ought to work to expand the state’s ability to protect people whose mental illnesses endanger themselves. Personal autonomy and the right to refuse treatment are important bedrocks of all people's rights, but as with all rights, these are not absolute. It is the case that someone who is suffering from a mental illness that includes the inability to see that disability is not a person whose rights are protecting them. Without returning to the 1960s style of incarceration of the mentally ill, an expansion of conservator policies like that being instituted in California is necessary. When a person is gravely disabled, not only is it reasonable, but it's a moral imperative that the community safeguard that person. We need to expand the concept of only having the state be able to intercede when a person is a danger to themselves or others but also when it's reasonable to perceive that the person is gravely disabled due to their mental illness. We should observe the policy around California’s extension of 5150’s involuntary hold to include the “Gravely Disabled." California is leading the way, and this policy should be extended nationally.