Is Kendra’s Law constitutional?

AOT opponents in Albuquerque said in a New Mexico court that the answer is “no.” But experiences from every other state with an AOT law prove otherwise.

In fact, 42 states have assisted outpatient treatment laws, some for over 20 years, and NONE have been ruled impermissible.* Most relevant, since the New Mexico bill is based on New York's Kendra's Law, the law in that state was unanimously ruled constitutional by the state's highest court (In the Matter of K.L.).

No challenge to an AOT law or its standard has succeeded.

Interestingly, in her comments in court about the Kendra's Law case, Judge Huling indicated that she was concerned not about whether the law itself was constitutional, but whether the city council overstepped its powers by legislating in an arena pre-empted by state legislation. It appears that the case will turn on an issue of home rule.

It would be unfortunate for the city to be prevented from using the ordinance immediately when it becomes effective. It is a beneficent law with numerous patient protections and great potential to reduce hospitalizations, arrests, incarceration, homelessness (outcomes proven in other states).

But if the court finds that a state technicality will keep Albuquerque from helping its citizens immediately, it is just more pressure on the state to get the law passed so everyone has access to this proven treatment mechanism.

* See In re Detention of LaBelle, 728 P.2d 138 (Washington Supreme Court 1986); State of Wisconsin v. Dennis H., 647 N.W.2d 851 (Wisconsin Supreme Court 2002); In re K. L., 806 N.E.2d 480 (New York Court Of Appeals 2004)

Doing a disservice

Albuquerque, New Mexico recently passed a city-wide ordinance providing for AOT for their most severely mentally ill citizens. Unfortunately, opponents of the measure have resorted to scare tactics in hopes of preventing its implementation. The federally funded Protection and Advocacy Systems has repeatedly claimed that, "Under this law, a person can be picked up if there is simply the belief they might be a danger at some point in the future.”

In reality, the ordinance specifies that individuals are only eligible for AOT if they meet eight specific criteria; criteria that have been carefully crafted to focus only on the most severely mentally ill. But you won’t hear that from AOT’s opponents. Instead of discussing the realities of AOT, you only hear exaggerations and fear mongering. And that does a disservice to everyone involved in the process.

Kudos for Kendra's Law

Albuquerque Journal editorial praises Mayor Chavez and the City Council for their persistance in getting Kendra's Law to Albuquerque citizens. [Read more from New Mexico.]

Albuquerque passes Kendra's Law

The Albuquerque City Council last night passed Kendra's Law. The measure now goes to Mayor Martin Chavez for signature. Chavez has been an outspoken advocate for the law, which will help a small number of Albuquerque's sickest citizens who cannot make informed treatment decisions.

In an editorial supporting the ordinance – and a statewide version of the law as well - The Albuquerque Tribune said, “[U]ntil the country and the state get serious about mental health, this city ordinance is a responsible step toward helping those in need and protecting society from any harm they might inflict on others.”

Sad day in New Mexico

While the Albuquerque City Council continues to weigh the option of a citywide Kendra's Law ordinance, Albuquerque's two major newspapers call them on the delay in strongly worded editorials.

The editorial in the Albuquerque Tribune notes somberly that August 18 "is a day to reflect on the horrific costs of mental illnesses ignored."

The Albuquerque Journal's editorial ("City missed first step in helping mentally ill") blasts the Council's delay in acting and clarifies some misconceptions:

Chávez's proposal balances public safety with protecting civil liberties. There is no picking up the odd, the quirky or the angry on somebody's whim. A relative, social worker or police officer would have to petition the court, and a judge would have to rule a person needed mandatory care and approve an enforceable treatment program, be it taking medication or having a supervised living arrangement.

Relying on the criticism that there aren't enough services for the mentally ill is a delaying tactic that creates a dangerous circle— there aren't enough services so there isn't any treatment, there isn't any treatment because there aren't enough services. Kendra's Law would target only the most extreme and dangerous cases of mentally ill residents who need help.

Albuquerque Mayor Chavez: "We're not waiting"

When the New Mexico Senate failed to act to pass Kendra’s Law in January, despite overwhelming support from the Governor, Senator Domenici, and a unanimous vote in the House, Albuquerque Mayor Martin Chavez decided that he would not let inaction on the part of the state harm the people he was elected to protect.

"We're not waiting. The consequences are too severe," Chávez told the Albuquerque Journal on Sunday. "When the state fails to act, I am still charged with protecting the public in Albuquerque."

The Albuquerque Journal agrees. To the argument that you need more services before you can implement an assisted outpatient treatment law, the paper’s editorial board had this to say:

That's a pointless chicken-and-egg argument for families of the mentally ill, who say they can't wait for a new program or building. Their loved one is in crisis now. Perhaps once judges start ordering treatment, the state and the health-care community will finally find the wherewithal to assure its availability.

Unwilling to join in the hand-wringing as another Albuquerquean commits suicide by cop or kills a police officer on a mental-health pickup, and unwilling to join in the whining that there aren't enough treatment facilities so it's best to do nothing, Chávez has stepped up to help those who aren't able to help themselves.

Kendra's Law coming to Albuquerque

In New Mexico, Kendra’s Law was passed unanimously by the House – but the constitutionally mandated end of the session came before it could be called for a vote on the Senate floor. The law was widely supported – the science and data clearly registered with legislators more than the emotions and fear tactics of opponents.

And proponents like Mayor Chavez, Rep. Gutierrez, and Senator Domenici are clear about their intentions. Next week, Albuquerque Mayor Chavez will introduce Kendra’s Law for the city – and Rep. Gutierrez has promised to reintroduce the bill statewide the first day of the next session.

Stay tuned.