Billie Boggs and liberty, then and now

In 1975, the Supreme Court of the United States held that civil commitment is “a massive curtailment of liberty.” The government’s exercise of this power must be sharply limited. Otherwise, the confinement of nondangerous people based on mere speculation about their future conduct will occur.

In September 1987, the 105th mayor of New York City, Ed Koch announced a plan to hospitalize “gravely disabled” homeless people involuntarily. I was executive director of the New York Civil Liberties Union (NYCLU) and we opposed the mayor’s plan, calling it an unauthorized rewriting of New York State’s mental health laws and a violation of the right to liberty.

One of the first people to be picked up pursuant to the mayor’s program was a woman named Joyce Brown, who also went by the street name “Billie Boggs.” We at the NYCLU initiated a legal proceeding challenging Ms. Brown’s involuntary commitment. In November 1987, acting Manhattan state Supreme Court Justice Robert Lippmann ordered her released.

The judge stated, “Freedom, constitutionally guaranteed, is the right of all, no less of those who are mentally ill.” He added “…though homeless, she copes, she is fit, she survives.” He further stated, “It is my hope that the plight she represents will also offend moral conscience and arouse it to action. There must be some civilized alternatives other than involuntary hospitalization or the street.”

In December 1987, the New York Appellate Division, by a 3 to 2 majority, reversed Justice Lippmann. The majority found “that clear and convincing evidence supports the continued involuntary confinement of Ms. Boggs to the hospital for treatment.”

The dissenting opinion stated “It is a tragedy that in our wealthy society so many people have been driven to homelessness…. Regrettably, our affluent, sophisticated, and medically advanced society has not developed a more rational, effective and humane way of dealing with the mentally disturbed homeless than in a matter other than what appears to be revolving door mental health — that is, forcibly institutionalize, forcibly medicate, stabilize, discharge back into the same environment, and then repeat the cycle. The dissenting justices concluded “… we may be approaching the time when the problem of the homeless will be confronted with sincere and realistic attitudes and resources.”

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Now, 35 years later, the dissenting justices hopes in the Billie Boggs case have unfortunately not materialized. In December 2022, it is déjà vu.

Last week, the 110th mayor of New York City, Eric Adams announced that “we will make every effort to assist those who are suffering from mental illness and whose illness is endangering them by preventing them from meeting their basic human needs.” He pledged to help those “in need of help to accept services voluntarily.”

However, his message is that if the voluntary approach does not work, the city will involuntarily remove individuals from the streets and subways and transport them to psychiatric facilities. The mayor and his administration apparently did not take into account that: (1) this agenda will facilitate an increase in the denial of the right to individual liberty based on vague and overly broad terms; (2) the program depends on the promise that police officers can be briefly trained to diagnose dangerousness to self or others. Police officers cannot predict dangerousness; (3) the stated rationale for the program is that it promises to provide treatment.

Prior to implementing such a program, the Adams administration needs to identify such treatment and to demonstrate its likely success before it is permitted to confine people against their will. The history of involuntary commitment is instructive: treatment was the justification for confinement, but treatment very rarely followed. Calling confinement “hospitalization” is disingenuous, at best. It is, in effect, imprisonment designed to get such individuals — who have committed no crime — out of sight, out of mind. It returns us to a time and an approach that did not work before and will not work now.

Forty-seven years ago, a unanimous United States Supreme Court decided the case of O’Connor v. Donaldson which concerned the continued confinement of Mr. Donaldson for “nearly 15 years”. It concluded that “a state cannot constitutionally confine, without more, a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”

Given the Donaldson case, the New York City and New York State’s approach to involuntary commitment is constitutionally suspect and should be rethought. Keep in mind that a court could well invoke the standard articulated in O’Connor v. Donaldson and rule that this New York approach is unconstitutional as a violation of the right to liberty.

Siegel is a civil rights lawyer and a former executive director of the New York Civil Liberties Union.