OPINION: Public safety bills targeted marginalized people with disabilities

As a long-time lawyer and advocate for people with disabilities, I am responding to the Journal’s July 21 editorial regarding the Legislature’s special session, “NM Dems appear to care more about criminals than their victims,” injecting important facts into the debate and explaining the relevant law.

The Journal asked, “How hard is it to require court-ordered behavioral health treatment for repeat offenders accused of a serious violent offense, a felony involving the use of a firearm, or those defendants who have been found incompetent two or more times in the prior 12 months?”

But that misguided question obfuscated the truth. The Lujan Grisham administration’s drastic proposed changes to our mental health code would not merely impact people who are too disordered to be prosecuted but would fundamentally transform how anyone could be involuntarily committed to a psychiatric hospital.

The proposal would have allowed involuntary civil commitment for anyone showing “behavior that is grossly inappropriate to a situation,” a dangerously vague and subjective criterion.

The Journal called the governor’s proposals “five common sense bills that would have actually made a measurable dent in crime,” although it had very little to do with crime, but would have demolished the foundational principle of our 1978 Mental Health Code: that, in New Mexico, the “least drastic means” must be used when depriving someone of their liberty and imposing involuntary treatment on them.

That enormous alteration of our civil commitment process was sent to legislators just 22 days before the special session; sprung on them with virtually no opportunity for input from mental health experts, hospital administrators, people with disabilities and their family members or experts in the legal rights of people with disabilities.

Since 1978, far smaller changes to the Mental Health Code have been vetted through task forces that held several meetings, to avoid causing harm to people with disabilities or to our very fragile mental health programs.

Furthermore, in my opinion, that bill would likely have never gone into effect because it is unconstitutional. In 1975, the U.S. Supreme Court ruled that states cannot “fence in the harmless mentally ill … to avoid public unease.”

Involuntary detention is only allowed when a person presents a clear, imminent threat of significantly harming someone, because “(m)ere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty.”

The Legislature deserves our appreciation for honoring the Constitution and not “throwing the baby out with the bath water” in a rush to alleviate public intolerance of marginalized people with disabilities.

My colleagues in the Coalition for a Safer Albuquerque and I will now work with the Legislature to develop an effective and constitutional approach regarding people who do not meet the criteria for involuntary civil commitment, but who get in trouble due to their disabilities.

Rather than overwhelming existing facilities with people resistant to hospitalization whose disabilities don’t permit prosecuting them, we propose establishing a program in which Medicaid pays for community-based behavioral health services for people incompetent to stand trial through a “Home and Community-based Waiver,” similar to the DD Waiver program; which serves 6,800 people with developmental disabilities, many of whom also have serious behavioral disabilities.

Those “wraparound” services are far more therapeutic than institutionalization, and the federal government pays 74% of the cost. Providing those services to people who commit petty offenses who are not dangerous to others will actually help them and improve public safety.

Let’s work together to accomplish that.

Peter Cubra is an attorney for the Coalition for a Safer Albuquerque.