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NYC defense lawyers use legal tactics to skip mental health bed waitlist
By
Charles Lane
Published Apr 16, 2025
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José A. Alvarado Jr./Gothamist
By
Charles Lane
Published Apr 16, 2025
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The city's pipeline to get criminal defendants access to mental health care has become so clogged that defense lawyers have quietly developed backdoor legal maneuvers to get their defendants to the front of the line.
But the workarounds, they warned, are a short-term fix that will collapse if more lawyers begin using them and the number of psychiatric beds stays stagnant.
Gothamist previously reported that the number of people found mentally unfit to stand trial has more than doubled citywide since 2020, while available treatment beds increased by less than 10%. State and city officials have proposed adding beds both on and off Rikers Island.
But these solutions require legislative approval. In the meantime, lawyers have tried a range of different strategies to get their clients to the front of the line.
Mental health experts said the legal maneuvers demonstrate a criminal justice system buckling under pressure, and they questioned their fairness.
"The justice or lack thereof, I don't think is on the part of the lawyer. I think it's the lack of ability of these systems to efficiently and effectively and safely move people through these processes," said Evan Auguste, a clinical and forensic psychologist who has worked at New York's psychiatric hospitals.
Auguste compared the legal maneuvering to “sweeping sand in the desert” and said mental health care in the criminal justice system is in need of reform.
After someone has been charged with a crime in New York City, their defense lawyer can typically request a mental health evaluation to determine if the defendant is fit to stand trial. The evaluation assesses whether defendants can understand the court process and the charges against them.
Based on the results, they are deemed either "fit" or "unfit" to proceed with their case.
If found unfit, defendants are supposed to be transferred to the custody of the state Office of Mental Health, where they would receive treatment to restore their mental capacity enough to understand their court proceedings.
But because the number of beds at state psychiatric hospitals has stagnated while the number of people found unfit has increased, there is nowhere for them to go.
This leaves defendants with mental illness waiting on Rikers Island for months. The average wait time was 79 days as of last fall, according to a recent report from the Independent Rikers Commission.
To circumvent these delays, defense attorneys have developed several legal strategies. One is filing special "forthwith" orders with the court, which asks judges to demand that the state immediately admit their client and start treating them.
New York County Defender Services said their lawyers now file these “forthwith” orders for all of their clients found unfit to stand trial.
"What ends up happening is that if you have an order, you go to the top of the queue," said Chris Boyle, director of data research and policy for New York County Defender Services. "The clients we get orders for tend to be moved quicker.”
Organizations have tried other approaches with varying success. Some have tried suing the state through what’s known as an “Article 78,” which claims the government isn’t fulfilling its proper role.
Lawyers have also undertaken special court proceedings that attempt to hold the Office of Mental Health in contempt of court for not accepting defendants promptly.
Yung-Mi Lee, a lawyer with Brooklyn Defender Services, said the Office of Mental Health hasn’t been clear on why New York City residents are only placed in two downstate hospitals and not treated at other hospitals where there may be more room.
"It's not just my office — defense lawyers are engaging in litigation,” she said, “to try to get the Office of Mental Health to be more transparent in their decision-making.”
The state’s Office of Mental Health said it is attempting to expand capacity in response to what it called a “substantial increase” in the number of people deemed unfit to stand trial.
“When someone jumps the queue for services due to a court order, this will delay admission for others who have been waiting longer,” spokesperson Justin Mason said.
Defense lawyers and experts largely agreed.
The Legal Aid Society said it has also attempted to hold the state in contempt of court. But Elena Landriscina, a lawyer with Legal Aid Society, said these legal maneuvers aren't a solution.
"By bringing one person to the front of the line, inevitably you're putting another client — who can very well be another client of ours — further down the line," she said.
Boyle said these approaches aren’t sustainable if all lawyers start looking for ways to jump the line.
"At some point, if we're filing orders on everybody — which eventually we'll get to do — we'll just be back in the same position again, because the Office of Mental Health can't handle that number of people," he said
Auguste said lawyers maneuvering to cut the line also hurts defendants with limited English proficiency.
He recalled one of his patients during an interview with Gothamist.
"She can't strategize with a lawyer in the same way,” he said. “In this question of justice that we're talking about, she’s not going to be able to jump the line. She's going to be caught in the system."
Tagged
new york city
public safety
Charles Lane
Charles is a Day-of reporter focused on breaking news and enterprise. He’s very friendly and can be reached at [email protected], or more securely on whatsapp/signal 631-295-6715
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Gothamist is funded by sponsors and member donations
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