In many ways, 83-year-old “David” is symbolic of the hundreds of mentally ill people living in our streets. He can be seen wandering around Waikiki, talking to himself, sometimes shouting at and threatening strangers. He refuses countless offers of shelter and help, gets arrested a lot and is tossed back to the streets to fend for himself.

It’s not just a hunch that David is mentally ill. The courts have declared him “unfit to proceed” an alarming 14 times in separate criminal cases in less than two years. For David to be declared “unfit,” courts must determine that he does not have the mental capacity to understand the proceedings against him and lacks the ability assist in his defense. So why would a person found mentally “unfit” 14 times in less than two years be considered fit enough to survive on the streets?

The simple answer is David’s right to freedom supersedes his need for treatment. In 1975 the ACLU won a landmark case in the U.S. Supreme Court (O’Connor v. Donaldson). The court ruled that a person like David can’t be sent to an institution against his will unless he’s dangerous. Prior to that ruling it was much easier to get people help.

In Hawaii, for David to be committed, the court would have to conclude that he is:

1) Mentally ill or suffering from substance abuse;

2) Is imminently dangerous to self or others; and

3) Needs care or treatment, or both, and there is no suitable alternative available through existing facilities and programs that would be less restrictive than hospitalization.

The nature of the charges against a defendant are also part of the decision. All the cases against David have been nonviolent petty misdemeanors, things like trespassing or sleeping in a closed park. The law requires that once David is found mentally unfit, the minor charges must be dismissed.

It’s clear someone who is not dangerous and doesn’t understand the charges against him shouldn’t be locked up — but what about getting David the help he needs? The Supreme Court also said people like David should be “capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” David doesn’t have any family or friends here, and lives in parks and benches in Waikiki.

The Hawaii attorney general ruled that “if an individual is not imminently dangerous to self or others,” the individual may be placed under an Assisted Community Treatment order, if appropriate. But it’s unclear what “if appropriate” means.

In David’s last two cases, it was determined “Defendant does not meet the criteria for Assisted Community Treatment” and two different judges cut him loose: “Defendant shall be forthwith discharged/released from the custody of the Director of Health.”

Our system has spoken: David is too mentally ill to understand the charges against him, but healthy enough to live on the streets.

Waikiki resident John Deutzman is a retired Emmy Award-winning TV investigative reporter from Miami and New York City.