California has a worsening homelessness problem. Today, there are over 150,000 unhoused people in the state. Mental illness and homelessness have a bidirectional relationship. Often, people end up on the streets because they are unable to live within the normal confines of society. Homeless people are more likely to face violence and fall prey to substance abuse, leaving them traumatized and making it more difficult for them to reenter society. It is in that context that they commit “survival crimes”—crimes committed in an attempt to obtain what they need to live like food and shelter.
California has had trouble managing unhoused people and the crimes they commit. Recently, the state passed two programs that aim to address criminality amongst the homeless population: Mental Health Diversion and Care Courts.
Both programs fit into California’s —and the United States’—troubled history of treating mental illness. Beginning in the 1830s, states opened institutions for the mentally ill. These so-called mental hospitals became notorious for their severe conditions. Nonetheless, they operated with little change well into the 20th century.
The Community Mental Health Act of 1963 (CMHA) and the Civil Rights Act of 1964 (CRA) brought the existing system under attack by supporting the rights of the mentally ill. This legal change coincided with the release of the world’s first psychosis drug—Thorazine—which made out-patient treatment possible.
The Lanterman-Petris-Short Act (LPSA) was passed in California in 1967 and put the ideals of the CMHA and CRA into effect. It was authored by a bipartisan group of legislators and signed by then-governor Ronald Reagan. The LSPA severely limited the state’s authority to place people under conservatorship. Conservatorship is a legal framework that takes away one’s right to make decisions for themselves—it is used when people are deemed unable to take care of themselves.
The LPSA limited the government’s right to hold individuals because of their mental illnesses by outlining a three-step hold system. The first hold, called a 5150, can be ordered by law enforcement officers when an individual is deemed to be a danger to themself or others. A 5150 hold lasts for three days and, thereafter, a hold can be extended for two weeks and then six months.
The LPSA sent people with mental illnesses that were committed with crimes to prison— turning jails and prisons into surrogate psychiatric hospitals. Incarceration, however, is a traumatic experience that only serves to worsen mental illness. After incarceration, people are likely to return to the streets and re-offend.
Reagan supported the LPSA because it forced mental institutions to close at a precipitous rate. His interest was in balancing the budget; closing mental hospitals was a means to that end. The law that he passed at least partially engendered the conditions that California faces today by diverting resources from mental health care.
Ironically, his liberal successor Jerry Brown supported the law as well because he believed that closing mental hospitals would afford the better treatment of people with mental illnesses. In the place of mental institutions, Brown provided funding for county-level treatment programs—programs that were not well operated. Although Brown was well intentioned, his policy was poor. The system that he created has remained in place until today. And the decentralized, under-resourced, and disorganized system has had detrimental implications for California. It was the protections celebrated by liberals—and demanded by history—that have made the state unable to address today’s homelessness crisis.
While conservatives backed away from their responsibility to care for people, liberals hindered their ability to care for people by trying to protect them. It is so hard to ethically treat mental illness because a common symptom is delusionality. Delusionality is particularly dangerous because it impairs self knowledge—people who have psychosis often do not know that they do. They therefore are resistant to treatment, and when they do receive treatment, they often believe they are cured and stop taking their medication. Delusionality is a symptom of psychosis, but it is also associated with mental illnesses common in homeless people like addiction and Post Traumatic Stress Disorder.
People with mental illnesses do not always stay on their medication without some sort of coercion. That notwithstanding, activists remain opposed to all means of coercion, even though medication adherence creates better outcomes for people with mental illness. Within this context, the California State Legislature passed two new mental health treatment laws that attempt to compromise between mandated treatment and civil rights.
The first, a strengthening of the state’s Mental Health Diversion (MHD) law passed in January 2023, makes it easier to more directly connect mental illness with criminal behavior. The law states that criminal courts must assume that a defendant’s mental illness was the key causal factor in the commission of their crime, placing the burden of proof on the prosecution to prove that mental health was not the key factor. If the defendant agrees, the court then delays the trial for two years, and if in that time the defendant successfully receives treatment, the court drops all charges. In the year that the law has been on the books, it has been used by some California counties to defend mostly unhoused people.
At face value, the diversion program seems positive. It gives defendants the opportunity to escape a criminal record and the corrections system. Furthermore, preliminary studies indicate that it has been successful—people on mental health diversion programs (which existed but were hard to use before 2023) are less likely to be repeat offenders.
The program, however, has worrisome similarities to the oppressive regime of mental institutions. Diversion uses the threat of a criminal trial to impose treatment. Defendants hardly have free choice about receiving and adhering to treatment. Whereas in the past, coercion was immediate and physical, today it takes the form of the threat of potential legal consequences and jail. In other words, if people on diversion stop adhering to treatment, they get put on trial for their crimes.
Coercion is a sticky point. People with some mental illnesses actively resist the treatment they need. What is also clear is that their resistance is bad for them—aggravated symptoms land people on the street. In some cases then, the coercion is not necessarily negative. In fact, it seems necessary.
What must not be allowed however is for coercion to reach the levels that it infamously reached in the 19th and 20th century mental health institutions. The second law passed recently by the California State legislature comes closer to that historical precedent. The Community Assistance, Recovery, and Empowerment (CARE) Act was passed in October 2023. The Act provides the legal framework for anyone to refer people with mental illnesses to a “Care Court.”
Care Courts have the power to order up to two years of treatment. If treatment is not successful, the person’s failure allows the court to order conservatorship—providing a clear framework for a return to the days of severe mental hospitals. The Care Courts create a direct path to prolonged holds in which individuals are deprived of their freedom.
Mental Health Diversion and Care Courts are seemingly similar institutions—they both work within the confines of the LPSA to give judges coercive powers to order mental health treatment. Their source of coercive power however is fundamentally different.
Defendants (represented by criminal defense attorneys) apply for Mental Health Diversion. Then, only after a defendant’s application is approved, can a judge defer their trial to give the defendant the opportunity to get treatment. The court has leverage because if the defendant does not go through with their treatment, they will face trial. This is the component that makes Mental Health Diversion coercive. Yet, absent Mental Health Diversion, the defendant would have gone directly into trial for the crime committed like anyone else.
Instead of waiting for people who are mentally ill to commit crimes, Care Courts allow for people to be referred to the court without having committed any crime. It preempts mental health diversion. Individuals are compelled to get treatment and if they do not, they are placed under conservatorship. Individuals referred to Care Courts can face severe punishments—a stripping of freedom—not because they have committed a crime but because they are mentally ill. Within the context of Care Courts, mental illness is criminalized.
Determining the limits of acceptable levels of coercion is actionably difficult if not ethically impossible. What is clear however is that Care Courts can go too far. Regardless of the current crisis, it is unacceptable to criminalize illness. Disequality in front of the law cannot solve this problem.
Mental Health Diversion is the equitable solution because it gives people with mental illness who are accused of committing a crime the chance to get treatment before they are tried for that crime. Everyone commits crimes as equals, but defendants (and more likely the attorneys that represent them) are able to demand that courts consider their individual circumstances. If a defendant’s condition earns them leniency, it seems fair that a judge can order treatment.
Homeless people in California must be treated with complete compassion—even when they commit crimes—because they are victims of a society that is structurally broken. While diversion is a better alternative for dealing with mental illness in the justice system, it does not address the structural problems that cause homelessness.
Homelessness continues to grow in California. Even if the draconian model of Care Courts is allowed to survive, it will not solve the problem. Instead, California should compassionately treat homeless people with diversion and invest in other programs to address the root causes of homelessness.
Featured Image Source: Mercury News
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