//  4/12/17  //  Commentary

Much has been said in recent months and years about the impact of aggressive policing on racial and ethnic minorities. Former President Obama’s Department of Justice took on these issues in important ways, as have advocates in the Black Lives Matter movement and groups like the ACLU, philanthropic organizations such as the MacArthur Foundation’s Safety and Justice Initiative, and coalitions such as the Council of State Governments’ Stepping Up Initiative. The devastating effects of racial disparities in our current policing and corrections systems, as well as the discriminatory attitudes and assumptions that underlie them, must be addressed.

At the same time, another critical disparity in our criminal justice system – the approximately 2 million people with serious mental illness entering our jails annually - similarly reflects a set of mistaken assumptions and prejudices rampant in our communities. In fact, many of the people whose deaths in high-profile encounters with police sparked shock and protest were not only black people, but were people with disabilities – Freddie Gray; Keith Lamont Scott; Alfred Olango; Natasha McKenna; Sandra Bland; Laquan McDonald – to name a few.

Serious mental health conditions affect some 4% of our community. Yet people with serious mental health conditions represent 25% to 50% of those shot by police every year and an estimated 14.5% of men and 31% of women admitted to jail (and people with less serious mental health conditions may represent over half of inmates in jail and prison). These rates are four to six times higher than in the general population, despite that research shows that people with mental illness are not more violent or dangerous than others. The Boston Globe did a Spotlight series late last year that really shed light on the problem.

Like it or not, jails and prisons are a major part of our communities’ mental health service systems. But they shouldn’t be. Even at their best, police, courts, prisons, and jails are neither designed for, nor conducive to, mental health treatment and recovery. Nor are they a cost-effective means of addressing mental health conditions – prison and jail-based mental health services cost as much as three times as much as community based services and are not eligible for federal Medicaid matching.

Stigma toward, and, frankly, fear of people with mental illness underlie much of this disparity. We, as a country, have blamed people for their illness and believed they could stop the behaviors that frighten or annoy us if only they would exercise more self-control. That attitude has led us to limit treatment for mental illness, and, as a result, people with mental illness are forced to go without treatment, experience crises unnecessarily, and interact with police in ways that lead to incarceration and death.

As the Department of Justice recently explained in Examples and Resources to Support Criminal Justice Entities in Compliance with Title II of the Americans with Disabilities Act, the Americans with Disabilities Act (ADA) prohibits discrimination against people with mental illness by police, prosecutors, courts, and corrections agencies. The ADA prohibits treating people with mental illness worse than those without disabilities, such as arresting them for offenses for which people without disabilities are generally not arrested, denying them access to probation, parole, diversion, and re-entry programs on the basis of their disabilities, denying them access to treatment, employment, education, or rehabilitation programs while incarcerated, or disciplining them or putting them in isolation for behavior caused by their disabilities. The ADA also requires reasonable modifications of policies, practices and procedures in the criminal justice system, which can go a long way toward reducing the incarceration of people with mental health conditions. Reasonable modifications that can prevent tragic outcomes include crisis intervention training for police officers and diversion from the criminal justice system to community-based treatment programs such as Assertive Community Treatment and Intensive Case Management.

However, police, courts, and corrections agencies cannot solve the over-incarceration of people with mental health conditions by themselves. The crucial question is “divert to where?” Many interactions with people with mental health conditions happen when the person is in crisis. Such crises can only be avoided if people with mental health conditions have ready access to timely, affordable treatment and support. State and local governments have traditionally relied primarily on institutions, such as psychiatric hospitals, to provide mental health services and some blame state deinstitutionalization efforts for rises in the incarceration of people with mental illness.

The ADA, as explained by the Supreme Court in Olmstead v. L.C., requires states and localities to provide mental health services in the most integrated setting appropriate for individuals with mental health disabilities. Jails and prisons do not satisfy that obligation. Nor do more institutional beds.” People avoid institutional treatment, whether in psychiatric hospitals or jails until they are in crisis. Institutional and correctional psychiatric services are also expensive, both for patients and for the government funders that often pay for them. Thus, state and local governments can meet their humanitarian, fiscal, and legal obligations, only by providing community-based services, such as supported housing, Assertive Community Treatment, intensive case management, crisis services, behavior supports, peer support, and supported employment services. Doing so can interrupt the vicious cycle of hospitalization, incarceration, and homelessness that traps so many people with serious mental illness.

Delaware’s recent experience implementing a consent decree with the Department of Justice under the ADA and Olmstead illustrates how a state’s focus on community-based services can positively impact the criminal justice system. At the end of the decree, mobile crisis teams in Delaware typically diverted 80 to 90 percent of the people they encountered away from hospitalization or criminal justice interaction and the state’s crisis walk-in center in Sussex County was able to divert about 70 % of people from further hospitalization or criminal justice interaction, allowing law enforcement officers to drop-off individuals in mental health crisis in less than 10 minutes on average. We must recognize that our criminal justice system has become a de facto part of our mental health system, and an unnecessarily and harmfully institutional one. And we must adopt solutions that focus on community-based mental health care and take criminal justice out of the equation if we ever hope to really reform either the mental health system or the criminal justice system.

As communities across the country pursue criminal justice reform, people with disabilities and their families must be at the table. Disability is inextricably tied to the current aggressive policing and corrections systems, and it must be part of the solution. Only by addressing disability can the criminal system hope to dispense justice for all people in our communities.


Complicity and Speech: The Right’s New Effort to Rewrite the First Amendment

12/4/17  //  In-Depth Analysis

Conservative legal activists have pushed a sweeping view of the First Amendment’s protection against compelled speech. These new complicity claims should fail.

Trump’s Newest Attack on the Rule of the Law

12/4/17  //  Commentary

Trump isn’t just reckless, and he doesn’t just seem to think he is above the law. He has an authoritarian’s hostility to the very idea of a principled inquiry into the truth.

David Sklansky

Stanford Law School

DOJ Will No Longer Assist Covered Entities in Understanding the Law

11/21/17  //  Latest Developments

The new approach does not mean the DOJ will no longer make policy. It just means the Department will no longer tell covered entities and protected individuals what those policies are.

Eve Hill

Brown Goldstein & Levy