California to roll out the CARE Act in bid help those with severe mental disturbance whose life cycles from street to jail to emergency room

By Herbert Rothschild

It’s gratifying when policy issues present clear intellectual and moral choices. Then we can believe we’re on the side of the angels. It’s better, though, when we acknowledge how complex our shared life can be. Then we must listen to each other, having realized that by ourselves we are unlikely to arrive at the best understanding of the challenges it presents.

Of all the issues I grappled with during my work for civil rights and civil liberties in Louisiana, the most vexing one concerned the mentally ill. I devote a chapter to that struggle in “The Bad Old Days: A Decade of Struggling for Justice in Louisiana.” What I did then was part of a national movement to bring new protections in their commitment and treatment to people who had little to none and routinely were deprived of their personal autonomy in the name of their own good.

For involuntary commitment, at last the legal criterion became “demonstrably dangerous to self or others,” which I think is proper. As a consequence, the large mental institutions emptied out. But as I wrote, “(J)ust because people were not demonstrable dangers to themselves or others didn’t mean they needed no help. Notwithstanding many exceptions, people had been institutionalized for a reason. Families were understandably unable or unwilling to care for difficult and uncooperative relatives. Care should have been provided by support systems featuring small group homes and regular medical supervision, but states and cities failed to establish such systems adequate to the need. Consequently, all too often the phrase ‘return to the community’ was a euphemism. The new address for multitudes of those released from the institutions was the streets.”

Which brings me to the reason why I’ve recalled that personal experience. As cities and states wrestle with the challenges posed by the shamefully large numbers of unhoused people in the wealthiest country on Earth, none is more challenging than what to do about and for the mentally ill among them. They make up perhaps a quarter to a third of those living on the streets, and it isn’t sufficient just to offer them temporary shelter.

On Oct. 1, seven counties in California will begin implementing provisions of the Community Assistance, Recovery and Empowerment Act (CARE), passed by the state Legislature last September. The remaining counties will have until Dec. 1, 2024. The new law will allow family members and first responders to ask a CARE Court judge to draw up a treatment plan for people deemed to be suffering from severe mental disorders. Those who refuse could be placed under a conservatorship and ordered to comply.

Currently in California, unhoused people with such disorders can be held against their will at psychiatric hospitals, but they must be released after three days if they promise to follow up with other services and take prescribed medication. It hasn’t worked well. Santa Clara County Superior Court Judge Stephen Manley, who oversees a mental health care diversion court for people awaiting trial on criminal charges, said that every day he sees people caught in a cycle of homelessness, jail and emergency rooms, without ever getting the adequate care or housing they need. He favors the new law. “I think this is a major step towards building a system that is going to be effective, as opposed to the present system where these individuals simply cycle through our jails over to the emergency room of a hospital, back to the streets, back to the jail, back to the hospital.”

California’s decision wasn’t made without principled opposition. The tension between a rights-based approach and a care-based approach to collective life could not have been starker. The history of involuntary commitment and treatment of the mentally ill is a history of abuses, some quite appalling. But as Teresa Pasquini, an activist with the National Alliance on Mental Illness, said when she was interviewed on National Public Radio, “The status quo has forced too many of our loved ones to die with their rights on.”

Opponents of the measure had other concerns. One was the racial bias that inserts itself into every exercise of discretionary justice in our country. James Burch, deputy director of the Anti Police-Terror Project, which is part of a statewide coalition that opposed the legislation, called it “devastating.” “It’s Black men, Black trans folks, Black folks in general who will be the ones who are disproportionately forced into CARE Court and disproportionately affected by this horribly myopic legislation.”

Evidence supports Burch’s prediction. In the U.S., Black people are diagnosed with schizophrenia, on average, three to four times more often than white people.

Another concern is that the resources for care are woefully inadequate to the task. The state faces shortages of psychiatric facilities and the personnel needed to staff them. And Gov. Gavin Newsom’s administration estimates that between 7,000 and 12,000 people across the state will be eligible for CARE Court. Michelle Doty Cabrera, executive director of the County Behavioral Health Directors Association of California, said, “There’s not a lot of give in terms of our workforce currently.”  

Whether this trade-off of their rights for their care will benefit the unhoused mentally ill will hinge on how many new resources California devotes to their treatment. We should follow the experiment closely, because so many cities are facing the same challenge. In December, Portland Mayor Ted Wheeler called for an easing of restrictions on involuntary commitments, and two bills to that effect were filed in Salem in the 2023 general session, although neither gained traction.

I’ll conclude with what I think is a properly ambivalent and humble assessment of California’s effort to address a major societal challenge. Assemblymember Al Muratsuchi, D-Torrance, said, “I don’t think this is a great bill, but it seems to be the best idea that we have at this point to try to improve a godawful situation.”

Herbert Rothschild is an unpaid Ashland.news board member. Opinions expressed in columns represent the author’s views and may or may not reflect those of Ashland.news. Email Rothschild at [email protected].