California Shifts to an Experiment in Coercion to Treat the Homeless

By Scott Wilson / The Washington Post

12:19 JST, April 29, 2023

SAN DIEGO – There are a lot of invisible companions in East Village. They live in the cluttered tents that crowd sidewalks, bunk down beneath highway underpasses and wander perilously in the middle of streets.

Paul Thomas has a girlfriend with one, he says, but he is frightened by it. The two share a tent and, at times, the back seat of a banged-up Toyota Avalon.

But his girlfriend’s other partner, her imaginary one, is constantly with them.

“There is a person inside of her who I talk to,” Thomas, 56, a self-described crack addict who said he has lived on California’s streets and inside its jails since he was 11 years old. “You don’t know what they are thinking or what they will do. You never know.”

How to move people such as his girlfriend off the streets has challenged California leaders and the state’s increasingly liberal values for decades, as they seek a balance between policy idealism and the realities of managing those without homes.

In a few months, altering its past path, the state will begin an experiment in what amounts to coercive compassion, an initiative that unlike today’s mental health system will force people into treatment programs instead of jail and monitor their progress for at least a year.

More than three dozen states have some version of courts designed for those suffering from mental illness, many of which fall under the criminal court system and often include jail as a key part of a sentence. No state is attempting to establish a civil court program on the scale of California’s. Estimates by the National Alliance on Mental Illness show that a quarter of the state’s 170,000 homeless residents, more than a quarter of the nation’s total, has a serious mental illness.

But in California, sharp criticism has been raised, including by medical associations and civil rights groups, that the system Gov. Gavin Newsom (D) has pushed will stigmatize people with certain mental illnesses and fail to provide enough protection for them from being drawn into the proposed process. Severe housing shortages for the mentally ill – and how appealing the idea is to the homeless – are key questions that have yet to be answered.

The treatment of the mentally ill, especially those living on the streets, commonly ranks near the top of the public’s priorities in recent state polls, a reason the idea received broad Republican support in the legislature. Even some public health officials, though, say California’s approach may fail because of a lack of housing for those taken in to the program.

The program, known as Care Courts, will make it easier for the state to intervene in the mental health treatment of its most severely ill residents after spending $20 billion over the past five years to get people off the streets. But at the same time, California is preparing to eventually spend up to $215 million a year on a program, born amid a worsening homeless crisis, that no one knows will work.

“The transformation has to be radical,” said Luke Bergmann, chief of San Diego County’s Behavioral Health Services. “We don’t need something that’s just chipping away at the problem, but a new focus on longer-term solutions to it. What we do know is that things are not working right now.”

The program is the latest in a long series of responses from politicians who believe only government can resolve California’s growing mental health crisis, which often plays out most vividly in public among the homeless, including along Imperial Avenue and 16th Street in San Diego, where the background hum is a chorus of monologues from the mentally ill and the addicted. City officials estimate that several hundred people in San Diego County may be eligible for the program.

Care Court’s consequences for the most severely ill forced into care represents a step toward redefining California’s dark history in treating the mentally ill, once housed in large state-run hospitals and then largely ignored after those were closed more than five decades ago. Many ended up on the streets.

Under the program, a relative, mental health clinician, police officer and others will be able to file a petition in the new civil court system to have the person, willing or not, enter the program. A clinician then will have two weeks to decide if the person, who is afforded legal counsel, qualifies for the program, which will accept those with mental health illnesses such as schizophrenia or other forms of psychosis.

Care Court will also be an option if a person is involved in a criminal or civil court case and is determined to be unfit to stand trial. The treatment plan itself would rely on a meeting with professional counselors and medication, a course that is reviewed regularly. In either case, the person will have the right to leave the program at any time, risking more severe penalties for doing so that could include jail time or conservatorship.

The new civil court system, which by state law must be running in San Diego County and seven others by October, is cast as a middle road between jail and conservatorship, both of which require a mentally ill defendant to give up nearly all autonomy. State officials estimate that about 12,000 people could qualify for the program statewide, a group that accounts for its most visibly and severely sick. Separately, state lawmakers are looking at easing the conservatorship rules, an effort that could help support the Care Court program.

But the state’s worsening housing shortage is the single largest obstacle to moving those being treated into safe places to live, which many agree is a central element of making the program successful. The Care Court process does not guarantee housing for those who enter it.

“People have to be in housing if they are going to be healed and stable,” said Jason Elliott, senior adviser to Newsom who is helping oversee the program. “Housing is critical, and there is not enough of it.”

The courts, formally known as Community Assistance, Recovery and Empowerment, will begin at a time when Californians routinely rank homelessness and housing affordability among their chief concerns. On any given night in San Diego’s lively downtown district, about 2,000 people are sleeping on sidewalks, many beneath glass-and-steel apartment buildings, often after a futile search for available shelter beds.

A decade ago, the downtown homeless population was a quarter of the size.

“The city has very blunt instruments to deal with our homeless population – the police and the sanitation department,” said San Diego Mayor Todd Gloria (D), an advocate of the Care Court initiative. “Our history has been that first we chose to institutionalize people, then incarcerate them, then ignore them. That’s unacceptable.”

Gloria, who was elected in 2020 partly on a pledge to find new solutions to the city’s homeless crisis, said the city of San Diego alone receives 50,000 mental health-related emergency calls each year, taxing the police, fire departments, emergency response workers and the county court systems.

But given the narrow focus of Care Court on the most severely ill – a number estimated to be 200 to 400 people across San Diego County – even a highly effective program may not result in an obvious reduction of homeless residents on the streets.

“This is going to have a modest impact,” Gloria said. “The truth is we don’t know how many people are going to be impacted, and that shows how disengaged we have been from this population.”

In its report on the program, the state Legislative Analyst’s Office captured some of the major unknown aspects of how the novel court system would function. While state officials say the number of people who qualify statewide is 12,000, “the number of participants could be higher, potentially by tens of thousands of people,” making any initial budget estimates guesswork.

Deep concerns over the program have already surfaced. Before it is even put into effect, advocates for some of those whom the program is meant to benefit challenged the Care Court rules and resources, filing a petition with the state Supreme Court to have it stopped on constitutional grounds.

The filing by the nonprofit Disability Rights California highlighted the lack of housing attached to the program and the mental health issues targeted.

“Both the counties and opponents of the Care Act shared this concern about a respondent’s inability to progress or even participate if remaining unhoused,” the lawsuit stated. The suit also pointed to the law’s focus on “schizophrenia and other related psychotic disorders,” two possible criteria that would qualify a person for Care Court.

“No other California mental health statute distinguishes between individuals based on a diagnosis rather than severity of need,” the filing stated.

In mid-April, the state Supreme Court declined to hear the petition. It did so without offering a reason.

In the late 1960s, then-Gov. Ronald Reagan (R) closed the state’s 40,000-bed mental hospital network, which were considered poorly run and provided inadequate care for many. The money saved was meant to be disbursed among counties for behavioral health services, but that transfer never came close to happening on the scale that was envisioned.

In the aftermath, it became far harder to compel people into mandatory mental health treatment, and the resources devoted for their care shrank significantly, in large part because there was no place to put them and hollowed-out mental health agencies proved incapable of providing the right care.

That changed in 2004, when state voters passed the Mental Health Services Act, which imposed a 1 percent income tax on individuals making more than $1 million a year. The money was designated specifically for mental health services but not for housing.

Last month, Newsom traveled to San Diego to outline two funding initiatives to address housing shortages and the crisis in mental health, particularly among those living on the streets.

First, he proposed issuing a bond that would raise as much as $5 billion for housing the mentally ill and those suffering from drug addiction. His second initiative would allow state officials to spend up to $1 billion a year on housing from the Mental Health Services Act revenue, a category of spending that is currently prohibited.

Newsom is asking the state legislature to place the proposals, combined in one proposition, on the 2024 ballot. The measure would require approval from a majority of voters. In the meantime, Elliott said, the state already sends counties $11 billion a year in behavioral health funds and other money that may be used to add to the affordable housing stock.

Other concerns center on the way the Care Court law is being carried out. Although eventually winning its support, the legislation divided the California State Association of Psychiatrists, a 1,500-member organization whose doctors will probably be called on to participate in court evaluations.

“Half felt the bill wasn’t going far enough,” said Steven Koh, an association member who is the chief of the general psychology department at the University of California at San Diego. “The other half didn’t know how it was going to work.”

One hole in the plan, Koh said, was the exclusion of those addicted to drugs from the Care Court program at a time when fentanyl has displaced methamphetamine as the drug of choice for a growing number of Californians.

Koh said the challenge of distinguishing between mental illness and long-term substance abuse is a “gray area from a clinical-medical perspective.”

“Many of us wanted to expand the pool of folks who would be eligible for this,” Koh said. “It is very difficult to say whether someone is purely schizophrenic or is suffering from drug-induced psychosis.”

Along Imperial Avenue and 16th Street in San Diego, police patrol regularly. They issue tickets, almost impossible for a homeless resident to pay, and make the occasional arrest on drug possession, vagrancy or other relatively minor charges. Homeless advocates call the sweeps part of the “criminalization” of homeless.

The police will probably also be the primary agency responsible for filing Care Court petitions. Michael McConnell, a prominent homeless advocate here, worries that such petitions will be used to remove from the streets those most problematic for law enforcement officers, a group that may not necessarily include the most acutely ill.

“This is the last thing they want – another court,” McConnell said of the homeless.

Nearly four decades ago, McConnell’s brother, Mark, a paranoid schizophrenic, killed their father. Mark was found not guilty by reason of insanity, and McConnell said his brother responded well to treatment. But a few years after his release from a locked mental ward, Mark killed himself, which McConnell attributes to enduring feelings of guilt.

“I get it – I really do,” said McConnell, 56, who sold his rare-coin business a few years ago to dedicate himself to homeless advocacy. “But I also know that if this is adding to a system that already marginalizes homelessness and mental health, I am not for it,” noting that additional housing should be the first step toward caring for the mentally ill.

Bergmann said Care Court and related programs directed at the mentally ill will require huge budget increases and far more staff, who are extremely hard to find in a tight job market. In his March visit, Newsom announced $117 million in grants to help nonprofit mental health providers hire staff as the state faces a $22.5 billion budget deficit.

Carol Yvonne Simpson talks to herself.

She’s 56 and, she said since leaving prison, which she estimates was eight years ago, she has lived primarily at the intersection of 17th and K Streets in a nylon tent. She said she was born in San Diego and has spent nearly her whole adult life without a home.

But Simpson said she has not been formally diagnosed with a mental disorder that would qualify her for a Care Court treatment plan. Asked if she is seeing a doctor, she begins to cry, first just a few slow tears, then an open-mouthed howl.

“When I talk to myself, I am talking to God,” Simpson said. “I’m crying out to him. I need everything, the life that I lost. I want it back.”