How California Can Safely Release 33,000 Prisoners

by Mary Ann Bernard

Both the mentally ill and their fellow citizens would benefit from a rethinking of the Sixties’ misguided reforms.

Last week, in Brown v. Plata, the U.S. Supreme Court determined that, as a result of overcrowding in California prisons, prisoners are routinely denied adequate medical and mental-health treatment, and that this constitutes “cruel and unusual punishment.” Some prisoners have been forced to stand upright in their own urine and feces in cages no bigger than telephone booths for hours on end while waiting for a mental-health-crisis bed. Many of the mentally ill remain imprisoned in their own psychotic delirium. Suicides are frequent, and abuse from other prisoners is rampant. The Supreme Court agreed with the lower court that these ills were due to overcrowding, and it ordered California to release about 33,000 prisoners, causing much consternation among conservatives and liberals alike.

The truth is: California can comply with the court order while improving treatment of the mentally ill and, derivatively, the safety of all Californians. Done right, these reforms would cost no more than the state is currently paying; indeed, they would actually save money.

The solution lies in returning treatment of the mentally ill to the mental-health system. California’s sorry record with the mentally ill has its roots in the 1960s, when well-meaning reformers enacted laws aimed at closing state mental hospitals and returning the mentally ill to the community. They succeeded admirably in their stated goal, by making it extremely hard to hospitalize the mentally ill and appallingly easy to discharge them. They also made it very easy for those discharged to refuse outpatient treatment. As a result of these “progressive” reforms, California has an enormous and highly visible homeless population, of whom 30 to 50 percent are estimated to be mentally ill. These people often then commit crimes, with prison the inevitable next step.

It is fair to say that in California and many other states, people have been forced out of the mental-health system and into the criminal-justice system. “As psychiatric hospitals get smaller, prison populations rise,” according to Dr. E. Fuller Torrey, author of The Insanity Offense. He estimates that 20 percent of California’s current state prisoners are seriously mentally ill. Nationwide, mentally ill prisoners serve disproportionate sentences for relatively minor crimes. The National Sheriffs’ Association estimates that the mentally ill are now three times more likely to be jailed than treated in a hospital.

To comply with the court order to reduce overcrowding in prisons while keeping the public safe, California should do three things: make greater use of Laura’s Law, reform commitment statutes, and use Proposition 63 funds for treatment for mental illness rather than social services.

1. Laura’s Law. California already has a mechanism in place that could not only prevent mentally ill people from becoming violent and moving into the criminal-justice system, but also ensure that those discharged under the Supreme Court order would remain nonviolent. Laura’s Law allows judges to order mentally ill people with a history of violence to stay in treatment, even when they are living in the community. A study of a similar law in New York shows that it reduced arrests for violence by more than eightfold.

Unfortunately, the California legislature made Laura’s Law optional for counties, and most do not use it. While complying with Laura’s Law is expensive, “caring” for the mentally ill in California’s prisons is even more so. Eric Revere, the tenacious first vice-chairman of the San Diego County Community Mental Health Board, notes that it costs the county about $26,000 per patient per year for community mental-health treatment versus $48,000 per year to house an inmate in a state prison located in the county. He estimates that 100 veterans a month are currently being arrested in the county for crimes directly related to their mental illnesses. Enforcing Laura’s Law would protect them from California’s costly and inhumane prisons, while protecting their fellow citizens from violent outbreaks.

Carla Jacobs, director of the California Treatment Advocacy Coalition, has studied Laura’s Law and suggests making it mandatory in all counties. She would also require evaluation of all imprisoned or involuntarily committed mentally ill persons prior to release to determine whether they should receive mandatory treatment under Laura’s Law. This would help those paroled while protecting public safety.

2. California’s commitment statutes. Reforming California’s 1967 Lanterman-Petris-Short Act (LPS) would also prevent the criminalization of mental illness and allow authorities to ensure that the mentally ill discharged from prisons don’t become violent. LPS dictates when the mentally ill in California can be treated without their own consent. Up to 40 percent of people with the most serious mental illnesses are too ill to know they are ill, a condition called anosognosia. If the organ responsible for telling you you are ill, the brain, fails to do so, you will naturally not accept treatment.

Existing civil-commitment laws in California and elsewhere preclude involuntary treatment of people with mental illness unless they are judged “dangerous to self or others” or “gravely disabled.” Put otherwise, rather than preventing violence and suffering, the law largely requires it. California should enact reforms so that the mentally ill — who often don’t realize they are sick — can be treated before they commit crimes. At a minimum, the legislature should:

• Broaden existing definitions of “dangerous” so that those with a history of serious mental illness can be treated before they cross the line to actual violence.

• Broaden the definition of “grave disability.” Currently, being homeless and psychotic, and eating feces as a result of your delusions, may not be enough to qualify as being gravely disabled. That has to change.

• Eliminate provisions that currently protect hospitals from civil and criminal liability when they refuse, however arbitrarily, to admit mentally ill persons. This would force hospitals to err on the side of providing treatment.

• Require courts to evaluate whether patients are competent to make treatment decisions in their initial commitment orders. Currently, individuals can be involuntarily hospitalized, but they cannot be treated until another hearing is held to see if they are capable of making decisions on their own behalf. By requiring a single hearing, this provision will prevent institutions from “warehousing” patients without treatment. They can be stabilized faster and released earlier, benefiting both them and the taxpayers.

• Eliminate procedural barriers to keeping patients hospitalized for longer periods if needed, thereby reducing the likelihood of deterioration and arrest upon discharge.

• Allow commitment until patients are psychiatrically stable instead of requiring discharge when they are “no longer dangerous,” a condition impossible to prove in a controlled psychiatric setting.

• Create a “provisional discharge” system in which involuntarily committed patients are told they will have to go back to the hospital if they go off their medications. Many patients will stay on medications simply as a result of such an order; those who do not can then be transported by police to county mental-health facilities for treatment before they become dangerous or gravely disabled, much in the way police pick up parole violators now, without need of proof of additional crimes.

Reforms to California’s criminal statutes should include a mechanism for administratively transferring low-risk mentally ill prisoners into civil-commitment status. California also needs a special civil-commitment standard for the truly dangerous mentally ill, i.e., those who have committed heinous crimes under the influence of their illness. The burden of proof can be shifted to such patients, forcing them to prove to a court that it is safe to release them. Since patients well enough to be released are generally competent to stand trial, county attorneys can be notified when release is contemplated, so that they can bring criminal charges if circumstances warrant. With such a system, there would be fewer mentally ill prisoners in legal limbo because they are mentally incompetent to stand trial, and fewer costly criminal trials revolving around the insanity defense.

3. Funding reform. California has two ways to pay for the reforms listed here. The legislature could specify that the money that is currently spent incarcerating mentally ill prisoners follow them to the mental-health system if they are sent there from prison. And it could mandate that funds allocated to “improving mental health” go to helping the most seriously ill.

Proposition 63, the California Mental Health Services Act (MHSA), was passed by the state’s voters to provide treatment for those with serious mental illness. According to Rose King, a veteran political and legislative consultant, and one of the authors of MHSA, local officials are instead routinely awarding MHSA grants for programs that have nothing to do with schizophrenia and other serious mental illness. Programs like therapeutic drumming, yoga, horseback riding, and anti-bullying classes in elementary schools have all been recipients of MHSA largesse.

The California legislature should swiftly end the current misuse of MHSA funds by exercising its powers under Section 18 to “clarify” by majority vote that expenditures not directly devoted to services for the seriously mentally ill will cease, subject to financial penalties. By two-thirds vote, the legislature could then devote MHSA moneys to the purpose for which they were intended, including subsidizing new Laura’s Law jurisdictions, reopening closed mental-health units in local hospitals, and providing medicines, case managers, and supported housing for people with the most serious illnesses.

Taken together, the reforms above would dramatically reduce prison overcrowding by returning care and treatment of the seriously mentally ill to the mental-health system. They would keep the public safer, and would even save money. For California not to enact these reforms would be insane.

— Mary Ann Bernard is of counsel with Mental Illness Policy Org.

EDITOR’S NOTE: This article has been amended since its initial posting.