Forcing people into treatment would raise the ACLU’s hackles, but it’s the only compassionate solution for people who cannot care for themselves.
Forcing people into treatment would raise the ACLU’s hackles, but it’s the only compassionate solution for people who cannot care for themselves.
P resident Trump’s July 24 executive order on expanding civil commitment of the mentally ill homeless has sparked debate over whether we should compel people living on the streets into treatment. Trump’s stance lines up surprisingly well with the direction of liberal states like Oregon, California, and New York. Committing severely mentally ill people, those unable to care for their basic needs, into treatment does not violate liberty: it secures it and even sets conditions for expanding Americans’ freedoms.
Our laws have long recognized that the insane must be cared for and cannot exercise the same rights that sane, competent adults enjoy. All states allow those who are a danger to themselves or others to be committed; the debate is whether those unable to care for their basic needs should also qualify.
More Americans sleep rough each year, creating hazards like public drug use, public defecation, aggressive behavior, littering, and theft. These nuisances provoke a “tough on crime” reaction among fed-up voters. Over 20 percent of the unsheltered homeless suffer from severe mental illness, often psychotic disorders, and are much more likely than the sheltered homeless to experience chronic disease and substance abuse. In Portland, Ore., the overall mortality rate of the homeless is six times that of the general population. Drug overdose and homicide rates are 37 and 32 times higher, respectively.
Sheltered and unsheltered homelessness have different causes and require different solutions. The sheltered may sleep in shelters, cars, substandard structures, or on friends’ couches. Unsheltered homelessness has risen since 2016, in tandem with synthetic opioids. In Boston, data suggest that most of the unsheltered homeless use at least one drug. Sheltered homelessness, meanwhile, fell until 2021, then rose with housing costs and the end of pandemic-era eviction protections.
Building more housing, especially bottom-rung options like single-room occupancies, would reduce homelessness among those neither addicted nor seriously mentally ill. But it wouldn’t help those who are rejecting shelter because of untreated psychosis or addiction.
It’s not just the homeless who suffer. Millions must dodge human waste, needles, and the frightening ravings of untreated psychotics just to go about their daily lives. On a San Francisco sidewalk, I was punched by a man in psychosis; in Berkeley this year, I witnessed multiple homeless people screaming obscenities. More horrifyingly, in Kentucky, a man who was released after being found incompetent to stand trial for a violent assault later beat and raped a child. Kentucky has since changed its laws to confine the dangerously insane. Women are particularly at risk, and the reestablishment of institutionalization has become a feminist cause.
Enough is enough. Cities should send social workers to identify mentally ill and drug-addicted homeless persons and process them for civil commitment to treatment facilities. When police arrest the homeless for nuisance crimes, they should be evaluated for commitment. States should broaden statutory criteria for involuntary commitment and increase funding for treatment. The fiscal impact could be positive if secure community treatment, not just hospitalization, replaces the jailing of homeless offenders. The Trump administration is taking a positive step by removing federal obstacles such as consent decrees that limit these strategies.
If we make our cities livable again, we can create political space to expand freedoms for competent adults. Cornell political scientist Peter Enns has discovered that disorder and crime — and media coverage of them — drive voters toward punitive criminal justice policies. In Oregon, widespread public drug use fueled the repeal of its decriminalization law. Voters tolerate lifestyle freedoms practiced privately by consenting adults; not public nuisances.
Predictably, the Marshall Project and the ACLU oppose Trump’s order, but the facts aren’t on their side. The Marshall Project claims that the mentally ill commit only 3–5 percent of violent crimes, but the claim’s source found such a low figure only because major mental disorders were so rare in the population studied. The same study found that 11–13 percent of those who had committed violence in the last year had such a disorder, compared with just 3–4 percent of the nonviolent.
Not every part of the Trump order is positive. It defunds drug “harm reduction” and “Housing First” programs. But the hullabaloo over these policies is misplaced. These policies can be implemented either well or poorly, and we should allow cities to learn from each other about what works.
In expanding civil commitment, we must not return to the bad old days when competent, nonviolent people were locked away without recourse. For starters, Supreme Court precedent forbids such a return. The Civil Rights of Institutionalized Persons Act of 1980 allows the federal government to sue states that violate the rights of prisoners and the civilly committed. States must ensure safeguards like regular reviews and hearings for everyone in their custody.
Forcing people into treatment would raise the ACLU’s hackles, but it’s the only compassionate solution for people who cannot care for themselves.