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Criminal Justice, the Americans with Disabilities Act, and People with Mental Illnesses, David Bazelon, SAMHSA, 2018

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Criminal Justice, the Americans
with Disabilities Act, and People
with Mental Illnesses
The Judge David L. Bazelon
Center for Mental Health Law

Washington, DC

Disclaimer

This webinar was developed [in part] under contract
number HHSS283201200021I/HHS28342003T from
the Substance Abuse and Mental Health Services
Administration (SAMHSA), U.S. Department of Health
and Human Services (HHS). The views, policies and
opinions expressed are those of the authors and do
not necessarily reflect those of SAMHSA or HHS.

Presenter Biographies
• Mark Murphy is the Managing Attorney of the Bazelon Center
for Mental Health Law: Mark has represented people with
disabilities and advocacy organization in a wide range of legal
matters for more than 30 years, including cases involving the
right to integrated, community-based services and the
enforcement of rights under the Americans with Disabilities
Act and other disability rights laws. Prior to joining the
Bazelon Center, Mark held senior positions with both the New
York and Pennsylvania protection and advocacy systems,
including serving as the Legal Director and Chief Executive
Officer of the Disability Rights Network of Pennsylvania.

Presenter Biographies
• Elizabeth Jones has over 30 years of experience in the field of
mental disability: A substantial part of Elizabeth’s work has
been developing and managing community services for people
with challenging psychiatric disabilities. She has been an
expert consultant or a court monitor in several Olmstead cases,
including in U.S. v. New York, U.S. v. North Carolina, and U.S.
v. Georgia. She is an expert in the development and
management of ACT teams, supported housing, crisis services,
supported employment, and peer services. Elizabeth has also
served as the director of psychiatric hospitals in D.C. and
Augusta, Maine.

Webinar Outline
I.

Problem Today

II. Deinstitutionalization
III. Addressing the Problem (ADA, Olmstead)

IV. Translating Olmstead to Reduce the Number of People with Mental
Illnesses in Jails
V. Challenges
VI. Key ADA and Olmstead Compliance Questions
VII. Practical Considerations for Service Delivery Systems

I. The Problem Today
• People with mental illnesses are over-represented in the justice system.
• Steadman, et al., Prevalence of Serious Mental Illness Among Jail Inmates, 60
Psychiatric Services (June 2009), available at https://csgjusticecenter.org/wpcontent/uploads/2014/12/Prevalence-of-Serious-Mental-Illness-among-JailInmates.pdf (17% of males/34% of females incarcerated in jails have a serious mental
illness)

• Frequently arrested for behavior associated with their disability, including
administrative offenses and non-violent “quality of life” offenses.
• Liebowitz, et al, “A Way Forward: Diverting People With Mental Illness Away From
Inhumane and Expensive Jails Into Community-Based Treatment That Works” (Los
Angeles: American Civil Liberties Union of Southern California & Bazelon Center for
Mental Health Law 2014), available at http://www.bazelon.org/wpcontent/uploads/2017/11/A-Way-Forward_July-2014.pdf

I. The Problem Today
• Once in jail, people with mental illnesses fare poorly.
• Difficult conditions and inadequate access to treatment can
exacerbate existing issues and lead to further problems
• Gostin, Vanchieri, & Pope (Eds.), Ethical Considerations for Research Involving
Prisoners (Washington: National Academies Press, 2007), available at
https://www.ncbi.nlm.nih.gov/books/NBK19877/

• Discipline is imposed, including solitary confinement, rather than
providing reasonable accommodations for disability
• Aufderheide, “Mental Illness in America’s Jails and Prisons,” in Health Affairs,
Apr. 1, 2014, available at
https://www.healthaffairs.org/do/10.1377/hblog20140401.038180/full/

I. The Problem Today
• Incarcerated for longer than if they did not have a mental illness.
• Ditton, Special Report: Mental Health and Treatment of Inmates and
Probationers, Bureau of Justice Statistics, 8 (1999), available at
http://www.bjs.gov/content/pub/pdf/mhtip.pdf (on average 15 months more
than those without disabilities with similar convictions)
• Stanford Justice Advocacy Project, Prevalence And Severity Of Mental Illness
Among California Prisoners On The Rise (2017), available at https://wwwcdn.law.stanford.edu/wp-content/uploads/2017/05/Stanford-Report-FINAL.pdf
(on average, CA prisoners with mental illness receive sentences 12% longer
than those without diagnosis for same crimes)

I. The Problem Today
• People with mental illnesses are more costly to keep in jail, in part
because of need for special attention and programs.
• In Los Angeles County, average cost of jailing an individual with serious mental
illness exceeds $48,500 per year. Cost of providing Assertive Community
Treatment and supportive housing — one of the most successful intervention
models — amounts to less than $20,500 annually, just two-fifths the cost of
jail.
• Liebowitz, et al, “A Way Forward: Diverting People With Mental Illness Away
From Inhumane and Expensive Jails Into Community-Based Treatment That
Works” (Los Angeles: American Civil Liberties Union of Southern California &
Bazelon Center for Mental Health Law 2014), available at
http://www.bazelon.org/wp-content/uploads/2017/11/A-Way-Forward_July2014.pdf

II. Deinstitutionalization
• Historical exclusion of people with mental illnesses from society.
• Disability rights movement of the 1960s and 1970s:
• Landmark court decisions from the U.S. Supreme Court and other federal
courts:
• Dangerousness requirement for involuntary commitment; right to legal
representation and due process; right to adequate treatment and least
restrictive conditions.
• Development of antipsychotic medications.

• Movement peaks in the 1980s; end result sees more people
discharged to community settings.

II. Deinstitutionalization
• Is deinstitutionalization to blame for more people with
mental illness being incarcerated?
• The incomplete story: Urban jails, such as Riker’s, Cook County
Jail, and LA County Jail, are frequently described as the nation’s
largest psychiatric institutions.
• Reality: Failure to link deinstitutionalization to comprehensive
community services.
• Reality: Rising homelessness as result of reductions in federal
spending on rental subsidies and affordable housing.
• Reality: Increase in “law and order” policies and war on drugs.

III. Addressing the Problem
• Increase reliance of psychiatric hospitals instead of jails?
• Would mark a return to the era where people with mental illness
were segregated from society.
• Forces a choice between two types of institutionalization.
• Fails to recognize that most people with mental illness do not need
hospital care, but rather need housing and community mental
health services.

• Better tools:
• Americans with Disabilities Act (“ADA”) and Olmstead.

III. Addressing the Problem
The Americans with Disabilities Act
• Mandates end to discrimination “in such critical areas as employment,
housing, public accommodations, education, transportation,
communication, recreation, institutionalization, health services,
voting, and access to public services.” 42 U.S.C. § 12101(a)(3).
• “[T]he Nation's proper goals regarding individuals with disabilities are
to assure equality of opportunity, full participation, independent
living, and economic self-sufficiency for such individuals.” Id. §
12101(a)(7).

III. Addressing the Problem
The Americans with Disabilities Act
• Prohibits discrimination against people with disabilities (including psychiatric
disabilities) by public entities in services, programs, and activities.
• The ADA’s “Integration Mandate” requires public entities to administer services,
programs, and activities for people with disabilities in the most integrated setting
appropriate.
• Mandates end to discrimination “in such critical areas as employment, housing,
public accommodations, education, transportation, communication, recreation,
institutionalization, health services, voting, and access to public services.” 42
U.S.C. § 12101(a)(3).
• “[T]he Nation's proper goals regarding individuals with disabilities are to assure
equality of opportunity, full participation, independent living, and economic selfsufficiency for such individuals.” Id. § 12101(a)(7).

III. Addressing the Problem
Who is Covered by the ADA?
• Title II of the ADA – applies to “public entities.”
• Legal obligations apply even if the public entity contracts
with someone else for day-to-day operation of jail.
• Includes:
• Jails, police departments, probation/parole agencies, court
systems, district attorneys, public defenders.
• Psychiatric hospitals & community mental health programs.
• Medicaid program.

III. Addressing the Problem
The ADA’s Integration Mandate
• Requirement that public entities “administer services, programs, and
activities in the most integrated setting appropriate to the needs of
qualified individuals with disabilities.” 28 C.F.R. § 35.130(d) (2017).
• An integrated setting enables people with disabilities to interact with
non-disabled persons to the maximum extent possible.
• Provides individuals opportunities to live, work, and receive services
in the community, like individuals without disabilities.
• Offers access to community activities and opportunities at times,
frequencies, and with persons of an individual’s choosing; affords
choices in daily life activities.

III. Addressing the Problem
The ADA’s Integration Mandate
• Most integrated setting is the one that allows a person with a
disability to live as much as possible like someone without a disability.
• Example: living in one’s own apartment or house with supportive
services.
• Example: working in competitive employment (with a job coach, if
necessary, rather than in a “sheltered workshop” or “vocational
program.”
• Needless institutionalization of people with mental illnesses (or other
disabilities) is illegal discrimination.

III. Addressing the Problem
The Olmstead Decision (1999)
•
•
•

•

Plaintiffs claimed they were being repeatedly and needlessly institutionalized in
violation of the ADA because the state was not providing community services.
Supreme Court agreed, holding that the “unjustified institutional isolation of
persons with disabilities is a form of discrimination.” Olmstead v. L.C., 527 U.S.
581, 600 (1999).
Reasoning: 1) needless institutionalization perpetuates unwarranted assumptions
that people are “incapable or unworthy of participating in community life” and 2)
severely curtails everyday life activities, including family, work, education, and
social contacts.
Two defenses recognized: changes sought too expensive or would represent a
“fundamental alternation.”

III. Addressing the Problem
Post-Olmstead Reforms
•
•

State Olmstead plans.
U.S. v. Georgia & U.S. v. Delaware settlement agreements:
•
•
•

•
•

Focus on people with serious mental illnesses;
Identify community services that must be developed;
Identify community supports that must be developed.

GA & DE made changes to their mental health programs, housing
programs, vocational service agencies, Medicaid spending, law
enforcement training.
Result: Dramatically reduced reliance on institutional facilities and better
integration of people with mental illnesses into the community.

III. Addressing the Problem

Post-Olmstead Reforms
• In Delaware, for example, by the end of the settlement agreement:
•
•
•
•

number of civil beds at state psychiatric facility reduced 42%
greatly expanded Medicaid coverage of community services previously
funded only with state dollars
utilization of outpatient mental health services almost doubled
Source: Tenth Report of Court Monitor on Progress Towards Compliance with
the Agreement: U.S. v. Delaware (9/19/16), available at
www.ada.gov/olmstead/documents/de_10th_report.pdf

III. Addressing the Problem

Post-Olmstead Reforms
• Also in Delaware by the end of the settlement agreement:
•
•
•
•

the number of supported housing units more than tripled
the number of people receiving supported employment services increased by
about 500%
the number of people actively employed increased by about 400%
Source: Tenth Report of Court Monitor on Progress Towards Compliance with
the Agreement: U.S. v. Delaware (9/19/16), available at
www.ada.gov/olmstead/documents/de_10th_report.pdf

IV. Translating Olmstead to Reduce People with Mental Illnesses in Jails

• Problem: People with mental illnesses who are jailed
lack access to the right kind of community mental
health services.
• Answer: Use Olmstead services and implementation
of the ADA to divert people with mental illnesses from
arrest and incarceration.

IV. Translating Olmstead to Reduce People with Mental Illnesses in Jails

• Critical facts:
•
•
•
•
•
•

Under Olmstead, the avoidable incarceration in jail of people with mental
illness is a form of “unjustified” institutionalization.
Jails are now a de facto part of the mental health system, and thus must also
help serve people in the community.
People with mental illnesses are jailed more frequently and for longer than
people without mental illnesses.
People with mental illnesses in jail usually are not public safety risks.
Federal money is available to fund community services.
Diverting people with mental illnesses from criminal justice to mental health
system is feasible and cost-effective.

V. Challenges

• Ensuring collaboration between multiple players in mental
health and criminal justice systems.
• Overcoming barriers to diverting individual from the criminal
justice system.
• Understanding what savings can be anticipated – i.e., the
“business case for diversion.”

VI. Key ADA and Olmstead Compliance Questions
1. Are all elements of the criminal justice system – police, corrections,
courts, prosecutors, and defenders – working collaboratively and with
the mental health system to avoid needless incarceration in jail?
2. What is the typical profile of the people with mental illnesses whose
incarceration could and should be avoided?
3. What mechanisms need to exist to accomplish their diversion?
4. Does your jurisdiction have, or is it developing, the full array of
community mental health services, including mobile teams, Assertive
Community Treatment, and supported housing, known to reduce
criminal justice involvement by people with mental illnesses?

VI. Key ADA and Olmstead Compliance Questions
5. What provider network will your jurisdiction need to create or
strengthen to ensure appropriate community-based alternatives to
incarceration?
6. Are community mental health or housing providers permitted to
refuse services to individuals because they have been arrested or
incarcerated?
7. Has your jurisdiction identified all possible sources of funding for
housing and other community-based services, including maximizing
Medicaid funding?

VII. Practical Considerations for Service Delivery Systems

Three Levels of Effort:

A. Individual
B. Programmatic
C. Systemic

VII. Practical Considerations for Service Delivery Systems

Individual Effort:
•

Each person with serious mental illness (SMI) requiring supports and
services has a wide range of needs, abilities, interests, etc.
• Two factors seen in many people with SMI who due to lack of
supports & services are at risk of being homeless or entering the
criminal justice system
• extraordinary levels of trauma in their lives
• great difficulty establishing and maintaining trusting relationships

VII. Practical Considerations for Service Delivery Systems

Individual Effort:
•

Trauma
• child abuse; damaged/severed family relationships; poverty
• trauma often noted in case files but doesn’t get level of focus and
attention necessary
• Trusting relationships necessary at all levels – individual,
programmatic, and systemic

VII. Practical Considerations for Service Delivery Systems

Programmatic Effort:
•

Mental health system must have in place the array of evidence-based
practices proven effective to provide comprehensive communitybased support:
•
•
•
•
•
•

assertive community treatment (ACT) teams
scattered-site supported housing
supported employment
peer supports
intensive case management
crisis services (mobile crisis teams; crisis apartments; respite)

VII. Practical Considerations for Service Delivery Systems

Programmatic Effort:
•

ACT Teams:
•
•

frequently studied evidence-based practice
fidelity measures exist to determine how well systems are using
ACT services
• can use data to identify successes as well as problems that
need to be fixed

VII. Practical Considerations for Service Delivery Systems

Programmatic Effort:
•

•
•

ACT Teams include:
• psychiatrist
• nurse
• employment specialist
• case worker
• peer specialist
24/7 service
Proven effective when fidelity standards met
• reduction in hospitalization & incarceration

VII. Practical Considerations for Service Delivery Systems

Programmatic Effort:
•

Supported Housing
•
•

critical element in stabilization & reduction in criminal justice contact
Tsemberis, Sam, Leyla Gulcher & Maria Nakae. “Housing First, Consumer Choice,
and Harm Reduction for Homeless Individuals with Dual Diagnosis.” American
Journal of Public Health 94:4 (2004) at 655; National Council on Disability. Inclusive
Livable Communities for People with Psychiatric Disabilities, 17 Mar. 2008 at 17-26,
available at http://www.ncd.gov/newsroom/publications/index.htm; Culhane,
Dennis P., Stephen Metraux & Trevor Hadley. "The Impact of Supportive Housing for
Homeless People with Severe Mental Illness on the Utilization of the Public Health,
Corrections, and Emergency Shelter Systems: The New York-New York Initiative,"
Housing Policy Debate 13.1 (2002) at 137-38, available at:
http://works.bepress.com/metraux/16.

VII. Practical Considerations for Service Delivery Systems

Programmatic Effort:
•

Supported Housing
•
•
•
•

•

scattered-site, integrated location
tenancy rights
choice as to location, whether and who to have as a house-mate
supports as needed to maintain housing & navigate available community
resources
neighbors & others as “natural supports

VII. Practical Considerations for Service Delivery Systems

Programmatic Effort:
•

Supported Employment
•
•

research shows benefits of employment in recovery process
Robert E. Drake, et al., “Social Security and Mental Illness: Reducing Disability
with Supported Employment,” 28 Health Affairs 761 (May/June 2009);
William D. Frey, et al., Westat, Mental Health Treatment Study, Final Report
(2011); Bazelon Center, Getting to Work: Promoting Employment of People
with Disabilities (2014), available at http://www.bazelon.org/wpcontent/uploads/2017/01/Getting-to-Work.pdf

VII. Practical Considerations for Service Delivery Systems

Programmatic Effort:
•

Supported Employment
•
•

fidelity measures used to measure effectiveness
employment often happens last in supports sequence – tendency is to deal
with other issues first
•
just as important as other services
•
we work near where we live & live near where we work

VII. Practical Considerations for Service Delivery Systems

Programmatic Effort:
•

Peer Support Services
•
•

•
•
•

includes variety of evidence-based services
SAMHSA, Consumer Operated Services Evidence-Based Practices (EBP) KIT,
The Evidence (2011), available at
https://store.samhsa.gov/shin/content//SMA11-4633CD-DVD/TheEvidenceCOSP.pdf
has often been difficult for professionals to accept peers as equals in
recovery process
peer specialists can help identify and set attainable goals and expectations
reliance on lived experience of others farther along in recovery process

VII. Practical Considerations for Service Delivery Systems

Programmatic Effort:
•

Crisis Services
•
•
•

also an often-studied evidence-based practice
shown to be successful in diverting people with SMI away from
hospitalization, contact with criminal justice system, and incarceration
Roger L. Scott, Evaluation of a Mobile Crisis Program: Effectiveness,
Efficiency, and Consumer Satisfaction, Psychiatric Services, Volume 51, Issue
9 (Sept. 2000) at 1153-1156; SAMHSA, Crisis Services: Effectiveness, CostEffectiveness, and Funding Strategies (2014), available at
http://store.samhsa.gov/shin/content//SMA14-4848/SMA14-4848.pdf

VII. Practical Considerations for Service Delivery Systems

Programmatic Effort:
•

Crisis Services
•

system should have an array of crisis services to assist people at different
levels of need
crisis hotline
mobile crisis teams
crisis centers

•
•
•
•
•

•
•

walk-in; brought by police
“living room” model & peer support services

crisis apartments
targeted case management teams

VII. Practical Considerations for Service Delivery Systems

Programmatic Effort:
•

Crisis Services
•

•

Delaware recently created a comprehensive crisis management system as
part of a court settlement
per 2016 report from Court Monitor:
•
Mobile crisis teams typically divert 80-90% of people from hospitalization
or contact with criminal justice system
•
Walk-in crisis center diverts 70% of people from hospitalization or
contact with criminal justice system

VII. Practical Considerations for Service Delivery Systems

Systemic Effort:
•

Government Programs
• mental health & disability services
• criminal justice system
• police
• courts
• district attorneys
• public defenders
• jail/corrections

VII. Practical Considerations for Service Delivery Systems

Systemic Effort:
•

Systemic level also includes advocacy organizations and other
stakeholders
• Crucial for there to be coordination & partnerships at systemic level
• especially between mental health and criminal justice systems
• courts & police need to know about available community services
& how to access them

VII. Practical Considerations for Service Delivery Systems

Systemic Effort:
•
•

Moving from theory to necessary systemic change
Delaware recently conducted a revamping of MH system as part of
settlement of lawsuit brought by U.S. Department of Justice
• Key elements/actions:
• change in culture
• presumption that people w/ SMI can and should live in
community with appropriate supports and services
• peer involvement in all aspects of the process

VII. Practical Considerations for Service Delivery Systems

Systemic Effort:
•

Key elements/actions continued:
• identifying the target population
• involvement of consumers & community providers in identifying
needed reforms
• develop and apply clear criteria to measure progress & success
•

e.g., reduction in inpatient days; number of people diverted; level of
engagement in community services; level of contact with police &
criminal justice system

VII. Practical Considerations for Service Delivery Systems

Systemic Effort:
•

Key elements/actions continued:
• mapping the system
•
•
•
•
•

•

what programs & agencies need to be involved
who are decision-makers for what issues
who is responsible for each element of reform
what sources of funding or other resources are available or need to be
developed
identify incentives/disincentives to reaching goals

data centralization
•

ensuring information available to all who need it

VII. Practical Considerations for Service Delivery Systems

Systemic Effort:
•

Key elements/actions continued:
• coordination with law enforcement
•
•

•

review and change practices that may be unintentionally harmful
e.g. transporting people in crisis using trained MH professionals rather
than police whenever possible

funding
•
•

expand array of services funded via Medicaid/waivers
align fiscal incentives with policy goals

VII. Practical Considerations for Service Delivery Systems

Systemic Effort:
•

Coordination & partnerships necessary to assure all systems
working toward common goal of reduced hospitalization &
incarceration
• crisis intervention & other appropriate training for police
• training for judges, prosecutors, court personnel
• best practices for mental health or other specialty courts

VII. Practical Considerations for Service Delivery Systems

Systemic Effort:
•

Effective, mental health programs are:
• responsive
• provide necessary resources
• supported by the political will necessary to be successful
• Jails are not & should not be described as psychiatric hospitals
• We know what works to help people with mental illnesses live
meaningful lives in the community

Question and Answer Session

Please type your questions into the question box!

 

 

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