Return of the Ugly Laws: In the Name of ‘Modernization,’ the Newsom Administration Wants to Disappear Unhoused and Disabled People from the Streets, Rebuild the Asylums

Return of the Ugly Laws: In the Name of ‘Modernization,’ the Newsom Administration Wants to Disappear Unhoused and Disabled People from the Streets, Rebuild the Asylums

 

Leah Harris 

 

On October 1, over the vehement objections of disabled activists, housing justice activists, and human rights organizations, the Community Assistance, Recovery, and Empowerment (CARE) Act went into effect in seven California counties. The law empowers family members, social service providers, police, and first responders to refer primarily unhoused people diagnosed with schizophrenia or other severe mental illnesses to a regime of civil courts that would compel them to accept a “care plan” handed down by a judge. In theory, people are allowed to refuse the care plan, but non-compliance could potentially initiate institutionalization or even conservatorship proceedings.

Inequity is baked into the program. Due to long standing medical and systemic racism, Black, Indigenous, and People of Color are more likely to be unhoused, receive severe mental illness diagnoses, be subjected to involuntary interventions, and therefore may be more frequently referred to CARE Court. 

The CARE Act is predicated on a big lie perpetrated by policymakers and marketed to the public: that houselessness is caused by “severe and untreated” mental illness and substance use. In a recent large-scale survey of unhoused Californians conducted by the University of California San Francisco, respondents reported high rents as the primary reason they became unhoused. They said that rent subsidies or one-time cash assistance would have kept them in their homes.

Despite its bluster as a houselessness fix, CARE Court doesn’t guarantee housing. “The promise of CARE Court is that you’ll get a housing plan,” mental health activist Keris Jän Myrick told Disability Visibility Project. “I’ve asked, ‘How do people live in a plan? A plan is a piece of paper. I can’t live under a piece of paper.’”

Disability Rights California and allied civil rights groups fought to halt the law earlier this year, but their challenge was struck down by California’s Supreme Court. Los Angeles County will roll out CARE Court on December 1, and it will be required in all California counties by December 2024.

CARE Court is just the first in a series of measures backed by Governor Newsom that use the rhetoric of “modernization” to chip away at hard-won rights emerging from deinstitutionalization in the 1960s and 1970s. Prior to 1967, psychiatrically, intellectually, and developmentally disabled Californians lacked legal protections against involuntary confinement in institutions. That changed with the passage of the Lanterman-Petris-Short (LPS) Act, designed to “end the inappropriate, indefinite, and involuntary commitment of persons with mental health disorders.” LPS also established some of the first due process rights for people facing involuntary psychiatric commitments. 

Under LPS, people could not be forcibly institutionalized or placed under a conservatorship unless they were found to be a “danger to themselves or others,” or “gravely disabled—” defined as unable to provide for food, clothing, or shelter as a result of psychiatric disability. As flawed as the LPS protections are, they are some of the only safeguards on bodily autonomy that mad, mentally ill, and disabled Californians have had access to, and they are currently under attack.

“Reforming” LPS by Expanding its Scope: SB 43

In September the California legislature passed SB 43, a bill designed to “reform” LPS, with near-unanimous bipartisan support. The law was widely touted by California Big City Mayors, as well as the California chapter of the National Alliance on Mental Illness (a family-led advocacy group that began in Wisconsin in the 1970s, partly in reaction to strengthened patients’ rights laws; the national organization has consistently supported forced interventions.)

SB 43 would make it much easier to involuntarily confine  disabled people under 5150 holds (which allow for a minimum 72-hour detention) and place them under conservatorships. The new law hinges on vastly expanding the LPS definition of “grave disability.” Those deemed unable to meet their needs for “medical care and personal safety” may now also come under state control. 

The bill also broadens LPS’ scope beyond mental health disabilities to allow involuntary holds and conservatorship proceedings against those labeled with a severe substance use disorder. This is despite significant evidence that forced intervention of all kinds, including unwanted drug treatment, leads to worse outcomes and an increased likelihood of fatal overdose. 

“We have a higher substance use rate of people overdosing in houses, but we don’t see anyone kicking in the door and forcing them into treatment. It’s just the unhoused,” Theo Henderson, Los Angeles-based activist and founder of the media and advocacy group We the Unhoused told Disability Visibility Project. “We can take advantage of them with the fake patronizing idea that ‘we’re trying to do what is best’ for them–which it’s not.”

Like CARE Court, SB 43 has been decried by disability and human rights groups for its potential to deepen already glaring racial inequities; Black and Latinx Californians are over 50% more likely to be subjected to involuntary 5150 holds. This law would also make it easier for businesses to call the cops on unhoused people, further exposing them to potentially deadly police encounters. According to Washington Post data, twenty percent of those killed by police in 2023 were experiencing or perceived to be experiencing a mental health crisis. 

“We’re running around saying it’s safe, it’s care, it’s safe, it’s care, No, it’s not. And these supporters who think that their loved ones are going to be helped, some of them are going to have dead loved ones and they’re going to wonder what the fuck happened,” Myrick said.

“Here in Los Angeles we have business improvement districts (BID) in place that are the pseudo-arm of law enforcement,” said Henderson. “They are running around tracking people that are on the street. I watch all the time how BID officers target unhoused people. All they have to do is drop the word to senior law enforcement or medical personnel, and they can target and remove that person under the auspices of this person having a ‘mental disorder.’”

SB 43 will also streamline the conservatorship process, removing the obligation of individuals’ care providers to testify. It would allow testimony based on medical records from so-called “expert witnesses” who have no direct knowledge of the person involved. Previously, such information was considered hearsay and inadmissible.

Newsom signed SB 43 into law on World Mental Health Day. “It’s outrageous Governor Newsom chose World Mental Health Day to sign the first in a series of bills to overhaul mental health and make it easier to lock up people with mental health disabilities,” Deb Roth, senior legislative advocate with Disability Rights California, said in a statement.

The law  is set to go into effect in early 2024. However, states and counties would be allowed to postpone implementation until 2026 amidst concerns about the “burden it might place on already crowded psychiatric facilities,” according to the Los Angeles Times.

“[I] wonder who is going to benefit,” Tweeted Vanessa Ramos, disability, civil, and human rights advocate. “I would guess profits will go to staff and construction developers of locked institutions (jails), the pharmaceutical companies and their affiliates (forced meds/injections), the county and jail staff, and the police…We are witnessing the banishment of poor and disabled people.”

“Bait and Switch” Bond: AB 531

AB 531, The Behavioral Health Infrastructure Bond Act, is the next in this package of carceral policies marketed to legislators and taxpayers as “modernization.” Unlike SB 43, this bond measure will be put to voters in March 2024. It was originally set at $4.68 billion, but upon request of several big city mayors and supervisors, the amount was increased to over $6.4 billion. 

While the bond measure is touted as expanding access to housing, only 1.6 billion of the $6.4 billion bond will be spent on housing for veterans and others who are homeless and meet “specified criteria.” “Permanent supportive housing” remains undefined in the bill text. The remaining billions provide grants for the construction of 10,000 behavioral health treatment beds.

The bond measure had originally included specific language prohibiting the use of funds for locked facilities. In the lead-up to September’s legislative vote, the Newsom administration had repeatedly claimed that the funds would go only to “voluntary, unlocked” facilities. 

In the final week of the legislative session, the words “unlocked” and “voluntary” were stripped from the bill text. (A June 2023 fact sheet from the Newsom Administration using the language of “community-based” “voluntary” and “unlocked” settings has since been scrubbed from the Internet, but DVP obtained an archived version.) 

According to Cal Matters, “the replacement language mirrors 2021 legislation that created the Behavioral Health Continuum Infrastructure Program (BHCIP), a $2.2 billion investment that has been used to fund locked facilities like acute psychiatric hospitals.” Current grantees under BHCIP include several private, for-profit, and private-equity-owned entities. 

In an email to Disability Visibility Project, Clare Cortright, an attorney with lived experience and policy director of Cal Voices, a peer support and advocacy group, asked: “Why are we allowing private, for-profit entities to conduct clear public functions, historical public functions, and introduce a profit motive to involuntary detention? And why is the State publicly financing these entities?” 

This package of bills works in tandem. SB 43 vastly expands the number of people who can be disappeared off the streets and be subjected to involuntary intervention and conservatorships, while AB 531 would provide locked facilities to confine people. It’s not hyperbole to say that if this bond measure passes—and it is likely to, given that it’s being touted as a fix for houselessness, a top concern among voters—California will be literally rebuilding the asylums.

“Let’s not disappear people like they did back in the day with ugly laws and call what we are doing care, caring, and/or safe,” wrote Myrick on LinkedIn last month.

Restructuring the Mental Health Services Act: SB 326

Lastly, the Newsom administration is seeking to restructure the Mental Health Services Act (MHSA), enacted in 2004 and funded by the “millionaire tax,” also known as Prop 63. MHSA was a grassroots effort emerging from a decade of disabled peoples’ advocacy and meaningful input. But SB 326 “was drafted and amended behind closed doors without any involvement from the primary stakeholders – persons with mental health disabilities,” according to a Cal Voices fact sheet. Activists decried the dizzying speed at which this bill moved, which did not allow adequate time to process or respond to the numerous proposed changes. 

SB 326 claims to focus on the “untreated severely mentally ill” and unhoused community, while diverting funds away from vital prevention and peer-run programs created by and for BIPOC and LGBTQ communities to fund vaguely defined “housing interventions.”

The Cal Voices fact sheet notes: “Diverting MHSA services funds to ‘housing interventions’ is unacceptable. ‘Housing interventions’ are not true, permanent housing – the money can and will be used for short-term clinical treatment facility stays, including involuntary and locked facilities…326 is just another too little, too late, inadequate, superficial response to our housing crisis that has landed most heavily on disabled people who have no social safety net.”

On August 23, advocates mobilized in Sacramento to demand that the California legislature oppose SB 326. Kelechi Ubozoh, mental health advocate and author of We’ve Been Too Patient was one of the people who testified against the bill. 

“My mentor Sally Zinman was one of the lead advocates in the development of the MHSA,” Ubozoh told Disability Visibility Project. “One of the last things she warned me of before she died was that California was going backward, that we would see more forced treatment, more involuntary services, and that our recovery-based programming would be at risk, our voices would be tokenized and not listened to. During my testimony, through my tears, I saw that she was right.”

SB 326 passed the legislature with near-unanimous support; along with AB 531, it will be put to the voters in March 2024.

Activists have noted that anyone who criticizes Newsom’s approach is dismissed as resisting change and being a proponent of the status quo. When 60 Minutes correspondent Cecilia Vega presented the governor with some of the words critics used to describe CARE Court — “coercive, backward, and harmful,” Newsom responded with a creepy laugh. “Those are talking points that have been on rewind for decades and decades, and I’m frankly exhausted by them,” he responded.

“The media is spreading the narrative that disability rights advocates are supporting people ‘dying with their rights on,’” said Myrick. “I would argue, especially when we talk about the lack of true care and safety in these California bills and involuntary programs, that we are fighting to ensure people LIVE with their rights on.”

 

ABOUT

Leah Harris is a disabled activist and journalist who spent portions of their adolescence incarcerated in California for-profit psychiatric institutions and locked facilities. Their journalism has appeared in Disability Visibility Project, Rooted in Rights, The Progressive Magazine, and Mad in America.

 

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