Olivia Ensign: So your conservator could refer you to CARE Court. You go through CARE Court. You're not set up to succeed, so you fail out of CARE Court and that's then used against you in future conservatorship proceedings. And then you're back in a conservatorship. And again, again, it's essentially this, like, merry go round of state control.
Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan, and amidst ongoing legislative efforts to expand mental health laws in California, probably the most prominently discussed of those efforts, at least on a national scale, has been CARE Courts. CARE Courts are, in essence, a new form of outpatient commitment that targets adults who have been diagnosed with a schizophrenia spectrum disorder, particularly anyone with such a diagnosis who is considered to be unhoused.
And all of that raises a lot of concerns.
So to better break down the CARE Court process and discuss the potential risks of such a process, I spoke with Olivia Ensign.
Olivia Ensign: So, thanks so much for having me. My name's Olivia Ensign and I'm a senior advocate and researcher at the U. S. program of Human Rights Watch. And Human Rights Watch is a non profit, non partisan organization that investigates and reports on violations of fundamental human rights in over a hundred countries worldwide.
Jesse: So, what are CARE Courts?
Olivia Ensign: So this process is convoluted and complicated by intention, but just to kind of walk you through basically step by step what a CARE Court looks like and what's established in the CARE Act. The first step is the petition process. And there a petitioner will file a petition against a respondent and under the CARE Act, who can be a petitioner is a super expansive list. So it can be someone's roommate, someone's spouse, it can be a police officer. And essentially these folks, many of whom may not actually be trained in identifying mental health signs and symptoms, can basically thrust a person, without their knowledge or their consent into the jurisdiction of the CARE Court. And the petition that someone is going to file, it includes really subjective standards, including it speaks to whether a person is unlikely to survive in a community without supervision. Or that a person is in need of services and supports in order to prevent a relapse or deterioration. But again, the petitioner may not actually be trained either in kind of legal capacity or in mental health signs and symptoms, but they're still able to file a petition that thrust someone into the jurisdiction of this court.
And not only Does these kinds of broad categories of petitioners include people who may not actually have knowledge, we have real concerns that the folks in these categories could use these petitions potentially for harassment or even abuse. So, you know, if you think about a family conflict, or you think about an abusive spouse, there's nothing stopping someone from essentially filing a petition about someone, again, without their knowledge or consent, pushing them into the jurisdiction of the courts. And potentially, depending on how the process plays out, pushing them into coerced treatment, into a particular type of housing, particular types of treatment.
So there's real concern about that from our end, as well as the fact that police officers are able to be petitioners, because again, we know that there is the potential for abuse and police officers are not necessarily trained in identifying mental health signs and symptoms.
And in this case, because of how the CARE Act was rolled out, it was specifically, kind of, marketed as a means to address visible homelessness in California. And based on kind of historic interactions between law enforcement and unhoused communities, there's a real concern that officers, or homeless outreach workers, for example, can threaten folks who are living on the streets with the threat of CARE Court. And even if they don't actually file a petition, even the threat of a petition, potentially to make folks move or to incite some other kind of behavior, that can traumatize people. It can disrupt communities, and it's potentially a really dangerous tool in the hands of law enforcement.
Jesse: So CARE Courts are a new civil court process that was created by the CARE Act. And this process designates a wide range of people; including members of law enforcement, first responders, parents, siblings, children, grandparents, registered domestic partners, and roommates. As some of the many different categories of people who can petition the court to have someone else forced into the CARE Court process. And CARE Courts, like all forms of outpatient commitment, leverage the threat of consequences. Consequences such as being detained by police and forced inpatient. CARE Courts use the threat of that potential consequence as a means of attempting to control the targeted person's behavior. And the power of that threat, the fear it generates, can become pervasive. Because by empowering a wide range of people with the ability to initiate this process, this law has also empowered those people to simply suggest that they might, possibly, maybe, get you thrown into CARE Court if you don't do what they say.
And if that type of coercion exists before a petition is filed, then what happens once that petition is actually submitted?
Olivia Ensign: After this petition is filed, basically the court is supposed to review it promptly. And they look at if there is prima facie evidence that someone meets the criteria of CARE Court. And to just explain what that means, because legal Latin is always a beast, that basically means that the court is treating everything in the petition, all the alleged facts, as if they were true. And essentially then asking the question, so if this is true, Has the petitioner met the criteria for CARE Court? And if the court finds that there's no prima facie evidence, the petition is dismissed. But if they do find that there's this, again, very low standard of evidence, it essentially goes forward into the series of civil court proceedings. And at that point is when the court will do things like set a first appearance date, appoint counsel, and this is potentially the first point that someone will even learn that they're the subject of a petition, when they get a notice that says they have to have a first appearance and that they've been assigned counsel.
So again, just kind of thinking about what that could feel like, particularly if we're thinking about an unhoused person. First of all, how are they even getting these notices potentially? But to think about, you're just kind of living your life and then you get this notice that you are supposed to appear on a certain date. Maybe it's all the way across town, maybe you don't have reliable transportation, and you're basically supposed to show up and you hear you have an attorney, and you don't really know anything about the process at this point. It has the potential to be incredibly confusing and traumatizing.
And at that point, there's the first appearance, the person who's actually the subject of the petition isn't actually even required to be there in person, which raises a whole bunch of other due process concerns that the hearing can go on without them. And then at that point, the court basically goes forward with setting a merits hearing and the merits hearing is on the petition. And basically, if the court finds that a person meets the criteria for the Care Act, then the person who's the subject of the petition is required to enter into negotiations with the County Behavioral Health Agency, and they're supposed to basically come up with what is called a voluntary care agreement. But if the person who is the subject of the petition and the County Behavioral Health Agency don't agree on a plan, then the court actually orders a court ordered clinical evaluation by the same behavioral health agency. So, any kind of semblance of equal status in terms of the negotiation process is obviously patently false, because if you don't agree to what is called a voluntary plan, you then have to undergo evaluation by the same entity you were negotiating against. And this is a thing, no matter how many times the proponents of the system want to use the word “voluntary" or “care”, it doesn't change the fundamentally coercive nature of CARE Court.
And there has been a real kind of co-opting during the entire process of implementing and pushing through the system. There's been a real co-opting, I think, of the language of the peer movement, for example, and the disability rights movement. And that co-opting has created this really kind of dangerous veneer of voluntariness without kind of addressing the fundamental issue that this is court supervision, and this is court ordered treatment. And we know, just looking at the studies, that coercive treatment is not only not dignity affirming and rights respecting in many cases, but it's also not as effective as when people can actually access voluntary treatment. Involuntary treatment or coercive treatment can actually discourage people from seeking out voluntary treatment in the future because of what their experiences are.
So, again, this co-opting of the language doesn't change the really fundamentally coercive nature of the system.
Jesse: When a person is pushed into a system like this, that experience, that sort of disruption to a person's life can be traumatic. It can cause lasting, debilitating, harm. So my next question for Olivia was, if a person is pushed into this process what happens once the court order is actually issued? And what happens if you don't fulfill the requirements that are being forced onto you by that court order?
Olivia Ensign: Then you kind of enter this period of a year, potentially two years, where you're supposed to go to regular hearings, there's regular court supervision. And if you basically fail out of this care plan that is used as a presumption in future hearings that you need additional intervention, which can include conservatorship. And just to explain what that actually looks like, conservatorships are an absolutely incredible deprivation of liberty. It's more than just if you were jailed or incarcerated, you lose the ability, the legal ability to make decisions about your life, including where you're living, what kind of medication you're using. It can include being put in locked facilities. It can include forcible medication. It is taking away kind of the fundamental ability for people to exercise their autonomy and their dignity.
So again, this is an incredibly serious deprivation of people's rights and our fear is, essentially, that CARE Court is in practice this on roading to stricter forms of state control, including conservatorship. And particularly because one of the initial categories of petitioners is also conservators, there's this potential that you're kind of cycling through these different forms of state control. So your conservator could refer you to CARE Court. You go through CARE Court, you're not set up to succeed. So you fail out of CARE Court and that's then used against you in future conservatorship proceedings, and then you're back in a conservatorship. And again, again, it's essentially this, like, merry go round of state control.
Jesse: The trauma that I experienced from being forced inpatient, the lasting impact of those experiences wasn't just the specific moments when I was inside the facility. A significant amount of harm was caused by what happened in between those events. The ever present threat of being sent back to a facility kept me in a constant state of fear. It impacted every decision I made, and it can be incredibly difficult to make long term improvements to your situation when every choice is saturated with the pain, the terror, of knowing that at any moment you could be ripped away and forced to relive the most traumatic moments of your life.
CARE Courts use that fear, they leverage that threat as a means of compelling a person to comply. Which, for me, raises serious questions about the creation of these laws, were legislators aware of the harm that can be caused by this sort of coercion? What was it that they thought they were accomplishing? In their minds, what are CARE Courts?
Lex Steppling: It's a good question, and I know you received a longer kind of policy explanation, but if you were to ask our state and local government they wouldn't fully be able to tell you because it's a brand much more than it's a thing.
Jesse: This is Lex Stepling.
Lex Steppling: Okay, my name is Lex Stepling. I'm an organizer with LACAN, Los Angeles Community Action Network. Also, working in kind of developing a collective with people who are in agreement and aligned around the dangers of this push towards what will be, among many other things, CARE Court. And my work currently focuses on building holistic and strong, you know, political power that demands housing for all unconditionally. It demands divestment, complete divestment from systems of state violence as a means to an end, especially carceral systems, systems of violent policing, etc. And, you know, focusing on what people actually need, which I think we'll be talking about in this conversation.
So, that's me. I'm based here in Los Angeles, it's my hometown.
Jesse: We spend a lot of time on this podcast trying to break down the structure of mental health laws. Trying to understand how these laws work in both theory and practice. But in the face of what feels like an overwhelming tsunami of expansions to commitment laws and the systems of coercion that surround them, it becomes really important to try and understand the intent behind those expansions. So, I asked Lex, what was the stated intent for the creation of CARE Courts? What specifically is the problem that CARE Courts were designed to solve?
Lex Steppling: It's hard to talk about it in earnest or even pretend like they're trying to solve a problem, so I can only really answer the question based on what I think is happening. I would say that, let's say over the past 20 to 40 years big cities around the country have been gentrifying at various rates. Some more quickly than others, and then some areas in those cities more quickly than others. But what they all have in common is that they have gone into areas, neighborhoods, et cetera, that maybe for the 50 years prior were very underserved, suffered tremendous disinvestment, Redlining, incursions and encroachment from violent policing and surveillance. Lots of family separation through incarceration, lots of economic devastation through incarceration, through fines and fees, through forced engagement with the court system. In addition to that, lots of really severe impacts economically when it came to the price and cost of living, especially housing. So areas that were already divested from, where you don't have amenities, you don't have good markets, you don't have infrastructure that you should have, allowed for, you know, what people would call like underserved areas or lower income areas, or people would call ghettos or slums, et cetera. Where people without generational wealth are living and lived for generations. At some point, these areas have become desirable. I think it's, uh, it's probably for a lot of reasons. It's the financialization of housing, commodification of housing, commodification of space. And commodification and financialization aren't necessarily the same thing, right? You have the private equity around housing, but then also commodification where neighborhoods become desirable, not just as finance widgets, as far as the land itself, but also culturally desirable where you have like, you know, many generations of white flight created a lot of alienation and cultural alienation. And I think the subsequent generations wanted to break through that alienation and go live in the city and be around culture and be around things that made them feel a part of some sort of collective civic reality. And that in and of itself created a certain type of commodification. All those factors have contributed to this huge polarization economically around housing.
So all of these things, and I could go on and on about all of these factors, have contributed to a cost of living crisis and a housing crisis where poverty is not new to this country, but the level of visible poverty has really created a kind of political hysteria. And the most acute form of that visible poverty is homelessness, houselessness, unhoused people. And so with gentrification now, a lot of people who come from wealth, who also aren't familiar necessarily with the neighborhoods they live in, are witnessing a lot of unhoused people. And then they'll say it's because, you know, one of the prevailing narratives says it's because they're mentally il,l or they're on drugs, rather than the fact that if you have nowhere to go and nowhere to live that's going to exacerbate the quality of your mental health period. And so the response to this crisis, As mediated by the, you know, the neoliberal system that we live in is going to talk about everything but the necessary public investment in infrastructure. The conversation is about what to do with these people rather than the obvious answer being, like, housing for all. Dignified, quality housing for all is the answer. It's always been the answer. It's actually not complicated at all, it's only complicated because the system that we're governed by doesn't believe that those things should be a right. It believes that they should be an economic widget.
So, CARE Court has come out of that problem, that crisis. And It really, quite honestly, in my opinion, it's a political spectacle rooted in the discomfort, or the revulsion, or the latent class contempt of, you know, several classes of people who don't like the visible poverty in areas that they're spending a lot of money to live in. They come into cities and want this kind of urban theme park experience offered by places like New York and San Francisco. You know, L. A. doesn't do it as well, we're a very badly laid out city already, but you know, you go to San Francisco, or you go to parts of Brooklyn and parts of Manhattan, I mean, it feels so curated. And it's ironic because what they're experiencing is the joys of having infrastructure.
The mentality that informed suburbia was a mentality of exclusivity. City, civic life, is informed by a mentality of inclusivity. It's supposed to be common space for everyone, common infrastructure for everybody to use, for all working people. So what happens now, what we're experiencing is this collision, this disorientation, where people are bringing this unprocessed suburban exclusivity into urban areas that are not supposed to be exclusive and trying to impose it. So they don't want to share space with people that make them uncomfortable. And it's really that simple. What they also don't want to feel though is bad or guilty, so CARE Court comes from this fantasy that's being peddled by, you know, mostly Democrat politicians saying, no, you don't have to feel bad, we are actually trying to help these people. But really that's coded language because the subtext, but it's a really loud subtext is, I know you just want to get rid of them. How do we disappear this thing that you're not enjoying being around? Nor should you, by the way. Nobody should be happy seeing folks with nowhere to live suffering. That's just not okay. It should not exist. This is a fantasy that we can just disappear the problem, because that suburban exclusivity piece that I mentioned earlier is also informed by this competitive thing people have with each other around like, you know, I spent a lot of money on my home, or I spent a lot of money on rent to live in this area I'm proud to live in. Makes me feel special. That shouldn't be for everybody, it should be for those of us who deserve it. We're good enough to have done whatever we've done, et cetera, et cetera. So I don't want to have to share it with everybody, but they're not going to say that. So instead it's like, can you just make these other people go away? So boom, here's CARE Court, we will make them do the things that you think they should do. Well, if these people would just stop using drugs or get treatment and show that they're going to go to work and la la la, then everything would be okay, right? It goes back to a lot of very American mythology around bootstraps and, you know, personal responsibility and things like that.
So, CARE Court is really, it's not even half baked, it's not even a 16th baked, there's no tangible granular idea. They're just saying, let's tell everybody, we're going to get everybody off the streets and make them do what they should do. The other subtext being, that's what you would do, right? You would do that in a similar situation? Because the fantasy of that's how I would get myself together when these are folks who don't, you know, you can't understand what a person's going through, even if you've been through something similar. You don't know what they're going through. And then everybody should, on some level, understand when you feel financial anxiety, there's no anxiety, there's very few anxieties as intense and as severe. So, that's where I believe CARE Court is coming from. No infrastructure is being developed for it. I believe it's going to head in a very carceral direction, and I don't even think there's an intention to actually develop it. It just feels like a political, a collectively developed political talking point to address an issue that the post gentrification class of American voters, most of whom probably vote Democrat, are struggling with their own class contempt and exclusivity politics, or lack thereof, around not being able to handle what they're seeing and being denied the opportunity, or only offered this conversation, this fantasy, rather than the conversation we should all be having. Which is like, there are solutions to this actually. They may not be something you understand, they may run against your exclusivity politics that I keep mentioning, but there are answers.
Jesse: In essence, CARE Courts create a process that allows for a vulnerable person to be targeted with a court order, not because they are alleged to have committed a crime, but because they are visibly struggling. That court order does not create solutions. It does not provide any meaningful change to the systems of oppression and neglect that are at the heart of many of those struggles.So my next question for Lex was, how do we address these issues in a way that does bring meaningful change? And what sort of cultural shift might be necessary to convince legislators to allow that change to happen?
Lex Steppling: As somebody who really does want to work to help make things better, I think culture shifts come when people are told the truth. I'm actually not, you know, misanthropic in this way. When people are relentlessly told the truth, I think they get comfortable with it. So I think the political consultant class often tries to focus group strategy and thread these needles and use polling and none of that works. You can't mediate your strategy when you already know what needs to happen. You can't let it be mediated by people who don't know how it works telling you like, actually, no, you know, this homeowners association in, uh, I'm trying to give a New York example since you're in New York, this homeowners association in Park Slope doesn't want that shit here, you know? So we have to like not offend them. We have to get a message that somehow threads the needle between, you know, them and what we actually want. That to me is a huge waste of time and actually a real betrayal of the community. There's always going to be NIMBYism, and there's always going to be that exclusivity I keep mentioning. If you let that mediate anything, all that does is keep it in place. I can't spend too much time even being interested in them, because what they want is not what we want. They, at the end of the day, don't care if people don't have homes, or maybe they care, but they don't care enough. They just don't want to have to be around it. That is an unsustainable way to create the civic reality I want to live in.
And so, if we're just speaking pragmatically, we should simply, and I mean it, simply be as loudly as possible, as consistently as possible, saying, this is what works. Housing for all works. A clinic on every corner works. And I mean, unconditional high quality housing. I don't mean housing as a negotiating chip enforcing you to access treatment a certain way that they're telling you you have to, or getting checked on by social workers, or temporary housing or shelter. That doesn't work. And everybody knows that. Very few people need to be getting checked on consistently by a social worker, some people do, there are people who really need constant long term supportive housing. Most people don't though. And most people also, no matter whether they need that support or not, want their dignity and their autonomy. And this makes some people uncomfortable. Some people are like, no, they shouldn't get that. What have they done to deserve it? I'm not interested in worrying about you feeling that way. I want the solutions in place and when policy people worry about other people feeling that way, that to me is their own latent sympathizing with those folks, rather than being like, you know this will work. And pretty soon people will see it will work. And then we're going to be living in much safer, healthier communities and you're going to see far fewer people on the street, which is what you want, right? So who cares if you are uncomfortable with this indoctrination we receive in this country around no one should ever get something for nothing, because there's no truth to that. This is our money. These are our resources. And none of us have ever worked ourself up from the bootstraps.
You know, I didn't go to school, the last grade I completed was the 10th grade. I was working at a very young age, on my own at a very young age. And somebody could easily look at me and be like, wow, you didn't even go to college. You didn't do this. You didn't do that. You were 16 years old, already on your own, paying your own rent. You really pulled yourself up, you're self made. No, I'm not. There were other ways people helped me. There were other types of, you know, speaking of infrastructure, there was more investment in youth programming when I was growing up. There were things I was able to access that created opportunities for me. They just may not be one of the conventional channels that a more economically privileged person might imagine how you develop a career. But I did have help, and I did have opportunities, and anybody who's doing well right now it’s because they were helped.
And so, again, the way they stoke the fires, and it's not just the right who does it, of, you know, resentment towards anybody getting something should never mediate our efforts to deliver what's necessary. And so, if we are relentlessly telling the truth and pushing forward a vision, and it's on us to be granular and rigorous when we need to about how it could look, we will see really good outcomes. And I'm like, let people respond to that. I don't want to respond to their ignorance around an issue. I want them to respond to what we're saying that we know works, that we've even seen work before. That's what I'm interested in. If we let nonsensical bias motivated discourse set the tone, then we're failing.
Jesse: As we bring this episode to a close, I wanted to return to the interview with Olivia Ensign where I asked, Is there anything else about these laws, about these expansions to systems of coercion and commitment, that is important to know?
Olivia Ensign: So, one reason that Human Rights Watch was opposed to CARE Court from the beginning, and there's really been nothing to kind of alleviate these concerns, is the fact that more folks from BIPOC communities are absolutely going to be placed under the jurisdiction of these courts. And that's really due to two things. The first is because of a long and still ongoing history of discrimination in housing, in employment, and in policing, more BIPOC community members are already houseless. And again, the way that the CARE Act was kind of rolled out, this was billed as a response to visible homelessness in California. So if CARE Court is used as a tool by homeless outreach workers and by police, that's going to mean that more people of color who are unhoused disproportionately are going to be under the control of this court. The second part of CARE Court we worry is going to have this racially disparate impact is that it singles out people, and I'm using the language of the actual CARE Act, it singles out people with schizophrenia spectrum and other psychotic disorders. And research shows that due to bias, to misinterpretation of trauma, and a lack of cultural competency, mental health professionals overdiagnose and misdiagnose specifically Black and Latinx populations with these conditions at a much higher rate than white populations. So we have real concerns that the way that CARE Courts are going to play out are going to exacerbate existing racial disparities in terms of who is under systems of state control.
And if we look to the International Covenant on Civil and Political Rights, if we look to the International Covenant on the Elimination of Racial Discrimination, they require state parties to engage in no act or practice of racial discrimination against persons or groups of persons. So, this is not a Rights conforming structure. We have real concerns with how it's going to play out and who's going to be impacted.
Jesse: So, one of the things I've been trying to just get my head around with CARE Courts is whether or not it should be considered discriminatory based on the simple fact that it identifies a diagnosis. Because that diagnosis doesn't mean you're dangerous. When you're diagnosed with a schizophrenia spectrum disorder it's not based, essentially, on you being dangerous in any way. It's not based, essentially, on you being a threat to anyone or anything.
Olivia Ensign: No, if anything those folks are more likely to be victims of crimes than to actually perpetuate crimes. 100%.
Jesse: Is there any concern about whether or not a law can specify a diagnosis? Because I'm just, it's hard to compare it to other conditions, like, we don't have laws for other types of medical conditions saying if you have this condition we're going to confine you. It just, it doesn't exist anywhere else. So we're in this sort of weird area of the law where it's become accepted. Now they're making, they're trying to make the law sort of match that cultural, pre-existing cultural sort of ingrained concept that these people, these are the people who we need to lock away.
Olivia Ensign: It's building off of what is often kind of unspoken stereotypes and stigma, and then it's putting it into law. And again, nothing has been said during any of the legislative hearings, any kind of interviews I've seen by the proponents of this law, to suggest that this is not going to disproportionately impact communities of color. And I think to the question of whether that is like specified or unspoken, we have to acknowledge that this society, certainly the medical institutions, employment institutions, every institution in this society, is built on a legacy of white supremacy. So it's not enough to just kind of take passive actions and hope for the best. There has to be a real dismantling and questioning. We can't just take these statistics on overdiagnosis and misdiagnosis at face value, we have to inquire as to why that is. And again, when we think of, kind of overlapping systems of state control, whether it is the civil and voluntary structures, whether it's the criminal legal system, part of making sure that those systems can be broken down and are not continuing these legacies of white supremacy is actually naming explicitly the bias that is embedded in these systems. And that is absolutely needed in CARE Court.
And I think as it plays out, we need to be monitoring and documenting and asking these questions and seeing who is sucked into the system and what the results are. And this got rammed through over the opposition of many black led groups, many civil rights groups, many peer led groups, who over and over again were raising concerns of racism and bias that was just baked into the system. And those concerns were never addressed. Those folks were never listened to. And now we're going to watch this play out in those communities and a lot of people I talk to are really scared.
Jesse: How do you navigate society when the message sent by legislators is that when you are failed by our systems, then you are the one that needs to experience consequences? How do you not interpret that as a punishment? A punishment for the offense of visibly suffering as you try to survive. And CARE Courts are just one thread in the ever expanding net of commitment laws in California. And there are several other pieces to that net that are all rapidly closing in.
Jesse: Next time on Committable.
Rafik Wahbi: You know, this idea of deputizing people is really something that's been in the nature of forced treatment, you know, forever. And we have to be ahead of the systems that try to profit off of deputizing people to do more harm.
Leah Harris: There's also no data being offered for all of these changes to the Mental Health Services Act that shows that altering it in these fundamental ways will actually improve outcomes for anyone. It is paving the way to literally rebuild the asylums.
Jesse: Committable is produced by Jim McQuaid. Michelle Stockman and me, Jesse Mangan. All music is from the song n by Christopher G. Brown.