JESSE: Every state in the U.S. has a law defining when and how a person perceived to be in distress can be detained for evaluation. In Florida that law is often referred to as the Baker Act. The way this law is written it doesn't seem to me to be that different from most other states. What does seem different about the Baker Act is that it is frequently being used on children.
To better understand the Baker Act and why it's being used to involuntarily detain people as young as five years old, I spoke with Bacardi Jackson from the Southern Poverty Law Center.
BACARDI JACKSON: Hi there, I'm Bacardi Jackson, I am a managing attorney and senior supervising attorney for the Southern Poverty Law Center and I work with the children's rights practice group. Our practice group focuses on stopping the school to prison pipeline, ensuring children have mental health and other health access, as well as focusing on equity and education, which is mostly ensuring that our public funds continue to support our public schools.
JESSE: What is the Baker Act?
BACARDI JACKSON: Baker Act is the colloquial name that is used for the Florida Mental Health Act and it authorizes a person to be committed for an involuntary psychiatric examination for up to 72 hours. It is supposed to be used only in the rare circumstance that a person is a serious threat of, serious bodily harm to themselves or others. And so there are stringent requirements that should be met. You have to have a reason to believe that the person has a mental illness and because of that mental illness the person has refused voluntary examination after they have understood its purpose, or the person is not able to determine whether an examination is necessary, or if without care or treatment the person is likely to suffer from neglect which could pose a serious threat of substantial harm to their wellbeing. And it's not clear that the harm could be avoided with the help of family members or friends or other services. And then finally, the one that typically children are Baker Acted under is the provision that says without care or treatment there's a substantial likelihood, evidenced by recent behavior, that the person will cause serious bodily harm to themselves or others in the near future.
So it should be imminent danger and risk of harm that would trigger the Baker Act but unfortunately, as we have recently reported in our report that we've prepared with partners, that is not the case.
JESSE: When was the Baker Act formalized?
BACARDI JACKSON: This is an act that's been on the books for quite a while. I don't have the exact date, I want to say maybe the 70s, so it's been around for a long while. We haven't seen though this surge in Baker Acting as it relates to children though, until more recently.
So it is a, it's a more recent phenomenon in the last decade where we've seen this huge spike in children being Baker Acted and it correlates with policing in our schools.
JESSE: What safeguards are in place for what is perceived to be an emergency where someone is deciding that a child has to be sent to a psychiatric facility?
BACARDI JACKSON: Well, currently there are not very many safeguards and that is why we are in a situation where we have 37,000 children each year being Baker Acted, we believe most of them inappropriately. We currently see that the Baker Act is used routinely on children who are not a danger to themselves or others, who do not appear to have a mental illness, whose behavior is not the result of a developmental disability, and whose parents have not consented to any kind of involuntary examination. And who could have their behaviors treated in a less restrictive way.
So this is routine for us in Florida that instead of looking for other means of interventions or figuring out ways to deal with normal adolescent behavior, or to have appropriate interventions when children express symptoms of their disabilities, we have come up with this what we consider to be another pipeline to push children out of school, often the most vulnerable children are the most marginalized children, into this Baker Act system.
So, sadly there don't seem to be a lot of safety rails to stop that. There are some proposals currently that people are considering that we have proposed that we would like to see become law that would create greater safeguards. One of the problems that exist right now in the law is that there are a host of people who can initiate a Baker Act exam. That includes judges, police officers, and a range of mental health providers, which could include a clinical psychologist, a psychiatric nurse, mental health counselors, marriage and family therapist, or social workers.
So any of those groups of people can initiate a Baker Act, but there are only three and that is the physician, a psychiatrist, or a psychiatric nurse, who could release a child once they've been Baker Acted. So that often means the children have to spend a night in a facility until one of those three people is available to actually conduct the examination.
JESSE: There is a broad range of people who are legally authorized to initiate a Baker Act, but only a few who are legally authorized to evaluate a child once that child reaches a psychiatric facility. So it has become far too common for a child to be Baker Acted by a police officer, brought to a psychiatric facility for evaluation, and then held there in limbo because the facility has no one available to do the necessary evaluation to determine if that child actually meets the criteria to be held.
So I asked Bacardi, is there any accountability if the person who initiates the Baker Act gets it wrong?
BACARDI JACKSON: No. And that's part of the problem is that you don't even have to have any kind of mental health professional weigh in, in the first place. And even if you bring the child to a facility and the mental health professionals, it could be a social worker or therapist who is sitting right there at the desk, who could easily see, “Oh, this child is autistic. There's nothing we can do in a mental health facility to address the symptoms of autism. This is not an appropriate Baker Act. This is not a child who should sit here.”
They don't even have the authority to stop what has already been initiated by an officer who may or may not have any training whatsoever in mental health. It's deeply problematic that you can have people with no training initiating this Baker Act and then there's nothing that can be done until the process is followed to release the child. Even the parents who, you know, we know anecdotally many stories of parents begging people to just let them take their child home and that request is denied.
JESSE: If the initial point of contact where a police officer first encounters a child is usually a school, what responsibilities does the school have to make sure that this process is being handled appropriately?
BACARDI JACKSON: And sadly, that's another failing of our system, there is no process or accountability for our schools. In fact, um, our schools are the ones that are usually initiating the Baker Act. In part because we have opted to Instead of resourcing our schools appropriately with mental health staff and making sure we even meet the minimum ratio that's recommended, which is 250 to one. And we're somewhere well over 400 to one for school counselors to children, we instead have decided to spend our funds and resources on policing our students.
And we have seen as a result of that policing, as a result of the law and order climate we're creating in our schools, the surveillance state we're creating in our schools. We have seen every measure of, you know, children being pushed out. Whether it's suspensions, expulsions, Baker Acting, all of those have increased as we have created this climate.
Some of it is based on the fear that came out of the tragedy at Marjory Stoneman Douglas, and all of the things that have been recommended since then. And so, as a result we have a lot of educators who are afraid not to involve the police, to not make that call, and then once the police are involved those children end up getting swept into a system that they had no business being in.
And because it's the law enforcement who is officially initiating the Baker Act, schools will even say, “Well, we don't keep any reports on it. We don't even report the data or maintain the data because it's not us. It's them.” And so even trying to get a handle on where the systemic breakdown is happening is very hard for advocates to even get sufficient and complete data.
And that's one of the other things that we would love to see changed in the policy, and in the laws, is that school should be responsible for every single child that is Baker Acted on a campus. There should be sufficient data, there should be some checkpoints, there should be someone who has checked in to see if this child has a disability, whether or not the proper interventions have been followed in order to make sure that this is an appropriate Baker Act.
JESSE: From what data is available is the problem equally prevalent at both public and private schools?
BACARDI JACKSON: I don't have the data available as to public versus private. We do know that the implementation of the Baker Act is not evenly felt in terms of, um, students of color, Black students, students with disabilities are far more disproportionately Baker Acted than their peers. And that is problematic, but we don't have the data breakdown of public versus private schools.
JESSE: Have you seen any evidence that use of the Baker Act is actually beneficial for the child?
BACARDI JACKSON: From the stories that we have been told directly, and the people who have spoken to us, we’ve spoken to scores of families and children through us and through our partners on the ground who do a lot of the direct services work. And all of those families have been families that have been deeply harmed, um, whose children are still years later suffering from the trauma that they experienced being Baker Acted. So I have not personally witnessed or met anyone who has told me this has been a beneficial intervention.
I did read one story, um, that was in a 2019 newspaper article, that highlighted some of the real problems with the Baker Act and it juxtaposed a couple of different stories. One story I think was the child was deeply traumatized, like most of the children we see, and then there was one story of a young woman, I believe out of Naples, who said it saved her life. And that was a child who was suicidal and had attempted suicide on several occasions.
Most of the children we have seen, and the public records requests we've made, and the many, many records we've reviewed, that has not been the case. The children, you know, part of the sort of magic words that might trigger someone being Baker Acted is if they say something like they want to hurt themselves. But what we've seen is a lot of times those children have been led in leading questions to say the kinds of things that will get them Baker Acted. So the first question may be, “Are you feeling sad? Have you thought about hurting yourself? How would you go about hurting yourself?” And once the child answers those questions, and they have then demonstrated a plan, then that is sort of deemed the magic words that can get someone Baker Acted.
So, you know, we have unfortunately not seen it be helpful, it's been mostly deeply harmful, but certainly there could be some cases where it is. I would add though that the psychiatrists that we've talked to, the pediatric psychiatrists have told us that even for a child in crisis this is not the kind of intervention they would recommend. That child certainly needs mental health services but being swept up in an involuntary hold for 72 hours is not sufficient, nor necessarily effective, in terms of what that child needs to actually deal with that mental health crisis.
So I can't say for certain as to how effective it is in terms of numbers, because we don't have enough data, and that's data that would be helpful to know. It would be helpful to know how many children once they arrive at the door of a Baker Act facility are then turned away immediately because it's very clear they don't belong there. We think that number is quite high. We've heard some facilities tell us it's clear to them that at least 25% of the children who show up there are very clearly inappropriately there. And I would imagine that might even be a very conservative estimate.
So that's one of the reasons we would love to see more data. We'd love to see more complete data compiled and kept, but the overall message is that we hope people will understand it is not inconsequential when we inappropriately, or illegally, send a child to a psychiatric facility for involuntary examination
JESSE: In the times where I have been involuntarily detained for evaluation, and then eventually released, the trauma of the detention is compounded by the apparent assumption that once you are released from a psychiatric facility then everything should be fine. That clash between the internal struggle of being ripped out of your life and detained in a psychiatric facility, and the external conflict of being pushed back out into society without you, or the community receiving you, being given the appropriate tools to process that experience, that clash further compounds the trauma. All but guaranteeing that it could be permanent.
So I asked Bacardi, are there any services provided to help that child, and their family, cope with the experience of being Baker Acted?
BACARDI JACKSON: Not only are most of the kids released without much follow-up intervention, or any kind of coordination with services they may be receiving in the community, that doesn't seem to be a complete system in place at all. But beyond that is you then have children who have learned from this experience to keep their emotions to themselves. They've learned they can't trust adults and they certainly can't trust adults when they have scary thoughts about hurting themselves or others.
And so you end up driving underground, the very information you need to be obtaining. And you have in the child's mind criminalized this child for needing any kind of emotional support. And so not only have you then kept the child from talking about it but the child is not very likely, nor is the family very likely, to seek mental health services for that child.
In addition to the actual trauma of being Baker Acted what we have in Florida is we have now threat assessment models across the state, we have databases, statewide databases, that are labeling children as threats once they've had an experience of being Baker Acted, whether or not that Baker Acting was appropriate. They're then put on, in some places like Pasco county where we have a predictive policing model, they're put on watchlists, and then they may be suffering harassment from police. So we have all of these disincentives, after you have a child go through something that's already so harmful, for them to even seek any kind of follow-up care.
So we are seeing just the opposite of what you suggest would be appropriate, and I agree with you, would be follow-up services, would be encouragement to get additional mental health services. But that's the exact opposite of what would be happening once somebody has this experience.
JESSE: Just to clarify, are you saying that there are counties where a child can be involuntarily detained for evaluation and then put on a list where they are, uh, monitored or I don't know “watched” for years?
BACARDI JACKSON: Right, so right now, one of the recommendations that have come out of the MSD commission was to have information shared between schools and police departments, so to the extent that is a school record, they want that information to be shared. That child may be put on a list, they may be deemed a threat under the threat assessment models. In Pasco county in particular we know there is this happening, there are 450 unnamed children who, or about 450 who they won't release the names for, who are on some sort of list. And children and families are being monitored and harassed in Pasco county, we believe as a result of this list, which is another issue we've been delving into with a number of community partners.
And so, yeah, you can have a police officer make a decision to initiate a Baker Act and then use that Baker Act against the child to keep harassing them. So we have created a really precarious system that can traumatize and harm children for many years.
JESSE: Most of the facilities that kids are being sent to, I assume, are private, so they're for profit. So there are people being held in facilities and the facility is billing every day that the person is held there. Is it possible that these facilities are profiting off of the overuse of the Baker Act?
BACARDI JACKSON: That is the sad truth of it. Yes, there are a number of facilities that profit off of this and some of them are public. So all of the facilities are not at all built the same and they're not all equally good or bad, they are very differently situated, as you mentioned some may be private, some are public. There have been exposes done that have shown that there was some facilities, in particular I think in the Orlando area, that were taking advantage of the system and holding children as long as possible, which was beyond the 72 hours, then they would file that petition I mentioned that would tell the court they wanted to keep the child longer. And then right before the hearing they would just withdraw their petition. And so that meant they got to keep the child up to five days, past the 72 hours, so they've kept them for a full week and they're billing all of that time.
And so, you know, those are the most unscrupulous facilities we've seen. And as I mentioned, they're not all the same, there are also some good facilities that would send a child who shouldn't be there home right away.
But certainly it is an industry that cries for some regulation and accountability which we are not currently seeing.
JESSE: So a child is being held for 72 hours, someone in that facility decides to hold them longer, so the child automatically gets a hearing scheduled and the facility holds that child for about another five days and then releases the child just before the hearing? I could understand if that happens once, or twice, maybe three times something like that, but this is a pattern. Is there any possible explanation for that pattern other than profit?
BACARDI JACKSON: I can think of no other explanation. You can't tell me there's one county where all the children are just so seriously disturbed and that they need to be held, and then all of a sudden there's a realization that, oh, no, they don't. I can think of no other motivation other than profit for that.
JESSE: What else should people be looking at to try and stop what is clearly a concerning problem?
BACARDI JACKSON: I think there are some really easy fixes that we could change in the law if we have the will and the encouragement of people getting involved, contacting their legislators.
And one of those is this that with every initiation of a Baker Act there should be a mental health professional making that call. It should not be someone without training who can subject a child to overnight stays in a facility, that's just inappropriate. We can easily either require a police officer, or whoever is trying to initiate a Baker Act, to contact a mental health provider.
We've got a lot of remote services right now as a result of COVID, that could be done remotely. It could be done when the child is taken to a facility, that there could be a mental health professional, and ironically, what you will find in the actual law that exists, is there currently is a higher standard for any mental health professional who wants to initiate a Baker Act.
They actually have to observe behaviors that show that the child meets the criteria. For a police officer they don't have that same criteria, they could just Baker Act a child based on hearsay. And so we have people with less training, with less strict requirements, who could subject a child to this.
And so that I think would be an easy fix to say, maybe even if a police officer showed up with a child that officer should not have the authority to initiate the exam. That should still be left, just like it would be in an emergency room in any other situation, for the professional at that facility to make that call. A professional would decide if a person needed to come in an ER room, not the police officer who brought them here.
The other issue is around the transportation of children. Right now under the law children are handcuffed and taken in the back of police cars. That in and of itself is deeply traumatizing. Imagine if you're having a childhood meltdown and the next thing that happens to you is you're handcuffed, at five and six years old, and then put in the back of a cop car.
You don't distinguish that experience from being arrested. And in fact, we've had clients who've told us my child doesn't want to go back to school because they don't want to go to jail again. And so for them there is no distinction between arrest and jail and what they've just experienced, we could change that.
We could say parents should be given the right to pick up their children. Parents should be given the right to consent to this in the first place. A parent will know better if their child is, if this is normal behavior, they have interventions that they know work. They should be given that right to do that before someone else takes that decision from them.
So those are some real basic things that could be done. We think currently the statute is written the same for children and adults and that's a mistake. There should be a complete separate section legally that codifies something different for children who have different circumstances and needs. That is something we would love to see legislators take a look at.
And the other thing is that any proposed solution should have at its center the most impacted people. It should not be that the facilities who may make money off of this, or that judges who sit and see the worst cases of people who need the greatest services, those shouldn't be the people constructing the new laws or changing them. They can have input but the most critical people to have centered at the table are the people who have experienced this. The children and the families who have survived it, or not quite so survived it. Those should be the ones consulted first and foremost in the formulation of any statutory corrections and creations.
JESSE: In a report titled “Costly and Cruel” released by the Southern Poverty Law Center, it states that in the 2018 to 2019 fiscal year the Baker Act was used to involuntarily detain children, children as young as 5 years old, 37,882 times.
I was 19 the first time I was detained for evaluation and I still struggle with the trauma that caused.
If I had been younger; 12, or 10, or 5, if I had been that young when I was involuntarily detained? I don't think I would've survived.
37,882.
Those are the voices that need to be heard.