Olmstead Decision: Can It Be Used to Decriminalize People With Mental Illness?
Abstract
A proposed application of the Supreme Court’s 1999 Olmstead ruling would require public entities to prevent the unnecessary incarceration of people with mental illness.
About 2 million times every year, people with serious mental illness are put in jails and prisons across the country, often simply because of the inadequacy of community services to prevent or divert them from the criminal justice system.
“People under those conditions get worse,” said Jeffrey Metzner, M.D., a professor of psychiatry at the University of Colorado School of Medicine and a member of APA’s Council on Psychiatry and Law. “There’s not much of a therapeutic environment about a prison. It’s not designed for psychosocial rehabilitation.”
At the root of the problem is a dearth of community services capable of preventing those with serious mental illness from becoming entangled in the criminal justice system. Communities nationwide have tried to tackle the problem by creating resources through programs like the Stepping Up initiative, of which the APA Foundation is a partner (Psychiatric News). But to create broad, sweeping change, a Boston consulting firm has floated a different approach: What if the criminalization of people with mental illness was seen through a disability rights lens?
Earlier this year the Technical Assistance Collaborative published a report suggesting that the Supreme Court’s 1999 Olmstead v. L.C. decision should be applied to the disproportionate number of people with mental illness unnecessarily locked up in jails and prisons across the country. In that decision, the Supreme Court held that unjustifiably segregating people with disabilities violates Title II of the Americans With Disabilities Act (ADA), which requires public entities to ensure people with disabilities live in the least restrictive, most integrated settings possible. The decision led to several states creating what are known as Olmstead plans, as well as numerous settlements and lawsuits addressing the segregation of people with mental illness and other disabilities into nursing homes, psychiatric hospitals, and board and care facilities.
But the application of Olmstead, argued Kevin Martone, executive director of the Technical Assistance Collaborative, could go even further. “The general theme in our recommendation is a call for leadership and public entities to address the criminalization of people with mental illness as a responsibility under the ADA,” he told Psychiatric News. “If a system has a disproportionate number of people in the criminal justice system, the system is kind of implicitly endorsing that, and that’s arguably a violation of a person’s civil rights under the ADA.”
The Technical Assistance Collaborative’s argument essentially hinges on the idea that jails and prisons are themselves segregated settings under the Department of Justice’s definition, and many people with mental illness unnecessarily end up there simply because there are not enough community-based services to meet their needs. Because the ADA and Olmstead apply to people at risk of institutionalization or segregation, public entities have a responsibility to prevent the unnecessary incarceration of people with mental illness just as they must prevent segregating people in hospitals or nursing homes.
The 1999 Olmstead Decision: What Is It?
Though Lois Curtis and Elaine Wilson, who had mental illness and developmental disabilities, were told by mental health professionals that they could move to a community-run program, they each remained confined in a Georgia psychiatric hospital after their initial treatment.
In 1995, they sued the state, including Tommy Olmstead, the commissioner of Georgia’s Department of Human Resources, under the Americans With Disabilities Act (ADA). They argued that the state was discriminating against them because of their disabilities and violating the ADA. Georgia argued, however, that it would cost too much to move the women to a community-based setting, and the case made its way to the Supreme Court.
The court agreed with Curtis and Wilson, finding that the unjustified segregation of people with disabilities constitutes discrimination under the ADA. According to the 6-to-3 ruling, public entities must provide community-based services when those services are appropriate, the person does not oppose community-based treatment, and community-based services can be reasonably accommodated regarding public resources and balanced with the needs of other individuals with disabilities.
“First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable of or unworthy of participating in community life,” wrote Justice Ruth Bader Ginsburg in the majority opinion.
“Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment,” Ginsburg continued.
APA submitted a friend-of-the-court brief in the case, joining numerous other organizations and state health officials in urging the court to oppose Georgia’s appeal.
“Depriving an individual with a disability of the benefits of community integration, unless such a community setting is inappropriate for the individual, is a form of discrimination,” APA’s brief states. “The ADA, reflecting a decades-long trend toward reducing institutional populations, makes overwhelmingly clear the congressional determination of the importance of the interests that are damaged, for many individuals with disabilities, by separation from their communities.”
Since the decision, numerous lawsuits and Department of Justice (DOJ) settlements have enforced the decision. The DOJ is now litigating two Olmstead cases: one in Texas about the unnecessary institutionalization of people with developmental disabilities in nursing homes, and another in Mississippi over the segregation of adults with serious mental illness in state hospitals.
“While it may not have been something that the Supreme Court was originally considering when it was addressing Olmstead, this argument is a logical extension,” said Robert Trestman, M.D., Ph.D., chair of the Department of Psychiatry and Behavioral Medicine at the Virginia Tech Carilion School of Medicine. In terms of the practicality of such an application, he pointed out that the ADA itself seemed impractical when it was first passed, as it required not just new policies and programs but a massive physical undertaking to make infrastructure accessible for people with disabilities. “Having adequate services in the community to prevent or to divert individuals with mental illness from the criminal justice system is the least expensive and least restrictive approach.”
Metzner said that while he agreed with the brief, its practicality largely depends on whether the Department of Justice would use this application of Olmstead, as settlements with the federal government are one of the best ways to effect change.
Marvin Swartz, M.D., chair of APA’s Committee on Judicial Action, pointed out that many of the risk factors that this application of Olmstead would target are the same that place people with disabilities at risk of being segregated in long-term-care facilities or hospitals, most of which involve underfunded systems. He sees this theory as potentially being used to fund mental health diversion programs especially.
“Given declines in public funding of behavioral health services, potential barriers erected by managed care, and declines in safe and affordable housing, there are many potential targets for intervention,” Swartz said.
Debra Pinals, M.D., a professor of psychiatry at the University of Michigan and chair of APA’s Council on Psychiatry and Law, said there are various examples of differential access to liberty within the criminal justice system, and she sees addressing these inequalities as a broad ADA issue and not solely through the scope of the Olmstead decision. Ending those disparities, though, is a massive undertaking.
“Our system has been built over many, many years, and to unbuild the way we do business is going to take many, many actors within and outside the system to try and shift the way things work,” she said. She added that any movement to change the system must confront societal stigmas around mental illness.
“People with serious mental illness don’t belong in jails and prisons,” said past APA President Renée Binder, M.D., a forensic psychiatrist who devoted her presidential year to addressing this issue. “We need every tool in our toolbox to decriminalize mental illness.” ■
“Olmstead at 20: Using the Vision of Olmstead to Decriminalize Mental Illness” is posted here.
