New Report Analyzes Trespass Arrests of Homeless and Mentally Ill in County Hospitals
This Alert is brought to you by AHLA’s Behavioral Health Task Force.
- June 26, 2019
- Jeffrey Lynne , Beighley Myrick Udell & Lynne PA
- Samuel Winikoff , Beighley Myrick Udell & Lynne PA
On June 18, Disability Rights Oregon (DRO) released its latest report, The “Unwanteds”: Looking for Help, Landing in Jail.1 The report examines Portland, Oregon’s “drastic[] increase” in the number of homeless individuals and those with mental health disorders who, rather than being provided with reasonable access to mental health or social services, are instead funneled into the criminal justice system through trespass arrests at local hospitals.2
DRO analyzed 142 reports of trespass calls from six Portland-area emergency departments. In the one-year period between summer 2017 and summer 2018, DRO found that homeless and mentally ill individuals were disproportionately represented among those arrested for trespass at hospitals. This was, as the report notes, despite the fact that three-quarters of them did not appear to present a risk of violence.3 In all but nine of the trespass calls analyzed by DRO, Portland police officers resolved the situation by booking the subject into local jail.4
The report also shares the personal accounts of several of the “unwanteds.” In one such case, a homeless woman named “Carla” was released from county jail to a Multnomah County hospital on a mental health hold for evaluation. The hospital refused to let her stay. Carla was discharged despite her desire to stay in the hospital voluntarily. When she later refused to leave, Carla was sent back to jail. The charge: trespass.
The report notes that the hospital erred in its discharge procedure and the police failed to de-escalate the situation rather than simply bring Carla to jail. Her story highlights two central issues identified by DRO in its report. First, DRO recognized law enforcement’s continued failure or reluctance to offer diversionary programs in lieu of jail. And second, DRO described the hospitals’ likely compliance deficiencies with respect to discharge planning obligations mandated under federal and Oregon law.5
These issues, as covered in the DRO report and often referred to generally as the “criminalization of mental illness,” are not exclusive to Oregon.6 According to a 2014 joint report between the Treatment Advocacy Center and the National Sheriffs’ Association, the number of individuals with serious mental illness in prison and jails now exceeds the number in state psychiatric facilities tenfold.7 About 70% of youth in the juvenile justice system have a mental health condition.8 Despite this meteoric rise, DRO and others have noted that jails and prisons (and more broadly, the criminal justice system) are often not prepared to provide adequate psychiatric and medical treatment for people suffering from mental illness.9
The DRO’s timely report, therefore, has national implications. It concludes that low-level, mental health-based behaviors should be decriminalized, replaced instead with non-law enforcement street teams and police commitment to diversion rather than arrest. The report also recommends that hospitals work together in these community-wide solutions by overhauling their trespass policies and enforcing hospital discharge planning requirements for homeless or mentally ill patients.10 These recommendations, DRO believes, may begin to make a dent into the criminalization of mental illness problem in Oregon and beyond.
Many states and their courts have developed programs with similar goals in mind. In Miami-Dade County, for example, Judge Leifman of the Eleventh Judicial Circuit created the Criminal Mental Health Project (CMHP) in 2000.11 Now called the “Miami Model,” the CMHP has been successful in helping to alleviate the societal problems associated with the criminalization of mental illness. Between 2006 and 2010, officers from the Miami-Dade Police Department and City of Miami Police Department who have received CMHP training have responded to nearly 38,000 mental health crisis calls resulting in over 9,000 diversions to crisis units and just 85 arrests.12
What is clear from the Miami Model and the DRO report is that the criminalization of mental health remains a persistent problem, but one that can be reduced with community-based care and accessible social, not criminal justice, services.
1 Sarah Radcliffe, The “Unwanteds”: Looking for help, landing in jail, Disability Rights Oregon (2019), https://www.oregonlive.com/crime/2019/06/report-hospital-calls-about-unwanted-people-trespassing-leads-to-jail-criminalizing-mental-illness.html (last accessed June 19, 2019).
2 Id. at 8.
3 Id. at 13. At least 72% of the reports involved people who were identified as homeless or transient (5% were marked as unknown). By way of comparison, the report notes that the county’s overall homeless population is less than 3%. Id. at 14 (citing U.S. Census Bureau, “Quick Facts,” https://www.census.gov/quickfacts/fact/table/portlandcityoregon/multnomahcountyoregon/US). Of the 142 reports analyzed for the report, 42 involved individuals who demonstrated clear signs of serious mental health conditions. Id. at 23.
4 Id. at 16 (94% of the trespass calls were resolved by booking the subject into jail).
5 Id. at 27 (in accordance with 42 C.F.R. § 482.43, a “hospital must have in effect a [written] discharge planning process that applies to all patients”).
6 E.g., C. Joseph Boatwright II, Solving the Problem of Criminalizing the Mentally Ill: The Miami Model, 56 Am. Crim. L. Rev. 135, 136 (2018).
7 E. Fuller Torrey et al., The Treatment of Persons with Mental Illness in Prisons and Jails: A State Survey 6 (2014), available at https://www.treatmentadvocacycenter.org/storage/documents/treatment-behind-bars/treatment-behind-bars.pdf.
8 Criminalization of Mental Illness: It’s A Crime, Nat’l Alliance on Mental Illness (Aug. 27, 2014), https://www.nami.org/Blogs/From-the-CEO/August-2014/Criminalization-of-Mental-Illness-It%E2%80%99s-a-Crime (last accessed June 19, 2019).
9 Radcliffe, supra note 1, at 33; Torrey et al., supra note 7, at 8 (“Although they are neither equipped nor trained to do so, they are required to house hundreds of thousands of seriously mentally ill inmates.”).
10 Radcliffe, supra note 1, at 31-36.
11 Boatwright, supra note 6, at 148.
12 Id. at 150-52.