On March 3, 2022, California Governor Gavin Newsom announced a new plan to fight homelessness – the creation of “CARE courts”, a state-wide program to compel persons with severe mental illness or addiction into treatment through court-mandated programs and case management. As the LA Times reported, while the program is primarily intentioned to help the most service-intensive persons experiencing homeless, often labeled the “chronically homeless”, a participant would not need to be diverted into CARE court – someone re-entering the community after incarceration or exiting an involuntary psychiatric hold (often referred to as a “Fifty One Fifty” or “5150”) could be placed into such a program, and persons currently under criminal prosecution could also be referred.
The reaction to the program from mayors and other state actors thus far has been almost uniformly positive – local officials are clearly receptive to strong state action to assist counties with difficult case management. As Governor Newsom said, “[t]his is about accountability, but it is about compassion; and it’s about recognizing the human condition.” While setting up a renewably funded avenue in a resilient institution (the courts) to provide more services to the chronically homeless is a laudable goal, and the program appears to still be in the planning stages, Governor Newsom and the Legislature must take extreme care crafting this program to not make the same systemic mistakes that have led to the crisis happening today.
Sanctions for Non-Compliance Must Prioritize Empathy and Forgiveness
By embedding expanded access to services within the power of the courts, the CARE Court plan empowers judges with extraordinary power to mandate health care for highly at-risk individuals. However, it also empowers judges to sanction highly vulnerable people for failing to complete these programs. As we’ve seen in “Veterans Court” or “Drug Court” programs, which the CARE Court model resembles, people who fail to comply with the court’s requirements can find themselves subject to harsh punishment, including reincarceration, fine, or other sanction.
Severe punishment for noncompliance, contrary to popular logic, at best has no effect or even worse increases the likelihood someone will recidivate or otherwise fall out of the system.
As such, the CARE courts should aim to almost never punish, whether through incarceration, fine, or warrant, an individual who fails their initial CARE Plan. Rather, it should seek to critically reevaluate its Plan, suggest alternative measures, and work with the subject of the Plan to determine what of its aspects are not working.
In addition, CARE Plans should be prepared to work with individuals over the course of years, plural, not a six- or twelve-month attempt. Even for persons who have significant means to afford the best treatment money can buy, mitigating the effects of severe mental illness or addiction can take years. For many of the patients the CARE Courts will be seeking to help, they will be fighting against decades of neglect and trauma – unwinding that damage is a long-term commitment, not a task the courts should expect to solve quickly.
A public defender friend I spoke to about this plan raised an additional concern – that specifically for individuals being diverted to CARE plans from criminal court, the existence of the diversion would create a perverse incentive for prosecutors to charge more aggressively and with more serious offenses, because the “off-ramp” of the diversion exists. This is a difficult problem to work around, as prosecutorial discretion is normally broad and unconstrained – moreover, as the charging decision happens before the individual’s CARE diversion, rules added to any CARE Court legislation are unlikely to be able to affect charging decisions. Adding forgiveness and empathy to CARE programs is the best way to ensure this program does not become an excuse for prosecutors to further entrench our systems of mass incarceration.
Above all, CARE Plans should prioritize empathy, charity, and forgiveness. I firmly believe that the best way to address the deep, medically complicated issues that afflict many chronically homeless persons is not through force or “tough love”, but by building a community around these persons and creating a sense of responsibility in both the neighbors who care for them, and a sense of belonging for the beneficiary of these services.
Mandated Services must be High-Quality and Affordable
While the coercive power of the courts can be used to mandate that local governments provide long-neglected services, the quality and accessibility of those services is just as, if not more critical. Governor Newsom has pledged billions of dollars to create the necessary infrastructure to implement this program effectively. That’s a great start, but there are other policy tools that the Governor and the Legislature should implement in order to ensure that all Californians subject to a CARE Plan have equal access to comparably high-quality services.
First, the program should be rooted in the most up-to-date medical and scientific consensus about best practices for treating severe mental health and addiction. To that end, the program should require that the Department of Public Health (DPH) and the Department of Social Services (DSS) establish objective, strict medical criteria for the minimum care of CARE Court patients. These criteria should be made available to the public, and should be revised openly and regularly, with concrete input from both the medical and advocate community. Furthermore, counties should be required to adhere to these minimum standards.
In addition to types of medical interventions, these standards should include explicit staffing ratios. Currently, social workers in county DSS offices across the state are overburdened with cases, often juggling dozens of clients simultaneously, leaving no time to devote to any particular case. The success of the CARE Courts will depend on whether they can build a truly caring community around our state’s most vulnerable residents.
A critical component of this is making sure program participants feel heard and respected – not just a cog in a giant, impersonal system. To address staffing shortages in both urban counties with high levels of homelessness as well as rural counties with fewer resources, the program should provide financial incentives for medical professionals and social workers to staff these programs.
Finally, CARE Court services should be free-of-cost to patients. When I ran a legal clinic for homeless youth in Los Angeles, I saw first-hand how many court-mandated programs were inaccessible to the poor because of their financial cost. Not only were participants physically unable to fulfill their requirements, but the experience left many of my clients feeling shamed and excluded for their poverty. Again, the most important aspect of this initiative will be its ability to create genuine communities of care. Paywalling access to these programs is a surefire way to needless failure.
One often overlooked aspect of these costs is transportation. Many of the persons who would qualify for a CARE plan do not have the money for a personal vehicle or public transportation. As part of onboarding, CARE Courts should provide participants with unlimited Metro cards, bus passes, or equivalents to help them make court appearances and see their doctors and social workers.
California Must Move Beyond the Idea of Poverty as “Personal (Ir-)Responsibilty”
Overall, I’m encouraged by the attention and resources the Governor has devoted to homelessness during his term, and especially the scale and boldness of the CARE Court program However, I wish these services were being provided to persons with severe mental health or addiction disease without the coercion of a court order. Creating court cases for these vulnerable individuals inherently implies that the government needs to instill in participants a sense of responsibility for fixing their own problems. This notion is itself rooted in an antiquated idea of poverty as the result of poor individual choices – a trope abused by right-wing politicos to gut social service programs, absolve the privileged of their responsibility to their community, and shame and demonize the poor.
We know better today. We understand that poverty is a problem of resources and policy priorities – of classism, racism, and other bias – of the increasing isolation and breakdown of neighborhoods in the modern world, and our willingness to create communities of care where even the most vulnerable and downtrodden of our neighbors are loved. The CARE Courts are a positive first step towards achieving those goals. But this state, so trailblazing in many ways, should go further in setting an example for the nation – by showing that the key to ending poverty isn’t shaming the poor into “personal responsibility”, but rather making a societal commitment through government to loving, uplifting, and caring for the least fortunate among us.
CCWRO Homelessness News and Notes 