Justice News

Assistant Attorney General Kristen Clarke Delivers Remarks at the 3rd Annual Sozosei Summit to Decriminalize Mental Illness
Philadelphia, PA
United States
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Wednesday, December 7, 2022

Remarks as Prepared for Delivery

Good morning. I am so pleased to be here with all of you at this important gathering. I have a lot to share with you about the work that the Justice Department’s Civil Rights Division is doing to address the pervasive discrimination against people with mental health disabilities. Much of that work relates directly to your theme of the criminalization of mental illness. Other parts of our work concern related issues including the segregation, isolation, and unequal treatment of people with mental health disabilities — in schools, housing, employment, service systems and other areas. Those forms of discrimination often contribute to criminal justice involvement as well.

Let me take a brief moment to recognize Jennifer Mathis, who is with us virtually today and plays a critical role in helping drive our agenda forward in this area.

Addressing mental health issues through a disability rights lens has power and promise. Too often, in our national discourse, mental health is viewed as separate from other disabilities. We limit our goals and truncate our vision for people with mental health disabilities. Increasingly, we have recognized that people with disabilities should have full lives with equal opportunities, respect, and dignity, but when it comes to people with mental health disabilities, too often we focus only on “access to treatment.”  Certainly, access to treatment is important, but it matters what kind of treatment is offered, and most of all, it matters what opportunities we offer people with psychiatric disabilities to live full lives. That reflects a much broader and more ennobling vision than simply access to treatment. It also involves, for example, access to housing, employment, equal educational opportunity and other important aspects of life. Finally, it matters whether we hold our systems accountable to treat mental illness as a disability rather than a crime.

All of these things help determine the kinds of lives that people with mental health disabilities can live – a life of isolation and poverty, a life entangled with the criminal justice system or a life of fulfillment, integrated into society. They are about more than simply treatment; they are about personhood, about human dignity.

The Americans with Disabilities Act affords people with mental health disabilities the right to equal opportunity. The Civil Rights Division’s mental health-related work enforces the rights granted by the ADA and other federal disability rights laws. A significant part of our work is enforcing the ADA’s “integration mandate” for adults and children with mental health disabilities – that is, the right to have services administered in the most integrated setting appropriate.

The integration mandate is a powerful tool to address not only the warehousing of people with disabilities in long term care facilities such as nursing homes, but also the cycling of people with mental health disabilities in and out of emergency departments and psychiatric hospitals, as well as their needless incarceration and avoidable encounters with law enforcement. For children and youth with mental health disabilities, the integration mandate is important to prevent needless stays in hospitals, residential treatment centers and juvenile justice facilities.

We have been enforcing the integration mandate to achieve these goals. In 2021, for example, we issued a letter of findings concluding that Alameda County, California, was violating the integration mandate by failing to provide community services such as mobile crisis services, assertive community treatment, housing services, supported employment and peer support sufficient to prevent repeated admissions of people with serious mental illness to the county’s psychiatric emergency department, psychiatric hospital and jail.

The same gaps in community mental health services that lead to unnecessary hospitalization also lead to unnecessary incarceration. Indeed, more than 50% of the people who were committed to Alameda County’s institutions while homeless were also incarcerated at some point in the county jail. In Alameda County, as in so many other places, Black people with serious mental illness faced a disproportionately higher risk of being needlessly hospitalized or incarcerated. In 2021, while Black people made up just 11% of the county’s population, they accounted for 53% of people the county identified as “justice involved” and “high utilizers” of mental health services.

Our investigation of Alameda County found that on any given day, hundreds of people with mental health disabilities were hospitalized at the county’s psychiatric hospital or institutionalized for lengthy stays at one of several large, locked sub-acute facilities; that people stayed at the sub-acute facilities for six months to two years on average; and that of those in the county’s psychiatric hospital, many were there for weeks or months, and were funneled to other segregated facilities upon discharge. Many people were institutionalized repeatedly, and sometimes incarcerated, due to a lack of community services. In one instance, a 20-year-old man’s parents were told upon his discharge from a brief stay in the county psychiatric hospital that they should call 911 and ask for police if he needed further help. Days later, when the young man was still in crisis, his parents called 911 and told the police who responded that he needed mental health treatment but was not a danger. Rather than being offered crisis services, the man was taken to the county jail, where he later died, apparently after being left chained to a cell door unattended and trying to strangle himself with the chains.

Our investigation also found that conditions at the county jail violated the Constitution, including by failing to provide adequate mental health services, treatment planning and discharge planning and failing to properly treat suicidal inmates. Inmates with serious mental illness experienced worsening mental health conditions, repeated cycling for acute care at the county’s psychiatric hospital, prolonged restrictive housing, and sometimes serious physical harm or death. From 2015 to 2019, at least 14 prisoners died by suicide in the jail.

The division has been participating along with private litigants for 18 months in a mediation to resolve the allegations concerning Alameda County’s violations of the integration mandate. We are optimistic about resolving this matter. The division also participated in settlement discussions with private litigants in the resolution of litigation concerning the treatment of people with mental illness in the county jail, and we continue to assess conditions in the jail under the terms of the settlement agreement.

During the last year, the Civil Rights Division has also been looking nationally into the possible needless confinement of adults with mental health disabilities in institutions such as adult homes, nursing homes, psychiatric hospitals and other facilities in South Carolina, Missouri, Kentucky and Oklahoma. And we are continuing to enforce our integration mandate settlements involving confinement of people with mental health disabilities in adult homes in New York, in a state psychiatric hospital and a state-operated nursing facility in New Hampshire, in adult care homes in North Carolina and in state psychiatric hospitals in Georgia. In Mississippi, we recently won at trial in a case challenging the state’s overreliance on state hospitals and its failure to provide sufficient community mental health services to prevent needless institutionalization. We are currently defending that victory on appeal.

Our recent community integration work has also focused in significant part on children with mental health disabilities. Too many of these young people end up in juvenile justice settings or in out-of-home placements, often in different states far from their families, disrupting their lives in ways that can never be repaired. In the last several months, we have issued letters finding that Nevada and Maine were violating the ADA’s integration mandate by failing to provide the intensive home and community-based services needed by children and youth with mental health disabilities, resulting in their being institutionalized in psychiatric hospitals, residential treatment centers and in some cases, juvenile justice facilities, often out of state, hundreds of miles from their families. Of the children it served in residential treatment centers between 2019 and 2021, Maine shipped 46% of them out of state. Nevada sent out of state 43% of the children placed in residential treatment centers in March 2021. Many of these kids have experienced numerous institutionalizations. One parent we interviewed in Nevada told us that her 14-year-old daughter had been institutionalized 47 times — in residential treatment facilities in and out of state, in hospitals, and in juvenile detention centers. 47 times! How could that possibly be helping her get better?

We encountered numerous similar stories of youth bouncing between hospitals, shelters, juvenile justice settings and residential treatment. Often these children have been segregated from their families for many months at a time due to the unavailability of the services they need. We are in discussions with both states to try to resolve these issues.

In 2019, we resolved a similar matter in West Virginia involving the needless institutionalization of children and youth with mental health disabilities. Like the findings in Maine and Nevada, our investigative findings in West Virginia revealed that large numbers of these children were staying for lengthy periods in segregated residential treatment centers, often out of state and far from their families, because of insufficient in-home and community-based services. Often children in these facilities who acted out were sent to juvenile justice facilities. The division’s settlement agreement with West Virginia requires the state to expand and develop community-based services, including wraparound services, behavioral support and family support services, as well as in-home therapy, children’s mobile crisis services, therapeutic foster care and assertive community treatment, so that children with mental health disabilities in residential treatment centers receive timely access to community-based services where appropriate.

Another significant area of the Civil Rights Division’s work is addressing how we respond to behavioral health crises. Again, the Americans with Disabilities Act is an important tool. We have ongoing investigations of policing practices in LouisvilleMinneapolis and Phoenix, all of which include an ADA component looking at whether county dispatch systems could make reasonable modifications to their practices by sending mobile crisis team or other response to calls involving people with mental illness where the particular situation does not call for a law enforcement response. We also recently launched an investigation in Oklahoma City focusing exclusively on the city’s practice of sending law enforcement responders to nearly all emergency calls involving individuals experiencing behavioral health crises. Experience shows that the presence of police often escalates the behavioral crisis. Too commonly, people with mental illnesses—particularly those who are Black and Brown — have been killed during encounters with the police. Daniel Prude in Rochester, New York, Deborah Danner in Brooklyn, and Miles Hall in Walnut Creek, California, are examples of that reality. Approximately one fourth of all people killed by police are people experiencing mental health issues.

Just as we send an ambulance or a medic to respond to other types of health crises, such as a heart attack or a diabetic emergency, we should send a mental health response to emergency calls where that is appropriate, rather than sending a law enforcement response simply because the call involves a person's mental health disability. In many jurisdictions, call centers that dispatch emergency responses can make reasonable modifications to their usual practices to afford equal opportunity to people with disabilities, including by sending a mobile crisis team or other responder rather than law enforcement in appropriate circumstances when a call involves a person with a mental health disability and there is not a need for a law enforcement response. Where a police response is called for, dispatching a co-responder team that includes a police officer and a mental health specialist may be a reasonable modification. In some situations, dispatching an officer with appropriate crisis intervention training may be a reasonable modification. Law enforcement agencies can also make reasonable modifications to their usual practices by arranging for a mobile crisis team or other responder to come to the scene where a law enforcement response is not necessary.

To be sure, what modifications are reasonable in a particular jurisdiction depends on a variety of factors, which may include geography, demographics, the existence of mobile crisis services and resources. The key point is that jurisdictions should not assume that the proper response to a mental health crisis is always to send law enforcement, but instead should assess reasonable modifications to their usual practices, modifications that are feasible and appropriate to afford equal opportunity to people with mental health disabilities.   

In addition to looking at whether dispatch centers and law enforcement responders can make reasonable modifications to dispatch mobile crisis teams where circumstances call for that, in two jurisdictions (Louisville and Oklahoma City) we are also examining whether the state is providing sufficient community-based services to avoid the needless institutionalization and incarceration of people with mental health disabilities. State service systems play an important role in providing services that people with serious mental illness to succeed in the community and that help prevent law enforcement encounters in the first place, such as supported housing, assertive community treatment, peer support, intensive case management and supported employment. When state mental health systems over-rely on institutionalization and local law enforcement responses rather than providing crisis and longer-term services that would prevent needless institutionalization and incarceration, they may run afoul of the ADA’s integration mandate. We have announced an investigation of the State of Oklahoma on just these grounds, to determine whether the state over-relies on institutional settings including psychiatric hospitals and nursing facilities to serve adults with behavioral health disabilities in Oklahoma County when they could be served in the community. And in May of this year, we launched an investigation in Kentucky to examine whether the state provides inadequate community mental health services in the Louisville metropolitan area, causing adults with serious mental illness to experience unnecessary, frequent and repeated institutionalization and law enforcement encounters. These state investigations go hand in hand with the investigations of the local emergency response system and local law enforcement responders. It is important not only to ensure the coordination of crisis responses where appropriate but also to ensure that the community services needed to prevent crises and hospitalizations are actually available.

The Civil Rights Division has also filed Statements of Interest in private litigation to ensure that courts are appropriately interpreting and applying law in this area. For example, we weighed in a case brought by the family of a young Black man with mental health disabilities who was killed by police after being shot 23 times in the parking lot of a McDonald’s in Montgomery County, Maryland. After an employee called the emergency response system to report that the man was “acting crazy” by not paying for his food or moving, but was not dangerous or threatening, the emergency response system sent an armed officer and did not request dispatch of either the police department’s Crisis Intervention Team or the county’s Mobile Crisis Team. We filed a Statement of Interest regarding the ADA’s requirement that public entities make reasonable modifications to their ordinary practices in order to avoid discrimination based on disability.

Further, we are working with colleagues at the Justice Department’s Office of Justice Programs and with the Department of Health and Human Services on a guidance directed by President Biden in his Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety. That Executive Order directed the Justice Department and HHS to issue a guidance on best practices for responding to calls and interacting with people in behavioral or mental health crisis or people who have disabilities. The guidance is to include consideration of co-responder models that pair law enforcement with health or social work professionals, alternative responder models such as mobile crisis response teams for appropriate situations, community-based crisis centers and the facilitation of post-crisis support services, including supported housing, assertive community treatment, and peer support services. Please stay tuned for that guidance.

These issues are also manifesting themselves inside our jails and our prisons. And we are currently working to protect the rights of people in correctional settings, ensuring they have the right to adequate treatment, including mental health care. For example, in December of last year we found that Connecticut was violating the constitutional and other federal rights of children at Manson Youth Institution, a correctional facility for children under 22, almost all of whom have a mental health diagnosis. The vast majority of whom are Black or Latinx. We found that children at Manson were not receiving appropriate mental health assessments or treatment, or needed special education services, and were subject to isolation practices that caused serious harm. One boy who had deteriorated after his brother was shot and killed had a mental health assessment that did not uncover this history or identify any trauma-related diagnosis, and identified him as simply having a conduct disorder and not in need of mental health services. Another boy who had been stabbed in the chest and had nightmares about the stabbing was also found not to need mental health services, and the impact of this trauma on his mental health was never explored. In April of this year, we found that Mississippi violated the constitutional rights of people incarcerated at the Mississippi State Penitentiary, including failure to meet their mental health needs by providing inadequate mental health assessment and treatment, deficient suicide prevention practices and prolonged exposure to segregation in restrictive housing under grossly inadequate conditions. We are also working to address segregated and inadequate education for students with mental health disabilities. We are continuing to litigate an ADA case challenging Georgia’s use of a network of segregated schools and segregated classrooms for students with behavior-related disabilities. These schools deprive students with disabilities of opportunities to learn alongside non-disabled peers and offer an inferior education. In some cases, students with disabilities were consigned to the same school buildings used to segregate Black children years ago.

Two months ago, we announced our findings that the state of Alabama violated the Americans with Disabilities Act by relegating hundreds of children with mental health disabilities in its foster care system to segregated and inferior educational programs on the campuses of psychiatric residential treatment facilities. Kids in foster care who are placed in these facilities are often enrolled automatically – without an appropriate educational assessment – in segregated on-site schools. These educational placements sever children’s ties to their home schools, teachers, social activities and peers.

Last year, the we entered a settlement agreement with Brown University to resolve claims that Brown violated the ADA by refusing to allow dozens of students who took leaves of absence for mental health reasons to return to school even though they met the requirements for returning to school and their treatment providers reported that they were ready to resume their studies and participate in campus life. The settlement agreement provided that Brown would revise its undergraduate leave policies and practices, provide ADA training to faculty and staff responsible for evaluating requests to return from leave and compensate undergraduate students who were harmed.  

College and university policies concerning how students with mental health disabilities are treated continue to be of great concern. Some colleges have policies that require students experiencing mental health crises to take leaves of absence without considering whether other options might be appropriate, some require students who have taken such leaves to remain out of school for lengthy periods of time beyond when they are ready to return, and some prohibit students on such leaves from setting foot on campus, including areas open to the public. We will continue to look for opportunities to address these issues.

Another important area of the Civil Rights Division’s disability rights work concerns discrimination against individuals with opioid use disorders. Earlier this year, we issued a guidance explaining the ADA’s protections for people with opioid use disorders. We have done a significant amount of enforcement in this area, with settlement agreements resolving claims that bans on use of legally prescribed opioid treatment medication in a variety of settings violated the ADA. For example, we settled claims that the Indiana State Nursing Board’s rehabilitation and monitoring program required for nurses with substance use related problems violated the ADA by prohibiting participants from using opioid treatment medication. The complainant in that matter felt that nursing was her calling in life, but she chose not to enroll in this program, which was required for reinstatement of her nursing license, because she believed that staying on her opioid treatment medication was a matter of life and death. People with opioid use disorders should not have to choose between taking lawfully prescribed, life-saving treatment and pursuing the career they want. We also settled with a Colorado homeless services provider that had prohibited recipients of its housing and employment services from using these treatment medications. And right here in Pennsylvania, we are currently challenging restrictions imposed by some courts within the state’s Unified Judicial System on the use of opioid treatment medication by people in court supervision programs such as drug courts, mental health courts, and probation programs. We also worked with the Massachusetts U.S. Attorney’s Office to facilitate their resolutions with the Massachusetts Department of Corrections and a number of local sheriffs’ offices, ensuring that people in jails and prisons had access to needed opioid treatment medication.

I also would be remiss if I did not talk about artificial intelligence. Earlier this year, the division issued an important guidance document concerning the ADA’s application to hiring tools that use algorithms or artificial intelligence. These tools can sometimes discriminate by asking questions that screen out people based on disability rather than on their ability to do the job in question. Given the increasing widespread use of algorithmic tools in many employers’ hiring processes, this guidance has important implications for people with mental health disabilities, who may be inappropriately screened out of jobs based on their disabilities through personality tests and other screening tools.

You have heard me reference several times, the particular impact of some discriminatory practices on people with mental health disabilities who are Black and brown. I want to highlight that the Civil Rights Division is committed to looking at these issues through an intersectional lens and exploring the ways in which they may disproportionately impact communities of color. The overlapping impacts of discriminatory practices based on disability and race have appeared in many different contexts and we must find ways to address them.

I want to conclude by referencing Lois Curtis, one of the plaintiffs in the Olmstead case, in which the United States Supreme Court decided that the unnecessary segregation and institutionalization of people with disabilities was a form of discrimination prohibited by the ADA. Ms. Curtis died just one month ago, but her legacy lives large. Ms. Curtis, who had spent much of her life cycling between psychiatric hospitals and jails, often being picked up by law enforcement after her family called for help, was eventually confined in a state hospital for years after she was deemed ready for discharge. Her compelling advocacy helped secure not only her own discharge to the community with the services she needed to succeed, but also paved the way for so many other people with disabilities to live, work and thrive in their own homes and communities. Ms. Curtis eventually moved into her own apartment, worked as an artist, and exhibited her work in art galleries. She painted beautiful, bold and colorful portraits, one of which she presented to President Obama in the Oval Office.

She also became an advocate for the rights of people with disabilities following her success in the Supreme Court. Her legal battle was in some sense about “access to treatment” — at least which kinds of treatment and how and where it was delivered. But it was about so much more than simply “treatment.”  The vision that Ms. Curtis fought for is captured by what she told a reporter who asked her what she wanted for all of the people with disabilities who transitioned from institutions to their communities. She said: “I hope they live long lives and have their own place. I hope they make money. I hope they learn every day. I hope they meet new people, celebrate their birthdays, write letters, clean up, go to friends’ houses and drink coffee. I hope they have a good breakfast every day, call people on the phone, feel safe.”  Her words capture what we are fighting for everyday in the Civil Rights Division at the Justice Department. The vision we have for people with mental health disabilities is to have the same kinds of lives as people without disabilities, with the services they need but also the markers of human dignity and the ordinary things that we take for granted every day, that are essential to a life well lived.

Thank you so much.

Updated December 7, 2022