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We must decriminalize mental illness to save lives

We must decriminalize mental illness to save lives
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At a time when insurmountable divisions rive our nation, there are still opportunities to find common ground. One example is the need to reduce our over-reliance on law enforcement to provide desperately needed mental health care. 

As a consequence of decades of discrimination, underfunding and marginalization of those with mental health and substance use disorders, our nation has largely ceded its responsibility for caring for the most seriously ill to the criminal justice system.

By any measurable metric, this is a failed policy. 

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A report by the Treatment Advocacy Center found that law enforcement officers now spend a fifth of their time responding to mental health crises. In contrast, two million people with mental illness are booked into jails every year. This raises the risk of harm for all involved; those with mental illness are 16 times more likely to be killed in an encounter with law enforcement than other members of the general public.

In response, communities have begun to adopt policies that seek to decriminalize mental health response. Programs like CAHOOTS from Eugene, Oregon, or RIGHT CARE in Dallas, Texas, shift the expectation away from a traditional law enforcement-led model in favor of responses that rely on medical professionals as the point of the first contact. 

These steps are to be lauded. But we cannot stop there. Simply deputizing new crisis response teams without addressing the underlying causes for crisis in the first place is a strategy that’s ultimately destined to fail.

There are vast, systemic problems at play, and our response must be commensurate. 

A new law in California gives us a sense of the scale necessary to address this crisis. SB 855, signed by Gov. Newsom in late September and sponsored by The Kennedy Forum, is a landmark piece of health insurance parity legislation that recognizes families shouldn’t have to go bankrupt paying for mental health or addiction treatment or rely on law enforcement to pursue care.

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The federal government has a similar opportunity to end longstanding discrimination against those with mental health and substance use disorders by eliminating the Institutions for Mental Disease (IMD) exclusion. 

A vestige of the 1960s, the IMD exclusion prohibits Medicaid, the nation’s largest payer of mental health and addiction treatment services, from reimbursing facilities with more than 16 beds, effectively putting an artificial cap on the availability of inpatient treatment. As a consequence, the United States now has only 20 beds per 100,000 population. Only four countries in the developed world have fewer. 

With fewer beds available, treatment is necessarily rationed. Availability is determined not on medical need but the likelihood of violence. Therefore, crisis becomes the predicate for care, rather than a problem to be avoided. 

The restriction also limits communities' ability to fully fund integrated crisis services, again making criminalization more likely. Another 2019 report from Treatment Advocacy Center found that the average distance to transport an individual experiencing a mental health crisis to a medical facility was five times longer than the distance to transport them to jail, with officers having to wait for 72 hours or more a bed became available.

Thankfully, this is an issue where we have already seen the rare, widespread bipartisan agreement. Both Obama and Trump administrations took steps to limit the IMD exclusion through regulation. While these actions were welcome, Congress enacted the IMD exclusion in the 1960s; Congress must eliminate it. This should be coupled with increased funding to support a robust continuum of crisis services in communities to meet individuals' needs.

Law enforcement is also championing its elimination, with the National Sheriffs’ Association declaring the IMD exclusion “prevents communities from funding needed treatment beds.” The National Alliance on Mental Illness and the American Psychiatric Association have taken similar stances.

We have allowed those needing mental health and addiction treatment services to be marginalized for far too long, leaving our criminal justice system to pick up the slack. Now,  more than ever, we must unite in our efforts to right this wrong and ensure a more equitable system moving forward.  

No one should be forced into jail or prison — or worse, lose their life at the hands of law enforcement — because of a treatable brain disorder. We wouldn’t tolerate this type of discrimination for any other illness. It’s time to act.

Patrick J. Kennedy, former U.S. representative (D-R.I.) from 1995 to 2011, is the founder of The Kennedy Forum.

John Snook is the executive director of the Treatment Advocacy Center, a national mental illness policy nonprofit.