A disability justice approach to decarceration understands that jails and prisons exist on a spectrum of carcerality. This spectrum includes other forms of institutionalization, such that decarceration is one element of a larger effort to ensure that people with disabilities can live freely, with the necessary supports and accommodations for integration and autonomy in the community. Accordingly, efforts to reduce reliance on incarceration must extend beyond targeting jails and prisons and must answer the unmet needs of people with disabilities that have given rise to their criminalization. In addition, these efforts must engage with processes outside and adjacent to the criminal legal system through which criminalized people cycle.

Litigation challenging long waiting lists for admission to state psychiatric hospitals in order to obtain competency evaluations and restoration has sought to decarcerate people with mental health disabilities from jails in part through establishing community-based forensic evaluation and restoration systems, with wraparound services including housing. These wraparound services lay the groundwork for sustained liberation. Achieving these remedies requires the involvement of agencies outside of jails, including state departments of health, human services, and housing; prosecutors; defenders; and courts. It also requires an understanding of the pressures on bed space at state hospitals created by excessive use of civil commitment and other failures of community care. This trans-institutional understand-ing of decarceration by disability rights organizations provides a pathway to reduction in incarceration and investment in community care. Mental health services have been historically diminished by years of austerity measures in successive legislative cycles, most prominently in the years following the 2008 financial crisis. In more recent years, during and following the COVID-19 pandemic, workforce shortages in behavioral health, driven by both insufficient investment and increased demand, have frustrated the effectiveness of some renewed investment initiatives. As a result of these challenges to sustained investment in community mental health, the three largest providers of mental health services in the United States are not community centers or hospitals, but jails: Cook County Jail in Chicago, Los Angeles County Jail, and New York City’s Rikers Island Jail.

This Article attempts to illustrate the kinds of legal, policy, and budgetary shifts that are necessary in order to shift people in need of competency services out of jails and into community care. To lay the groundwork, this Article will explain the competency waitlist crisis, the legal order that attempts to regulate it, and the various pathways through which impacted people travel through incarceration, hospitalization, and community-based alternatives to these institutional responses. It will then examine two of the major permanent injunctions in competency waitlist litigation, Oregon Advocacy Center v. Mink and A.B. ex rel. Trueblood v. Washington State Department of Social and Health Services, that have resulted in significant decarceration of this population. Both lawsuits resulted in permanent injunctions limiting the number of days a state has to transfer a person from jail to a psychiatric facility for competency services. Enforcement of those timelines, however, has required years of litigation and innovation in service provision, including expansion of community-based competency programs, wraparound services, and housing. By exploring key and common features of the settlement enforcement efforts, this Article will attempt to identify key reforms necessary to ensure the liberty and due process interests of people criminalized with mental health disabilities.

Continue reading Creating Community Care: Decarceration Strategies in Competency Litigation