Attorney Christopher Thomas joins producer/host Coralie Chun Matayoshi to discuss a recent U.S. Supreme Court case that allows municipalities to ban individuals from sleeping on the streets and a new bill signed into law that creates a crisis intervention program to redirect people with mental health disorders from the criminal justice system into appropriate health care facilities.
Q. In the last few years, government has made a concerted effort to focus on helping mentally ill chronically homeless individuals who would benefit from medical treatment outside of a hospital, rather than a sentence to jail. What is the relationship between homelessness and serious mental illness?
- Homelessness: 30% of the chronically homeless population is estimated to have Serious Mental Illness (SMI), primarily schizophrenia, schizoaffective disorder, or bipolar disorder.
- Arrests: over 1.8 million people with SMI are booked into jails every year.
- Incarceration: 20% of jail and prison inmates are estimated to have SMI.
- Suicidal: up to 50% of those with schizophrenia or bipolar disorder attempt suicide, and far more kill themselves than people without these disorders.
- Danger to others: 7% of all homicides, 20% of all law enforcement officer fatalities and up to 50% of mass homicides are associated with SMI.
Q. Last year, we talked about Assisted Community Treatment (ACT), popularly known as “street medicine” which allows medication to be administered to chronically homeless individuals. ACT can be used outside of a hospital or emergency room. Can you briefly explain who it applies to and how it is working?
ACT applies to any individual who is suffering from mental illness and/or substance abuse, to an extreme, that it affects their safety and the safety of the community. ACT law determines if the person in unable to adhere to voluntary medication that would treat their mental illness and, in turn, assist in their substance abuse treatment. If the person has a history of being unable to adhere to voluntary medication, ACT laws allow for mandatory medication as long as it is medically appropriate. Severe mental illness impairs a person’s ability to understand and perceive his or her illness and leads to inability to seek treatment and is the single biggest reason why people with diseases such as schizophrenia or bipolar disorder refuse medications or do not seek treatment. Due to severe mental illness or substance abuse, they lack the legal capacity to care for their own basic needs. One of the symptoms of serious mental illness is anosognosia, which is a situation whereupon the individual does not appreciate that they are ill; the mental illness, coupled with anosognosia, makes these patients difficult to medicate. As a result, they become very dangerous to themselves or others in society.
Our ACT laws have been amended recently in several important ways to make better use of our law to be more efficient and helpful to the individuals being treated. The important changes are as follows:
- Extending the length of an order from one year to two years;
- Making the appointment of a Guardian Ad Litem to a patient mandatory versus discretionary;
- Increasing state government involvement in identifying persons living homeless with serious mental illness and getting them treatment sooner (SB3139);
- Making the appointment of an attorney for a respondent discretionary by the Court if the Court determines appropriate; and
Our goal in the use of ACT law, and working to improve the law, is to allow the treatment of more people who need help. Our current law is not perfect, but we are making progress in the use of ACT. The teams that I work with believe that persons suffering from homelessness and serious mental illness have a right to medical treatment and getting them that treatment is both good for our patients and good for the State. We are seeking to “scale up” our case and efforts to treat more persons, either before court orders are needed, or with court orders if necessary. The State Attorney General’s office is also ramping up efforts to seek more ACT Orders, which is very helpful to the work that private organizations are doing. I am partnered with the Institute of Human Services on Oahu; where their teams are tracking and treating hundreds of patients; both with court orders and without. I recently also began a partnership with Hope Services on the Big Island to begin a similar program. Hopefully, the use of the law will become widely used, state-wide, and we can reach as many people as possible. Right now, we have 82 clients medicated and we have 44 ACT orders and 22 guardianship orders. We are tracking 143 clients, but have discharged over 100 because they moved, did not meet Outreach Navigation Program criteria, stabilized, or passed away.
Q. Senate Bill 3139 just signed into law by the Governor, establishes a crisis intervention program to redirect people with mental health disorders from the criminal justice system into appropriate health care facilities. Tell us how this will work and are there any safeguards in place?
SB 3139 creates a crisis intervention and diversion services program within the state Department of Health, aimed at steering individuals with mental health and substance use disorders away from the criminal justice system and toward appropriate health care services. “Through this bill, we affirm our commitment to a more humane and effective approach to addressing mental health crises in our communities. By prioritizing access to crisis intervention services, we can support individuals in need and foster healthier outcomes for everyone,” said Governor Green. Senate Bill 3139 is designed to allow law enforcement officers to spend less time with homeless patients waiting for them to be seen in emergency rooms such as The Queen's Medical Center that are disproportionately used by homeless people. Instead, officers would take homeless people directly to the new Behavioral Health Crisis Center in a process that would take five to seven minutes. The center sits in the middle of a growing complex of buildings and programs intended to help reduce homelessness by providing a wide range of services. The physical setting, atmosphere and approach by the staff at the crisis center are all intended to make the experience less stressful for patients and, ideally more willing for them to accept help, even for those who arrive in handcuffs.
HB 2159 amends Hawaii’s mental health statutes, emphasizing enhanced support for individuals needing Assisted Community Treatment. This bill requires the Department of the Attorney General to assist in preparing and filing petitions for ACT, ensuring that individuals receive necessary psychiatric evaluations before discharge from psychiatric facilities, and allowing private petitioners the option to decline state assistance. These changes aim to streamline access to mental health services and divert individuals away from the criminal justice system, promoting a more compassionate and effective approach to mental health care in Hawaii.
Q. The U.S. Supreme Court just decided a case that allows municipalities to ban individuals from sleeping on the streets.
The U.S. Supreme Court’s decision in City of Grants Pass v. Johnson allows state and local governments to prohibit overnight “camping” in certain public areas, very much targeting homeless persons sleeping in public. The Grants Pass city ordinance was challenged on the premise that punishing homeless persons for sleeping in public areas was discriminatory and punishing persons for their status of being homeless, The challenge was that criminalizing public sleeping by homeless persons constituted cruel and unusual punishment under the 8th Amendment to U.S. Constitution. As the opposition to the ordinance highlighted, the original intent and meaning of the Eighth Amendment and its application in more than a century of Supreme Court cases make clear that the government cannot impose punishment that is disproportionate to the crime. The Supreme Court rejected that challenge by majority opinion. The results of this case are clearly foreseeable. This ruling gives the State and law enforcement the ability to arrest and prosecute people who have no other choice than camping of public property, significantly hindering the ability of such individuals to get out of a homeless situation. While there are clear defenses to prosecution in court (necessity defense) the ramifications of being jailed even briefly and brought into court cause the accused to become institutionalized into inescapable homelessness status. The Supreme Court’s approach galvanizes an “enforcement first” policy toward homelessness. This means that governments are given the green light to use criminal prosecution to manage their homelessness policies.
Several municipalities on the mainland have adopted a “housing first” policy toward homelessness, where the efforts of government are focused on providing housing as a solution to homelessness, rather than criminal prosecution on the premise that punishing persons for trespassing violations does not solve their homelessness problem. "Housing First" is an approach to homelessness that seeks to put clients into homes without contingencies or prerequisites. The idea is that housing people is (1) more cost effective and (2) makes them more likely to seek and utilize resources that are normally requirements for housing. Hawaii actually has its own Housing First Policy and funding established in Section 346-378 of the Hawaii Revised Statutes. An evaluation of the cost-benefit of housing first done by the University of Hawaii in 2022 found that the State saved $6,197 in health care costs per month per housed client (people housed required less treatment paid for by taxes). After factoring in the cost to house these people (rent and other services) the State saves $4,246 per month per client. The analysis also finds that the annual cost of incarceration per person is $51,000, while the annual cost of housing a client is $20,000-$30,000, likely saving the State money because housed clients had 61% fewer arrests and were incarcerated less than half as many days after receiving housing. In Mahelona et al v. City & County of Honolulu, the plaintiffs had alleged that homeless sweeps and other homeless laws “unjustly criminalized acts of survival that houseless people have no choice but to perform in public place” which constituted cruel and unusual punishment in violation of the Hawaii Constitution. The American Civil Liberties Union of Hawaii and City Council of Honolulu jointly agreed to dismiss the lawsuit after a State Circuit Court judge denied the plaintiff’s motion for a preliminary injunction.
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Disclaimer: this material is intended for informational purposes only and does not constitute legal advice. The law varies by jurisdiction and is constantly changing. For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.