Two Cheers for Laura's Law

Kevin Fagan reports on the emerging debate about Laura's Law in California on the front page of today's SFChron. Laura's Law was adopted legislatively in 2003, named after Laura Wilcox, a Nevada county woman shot by a man with untreated mental illness. The law creates "assisted outpatient treatment" as a new alternative to civil commitment in California. Behind the law's enactment, as Fagan sketches, has been two disturbing features of contemporary California life; our grossly expanded prison system that held fewer than 30,000 prisoners in the early 1970s (when the state's landmark Lanterman Petris Short civil commitment reform law went into effect) to over 170,000 today. The fact that at least 15% (and perhaps many more) of these prisoners are suffering from a major mental illness is acknowledged by all. The second feature, whose dimensions are uncertain but whose obvious power over our political imagination requires no more evidence than the popular name of the law, is the plight of Laura Wilcox and other victims of violent assaults by assailants afflicted with severe mental illness.

Laura's law separates the question of compelled treatment from the question of involuntary confinement (the classic form of civil commitment). A court can order a person deemed to be "unlikely to survive safely in the community without supervision" to undergo medication, if they also find that they are "in need of assisted outpatient treatment in order to prevent a relapse or deterioration that would likely result in the person meeting California's inpatient commitment standard." The major problem with the law's implementation, so typical of the state's recent history of revenue free government, is that in order to make it budget neutral the legislature left it up to each county to implement and fund the law (two have, little Nevada, where 19 year old Laura lived, and giant Los Angeles). Proposition 63, enacted by California voters two years later, was supposed to remedy that by enacting a millionaire's tax (again way too typical of our distorted fiscal governance) to fund community mental health services. Only since most counties have never created implemented Laura's law lies largely untapped (except by creative deficit managers in the Governor's office).

Fagan's interlocutors, (many of them involved with the "Lanterman-Petris-Short Act Reform Roundtable" a diverse group of mental health providers, clients, families, and lawyers, exploring our mental health crisis more generally) believe the law would improve this situation. They point to New York, where the earlier Kendra's Law (named for a young woman pushed to her death in the New York City subway) has been implemented since 1999 and where some empirical studies now show substantial reductions in hospitalizations for those in the program compared to those subjected only to the traditional regime of no compelled treatment or full involuntary custody.

Should those concerned about mass incarceration in California support an effort to ramp up implementation of Laura's Law statewide? I'm ready to give it two cheers, but I doubt it will have much impact on incarceration unless its part of a more comprehensive effort to disentangle the mentally ill from our voracious carceral complex.

First cheer; if state coercion is going to be used (through a court) the goal of least restrictive custody should always favor community programs (of course that's been the explicit goal for forty years). De-institutionalization went along with a quantum reduction in state power to intervene legally in the lives of the mentally ill in the 1960s; but while the battle against the asylum system in the 1950s seemed to require tight coupling of the two, today's circumstances may require setting each more independently.

Second cheer, the law moves a step away from the focus on imminent threat of violence (the major focus of the reformed civil commitment standard in California and many states) to the question of whether the subject is on a predictable path toward that condition, a path that could be avoided by outpatient treatment. The civil commitment standard is classic "governing through crime," tying the legitimacy of state intervention to fear of violent crime rather than to questions of need, benefit, accountability, etc.

In the end, I fear Laura's Law is a flawed vehicle for the comprehensive reform we need. Without that comprehensive reform I would predict little change in the incarceration of the mentally ill in California even if the law is extended statewide.

First, the very name of the law traffics in the same fear based logic that has led to mass incarceration in California and elsewhere. Laura Wilcox, like Polly Klass and Kimber Reynolds (3-Strikes), Jessica Lund (Jessica's law), or Megan Kanka (Megan's law) were young middle class white females whose terrible and unanticipated murders devastated their families, shocked their communities, and became subjects of national "moral panics" with little grounding in policy analysis or evidence. Our collective response to the floridly and seriously mentally ill has always combined fear and sympathy (and often a layer of revulsion). The mentally ill are depicted alternatively as the most fearsome criminals or the most vulnerable victims. Our state policies have lurched from confining to embracing to abandoning them depending which one of these stereotypes is prevalent. Laura's law (and many of the current efforts to motivate adoption of a more proactive state posture) seeks to gain legitimacy through invoking the specter of terrible crimes against vulnerable victims, but those same fears block serious efforts to construct the kind of community based infrastructures that would be necessary to effectuate the law's ultimate goals.

Second, the law by itself adds a very weak power to a court system that must itself be reformed to take maximum advantage of what we now know about "therapeutic jurisprudence", that is the mental health effects of law and legal procedures themselves. The law is weak because all it can do to compel compliance is threaten to subject the mentally ill person resisting treatment to the same 72 hour hold that the law currently permits a police officer and medical provider to order when a person presents an imminent threat of harm to self or others. It is doubtful this is enough to gain compliance from those who have rejected existing efforts at voluntary treatment. More importantly, the law's design says nothing about the institutional shape that courts addressing this issue might take. New York has apparently seen some success with its version of involuntary outpatient assistance, but New York beats California institutionally on virtually every aspect of its correctional and mental health systems (but not higher education!). Just because it works there does not mean it will work here without serious institutional reforms.

Ironically, promising institutional designs are being field tested right now at the county level as part of diversion from criminal court. Many of these courts, like San Francisco's Behavioral Mental Health Court, combine a number of elements that have therapeutic value including collaborative case management by a team of legal and clinical specialists who maintain ongoing oversight of each client with regular public hearings before a specially trained judge who bestows normalizing praise and criticism as well as ordering greater supervision or treatment where needed.

Ultimately farther reaching changes must also be considered in the standards governing when the state can compel assistance along with the institutional reforms that would assure the right funding and organization of assistance.

Thanks to Kevin Fagan for front paging this issue. Stay tuned, reform of our mental health system is an important path out of the carceral dead end we are in.