I had the honor of speaking at Socialism 2024 with Liat Ben-Moshe, Leah Harris, and Eman Adbdelhadi on the panel “Care Not Courts.” I have reproduced my contribution below, which I think is a good indication of the direction I am currently taking on my research on psychiatry. (A little tease: I am currently about 1/4-1/3 of the way through writing a second book on the political economy of psychiatric services and the subjectivity of madness vis-a-vis labor.)
All the usual caveats apply: this was a short 15 minute contribution and was couched between three other talks that situated it in the broader context of our conjuncture (Abdelhadi), the critique of psychiatry and services (Ben-Moshe), and the more specific example of Assisted Outpatient Treatment or AOT (Harris). The whole thing will later be released as a podcast with Death Panel.
I want to talk about the organization of services in the US and give you a basic idea of how and why things are the way they are with a focus on California because it’s an example of broader trends. This explanation will be, by necessity, very general, and will not apply in every individual case. Even so, it’s necessary that we start to develop some concepts and understanding of the various forces at play.
When the California legislature passed the CARE Act (or Community Assistance, Recovery & Empowerment Act) in the fall last year, a lot of people were rightfully worried. The bill allows people to petition that an individual appear in a special court where they would be mandated to follow a course of treatment outlined by the court. Petitions can be made by family members, roommates or other close contacts, or by a service-provider or professional. The courts were touted as a solution to the state’s chronic failure to provide mental health care for the most needy, in this case, those living on the streets who were most likely to die or who were a threat to themselves or others. In addition to mental health services, the courts were supposed to be able to make housing placements for people in need. If the targeted individual refuses to comply with the treatment program, it’s possible to apply for a conservatorship (or guardianship). This constitutes a major loss of autonomy: those under guardianship orders lose their right to make decisions about where to live, how they travel, what programs or services they use, and much more.
Given all that, it was more than reasonable to fear about the potential uses to which such a system might be put. And indeed, many actors involved openly wax nostalgic about the “good old days” when you could simply lock people up in a total institution and be done with the problem.
But how does it look a year down the line? If anyone involved was hoping for a new therapeutic state capable of tending to the many needs of those living on the street or a psychiatric police state capable of identifying, processing, and incarcerating madness out of public view, that projects has been a failure so far. Los Angeles, using models purporting to estimate the number of mentally ill, homeless, and extrapolating from these a rough estimate of the “gravely disabled,” expected over 4,500 petitions to send someone to a CARE court in the first year; fewer than 150 have been made. Only 13 of them even made it through the trials. The rest had their cases dismissed. San Francisco, often cited alongside L.A. as a site of the state’s “homeless mentally ill” crisis, received only 28 in its first six months. All in all, it’s likely that fewer than 400 petitions have been made throughout the state. If other counties have a similar rate of successful trials, ~8%, that means about 32 people have actually been mandated with any treatment at all. It’s too early to say how many of those people have been forced into conservatorships, but, given that California already has multiple other routes to force people into treatment (from Lanterman-Petris Act commitments, to emergency holds, to forensic placements after or before criminal trials and more), I think we can say that the CARE Act did not materially move the state any closer to a functioning psychiatric police state than it already was.
Let me be clear: California, like New York and every other state in the country, has many avenues to force psychiatric patients to accept treatment and they already did before the CARE Act. So far, it seems to be a costly means of creating more paperwork for judges. And Newsom and the legislature seem to acknowledge its shortcomings, since they already cut $17.5 million from its current year budget and reallocated $59 million in future spending. So what was the point of the Act in the first place?
I propose that we understand psychiatric services as determined by (at least) four contradictory forces, each of which is riven by its own internal contradiction: 1) demand, which is split between the demand for effective treatment and the demand to clear the streets or the family living room of disruptive and problematic individuals; 2) juridicalization, which is split between libertarian protections and liberal entitlements; 3) privatization, split between the fee-for-service sector catering to the wealthy and a sector gobbling up public funds in economies of scale; 4) fiscal balancing acts, split between pants-tightening austerity measures and the strategic shifting of revenue flows that result in rapid, bizarre shifts in policy by necessity.
Demand
I’ll spend the least amount of time talking about demand. A clear understanding of the demand for psychiatric services would need to thoroughly examine the transition to wage labor globally and subsequent transformations in the family’s and local communities' form and capacity to reproduce itself. In very brief, at the risk of oversimplification, we can say that the temporal and spatial demands of wage labor, the insecurity of the market, and the need to be on the ready to move to chase wages destabilizes those families and communities that formerly were able to find accommodation for the less disruptive mad folk among them.
In a pattern that repeated itself around the world, the growth of towns based in wage labor and transient groups of workers found themselves burdened with an ever-growing pool of unproductive and disruptive individuals. Wherever this social relationship prevails, there exists a demand for some form of custodial treatment, for removal of madness, or for its treatment. In periods of large surpluses and affluence, when the demand for labor is high, a wave of optimism washes over families and treatment providers as greater and greater influxes of funding facilitate new treatment options and better environmental conditions in institutions, this demand more often manifests as a demand for effective treatment. In periods of austerity and fiscal belt-tightening, this optimism mutates into an insipid pessimism, fear takes the reins, and the popular cry is for a state project of disappearance.
Juridicalization
What makes understanding the laws regulating psychiatry in this country so difficult is the fact that, ever since Dorothea Dix failed to sway President Pierce to erect a federal system, decision making power and law has largely been decided at the local level: by state, municipal, and town authorities. In a sense, the mental health system has always been regulated by the judiciary: the courts have long circumscribed limits to commitments and treatment. But in the 19th and first half of the 20th century, the asylums’ relationship with the courts was more streamlined and far less antagonistic. Within their own walls, superintendents were like petty lords, exercising decision making power officially granted them by the legislature with the consent and approval of the local community with little federal involvement. What little regulatory power did exist was only really interested in egregious cases that would cause wider scandal: unacceptable environmental conditions, clear cases of violent or sexual abuse, or scam doctors that lined their pockets and ran.
The rumblings of change began in the early 20th century with the Mental Hygiene movement, Clifford Beers, Psychopathic Hospital reform, and various attempts to regulate the commitment process and expose institutional abuse. In the 60s, 70s, and 80s, cases started to pile up at the federal level in the supreme court that placed the burden on the state in trials to prove competency, that established a floor for adequate environmental conditions, that outlined the right to receive treatment when forcibly confined and the right to refuse treatment, forbid outright peonage, and greatly circumscribed the conditions for forced treatment (usually danger to self or others and grave disability). Lacking the means to explicitly force patients to perform free or cheap labor, saddled with the expectation to provide adequate environmental conditions and basic treatment, and facing an increasingly unionized labor force, many large hospitals buckled under the pressure and closed shop or rapidly changed their form.
Most of these rulings were protective, rights from something, rather than entitlements for anything. They protect individuals from incarceration, from abuse, from certain kinds of force, but they do not guarantee you anything. One is free to live a life lacking basic provisions and securities. It probably goes without saying at this point that such rulings did not, and could not, dramatically improve the prospects or life expectancy for the psychiatrized, but it did slow down and greatly complicate various processes in psychiatric care.
Privatization
At the same time the large hospitals either closed or transformed into clearing houses for processing a rapidly turned-over resident population, the public/private balance finally shifted towards the private end for the first time since the late 18th and early 19th centuries.
Private psychiatric care surged especially in regions without strict licensing requirements and regulatory bodies. Texas saw such a massive explosion in private care in the 80s that, by the end of the decade, faced a crisis of oversupply and price deflation. Private care takes root wherever insurance plans will pay for it and, since it’s completely unplanned, entrepreneurs are welcome to swoop in, make a quick buck, and close up shop. Only a small portion of psychiatric care has ever been out of pocket. The majority will pay with Medicaid, Medicare, or some form of private insurance. Private care is especially tied to parity laws that expand the kinds of mental health care private insurance will pay for, since these usually pay much better than Social Security insurance (Medicaid pays ~80% of what a private plan will pay on average). Today, over 80% of psychiatric treatment in the US is private with about 60% being nonprofit and 20% for profit, but, in some areas, the percentage of private for-profit care is even higher e.g. CA and TX. For-profits prefer to target the worried well with good insurance plans, extracting payments until they hit their cap and discharging them to a public service or out the front door.
Similarly, housing for the mentally ill has also been increasingly market determined. Wherever states and localities have fought to restrict Single-Room Occupancy units or SROs, people discharged from treatment without a job have very few options for an affordable home. They can spend the vast majority of their Social Security payment (if they receive one) on rent at a group home (or board and care home). In CA, residents are left with $4 on average after paying rent. Despite losing most of their money, it’s still not even close to enough to pay off exorbitant mortgages and fees plus labor, so group homes are currently hemorrhaging money and in decline where they lack official state subsidy.
Fiscal shortfalls
All this takes place in the midst of what Melinda Cooper called the long counter-revolution against the gains made in labor, the abundance spending strategy, and the imagined fiscal threat of social spending deficits of the mid 20th century. Beginning in the 70s, the state implemented increasingly harsh fiscal restrictions on social spending while bolstering their carceral armamentarium.
Psychiatric services were a frequent target of these cuts, in a process that went hand-in-hand with privatization, since the state was able to offload responsibility onto private firms while still claiming to foster a “community care system.” The federal government still pays for a lot of services, but indirectly through Social Security insurance payments, allowing it to evade rising public-sector unionization and abdicate responsibility for failings and shortcomings.
What type of psychiatric system do these four forces tend to foster? In short, a bloated and violent one with a great deal of coercion in some areas, stagnation in others, massive spending and price inflation, and terrible outcomes. There are many, many programs, some of which are well-funded, but none of which coordinate with one another because of the patchwork of legal regulations, the private-public mixture, and the jurisdictional divisions at the local, municipal, state, city, and federal levels (see Barnard). This means someone can be repeatedly hospitalized and move through the ER, outpatient programs, or inpatient hospitals without any follow up plans or support. The state is willing, in some cases, to spend thousands, even millions pushing single individuals to-and-fro, instead of simply guaranteeing easy access to basic provisions.
Since the meager mobile network of psychiatric workers fails to meet widespread demand, police usually respond to crises. People diagnosed with a mental illness are about 16 times more likely to be shot by the police. If you are one of the unfortunate people on Medicaid or lacking insurance completely, no one wants you, and you’re liable to simply sit in a jail cell where you might be murdered or starve to death like Larry Eugene Price, Jr. or Josh McLemore. If they do find a hospital to place you, in order to pay the bills on Medicaid funds, hospitals might lower environmental conditions, might engage in labor deskilling, or might commit outright violations to run economies of scale (packing as many bodies in the building as possible) or simple Medicaid fraud (a $100 B. industry). If you are “bad and poor” enough, you could qualify for any number of public services that each add a frayed and isolated patch to a quilt that fails to hold together. Even having good private insurance is no guarantee of safety, you could find yourself at the whims of a for-profit hospital with every intention of holding you until there’s nothing left to extract and you find yourself booted to the street, probably jobless and cashless. You could try to avoid the system entirely. Many choose this option after years of intrusive, failed interventions. In this case, you are exposed to the elements, to violence, to deprivation, and likely to an early death whether by hunger or at the hands of a vigilante on the subway.
Every year, states introduce impressive looking, expensive programs they promise will counter this mess. They say the problem is that the mentally ill are unaware of their problem so we need to force them into treatment. The reality is the mentally ill are already constantly forced into treatment, and this treatment fails. Big flashy programs amount to quick cash infusions that result in every qualifying business or institution “redistributing the poor” (to use the phrase from Armando Lara-Millán) to take advantage of the newly available revenue without fundamentally altering what they do. For instance, a jail might suddenly reclassify a group of inmates as “mentally ill” if it means grabbing hold of revenue made available to provide services in jail. The jury is still out, and much can still change, but I think a fair prediction is that this is what the CARE Act and Adam’s plans in New York will amount to: fast infusions of cash in one area (the judiciary, state hospitals), the pointless redirection of actors toward those areas, an increase in coercion without purpose, and a subsequent deflation and return to the status quo. The division between programs and the people they serve has less to do with rational planning and treatment innovation than with available funding in the ongoing retrenchment of anything resembling a public commons.
Don’t get me wrong: you should not read any nostalgia for any past organization in the mental health care system. Instead, we can say that, in the early 20th century, we had a national system of what Wilson Gilmore called “organized abandonment” in institutions characterized by a higher degree of coordination; today, we have a system of “disorganized abandonment”, shaped by conflict between the courts, institutions, law enforcement, real estate, and financiers. The loser, then and now, are the mad, many of whom face the choice not between life and death, but between different kinds and velocities of death.
Bibliography
ACLU. “Opposition letter to care courts.” April, 2022 https://www.aclusocal.org/sites/default/files/opposition_letter_to_care_court.pdf
Arango, Tim. “New California Court for the Mentally Ill Tests a State’s Liberal Values” The New York Times. March 21, 2024 https://www.nytimes.com/2024/03/21/us/california-care-court-mental-illness-homeless.html
Barnard, Alex V. Conservatorship: Inside California’s System of Coercion and Care for Mental Illness. Columbia University Press, 2023.
Barnard, Alex and Nick Reckenthaler. “Chronic, Disruptive, or Resistant? Target Ecologies and the Medicalization of Homelessness in California” Social Problems 19. April, 2024. https://academic.oup.com/socpro/advance-article-abstract/doi/10.1093/socpro/spae019/7641531
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