Governor Gavin Newsom has a bold new plan for a court system that he hopes will be a salve for the state’s twin homelessness and mental health crises. The details of his vision have yet to be fleshed out, but its principles are similar to a creative court program already in existence in Santa Monica.

On March 3, Newsom unveiled a proposal for a statewide network of mental health-focused courts called CARE Courts, which stands for Community Assistance, Recovery, and Empowerment. The courts’ goal would be to leverage the judicial system to compel severely mentally ill individuals to accept services and treatments without impinging on their civil rights.

If approved by the legislature, every California county would be required to establish a CARE Court as a part of its civil court system. Individuals with mental health and substance use disorders could be referred to a CARE Court hearing by family members, law enforcement, homeless service providers and medical providers. Participation in court would be voluntary.

In court, individuals would be given a public defender and a personal advocate to help form a treatment plan for the judge’s approval, which would manage behavioral health issues and, when relevant, transition an individual into housing. The County would then be legally required to provide those services, meaning that the system would require significant investment in mental health, substance use recovery and housing resources statewide.

The CARE Court proposal is inspired by the model of local homeless community courts (HCCs), which have been established in cities across California to connect unhoused individuals to services and treatment. While the structure of these courts varies from location to location, they typically require unhoused individuals to follow a treatment plan in return for having misdemeanor charges expunged from their record upon completion. An example plan might include applying for housing resources, attending substance use counseling, meeting regularly with a case manager and showing up to follow-up hearings.

Santa Monica has one of the oldest HCCs and while it only handles a handful of participants at a time, it has had consistent success in breaking cycles of chronic homelessness throughout its 15 year history. From February 2007 through June 2019 it had 301 total participants, 181 of whom completed their 6 to 12 month treatment plan and 120 of whom moved into permanent housing.

“Ours is a really intensive collaborative restorative justice and therapeutic justice program, meaning that yes, we will help clients resolve their legal and their criminal cases, but this is in exchange for them participating meaningfully on developing housing and treatment goals,” said Brian Hardgrave, who is a senior human services analyst and helps oversee the court.

Similar successful homeless community courts have been established in San Diego, Redondo Beach, Long Beach, Ventura County and Orange County.

Newsom’s CARE Court proposal shares many principles with HCCs—therapeutic justice, client-centered support, community based resources, and interventions over incarceration—however it also differs in key ways.

HCCs and CARE Courts target different populations.

While HCCs primarily work with homeless individuals who have had repeated interactions with the justice system, the focus of CARE Court is on individuals, both housed and unhoused, with severe mental health and substance use disorders. There is a specific emphasis on people with schizophrenia or psychotic disorders and the governor’s office estimates that between 7,000 to 12,000 people could qualify for CARE Court each year.

While participation in both courts is voluntary they each have a different relationship with the criminal justice system.

People referred to HCCs generally have some sort of criminal record related to their mental illness or substance use. The prospect of having low level charges expunged helps motivate commitment to a treatment plan.

Individuals may be referred to CARE Court after having a misdemeanor charge filed due to mental illness or substance use, however there are several other pathways to qualify for a hearing. People coming off of 72-hour mental health holds can be referred to CARE Courts and family members can petition the court to implement a plan for a loved one suffering from mental illness. First responders and mental health service providers can also refer people.

The CARE Court framework aims to fill a hole in California’s legal system, which has very limited pathways for compelling mentally ill individuals into treatment. Currently, the main options are a 72-hour psychiatric hold, which is short-term intervention, and a conservatorship, where an individual is appointed to oversee treatment for an adult with serious mental illness, which is challenging to get court approved. As a result, severely mentally ill individuals frequently experience repeat 72 -hour holds and often end up on the streets or behind bars.

“CARE Court is about meeting people where they are and acting with compassion to support the thousands of Californians living on our streets with severe mental health and substance use disorders,” said Governor Newsom in a March 3 press release announcing the plan. “We are taking action to break the pattern that leaves people without hope and cycling repeatedly through homelessness and incarceration.”

The plan has been met with broad support from local governments across the state and specifically in Los Angeles, which alongside San Francisco is at the epicenter of California’s homelessness and mental health crises.

“Unfortunately, we know that many of our neighbors are not ready for temporary or even permanent supportive housing. In some cases they aren’t in a red zone either where they need a traditional conservatorship. That’s why I want to wholeheartedly embrace the CARE Courts that the Governor has put forward,” said City of L.A. Mayor Eric Garcetti during a March 4 news conference from the California Big City Mayors. “Right now there is a gap in the system and this would seek to fill it.”

In Santa Monica, the homeless population experiences a high frequency of mental illness and the City employs a string of strategies to connect individuals to treatment.

Homeless service providers utilize the principle of relentless engagement to try to convince individuals to accept treatment such as anti-psychotic drugs, visits to sobering or mental health treatment facilities and outpatient counseling.

The Santa Monica Police Department has a diversion program embedded in its jails called the Alternatives to Incarceration Initiative (ATI). Through ATI mentally ill, homeless and substance-using individuals who commit low level crimes are eligible to have their charges dismissed if they agree to be diverted to an appropriate treatment facility and follow a 90 day treatment plan. This is a separate program from the HCC and is designed as a more immediate intervention for first-time offenders as compared to the 6 to 12 month treatment commitment the HCC asks of chronically homeless offenders.

Mentally ill and substance using individuals who are registered sex offenders or commit more serious crimes such as felonies are not eligible for ATI or HCC and instead pass through the traditional justice system — as does anyone who declines to participate in ATI or HCC. If individuals lack the reasoning capacity to stand trial, they are referred to a court in Hollywood that specializes in handling these types of cases.

Even with these efforts in place, the City’s soundscape remains frequently punctuated by the screams and rants of mentally ill individuals who are unable or unwilling to access treatment.

John Maceri, the CEO of Santa Monica’s largest homeless services provider The People Concern, expressed optimism that CARE Courts could be a resource for some of this population. His homeless multidisciplinary street teams work to connect mentally ill and substance-using individuals to services, but have limits of their modes of recourse.

If a mentally ill individual poses an active threat to themselves or others, outreach workers can call 911 and wait for emergency responders to transport them for a 72-hour hold. In order to begin the lengthy process of establishing a conservatorship, the individual must meet the definition of being gravely disabled, meaning they are unable to fulfill their own basic needs for food, clothing and shelter.

“We see it every day with the outreach teams on the streets working with individuals who are significantly impaired, but they don’t meet the definition of grave disability and so right now, the way the system is structured, it really skews towards not being able to help those individuals as quickly as we can,” said Maceri. “I think what CARE Court does is provide an alternative for people who will be able to get into care and treatment faster.”

One glaring question Newsom has yet to address is how CARE Courts will better encourage individuals to accept treatment given that participation is voluntary.

Medication can be court mandated, but individuals cannot be forced to take it and failure to follow a treatment plan will not carry its own criminal penalty. Failure to follow a treatment plan could lead an individual to a 72-hour hold or on the pathway to a conservatorship, but the legal requirements for both actions will remain the same as they are now.

Earlier this year, Newsom floated the idea of reforming California’s conservatorship law to lower the bar of being gravely disabled and make it easier to force people into treatment. This received strong push back from disability and civil rights organizations, who fear the system would be unjustly used to remove people’s autonomy. Even the more middle ground CARE Court proposal is being met with trepidation by some groups.

“The CARE acronym stands for community assistance, recovery, and empowerment, and Disability Rights California supports all of those goals for Californians with mental health disabilities. However, these services held under a court’s jurisdiction are likely to take on a form of coercion that deprives people with disabilities of their fundamental right to self-determination,” stated Disability Rights California in a March 7 official response to Governor Newsom’s CARE Court Framework.

In the statement, Disability Rights California urged Newsom undertake an equity analysis of the CARE Court framework that focuses on individuals at the highest risk of experiencing discrimination, incarceration and coercion prior to finalizing it.

Although CARE Court is voluntary, there are several aspects of the court that could increase the likelihood of an individual committing to treatment.

The first is the presence of an authority figure overseeing the treatment plan. A 2018 RAND Institute analysis of the effectiveness of Santa Monica’s Homeless Community Court said the court benefited from “the black robe effect,” which motivates individuals to abide by court orders.

“I could say the same thing to a client over and over, explaining to them consequences and things like this, but they don’t really hear it from me. Then they go stand in front of a judge and all of a sudden it carries a different weight,” said a service provider who was interviewed for the report.

Another helpful factor is that CARE Court would form a pipeline to mental health treatment for vulnerable populations who may not otherwise access it. For example, when people have a mentally ill loved one who does not meet the criteria for conservatorship, they are often at a loss when it comes to getting them a treatment plan. Additionally, it gives clinicians a place to refer 72-hour hold patients after their hold expires, which could decrease the odds of patients simply returning to the streets until their next mental health crisis.

Lastly, the CARE Court framework is designed to address the shortage of mental health, substance use and housing services by legally requiring that counties provide the court ordered services. Newsom has not specifically outlined how this ramp up in services will be funded, but has asked the legislature for almost $10 billion in annual funding for community behavioral health services.

On the other hand there is also reason to doubt the efficacy that CARE Courts will have at increasing treatment outcomes in practice. HCCs across California have struggled to motivate participants to follow through with their plans.

Around 40 percent of Santa Monica’s HCC participants have not historically completed their treatment plans. In the RAND study one homeless court participant who failed to complete his treatment plan said that the 13 days he ended up spending in jail was about equal to having to complete his one year commitment to the court.

In recent years the number of participants in Santa Monica’s HCC have dwindled from around a dozen at a time to five or six at a time. The RAND report and City staff speculate that this could be related to criminal justice reforms that have reduced their stick — namely, the severity of misdemeanor punishments that participants face if they don’t opt into court.

“We would love to have more people in homeless court, but unfortunately given the criminal justice reform measures and what misdemeanors really and truly do carry, folks have to be willing to spend six weeks to six months working through their barriers to housing, as opposed to just taking the misdemeanor conviction and being done with their case in a day with no jail time, no repercussions besides maybe a stay away order,” said Deputy City Attorney Jenna Grigsby.

CARE Court will not have the misdemeanor stick at all. It is designed as an intervention prior to an individual ending up in the justice system and is not an option individuals can select as an alternative to having a criminal case filed. Motivation will have to come from a participants’ desire to get better and avoid down the line actions that could lead them to the carceral system or a conservatorship.

So, could Newsom’s new mental health court be a fix for local homelessness? Maybe, but the proof will have to come in time with pending legislative approval and the yet to be revealed details of how the plan will be implemented.