Tamar Ezer and Denise Tomasini-Joshi
The United States, with its inadequate social safety net and lack of community-based mental health resources, has come to rely on the criminal legal system to respond to mental health needs. “The mental health system is largely broken across the country. We’ve tried to paper over it by funding law enforcement.” This has transformed mental health into a law enforcement matter, with people with mental needs overrepresented throughout the criminal justice system. When mental health support is not available, the right to health is violated, and crises occur, leading to law enforcement interventions. In fact, almost one-third of people with severe mental distress have their first contact with mental health treatment through a law enforcement encounter. Police thus serve on the frontlines of psychiatric care without any expertise and in tension with their role as law enforcers.
People with untreated mental distress are 16 times more likely to be killed during a police encounter than other individuals. Moreover, between 25-50% of all fatal police shootings involve people with serious mental distress. This in spite of research that shows that “most encounters between police and persons with mental illnesses do not involve major crimes or violence, nor do they rise to the level of requiring emergency apprehension.”
Police are ill equipped in these encounters and generally have two choices: jail or hospital. However, a conversation can immediately help many people, and long-term solutions require holistic support, including counseling, housing, food, and harm reduction services. Detention and a criminal record only exacerbate problems. Criminalizing mental crises is also costly with more than 2 million people incarcerated in the United States every year and $918 million spent on transporting people to various facilities.
Criminalizing mental distress violates human rights
Criminalizing mental distress contravenes basic human rights, including the rights to life, health, freedom from arbitrary arrest and detention, liberty and security of person, equality, and freedom from torture and cruel, inhuman, and degrading treatment. A report by the UN Office of the High Commissioner for Human Rights identified the intervention of law enforcement officials as first responders in mental health crises as one of three key contexts that underlie over 85% of police-related fatalities, and recommended alternative methods to policing and the use of force these situations.
Training law enforcement officers about mental distress is insufficient to address these violations because the fundamental role of police, embedded in policies and culture, is to address criminality, not to provide care. Police have limited training in mental health and spend on average 71 hours on firearms training compared to 21 hours on de-escalation. Research has also found more police training on mental health and de-escalation does not reduce harmful encounters.
Thus, protecting the rights of people with mental distress requires a re-interpretation of the Americans with Disabilities Act (ADA) to call for non-police alternatives in mental health crises. The ADA—the federal law addressing discrimination against people with disabilities, including mental distress—requires “reasonable modifications in policies, practices, or procedures.” However, reasonable modification has been historically interpreted as simply more police training. Given the steady numbers of fatal encounters, alternative approaches are urgently needed.
Various promising initiatives now recognize mental health crises should not be a crime and should not involve police.
In October 2020, a new federal law created a three-digit 988 hotline for mental health emergencies, set to be operational nationwide by July 2022. It improves on the current 10-digit national suicide prevention hotline, which is difficult to remember, and the 911 system, which goes through the police, by routing calls to the to the closest mental health crisis center. This law also provides resources to strengthen the capacity of local crisis centers and allows states to collect taxes to cover costs, similar to how 911 is financed.
Additionally, the Mental Health Justice Act, introduced in Congress in February 2021, creates a national grant program to support local first responder units of mental health providers. In response to 911/988 calls, these units would work to diffuse mental health crises and serve as a gateway to services, including counselling, substance abuse treatment, and housing assistance. However, the act does not prohibit police involvement and lets each locality decide when and how to bring in police.
Even prior to national support through this legislation, cities such as Denver, Los Angeles, New York City, and San Francisco have piloted programs that place health personnel as first responders. Since June 2020, 911 operators in Denver have been able to dispatch a mental health clinician and paramedic team. In the first six months, they responded to 748 calls without a single use of force or call for armed backup.
These programs take inspiration from Crisis Assistance Helping Out in the Streets (CAHOOTS), established in 1989 in Eugene, Oregon. CAHOOTS mobilizes two-person teams consisting of a medic and crisis worker with mental health expertise as first responders. CAHOOTS teams do not carry weapons; they rely on trauma-informed de-escalation and harm reduction techniques to provide immediate stabilization, referral, advocacy, and if needed, transportation to treatment. In 2019, fewer than 1% of 24,000 calls to CAHOOTS required police back-up. Moreover, resolving about 20% of 911 calls, CAHOOTS has saved Eugene $8.5 million per year in public safety spending and $14 million in emergency medical costs.
Having police serve as first responders to mental health crises is ineffective, costly, and all too often tragic. It is time to take a different approach and employ first responders equipped to help, not criminalize. Relieving police from this role is an important step in respecting people’s rights, decriminalizing mental distress, and reducing fatalities. The United States further needs to invest in holistic support for people with mental stress, making crises less likely in the first place.
We are grateful to Mary Miller from the University of Miami School of Law for her support.
Tamar Ezer, JD, LLM, is the Faculty Director of the Human Rights Program, Associate Director of the Human Rights Clinic, and Lecturer in Law at the University of Miami School of Law, Miami, USA.
Denise Tomasini-Joshi, JD, MIA, is the Chief of Staff at the Innocence Project, New York, USA.
 F. Akinnibi, “NYC pilot tries mental health responders instead of police,” Bloomberg CityLab (November 13, 2020). Available at https://www.bloomberg.com/news/articles/2020-11-13/nyc-pilot-sends-health-workers-in-place-of-police?utm_source=Daily+Links+for+Social+Sharing&utm_campaign=77012d5c76-EMAIL_CAMPAIGN_2020_11_24_06_53&utm_medium=email&utm_term=0_2727fb3873-77012d5c76-50183436.
 Treatment Advocacy Center, “People with untreated mental illness are 16 times more likely to be killed by law enforcement,” (December 9, 2015). Available at https://www.treatmentadvocacycenter.org/key-issues/criminalization-of-mental-illness/2976-people-with-untreated-mental-illness-16-times-more-likely-to-be-killed-by-law-enforcement-.
 Treatment Advocacy Center, “Road runners: The role and impact of law enforcement in transporting individuals with Severe Mental Illness,” (May 7, 2019). Available at https://www.treatmentadvocacycenter.org/road-runners.
 Treatment Advocacy Center, “People with untreated mental illness are 16 times more likely to be killed by law enforcement,” (see note 2); Treatment Advocacy Center, “Overlooked in the undercounted: The role of mental illness in fatal law enforcement encounters,” (December 2015). Available at https://www.treatmentadvocacycenter.org/overlooked-in-the-undercounted.
 Treatment Advocacy Center, “Overlooked in the undercounted: The role of mental illness in fatal law enforcement encounters,” (see note 4).
 J. Wood, A. Watson, A. Fulambarker, “The “gray zone” of police work during mental health encounters: Findings from an observational study in Chicago, Police Quarterly (July 13, 2016). Available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5342894/.
 Akinnibi (2020, see note 1).
 Akinnibi (2020, see note 1). See also P. A. Goff, K. Porter, “A mental health crisis is not a crime,” New York Times (July 2, 2021). Available at https://www.nytimes.com/2021/07/06/opinion/mental-health-police-violence-congress.html?referringSource=articleShare.
 P. A. Goff, K. Porter (2020, see note 8)
Akinnibi (2020, see note 1); M. Balfour, A. Hahn Stephenson, J. Winksy, M. Goldman, “Cops, clinicians, or both? Collaborative approaches to responding to behavioral health emergencies,” National Association of State Mental Health Program Directors (August 2020). Available at https://www.nasmhpd.org/sites/default/files/2020paper11.pdf).
 Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 3, 5, 7, 9, 25(1); International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 6, 7, 9, 26; International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 12; Convention on the Rights of Persons with Disabilities, G.A. Res. A/RES/61/106 (2006), art. 5, 10, 14, 15, 25; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/45 (1984), art. 2, 16(1).
 Office of the United Nations High Commissioner for Human Rights, Promotion and protection of the human rights and fundamental freedoms of Africans and of people of African descent against excessive use of force and other human rights violations by law enforcement officers, para. 42 (June 2021). Available at https://undocs.org/A/HRC/47/53.
 M. Pauly, “How police officer are (or aren’t) trained in mental health,” The Atlantic (October 11, 2013). Available at https://www.theatlantic.com/health/archive/2013/10/how-police-officers-are-or-aren-t-trained-in-mental-health/280485/.; B. Reaves, “State and local law enforcement training academies,” U.S. Department of Justice (July 2016). Available at https://bjs.ojp.gov/content/pub/pdf/slleta13.pdf.
 R. Kumar, “Envisioning an America free from police violence and control,” The Intercept (October 15, 2017). Available at https://theintercept.com/2017/10/15/alex-vitale-interview-the-end-of-policing/.
 28 C.F.R. § 35.130(b)(7) (2016).
 E. Gormley, “Social workers can’t help people in crisis by partnering with police,” Jacobin (April 25, 2021). Available at https://jacobinmag.com/2021/04/social-workers-police-chicago-co-responder-model; https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/06/23/if-the-police-arent-needed-lets-leave-them-out-completely.
 R. Chatterjee, “New law creates 988 hotline for mental health emergencies,” NPR (October 19, 2020). Available at https://www.npr.org/sections/health-shots/2020/10/19/925447354/new-law-creates-988-hotline-for-mental-health-emergencies.
 Ibid.; “CDC designates 988 as a nationwide national mental health crisis and suicide prevention number: NAMI urges house passage of 988 bill,” NAMI (National Alliance on Mental Illness) News (July 16, 2020). Available at https://www.nami.org/About-NAMI/NAMI-News/2020/FCC-Designates-988-as-a-Nationwide-Mental-Health-Crisis-and-Suicide-Prevention-Number.
 P. A. Goff, K. Porter (2020, see note 8); H.R. 1368- Mental Health Justice Act of 2021, (February 25, 2021). Available at https://www.congress.gov/bill/117th-congress/house-bill/1368/text.
 P. A. Goff, K. Porter (2020, see note 8).
 Akinnibi (2020, see note 1).
 P. A. Goff, K. Porter (2020, see note 8).
 Akinnibi (2020, see note 1).
 What is Cahoots?, White Bird Clinic (June 29, 2020), https://whitebirdclinic.org/what-is-cahoots/.
 Akinnibi (2020, see note 1); White Bird Clinic (2020, see note 25).