How the Trump Administration Made It Easier to Institutionalize the Mentally Ill
The Department of Justice has taken a big, if somewhat unheralded, step to reverse the trend of deinstitutionalization of the mentally ill in America.
Earlier in June, the DOJ’s Office of Legal Counsel announced in a memorandum that it would update its treatment of Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act.
The section of a law passed by Congress in 1973 prohibited discrimination based on disability by “any program or activity receiving Federal financial assistance.”
Following the 1999 Supreme Court case Olmstead v. L.C., states were essentially pressured by the federal government to provide funding for mentally ill or disabled people to operate in the community or at home care and outside institutions.
In the past, DOJ has further insisted that states provide the most integrated settings for the mentally ill and disabled, which effectively means that they are put in “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.”
So, the DOJ effectively threatened states and prevented them from putting mentally ill people in institutions. This was seen as “progress.”
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“By threatening or bringing federal enforcement action, [Civil Rights Division] has successfully elicited consent decrees, remedial orders, or out-of-court agreements in nearly a dozen states, obligating the participants to meet DOJ’s deinstitutionalization benchmarks,” the June 18 DOJ memo noted.
No longer.
The Office of Legal Counsel concluded that the Olmstead decision does not impose “an integration mandate as a requirement of Title II.”
The DOJ found that in its reading of the Olmstead case and following court decisions, “the opinion permits treatment in an institution based on professional assessment and patient consent. It does not say that these factors are the only acceptable justifications.”
It therefore found that Title II doesn’t mandate “maximal integration in state treatment of mentally disabled patients.”
This essentially means that states will now have the freedom to operate under looser restrictions, and they may choose to opt for a higher degree of institutionalization of the mentally ill and disabled rather than the community-based options they were forced to use before.
As one could imagine, this decision was met with a great deal of howling from the left-leaning media and various “disability advocate” groups.
“It is now the position of the United States government that people with disabilities don’t have a right to be part of their communities,” Alison Barkoff, a professor at George Washington University who worked on disability policy in both the Biden and Obama administrations, according to an interview with NPR. “I can’t overstate how significant this change in position is.”
NPR wrote that “legal experts” warned that the memo could facilitate a “return to what was once common practice: de facto segregation of Americans with disabilities in nursing homes and large institutions.”
Some Democrat members of Congress responded to the change with outrage as well.
“This memorandum threatens to turn back the clock on decades of hard-won progress,” wrote Rep. Ritchie Torres, D-N.Y., following the memo’s release. “The federal government should protect the right of people with disabilities to receive services in the most integrated setting appropriate to their needs, not reopen a door we rightly closed.”
Unfortunately, due to a lot of “hard-won progress,” many of the mentally ill end up on the streets or in jail. They often cause harm to themselves and others that could be prevented.
Buzzwords like “segregation” and “disability right” gloss over the very real problems our new system has caused.
As Devon Kurtz, director of public safety policy at the Cicero Institute, wrote in a paper about the deterioration of treatment of mental illness, “the responsibility and discretion afforded to state and local governments over the treatment of mental illness was eroded by the federal government.”
He wrote that “psychiatric institutions emerged out of a genuine need for intensive, residential respite for mentally ill individuals who were not adequately cared for while living within early American communities.” These institutions were created to “address the problem of neglecting mentally ill individuals into homelessness and incarceration.”
But we’ve returned to higher rates of homelessness and incarceration in recent decades due to the federal government’s war on institutionalization. The improvements that these institutions made in the humane treatment of patients were cut off by federal and state policies.
Institutions closed, beds disappeared, and outcomes deteriorated for both the patients and society.
Thanks to the Department of Justice under President Donald Trump, that trend may begin to change.
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