Here We Go Again: RESPONSE Act Pushes Forced Treatment of the “Mentally Ill” As Solution to Mass Killings

On October 23, Senator John Cornyn (R-TX) announced the introduction of the Restoring, Enhancing, Strengthening and Promoting Our Nation’s Safety Efforts (RESPONSE) Act, in the wake of two mass shootings in August in El Paso and Midland-Odessa, TX. The RESPONSE Act asserts that there is a link between mass violence and psychiatric disability; calls for the expansion of involuntary mental health treatment, including long-acting injectable antipsychotic drugs; promotes greater collaboration between law enforcement and mental health authorities; and would increase the digital surveillance and criminalization of American schoolchildren.

The RESPONSE Act is similar to the 2013 Helping Families in Mental Health Crisis Act, also known as the Murphy Bill, spearheaded by former Rep. Tim Murphy (R-Pa.) after the mass shooting at Sandy Hook Elementary in December 2012. The bill is endorsed by many of the same organizations that supported former Rep. Murphy’s legislative efforts, some provisions of which were eventually folded into the 21st Century Cures Act. These include the National Council for Behavioral Health, the National Alliance on Mental Illness, the National District Attorneys Association, Treatment Advocacy Center, Fraternal Order of Police, National Association of Police Organizations, National Sheriffs Association, and Major Cities Chiefs.

Advocates Respond: Gun Violence is Not a Mental Health Issue

The proposed legislation has prompted a sharp response from leading disability rights, civil rights, education, and privacy organizations, including the National Disability Rights Network, The American Association of People with Disabilities, The National Council on Independent Living, the Disability Rights Education and Defense Fund, The Bazelon Center for Mental Health Law, and the Autistic Self-Advocacy Network, among many others. The groups have mobilized as the Coalition for Smart Safety, using the tagline “gun violence is not a mental health issue.”

In a recent statement issued in response to the bill, the Coalition outlined some of its fundamental flaws: “There is a need to expand and improve community mental health services, but legislation to address those issues should be separated from legislation to address gun violence; the two are not connected. The evidence has clearly and consistently shown that mental health disabilities are not predictors of gun violence.”

The letter goes on to say:

Like the 2013 Helping Families in Mental Health Crisis Act, the RESPONSE Act assumes a “mass-shooting prevention” orientation through the promotion of “enhanced” mental health services. On the floor of Congress on October 23, Sen. Cornyn related a conversation where he asked the Odessa police chief following the Midland-Odessa shooting: “What is it that you think we might have been able to do?” To which the police chief reportedly responded, “We need better access to mental health diagnosis and treatment.”

Sen. Cornyn acknowledged in his recent op-ed that “mental illness is not the prevailing cause of mass violence,” a statement that aligns with the scientific literature on the subject. Even so, he still asserts that “enhanced mental health resources are critical to saving lives.”

A study published in October in Health Affairs found that political agendas, rather than scientific findings, are shaping public opinion on this subject. The study found that public perceptions regarding potential violence and support for coercion have been rising, especially as regards the diagnosis of schizophrenia. By 2018, over 60% of survey respondents equated schizophrenia with dangerousness, and 44% to 59% said they were in favor of coercive treatment. The study’s authors concluded:

Similar to its 2013 predecessor, the RESPONSE Act contains a controversial involuntary treatment component, calling for the expansion of Assisted Outpatient Treatment (AOT), a euphemistic term for court-ordered involuntary outpatient commitment that usually includes a forced-medication component. The bill adopts the extreme AOT provisions in earlier versions of the Murphy Bill, calling on states to spend 10% of their Federal mental health block grant funding each year (or 20% every two years) to support the development and implementation of forced outpatient treatment programs.

Sen. Cornyn has long been a proponent of the “black robe effect.” In a recent Tweet, he said: “AOT has been proven to help at-risk people with severe mental illness get the treatment they deserve while reducing crime and violence.”

AOT has been proven to help at-risk people with severe mental illness get the treatment they deserve while reducing crime and violence. Happy to support this successful program through The 21st Century Cures Act. pic.twitter.com/ycTrkV4D2e

— Senator John Cornyn (@JohnCornyn) September 30, 2019

As an MIA Report recently detailed, the evidence does not support Cornyn’s claims. A small number of existing studies on AOT have not found that mandating outpatient treatment through a court order is any more effective than providing voluntary, community-based supports. As the Coalition letter notes, any improved outcomes reported in the research “appear to result from the intensive services that have been made available to participants rather than from the existence of a court order mandating treatment.”

Rarely does research on AOT programs include the perspectives of persons who have been mandated to participate in them. In a 2018 Mad in America survey, the vast majority of respondents under past and ongoing AOT orders reported significant trauma and harm from the experience, including a worsening of their mental state.

Bringing in the Police to Ensure Compliance

The bill includes provisions that would strengthen collaboration between law enforcement and mental health provider agencies, with the stated goals of increasing “engagement in recovery supports and services; access to medication while in an incarcerated setting” and “continuity of care during re-entry in the community.” According to Sen. Cornyn’s press release, the bill would commit $10 million in Department of Justice (DOJ) “state and local law enforcement funding for law enforcement to partner with mental health providers to provide mental health treatment and compliance through the use of long-acting medically assisted treatment.” It would direct HHS to report to Congress within one year regarding State Medicaid strategies “to address the mental health needs and criminogenic risk among individuals with mental illnesses involved in the criminal justice system.”

The text of the RESPONSE Act repeatedly refers to “long-acting injectables” (LAIs): injected doses of powerful antipsychotic (neuroleptic) drugs that remain in the body anywhere from a few weeks up to 90 days.

The National Council for Behavioral Health, one of the aforementioned RESPONSE Act endorsers, received recent grant funding from the Centers for Medicaid and Medicare Services (CMS) to create a guide and technical assistance materials supporting the vast expansion of the use of injectables, including how to get payers to finance them.

The National Council recommends prescribing of LAIs not only as a solution to medication non-adherence, but as “a first-line treatment option for patients.” The organization is encouraging its members to promote increased LAI use in numerous marginalized populations, including “patients involved in transitions of care,” such as discharge from psychiatric hospitals or leaving jail or prison, and even for first-episode psychosis. Such recommendations align closely with a sustained push by psychiatry and Pharma over the last several years to expand the use of injections.

Kathy Flaherty, director of the Connecticut Legal Rights Project, a member organization of the Coalition for Smart Safety, commented on the bill’s forced treatment provisions:

The Coalition’s response letter states: “We are concerned about the primary focus on long-acting injectable medication—which may not be appropriate for or desired by many individuals—as a strategy to promote crisis stabilization and community re-entry, and the lack of focus on meaningful engagement strategies or services such as supported housing, which is key to successful re-entry.”

The bill makes only one passing reference to housing. It calls for a State Medicaid Director Letter to provide guidance to states on how to increase housing access for incarcerated persons with psychiatric disabilities who are re-entering the community. There is no increase in available funding for housing in the bill, and no recommendations to address discriminatory housing policies that negatively impact individuals with a criminal record.

The Reentry and Housing Coalition notes that discriminatory practices and policies in housing contribute to cycles of homelessness and recidivism, and “disproportionately impact people of color and people with disabilities, as these persons are over-represented in the U.S. criminal justice system.”

Putting American Students Under Constant Surveillance

The RESPONSE Act goes beyond the Murphy bill in its call to subject American schoolchildren to extraordinary levels of surveillance. “The RESPONSE Act will make schools less vulnerable through promoting best practices and internet safety policies to help schools better identify and assess students whose behavior indicates a threat of violence,” Cornyn wrote in his op-ed unveiling the bill.

As Lois Beckett wrote in The Guardian, “That would mean redirecting public schools’ time and money away from strategies that are backed by evidence, such as supporting mental health and counseling services, and towards dealing with surveillance technologies, which often produce many false alarms, like alerts about essays on To Kill a Mockingbird.”

Beckett goes on to note that: “There is still no research evidence that demonstrates whether or not online monitoring of schoolchildren actually works to prevent violence.”

Amelia Vance, a student privacy advocate with the Future of Privacy Forum, told NPR that schools may feel increasingly compelled to contract with unproven technology monitoring companies for fear of liability.

“It’s similar to post-9/11,” Rachel Levinson-Waldman, a lawyer with the liberty and national security program at the Brennan Center for Justice at the New York University law school told Education Week. “There is an understandable instinct to do whatever you can to stop the next horrible thing from happening. But the solution doesn’t solve the problem, and it creates new issues of its own.”

One education advocate told The Hill: “We need to think of ways to find these kids that have problems and address those problems rather than escalating the situation by putting them under a microscope in the way that some of this language might do.”

Trauma survivor Christa Marie wrote in The Mighty sharing concerns about the chilling effect surveillance could have on young people, especially those at risk for self-harm, who are unlikely to be violent towards others:

The bill also pushes the expansion of “behavioral intervention teams” in schools. It instructs the Department of Health and Human Services to create best practices that schools could use to “operate behavioral intervention teams to identify students whose behavior indicates a threat of violence and ensure they receive the assistance and services they need.” However, there is reason to believe that such ‘help’ might arrive in the form of increased criminalization of student distress.

The Coalition for Smart Safety response letter notes that such provisions “appear to suggest that behavioral intervention teams should report any student behavior that could have ‘potential criminal implications’ first to criminal authorities rather than initiating an in-school process to identify and address the root cause of this behavior. Training behavioral assessment teams to default to the criminal process rather than school-based behavioral assessment and intervention would do little to address violence in schools and would likely foster rather than prevent a violent school environment.”

The Coalition’s letter cites a United States Commission on Civil Rights report from July of this year, which details how disciplinary measures in schools disproportionately affect students of color and students with disabilities:

Ultimately, the provisions in this bill are based on the premise that mass shootings can be accurately predicted in the first place. But despite the impression gained by wall-to-wall media coverage of school shootings and other events of mass violence, they remain rare occurrences, so rare as to defy efforts at prediction.

Even so, an enormous amount of time and investment is devoted towards trying to predict violence through digital surveillance and other programs. Yet a literature review published this year, examining a range of school violence prevention programs operating between 2000-2018, found no compelling evidence of their effectiveness in predicting or preventing violence.

The Coalition for Smart Safety, in its letter opposing this act, observed that there are alternative ways to deter violence and suicide that focus on relationships and restorative practices rather than the punitive approaches to discipline outlined in this bill. The Coalition wrote: “Schools, educators, caregivers, and communities are in the best position to notice and address concerning student behavior. Experts agree behavioral interventions are most effective at reducing behavioral problems when they incorporate educators’ knowledge of their students, are non-punitive, and avoid removal from school.”

A GOP Pivot on Gun Control?

The RESPONSE Act is conspicuously silent on guns. The only reference to firearms in the RESPONSE Act is around the creation of federal, state and local law enforcement task forces that would make it easier to prosecute illegal, unlicensed firearms dealers, such as the individual who sold the gun to the Odessa shooter in a private sale after he initially failed a background check.

Sen. Cornyn has received top ratings and around $200,000 in donations from the National Rifle Association (NRA) for his continued opposition to gun control measures favored by the majority of American voters, such as expanding background checks for gun purchasers. Sen. Cornyn is up for reelection next year.

Unlike the Tim Murphy 2013 legislation, which was introduced into the House in a bipartisan fashion, the RESPONSE Act has no initial backers among Senate Democrats. Senators Martha McSally (R-AZ), Thom Tillis (R-NC), Joni Ernst (R-IA), Shelley Moore Capito (R-WV), and Tim Scott (R-SC) are the current co-sponsors. “I hope we can work together to build a big bipartisan list of co-sponsors as other Senators have the opportunity to review this legislation,” Sen. Cornyn said on October 23 while introducing the bill on the Senate floor.

The bill will be referred next to the Senate Judiciary Committee for review.

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MIA Reports are supported, in part, by a grant from the Open Society Foundations