California is a political trailblazer that is often the first to pass novel legislation that is later adopted by other states, but legal scholars say unique factors will determine whether other states will enact the CARE court model recently passed in the Golden State.

In September, California Gov. Gavin Newsom signed S.B. 1338, or the community assistance, recovery and empowerment court program, into law, only seven months after the legislation was introduced by state lawmakers. There was fierce opposition from civil and disability rights advocates who argue CARE courts would wrongly subject individuals to forced mental health treatment.

California's governor and lawmakers framed the bill as a solution to the state's homelessness crisis, saying the legislation will make it easier to provide treatment to people who are severely mentally ill and living on the streets. Under the law, all California counties are required to establish CARE courts where people can petition to have treatment ordered for adults who have schizophrenia or another psychotic disorder and lack decision-making capacity.

Eric Tars, legal director of the National Homelessness Law Center, told Law360 in a recent interview that the CARE court legislation enacted in California is a reaction to a 2018 decision from the Ninth Circuit in Martin v. Boise .

The circuit court ruled in the case that "communities can't criminally punish people experiencing homelessness for basic life sustaining activities like sleeping and sheltering themselves in the absence of adequate alternatives," Tars said. Tars served as counsel in the case for current and former homeless individuals who sued the city of Boise, Idaho, over its anti-homelessness ordinances that allegedly violated the Eighth Amendment's prohibition on cruel and unusual punishment.

Tars noted the goal of the lawsuit was to get communities to create "adequate alternatives" to homeless people sleeping on the streets, but instead California has decided to use its civil commitment system to get homeless people off its streets.

"It's effectively still incarcerating [homeless people] — taking them against their liberty into state custody — but in a way that they think at least will stand up to an Eighth Amendment challenge," he said.

The circuit court's decision is only binding to states in its jurisdiction. Those states include Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Ron Hochbaum, assistant clinical professor of law at University of the Pacific's McGeorge School of Law, said if more courts restrict states' ability to criminalize homelessness, that could lead more states adopting legislation like CARE courts.

"CARE court, like other anti-homeless laws, will give cities and counties and the state another means of removing people from public spaces when they're deemed undesirable," Hochbaum said.

Using the judicial system to help people with untreated mental health issues is not a new idea. Mental health courts, which aim to provide people with treatment instead of incarceration, have been around in the U.S. since the late-1990s and have been steadily growing in popularity across the country.

The popularity of mental health courts in the U.S. shows that states are open to using the judicial system to help people with mental health issues get treatment.

However, CARE courts are distinctly different from mental health courts or other types of so-called problem-solving courts because they are a part of the civil system, whereas the latter are a part of the criminal legal system.

"Most of the problem-solving courts are in the criminal system, so it requires you to commit a crime or get charged with a crime before you get access" to treatment, Miami-Dade County Court Associate Administrative Judge Steve Leifman told Law360.

Judge Leifman is a member of a national judicial task force created by the National Center of State Courts to examine state courts' response to mental illnesses. The task force will be publicly releasing a report on its findings and recommendations in the upcoming month, according to Judge Leifman.

Judge Leifman said the task force didn't specifically look at CARE courts because the model hadn't been adopted or implemented yet, but it did examine the civil legal system and found it isn't better than the criminal system at helping people who have mental illnesses.

"In some ways, [the civil legal system is] just another fragmented system that doesn't do what it needs to do to help people get into recovery," he said.

One of the many problems that advocates who are opposed to CARE courts have with the judicial model is that failure to comply with court-ordered treatment could lead to incarceration, moving people from the civil to the criminal legal system.

After the CARE court bill was introduced in California, more than 50 advocacy organizations, including groups with national reach such as the American Civil Liberties Union, Human Rights Watch and Mental Health America, came out against the legislation. Other states that seek to implement the CARE court model will likely face the same opposition that California did from those national organizations.

Despite advocates' opposition to CARE courts being allowed to force individuals into mental health treatment, states have shown an interest in legislation that makes it easier to have people involuntarily placed in treatment.

Earlier this year, Utah and Georgia both enacted reforms to their existing mental health laws, according to a senior director of policy and researcher named Judge Glock at the Cicero Institute, an Austin, Texas-based think tank that worked in those states to get the legislation passed.

In Georgia, lawmakers eliminated the requirement that a person must present imminent harm to another person before that person can be involuntarily committed to either inpatient or assisted outpatient treatment, according to Glock.

In the West, Utah legislators passed a bill that gives judges the option of involuntarily placing individuals who have severe mental illness into assisted outpatient treatment and extends the time that people can be involuntarily held for mental health evaluation up to 72 hours, Glock said.

Glock said the mental health reforms passed in Utah and Georgia are a part of a template legislation drafted by the Cicero Institute for addressing homelessness. The mental health reforms included in Cicero Institute's template legislation are largely based on recommendations from the Treatment Advocacy Center, he said. The center is a national nonprofit based in Arlington, Virginia, that aims to eliminate barriers to treating severe mental illnesses.

"For those people who are trying to treat [homeless people] and know that it can be very difficult, that's created a demand to ... open the door to more [civil] commitment," he said.

--Editing by Emily Kokoll and Lakshna Mehta.

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