Olmstead at 20 — Using the Vision of Olmstead to Decriminalize Mental Illness

Scales of Justice, with one scale lower than the other

June 22, 2019 marked the twentieth anniversary of the United States Supreme Court’s Olmstead v. L.C. decision. The case was filed on behalf of two women with developmental disabilities and mental illness who were confined in a state psychiatric hospital in Georgia despite their treatment professionals’ recommendations that they could live in the community. In its decision, the court stated that unjustified segregation of persons with disabilities constitutes discrimination in violation of Title II of the Americans with Disabilities Act (ADA). The ADA established a mandate to public entities to ensure that people with disabilities live in the least restrictive, most integrated settings possible.

Because of the Olmstead decision 20 years ago, many states have implemented policies, programs, and new housing options to serve people in the most integrated settings appropriate to their needs. Olmstead-based lawsuits and settlement agreements in several states have forced new resources and opportunities for community integration into both state and local systems. While such progress has been slow, an increase in attention to individuals with mental illness and other disabilities who are unnecessarily segregated — or at risk of becoming so — in settings such as psychiatric hospitals, nursing homes, and large board and care facilities has resulted in many more people with mental illness living in integrated, community-based settings.

Yet for far too many people with mental illness who end up unnecessarily in another type of segregated setting — jails and prisons — the promise of the ADA and the Olmstead decision remains unfulfilled. The incarceration of people with mental illness in communities throughout the United States is a form of discrimination that our public entities must address.

In March 2019, TAC convened top thinkers from across the U.S. to examine the criminalization of persons with mental illness, and to initiate the use of Olmstead as a framework for reform. Based on insights from that group, TAC has prepared and published Olmstead at 20: Expanding the Vision of Olmstead to Decriminalize Mental Illness. In this brief, we apply key elements of Olmstead law to the challenge of reducing the disproportionate number of people with mental illness in the criminal justice system.

Segregated Settings and the Integration Mandate

Understanding how Olmstead applies to the correctional system begins with recognizing that jails and prisons are institutions and that the U.S. Department of Justice’s definition of “segregated settings” applies to them. The “integration mandate” is a fundamental aspect of the ADA, requiring public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” For most individuals, receiving services in the community is the most integrated setting, and an absence of such services, leading to institutionalization, reflects a violation of the ADA. Many individuals with mental illness in correctional settings are there because community-based services and settings were not available to meet their needs — even as public funding is used to sustain the costs of housing people in the segregated correctional system.

Community-Based Services Play a Vital Role

Underdeveloped service delivery systems, budget cuts, loss of insurance coverage, and tightened program eligibility requirements not only reduce people’s access to community services, but also make it harder for them to pay for medication, treatment, and housing. When people with mental illness lack access to comprehensive, community-based treatment and support services, they are at greater risk of ending up in institutional, segregated settings, including correctional facilities.

In service systems across the country, encounters between people with mental illness and law enforcement can be traced to a lack of community-based treatment and services. If there is no hotline, mobile crisis team, or mental health respite program, the only option for a person in crisis or their family may be to call the police — whose only option may be to arrest the person.

Taking the Next Steps

If you represent a public entity at any level, we encourage you to launch initiatives that minimize preventable interactions with the criminal justice system. Furthermore, such measures should be fully incorporated into the Olmstead planning efforts of your state or county to meet their legal obligations. We hope that other interested stakeholders, such as advocates and civil rights groups, will also find this framework of use for Olmstead planning and advocacy efforts.

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Kevin Martone, L.S.W.

Kevin Martone, L.S.W. , Executive Director of TAC, is nationally recognized for his expertise in behavioral health policy; system financing and design; Olmstead and community integration; health care reform; and the design and delivery of permanent supportive housing.

Francine Arienti, M.A.

Francine Arienti, M.A. , TAC's Human Services Director, has 25 years of experience working to address the housing and service needs of people with disabilities and people who experience homelessness through direct service, technical assistance, evaluation, and policy support.

Sherry Lerch

Sherry Lerch , a Senior Consultant at TAC, has over 30 years of public sector leadership experience in developing and implementing approaches to serving individuals with mental illness and co-occurring physical health, developmental, and substance use disorders; integrating physical and behavioral health care; and identifying inter-agency and cross-systems approaches and solutions to resolve complex issues.