By April Shaw and Taleed El-Sabawi
The COVID-19 pandemic and recent increases in the incidence of televised violence against Black persons by law enforcement actors and others have contributed to the worsening mental health of these subordinated and marginalized communities. While the policy solutions needed to address this disparate impact are structural and multi-faceted, the introduction of 988, a national mental health crisis hotline, offers an opportunity to positively contribute to the overall goals of decreasing police interactions with Black and Brown communities.
The Federal Communications Commission (FCC) issued a Final Rule designating 988 as a national suicide prevention and mental health crisis hotline in September 2020. Congress later passed the National Suicide Hotline Designation Act of 2020 codifying 988 as the dialing code. Per the FCC Final Rule, states are required to implement 988 into their networks by July 2022.
States have wide latitude in how they implement 988, and though many will likely stop at the bare minimum of creating a suicide prevention hotline, 988 could be coupled with the creation of police alternative (or non-police) mobile responses that assist with de-escalation, stabilization, and connection to treatment. Non-police responses promise to decrease police interaction, excessive use of force, and criminalization of mental illness. Such non-police responses have gained in national popularity due in large part to organization and protests led by Black Lives Matters activists.
State 988 Legislation is Largely Failing to Address the Need for a Non-Police Mobile Response
With the implementation of 988 on the horizon, states have the opportunity to create an infrastructure that will support racial health equity by heeding calls to reduce unnecessary, aggressive police contacts during behavioral health emergencies. An essential piece of this infrastructure will be a non-police mobile crisis response that can be deployed by 988 staff when needed. A review by the Network for Public Health Law found that states vary widely in proposed or enacted legislation on 988 implementation, and in how they address the problem of policing. The trend is that such legislation (1) does not address mobile crisis response at all, (2) is silent or vague as to the involvement of police in these mobile response programs, or (3) permits the coupling of police responses with behavioral health responders.
The National Academy for State and Health Policy has been tracking 988 legislation and found that at least 24 pieces of 988 implementation legislation were proposed between 2020-2022. Most of the legislation reviewed, including measures from California, Idaho, Kansas, and Massachusetts, is still making its way through the legislative process and has not been enacted into law just yet.
In fact, only 13 pieces of legislation have been enacted into law. A review of enacted legislation demonstrates that the bulk fails to even address mobile crisis response or the role of police (Alabama, Colorado, Idaho, Kentucky, Minnesota, Nebraska, and Texas).
More concerningly, three states expressly incorporate a police response. These rare examples of 988-legislation enacted into law that address mobile crisis response and policing are in effect in Indiana, Nevada, and Virgina. But, rather than reduce policing in mobile crisis response, the laws actually build police into the system by defining mobile crisis response teams to include law enforcement or expressly permitting police to be deployed. Including police officers in mobile response teams is a measure that does not actualize the objective of decreasing police interaction.
Legislative Trends Demonstrate Efforts to Create a Non-Police Response Have Stalled
Overwhelmingly, it is proposed legislation that has explicitly considered the exclusion of police from mobile responses. Generally, such 988-legislation limits the role of police in mobile crisis response in at least one of two ways.
First, by legislatively defining mobile crisis response team members to include mental or behavioral health professionals (and peer specialists with relevant lived experience), not police. Second, by legislatively including specific narrow standards for police intervention. The latter is recommended by the National Alliance on Mental Health (NAMI) which takes the position that mobile teams should “include police as co-responders only in high-risk situations.” In fact, it is only in states that have proposed legislation that NAMI’s recommendation has been included.
The trend, however, is that the momentum to adopt non-police mobile responses has decreased as time has passed. In some states, the non-police element of mobile response is removed from the bill before the legislation is enacted. For example, initially, Washington’s 988-bill proposed limiting police intervention in mobile crisis response by permitting police as co-responders “only when public safety is an issue, and the situation cannot be managed without law enforcement assistance”; by the time the bill passed, this limit was gone. Similar language has been removed from a recent bill in Oregon to expand 988 infrastructure as it has made its way through the legislature.
Another problem is that proposed or enacted legislation is vague and punts the decision-making on whether or not to use a police response to committees or administrative agencies. Such legislation simply directs a committee to develop best practices to minimize “the use of law enforcement” (WA) and to create strategies to reduce police involvement (OR). These actions not only eliminate the clear guidance on police intervention, but also slow down the implementation of the bills due to the time needed for committee research, convening, and report generation. Such strategies will require Black Lives Matters organizers and others to continually engage in supervision and political activism, which demands such advocates to devote even more time, resources, and energy to enact what are largely agreed upon reforms in mental health promotion and suicide prevention. Of further concern is that the momentum and opportunity to enact laws that promote racial health equity will be lost as public and political attention shifts to other social issues.
Co-Responder Models are Not Consistent with Racial Health Equity
There is broad consensus that response to mental health emergencies must be redirected from a police response to a mental health team with relevant professional and lived experience. Yet co-responder models, where police are trained to respond to mental health emergencies with a mental health professional, and crisis intervention team programs, which provide police with specific training on handling individuals in crisis, have been the predominant vehicles proposed by legislators for improving crisis response. The problem is that these types of programs neither have an evidence-base demonstrating a reduction in police use of force, nor are associated with a decline in racial disparities in use of force.
From a racial health equity perspective, this matters. Police have killed Native Americans, Black persons, and Hispanics at higher rates than White people. There is evidence that police utilize fatal force during mental health or welfare checks (resulting in 97 deaths in 2020) and are more likely to use lethal force against unarmed Black men displaying signs of mental illness (relative to similarly situated White counterparts). This data cannot be ignored as states began to build their 988 infrastructure. Health equity demands that states couple 988 implementation with non-police responses to behavioral health emergencies.
States are failing to meet the calls for racial health equity coming from communities of color, despite ostensible commitments, such as through declaring racism a public health crisis. States still have the opportunity to forge ahead by enacting 988 implementing legislation that defines mobile crisis teams to include behavioral health and other qualified professionals, and expressly excludes police. Such legislation should resist open-ended definitions of crisis response teams, which leaves local jurisdictions open to fill the teams with police. This legislation should also adopt NAMI’s recommendation to limit when police may intervene. Clear guidance is needed now.
April Shaw, JD, PhD, is a senior staff attorney at the Network for Public Health Law’s Northern Region Office.
Taleed El-Sabawi, JD, PhD, is an assistant professor at Elon University School of Law.