Plan to fix Florida’s Baker Act would make it more powerful, raising alarms

A reform bill would broaden the criteria for involuntarily holding someone for mental-health reasons. Civil rights advocates fear that would harm vulnerable people.
Capitol Police patrol a visitor's entrance before the March 2 opening day joint session of the Florida Legislature at the Capitol in Tallahassee. Legislators are considering a bill that supporters say would fix the Baker Act mental health law by making it more powerful, but critics fear it will be used on even more vulnerable people.
Capitol Police patrol a visitor's entrance before the March 2 opening day joint session of the Florida Legislature at the Capitol in Tallahassee. Legislators are considering a bill that supporters say would fix the Baker Act mental health law by making it more powerful, but critics fear it will be used on even more vulnerable people. [ IVY CEBALLO | Times ]
Published March 26, 2021|Updated March 26, 2021

The Baker Act is one of Florida’s most powerful laws — and, critics say, one of its most dysfunctional.

The 50-year-old law allows someone to be held for mental health evaluation and potentially committed to a treatment facility, whether they agree to it or not.

But the number of those held involuntarily keeps accelerating, and the fastest-growing age group forced to undergo exams are children.

Now a bipartisan group of legislators and reformers say they’ve found a way to fix it:

They want to expand the Baker Act and make it even more powerful.

Reform bills are now working their way through the Legislature.

Expanding the criteria for when the law can be invoked, reformers say, will allow those suffering from serious mental illnesses to be sent directly to treatment centers or hospitals.

They say the existing law allows too many of those people to end up in jails or prisons, where housing them costs taxpayer money — funds that could instead be used to improve mental health services.

Gov. Ron DeSantis is applauded before delivering the State of the State address during the joint session of the Florida Legislature at the Capitol in Tallahassee on Tuesday, March 2, 2021.
Gov. Ron DeSantis is applauded before delivering the State of the State address during the joint session of the Florida Legislature at the Capitol in Tallahassee on Tuesday, March 2, 2021. [ IVY CEBALLO | Times ]

“The biggest problem with America is that we’ve applied a criminal justice model to an illness,” said Miami-Dade County Judge Steve Leifman, a leading advocate for decriminalizing mental illness. “No one should be surprised it has failed as miserably as it has.”

But the legislation has alarmed advocates who fear that a more powerful Baker Act would wrongly ensnare people who aren’t mentally ill or don’t need such drastic action — especially vulnerable groups such as children, people with disabilities and the homeless.

Bacardi Jackson, a managing attorney for children’s rights at the Southern Poverty Law Center, wouldn’t comment on the specific legislation. She said any Baker Act reform needs to focus on the people most vulnerable to being wrongfully held, and that expanding the law would be a massive error.

“(The Baker Act) is not inconsequential,” she said. “It is deeply traumatizing, it is deeply hurtful and we need to figure out ways to limit it.”

Related: Florida’s flawed Baker Act rips thousands of kids from school

“Fifty years later, it’s not”

Before she wrote the law now known as the Baker Act in 1971, Maxine Baker, a state legislator from Miami-Dade County, toured state hospitals and saw patients strapped to beds and locked in rooms without care.

She spent years researching her solution: Rather than shoving people into dark corners, offer treatment within communities. People could voluntarily check in, but if they didn’t seek help and needed it, police or healthcare professionals could make the decision for them. Families also could petition the court to compel someone to be examined or committed.

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When it passed in 1972, the new law was hailed as Florida’s first bill of rights for people with mental illness. It kept them out of state hospitals Leifman described as “torturous and horrible.”

“At the time, it was great,” he said. “Fifty years later, it’s not.”

Related: The Baker Act set out to improve care. Now it’s ensnaring more children.

The Baker Act was used 211,000 times from July 2018 to June 2019, the most recent period with available data, according to the Baker Act Reporting Center at the University of South Florida. There was one involuntary examination for every 100 Floridians, a per capita rate nearly double what it was at the start of the century.

Children accounted for almost 38,000 of those exams — nearly a fifth of the total.

An array of health professionals can invoke the law and judges can sign off on petitions. But more than half of all Baker Act cases are initiated by law enforcement officers. So the majority of those forced to undergo a mental health exam are likely taken there by police, possibly in handcuffs.

How those statistics are perceived is at the core of the debate over fixing the Baker Act. To some, the growing numbers are a sign of Florida’s proliferating mental health crisis, one the current law cannot tackle.

To others, they represent over-reliance on the law which can save lives if used properly — or if misused can traumatize people.

“Your life is at risk”

Patt Maney spent three decades as an Okaloosa County judge. Part of his job included evaluating petitions from people who wanted to have their loved ones committed under the Baker Act.

He decided whether the person described fit the criteria: Did they have a mental illness? Would they hurt themselves or others, or suffer imminent neglect, if not treated?

After a while, Maney said, he noticed the same names appearing over and over. The system wasn’t working.

Then, last year, he ran for the Florida House. His campaign platform included a promise to improve mental health services.

Related: Here’s what the Florida Legislature is doing about mental health this year

The day after the 72-year-old retired judge won, he got a call from Leifman. They had known each other for years. Maney, a Shalimar Republican, had served on a Florida Supreme Court task force on mental illness and addiction that Leifman chaired. They shared similar views about the Baker Act’s failures.

“Congratulations,” Leifman said. “Would you be interested in running a bill?”

Leifman believes the Baker Act fails to help those who suffer from serious mental illnesses because it doesn’t get invoked until they’re in the midst of a major crisis.

“You basically have to be at a point where your life is at risk,” Leifman said.

The current system creates moral and financial issues, Maney said. People wind up being treated like criminals over minor offenses that stem from mental illness and intertwined issues like poverty and homelessness: drug possession, petty theft and violating city ordinances.

Keeping them incarcerated and cycling them through the courts creates costs footed by taxpayers, and jails are not equipped to help people in the same ways that crisis centers or hospitals are.

“It just seems to me better to try to divert those cases, get them into mental health treatment, get them aftercare,” Maney said.

Maney and Leifman believe that broadening the Baker Act would solve some of those problems. The bills propose new definitions for “neglect” and “harm” — the law could be used on people who are in danger of dying or falling ill from lack of food, clothing, housing or medical care, or who “lack, refuse or (do) not receive services for health and safety which are actually available in the community.”

They also want to let officers and healthcare workers consider property damage — not just violence or the threat of it — when deciding whether to invoke the Baker Act.

Florida has consistently ranked near the bottom of the country in mental health spending. Their reform bills, advocates say, could help. Leifman estimated that, based on jail demographics and the daily cost of incarceration, Florida spends at least $233 million annually jailing those with mental illnesses and $368 million annually housing them in prisons.

That money, Leifman and Maney argue, could be reinvested into community mental health providers. It could also be used to fund programs like mobile crisis response teams, in which mental health professionals respond to certain calls rather than law enforcement.

The bills would require the facilities that examine people under the Baker Act to connect those patients with community mental health care options — though it wouldn’t require any funding to bolster those options.

Maney described that as a strategic decision to convince lawmakers to approve a bill that doesn’t cost more money.

“This year, with COVID, we all know the budget has some real challenges,” he said. “That’s why I talk in terms of reallocating resources.”

“We have too many Baker Acts”

Caitlyn Clibbon, a policy analyst for Disability Rights Florida, agrees that the Baker Act clearly needs to be reformed. But she believes expanding its criteria will only exacerbate its problems.

“We have too many Baker Acts, and a lot of exams that don’t end in a commitment — meaning that person wasn’t truly a danger to themselves or others.”

Related: An autistic child melts down. An officer makes a decision. A family suffers the consequences.

In this view, the biggest problem with the Baker Act is the inverse of how Leifman and Maney see it: It’s not that the law helps too few of the people it ought to, but rather that it enares far too many who don’t require those extreme measures.

Critics say recent reports back their positions: A pair of legislative analyses — one by the Office of the State Courts Administrator, the other by the Department of Children and Families — determined the reform bills may increase the number of involuntary commitments.

A Southern Poverty Law Center report released earlier this month decried the “costly and cruel” misuse of it on children.

It asserted that in many cases, “the Baker Act is not only an inappropriate intervention, it is a harmful and often illegal one,” that children of color were taken under the Baker Act at disproportionate rates, and that the law poses particular risk to kids in foster care and kids with disabilities, whose normal behavior may be mistaken as mental illness. It cited a 2019 Tampa Bay Times investigation that outlined the increasing, and flawed, use of the law in public schools.

The trauma of children and families who have had bad experiences with the Baker Act should inform the legislation, rather than the experiences of judges, who determine a small portion of involuntary exams, said Jackson, who worked on the report.

She believes the only way to improve the law through legislation is to dismantle it — to narrow its usage and dedicate more funding to mental health resources. Nor can lawmakers have faith that the law will be carried out appropriately, she said, especially when used so often by officers who have little or no mental health training.

“The Baker Act is not an appropriate intervention for almost all of the mental health issues we see with our children,” she said. “Criminalizing (them), traumatizing them, putting them in handcuffs, taking them away in a police car … we know that that is not producing outcomes that make children better.”

Opponents of the bills worry about how the expanded criteria will affect vulnerable people. Could a homeless person be held simply because they lack access to housing? If a child draws in an expensive textbook, Clibbon wondered, is that the kind of significant damage that falls under the expanded Baker Act?

Dr. Tommy Schechtman, a West Palm Beach pediatrician and past president of the Florida chapter of the American Academy of Pediatrics, said the bills fail to address the root causes of skyrocketing Baker Act rates, especially among young people: It doesn’t differentiate children from adults. It doesn’t address how involuntary exams of kids have gone up in conjunction with increased police presence in schools. And it doesn’t set aside funding for less invasive forms of mental healthcare, such as urgent care centers.

Juvenile arrests have declined as involuntary exams of young people have increased. Leifman called that a “positive step” — a sign that what was once treated as criminal behavior is now being seen, rightfully, as mental illness.

But Schechtman says that trend means one form of punishment being substituted for another, which makes him more worried about the expanded criteria.

“Replacing one bad thing with another bad thing — equally bad and maybe in some ways worse — doesn’t justify it,” Schechtman said.

”How do you do it all?”

Advocates aren’t opposed to all the proposed reforms. The legislation would give more due-process rights to minors whose families want to voluntarily commit them, including access to a public defender.

It also would change law enforcement officers’ responsibilities. The current law says they “shall” take into custody anyone who meets Baker Act criteria. The new bill would change that word to “may.”

Officers told the Times in 2019 that the “shall” wording made them feel they had to take into custody any child who met the criteria. The Times found Tampa Bay area officers regularly did so without consulting mental health professionals. The change would put their responsibilities more in line with those of healthcare workers.

Martha Lenderman, who formerly directed the state’s Baker Act program and is the leading expert on the law, cautioned that the shall-to-may change could throw a wrench into the case law that allows Florida officers to enter private property to help a suicidal person.

But she found a lot to like in the bills. The updated rights for minors in voluntary commitments are “probably 20 years overdue.” She also supports a provision that would change the maximum length of an involuntary commitment from three months to six, while requiring facilities to release people when they no longer pose a risk to themselves or others.

She likes the idea of requiring facilities to connect people to outside resources, she said, but she’s not sure anything would change in practice without the state funding more mental health resources.

She thinks the legislation would ultimately do enough good that it ought to pass, she said. But she finds herself hung up on, if not totally put off by, the expanded criteria.

“I’m concerned with increasing the number of people that we force-feed into the most intrusive method of intervention,” she said, “when we’re not funding the alternatives to that to prevent some of those admissions or to prevent subsequent ones.

“How do you do it all? I’m just glad I don’t have to make that decision.”