Despite San Jose Mayor Matt Mahan’s claim his policy to arrest homeless people for refusing shelter is meant to connect them to treatment, there isn’t a plan for how it’s supposed to work.
Since Mahan rolled out his “Responsibility to Shelter” policy in March, Santa Clara County officials and a former judge have pushed back on the plan that citing homeless people for trespassing will get them connected to the county’s Behavioral Health Court and into treatment. Mahan wants people who refuse offers of shelter three times within 18 months to be arrested on trespassing charges, but state law prohibits holding those who commit nonviolent misdemeanor charges in custody. Homeless people will be released within hours or days, thus preventing them from connecting to treatment. Couple this with the county’s massive shortage of mental health treatment beds — and a lengthy waitlist for not just unhoused people — and the mayor’s plan is on thin ice.
“This proposal is misguided. It will not achieve its stated objective,” retired Judge Richard Loftus, who used to sit on the Behavioral Health Court, wrote in a letter to the San Jose City Council. “The justice system does not work the way this proposal contemplates.”
In 1999, Superior Court Judge Stephen Manley launched the county’s behavioral health court, pairing close judicial oversight with intensive supervision and treatment services in lieu of jail. Offenders who go through this alternate court system are released on probation with a tailored treatment plan depending on level of need — whether that’s an acute psychiatric hospital, a residential treatment facility or an Assisted Outpatient Treatment program. But beds or services need to be available for the system to be successful.
Every month, these individuals are required to appear in court and update the judge on their progress. For those who have committed a misdemeanor, that process can take a year — a felony charge could take up to two years. If the offender commits another crime or fails to appear for their court hearings within that period, they can be sent back to jail.
No beds, no treatment
A person’s referral to behavioral health court is a collaborative decision between the Santa Clara County District Attorney’s Office, behavioral health treatment team and public defender or lawyer representing the defendant. But in order to access the system, the person must be in custody and go through the adjudication process — something that won’t happen if they are released immediately from jail.
Supervising Deputy District Attorney Brandon Cabrera, who works in the behavioral health court, said it’s already extremely busy, serving more than 3,000 clients a year. In addition, the waitlist for people in jail to get into a treatment facility hovers between 100 to 125 people, Cabrera said. If there are no treatment beds available, the defendant remains in custody until a spot opens up.
The county has 1,268 beds for various levels of treatment: 374 beds in locked facilities for acute need, 322 beds in skilled nursing facilities and mental health rehabilitation centers, 378 beds in residential adult facilities for people with mental health issues and 194 beds for people detoxing from substance use.
In 2022, Santa Clara County Supervisors Susan Ellenberg and Otto Lee declared a mental health crisis in the county due to the lack of treatment beds and called for more investments and a coordinated response. Since then, the county has added 208 beds, including 53 acute in-patient beds at the San Jose Behavioral Health Inpatient Psychiatric Hospital.
“Our biggest issue in the collaborative court system is space and capacity of beds,” Cabrera told San José Spotlight.
In a May 12 joint statement to the city council, Lee, District Attorney Jeff Rosen, Sheriff Bob Jonsen and County Executive James Williams said arresting and releasing people for low-level offenses is counterproductive — taking away resources and aggravating the criminal justice system.
“We ask that you consider the impacts that these additional unnecessary and ineffective arrests and bookings will have on our community’s criminal justice system,” the letter said. “At a time of tremendous budgetary challenges, city policies should not divert limited public safety resources to address what is ultimately a problem caused by the lack of affordable housing in our cities.”
Mahan shot back at the county, stating misdemeanor charges have historically been used to compel treatment.
“Before Proposition 47, diversion programs paired with accountability proved effective at encouraging people to engage in treatment through the justice system,” Mahan wrote in a May 15 letter to the county. “Other states continue to use similar tools successfully.”
When reached for comment, Mahan referred San José Spotlight to his letter.
Health care, not handcuffs
However, County Public Defender Damon Silver said he’s not familiar with any evidence-based research that shows arresting and criminalizing homelessness has been successful. Numerous studies indicate it makes matters worse.
“Half-baked incarceration-based proposals inevitably exacerbate the problem and will likely result in catastrophic outcomes for this vulnerable population,” Damon told San José Spotlight.
Mahan called for the county to reconsider its plans to get rid of the Psychiatric Emergency Response Team known as PERT, a model program where a licensed clinician pairs with a police officer to respond to mental health crises. The county has shifted its focus to the Trusted Response Urgent Support Team, a non-police, mobile crisis intervention team to helps deescalate mental health situations.
Williams said there’s a reason why doctors aren’t placed in a 911 call center.
“It’s far more effective to have clinicians in clinical settings, and instead give professional dispatchers the training, resources and tools to accurately and timely direct emergency calls,” the county executive told San José Spotlight. “As we have communicated to the city manager, we are available to offer expertise to assist the city on the challenges its dispatch center currently faces — only triaging 64% of medical emergencies and with a 16% abandoned call rate, which should alarm every resident.”
Chris Ferry, who was director of mental health treatment in the county jail system for more than two decades, said Mahan’s policy is ill-conceived.
“Arresting all these people is just like clearing the encampments,” Ferry told San José Spotlight. “They’re going to be back in whatever amount of time. I don’t see it having a potential for success.”
Contact Joyce Chu at [email protected] or @joyce_speaks on X.
