JC Member Spotlight: Marisol Orihuela

Centering Mental Health Justice

Marisol Orihuela is a Clinical Professor of Law at Yale Law School. She recently launched the Mental Health Justice Clinic at Yale Law School. She has also taught the Criminal Justice Advocacy Clinic and the Worker and Immigrant Rights Advocacy Clinic.

Before teaching, she was a Deputy Federal Public Defender at the Office of the Federal Public Defender in Los Angeles. She has previously worked as a Staff Attorney for the American Civil Liberties Union of Southern California and was a 2008 graduate of Yale Law School. Orihuela clerked for the Honorable Rosemary Barkett of the 11th U.S. Circuit Court of Appeals and for the Honorable Consuelo B. Marshall of the Central District of California.

Q. Tell us about the Mental Health Justice Clinic.

The clinic started in the spring of 2023. We take on litigation, policy, or community advocacy matters focusing on mental health.

“Our approach is to define mental health broadly and consider how it impacts our clients in a variety of legal settings—this allows for a richer understanding of how things that we call mental health or experience as mental health affect people's ability to maneuver legal systems. “

We have taken on civil commitment cases, and right now we have a disability benefits case where we're trying to obtain benefits from the State for someone with a mental disability. We are especially focused on community-based, non-coercive access to mental health services and evidence-based practices around substance use in the family regulation system. So, by design and by intention, we try to maintain a docket and practice that exposes students to mental health in a variety of different settings.

Q: What motivated you to develop the clinic?

I was trained and came up as a civil rights lawyer, and then a criminal defense attorney. My civil rights practice was mostly focused on immigrant rights among a detained population. I kept seeing mental health and mental disabilities pop up in these places, and not in ways that felt secondary to the representation, but in ways that felt quite central and important to how the person was experiencing the legal system, as well as how we maneuvered lawyering in that space.

At the time, it struck me that we were focusing on criminal defense with mental health as an added issue or immigrant rights with mental health as an added issue, and that just didn't sit quite right with me.

“If we thought of it as a mental health case, what would that do to the representation? How would the way that we're thinking about the impact of these systems on a population be affected if the case were centered around mental health? “

And, because I was practicing in more than one legal setting, I started seeing so many similarities concerning how mental health operates in the criminal and immigration systems. Even though one is civil, and one is criminal, and we often think of civil and criminal acting very differently, I thought, well, wouldn't it be interesting to experience and learn about that all in one course?

That's the motivating principle behind the design of the clinic’s docket, and in maintaining a practice that has a very capacious understanding of mental health to include issues such as substance use, which is sometimes is treated somewhat differently than mental health.

Q. Can you talk about some of the cases the clinic is working on right now?

Right now, we're representing an individual who has been committed to the psychiatric hospital in Connecticut for about 7 years. Every year our client receives a hearing before the Probate Court, where a probate judge determines whether the client meets the statutory criteria, which is also influenced by the constitutional principles and limitations on the State’s authority to detain someone for civil psychiatric purposes. I have a team of students who are basically preparing for what I would call a “mini-trial” to demonstrate that our client should not be detained in the psychiatric hospital. We have been working with the client, and other advocates, and we are advocating for the client both before the Probate Court and at the state psychiatric hospital.

By participating in these “mini-trials,” the students learn how to direct cross examine and practice opening and closing motions. But I think, probably more interestingly, it offers students exposure to how mandated treatment in a confined setting intersects with both the civil liberties issues that arise in that context and the complexity of mandated treatment for individuals with significant mental health issues.

As a result of their clinical work, students see first-hand the hard realities of an underfunded community-based mental health care system in Connecticut and nationwide. And they see the overlap of a hospital and carceral setting. When does a hospital become carceral? And what are the issues around that? How do we think about that when the purported reason why someone is there is to help them by providing a therapeutic benefit that that hopefully allows them to live safely in the community?

In another case our client is an adult with an intellectual disability that was not diagnosed as a child. To qualify for services in CT, a disability must have arisen during the so-called developmental period, which CT law defines as before the age of 18. When someone has never been tested during this period, we must prove that they had a disability that arose during the qualifying period. We need to rely on evidence about their adaptive functioning and their school performance and behavior. In this case, the client was denied services, so we are litigating that outcome and are in appellate agency proceedings where we continue to advocate for his eligibility for services.

We ultimately hope to have our client determined eligible for disability services. This individual is currently incarcerated and when he gets out, supportive housing will be critical to his successful re-entry into the community. If such support is denied, he will likely get stuck in a cyclical experience with incarceration.

Q. How do you decide what is best for your client? What are you advocating for?

The clinic maintains a client-centered practice, which means the goals of the client are the goals of the clinic. If our client’s goal is to be in the community, we advocate for their return to their community, with the appropriate supports and safeguards to be provided by the State.

Those supports look different for everyone. Some people might be committed to the psychiatric hospital for a temporary crisis, and they might just be at Yale New Haven Hospital for a few days against their will. A longer-term commitment might last months or years. Legally, commitment should end when someone no longer a risk to themselves or others. Practically, people can remain committed for long periods of time because of the shortage of community placements or because they have needs that are complex and not readily available in the community. What people need to be able to live in the community varies. Those who are high functioning might be able to go back home once they stabilize and don't need any supports from the State to live safely in the community. But people with more significant psychiatric disabilities may need to be in supportive housing funded by the state; some facilities are 24-7 mental health intensive homes where residents have psychological support the whole time.

Sometimes people return to nursing homes. Not necessarily because they're close to the end of their life, but because they provide needed supports. We advocate for community placement as soon as possible and for the appropriate supports that our client needs to do that.

Q. How many people involved in the criminal legal system have a mental health issue and do not have an advocate to help through the legal system?

The numbers are staggering. By some estimates over half of the population that's incarcerated has a mental health condition.

Similarly, it is hard to determine exactly what percentage of people involved in the criminal legal system have an intellectual disability because there's a massive under-identification of intellectual disability.

For example, our client‘s disability was not identified by the school system. This happens frequently. It's only because of dogged advocates that it was ever then diagnosed.

We read a lot about the masking that people with intellectual disabilities do, therefore making it harder to identify. Think about public defenders who are overworked and have something like 200 cases, they may have a very limited number of interactions with their clients. And then, once in the carceral system, if a prison system doesn't have a screening mechanism for intellectual disability, someone might spend their prison sentence without getting the supports they need.

The clinic aims to bring both advocacy and care to our work. It is an opportunity to train people before they graduate from law school. This experience will hopefully change how they are as a public defender, civil rights lawyer or a prosecutor—that they now think about how these various issues intersect. I think that is the change goal of the clinic, and how I think about my pedagogy.

Q. What happens when lawyers center their work around mental health? How does that change things?

It makes us a lot more deliberative about how we use mental health labels. People are detained because of their mental health condition. Questions around dignity and autonomy become so salient. I have learned a lot since my early days as a public defender. We have a lot more information now. This orientation demands that we slow down and engage the client.

A lawyer has so much more power than a client. The client-centered lawyer is about changing that power dynamic. This is particularly complicated when we're talking about serious mental health conditions that can affect someone's ability to make decisions. It helps to study the disability justice movement as a guide. For example, the use of language, and how language can be stigmatizing totally affects how we phrase things in briefs. Words may seem like small things, but actually they can be the difference between another dehumanizing hearing for a client or not and I think they can also be the difference between how much such clients trust us or not.

Q. Brittney Spears helped make conservatorship a hot topic—is this level of attention useful?

Attention to the issues of conservatorship and guardianship is always a good thing. Overall, the legal literature is critical of where things have been on conservatorships and guardianship. We are way too quick to take people's autonomy away—even if it's well-intentioned. We're just too quick to do it. Today, there is a movement towards supported decision-making. This means we limit making decisions for people, but instead start from a place of asking: what does this person need to be able to make their own decisions?

Q. Are different groups of people vulnerable to the ways in which the mental health system currently operates?

There are certainly racial implications regarding who may end up in a psychiatric hospital, or the way that people get diagnosed with certain mental health conditions, as well as who has access to treatment.

The other huge determinant is economic status and whether someone has a home to go back to. There are real concerns about a hospital dropping people off in the streets. That can mean that poor people stay in the hospital longer. For those who are economically disadvantaged, it all kinds of ends up snowballing in tragic and awful ways.

Various injustices and systems of inequality get played out in significant ways when it comes to mental health justice. It can be overwhelming for me and for the students. At the same time, it offers such a powerful way to see how various in justice and systems of inequality get played out in significant ways. The impact of mental health is something everyone can relate to.

Professor Marisol Orihuela