The Los Angeles Times recently reported that LA County will build a new jail—for over 3800 inmates, which will be “geared towards treating inmates with mental health and substance abuse issues.”  A few weeks ago, Cook County (Chicago) announced that the new headof the Cook County Jail is Nneka Jones Tapia, a clinical psychologist, not a sheriff.

Both of these developments are being  hailed as steps forward in recognizing the fact that a significant percentage of those we jail suffer from serious mental illnesses.  Depending on the year, and who is talking, both Cook County Jail and the Los Angeles County Jail have been described as the largest mental health facilities in the United States.  Over a third of Cook County’s 9000 inmates are mentally ill and approximately 20% of Los Angeles County’s 17,000 inmates are mentally ill.

No doubt the new facility in Los Angeles will be a needed improvement.  The new building is designed to monitor those with mental illness, not simply to lock people up in closed cells.  It is also a recognition that the criminal justice system is increasingly focusing on treatment, not simply punishment.  Nationwide, beyond the jails, courts increasingly offer both mental health courts and drug courts which focus on treatment to prevent recidivism.

Nationwide approximately 20% of inmates are mentally ill and 30-60% of inmates have substance abuse problems (with many having dual diagnosis of both substance abuse and mental illness).

I worry that both of these recent news items are accepting that it is normal to have such a high percentage of mentally ill among those we incarcerate.  As with most people arrested, most of those arrested who are mentally ill are arrested for minor offenses.  Most are not violent and have done nothing violent to get arrested.  I think the key question is whether they should be arrested in the first place.

Our criminal justice system gives both police and prosecutors wide discretion in how they do their jobs.  Police are generally not required to arrest whenever they see a crime or a crime is reported (one clear exception is domestic violence—most law enforcement agencies have “must arrest” policies when they see any kind of injury including redness or bruising).  Just as police don’t need to arrest, prosecutors don’t need to file charges.

The problem is that police officers and prosecutors are often not well educated on mental illness and how to best respond to cases that are more about illness than criminality.  An increasing problem, as we build up our criminal justice infrastructure towards treatment, is that the only clear place to treat the mentally ill is often in jail or prison.  We are not improving access to mental health treatment resources in the general community at the same rate as the criminal justice sector.  Most communities have few in-patient mental health facilities and over-taxed out-patient resources.  This means it can seem to the police officer that jail is the best alternative to assure some type of treatment.

But, any mental health professional will tell you that jail and prison are not treatment centers.  There are serious problems with the types of health care provided in custody.  And, arresting someone inevitably acts as a break with whatever resources and care they might have had before the arrest and forces the person arrested to start over again on their release, often with no help.

Cook County and Los Angeles County are trying to make sure that the treatment in jail is connected to help on release.  But, as commendable as these efforts are, they don’t answer the first question, a question which seems to not be asked:  why are we arresting and charging so many mentally ill people to begin with?

Cyntha Alkon is an Associate Professor of Law at Texas A&M University School of Law. Prior to joining academia, she was a criminal defense lawyer and worked in rule of law development in Eastern Europe and Central Asia focusing on criminal justice reform issues. She is a contributor of ADR Prof Blog.