Bernard Harcourt writes,

we should not be surprised that there are so many persons with mental illness behind bars today. We deal with perceived deviance differently than we did in the past: instead of getting treatment, persons who are viewed as deviant or dangerous are going to jail rather than mental hospitals.

…we should not be surprised that our mental health systems are in crisis today. The infrastructure is simply not there. This is evident in states across the country where persons with mental illness are being housed in jails rather than treatment facilities.

What is also clear is that Seung-Hui Cho probably would have been institutionalized in the 1940s or 50s and, as a result, the Virginia Tech tragedy may not have happened. According to the New York Times, the director of the campus counseling services at Virginia Tech said of Cho: “The mental health professionals were there to assess his safety, not particularly the safety of others.” It’s unlikely we would have taken that attitude fifty years ago.

But the problem is, we would also be institutionalizing another huge swath of humanity — and it’s simply not clear how many of those other lives we would be irreparably harming in the process.

The grim theory is that mental health institutions and prisons substitute for one another. The mental health institution is a form of preventive detention, which is problematic from the standpoint of our tradition of liberties.