Full opinion text
Opinion MOSK, J. In In re Lynch (1972) 8 Cal.3d 410 [105 Cal.Rptr. 217, 503 P.2d 921], we held that the cruel or unusual punishment clause of the California Constitution prohibits the state from confining a nonviolent sexual offender in prison for a wholly indeterminate period which may extend to the end of his life. In the case at bar we are called upon to decide whether the state may achieve essentially the same result by the device of declaring the person to be a “mentally disordered sex offender” and “civilly” committing him for an indefinite period to an “institutional unit” on the grounds of a prison. We conclude that such confinement is likewise unconstitutional, both because of its undeniable prison setting and because of the admitted lack of treatment provided to those so detained. Preliminarily we hold that as in People v. Burnick, ante, p. 306 [121 Cal.Rptr. 448, 535 P.2d 352], an alleged mentally disordered sex offender is entitled to the safeguard of proof beyond a reasonable doubt, and that the statutory denial of a unanimous verdict on the question whether he is such an offender violates the due process and jury trial provisions of the California Constitution and the equal protection clauses of both the state and federal Constitutions. On the afternoon of October 25, 1969, Julie and Dena, two eight-year-old girls, were riding their bicycles in front of Julie’s house in Menlo Park. Defendant Feagley, who worked as a maintenance man in the area, stopped to talk with them. He asked Julie if she was going to let her hair grow long, and she replied that she was. He then briefly stroked both girls’ hair and the back of their necks. After watching Dena show him how fast she could ride her bicycle, he left. That is all that happened. ‘Nevertheless, when the girls told their parents of the incident the latter called the police, and Feagley was arrested and charged with “molesting” each girl in violation of Penal Code section 647a. These charges were dismissed, however, when he entered a plea of guilty to one count of simple battery (Pen. Code, § 242), a misdemeanor stipulated to be a lesser included offense. The punishment prescribed for that offense is a fine not exceeding $1,000 and/or a term of six months’ imprisonment in county jail. (Pen. Code, § 243.) But a far worse fate awaited Feagley. Investigation disclosed—as he freely admitted, moreover—that the incident was not the first of its kind. Throughout his life Feagley has periodically experienced a compulsive need to stroke a woman’s hair. On such occasions he has satisfied that need by discreetly approaching girls or young women in public places and caressing or combing their hair, sometimes snipping off a lock with a pair of scissors. Although he has acted without permission, at no time has he used force or threat of force to accomplish his purpose. Yet because of that state of mind and his nonviolent conduct associated with it, Feagley has been confined in California mental hospitals and state prisons for approximately 19 out of the last 33 years of his life. Only the most recent of these commitments, of course, is before us now. On the basis of the foregoing investigation the court adjourned the criminal proceedings prior to sentencing and instituted the statutory procedure for determining if Feagley was a “mentally disordered sex offender,” and if so, what should be done with him. (Welf. & Inst. Code, § 6300 et seq.) For present purposes it is not necessary to review the many steps in that procedure. Nor need we review the evidence in detail. It is enough to observe that at the several court hearings and the jury trial on this issue the expert testimony was closely balanced and in sharp conflict: in each instance one or more reputable medical witnesses testified that Feagley was a mentally disordered sex offender and posed potential dangers to the public in the form of either psychological trauma or impulsive physical injury, while an equal number of no less reputable medical witnesses testified that although Feagley had a personality defect he was not a mentally disordered sex offender within the meaning of the statute and did not present any significant risk of harm to society. In these circumstances it is not surprising that the jury was likewise deeply divided: applying the “civil” standard of proof by a preponderance of the evidence, the jurors found that Feagley was a mentally disordered sex offender by a vote of only nine to three. On one important issue, however, the experts were in full agreement—that in the present state of medical knowledge there is no treatment that will cure or even ameliorate Feagley’s condition. Thus one of the two physicians who examined Feagley at the outset of the proceedings reported to the court, “This man has spent many years in institutions for similar offenses and I doubt very much whether he is amenable to psychiatric treatment.” The other examining physician concurred, stating that “I further doubt the possibility of permanent change at this point in Mr. Feagley’s life.” At the first court hearing on the question both doctors testified unequivocally that Feagley was not amenable to treatment. This prognostication was confirmed by the medical director of Atascadero State Hospital, to whose institution Feagley was thereafter temporarily committed for observation and diagnosis (former § 6316): the Atascadero report advised the court, inter alia, that Feagley “will not benefit by care or treatment in a state hospital” and “This man cannot utilize treatment. ...” On the basis of the foregoing testimony and reports the court found “that the defendant is a mentally disordered sex offender who will not benefit by care or treatment in a state hospital and that the defendant is a danger to the health and safety of others. ...” The court thereupon ordered that Feagley be committed for an indefinite period to the Department of Mental Hygiene “pursuant to Sections 6316 and 6326, Welfare & Institutions Code,” and specifically directed that he be delivered into the custody of thé superintendent of the California Medical Facility at Vacaville. It is from this order that Feagley prosecutes the present appeal. (Pen. Code, § 1237, subd. 1.) At the outset we pause to note that the case is not moot. After we granted a hearing in this case Feagley was declared to be no longer a danger to the health and safety of others and was returned to the trial court, which placed him on probation on the criminal charge and ordered his release. In People v. Succop (1967) 67 Cal.2d 785, 790 [63 Cal.Rptr. 569, 433 P.2d 473], we held that even a temporary commitment as an apparent mentally disordered sex offender may be challenged after discharge, reasoning in part that “defendant is entitled to the opportunity to clear his name of the adjudication that he is a probable mentally disordered sex offender.” (Accord, People v. Harvath (1969) 1 Cal.App.3d 521, 526 [82 Cal.Rptr. 48]; People v. Slutts (1968) 259 Cal.App.2d 886, 895 [66 Cal.Rptr. 862].) A fortiori is this true of an indefinite commitment finding the defendant to be an actual mentally disordered sex offender. In addition, the “substantial legal disabilities” (In re Bevill (1968) 68 Cal.2d 854, 860 [69 Cal.Rptr. 599, 442 P.2d 679]) flowing from that finding are not all lifted by discharge from the commitment: for example, such a person continues to be subject to the burden of registering as a “sex offender” each time he moves from one city or county to another. (Pen. Code, § 290.) Finally, the finding and order of commitment in Feagley’s case are far from unique, and “we cannot be oblivious to the importance of the constitutional issue posed nor the number of persons who are affected.” (In re Ballay (1973) 482 F.2d 648, 651 [157 App.D.C. 59].) We therefore address the merits of the appeal. I We first reaffirm our holding in People v. Burnick, supra, ante, page 306, that the standard of proof beyond a reasonable doubt is required in mentally disordered sex offender proceedings by the California and federal due process clauses. (Cal. Const., art. I, § 7, subd. (a); U.S. Const., 14th Amend.) We shall not repeat that analysis here, but shall show that it applies even more compellingly to a person in Feagley’s class. The California statutory scheme divides mentally disordered sex offenders into two sharply differentiated categories—those who can and those who cannot “benefit by treatment in a state hospital.” (§ 6316.) The latter are not confined in a hospital but in a “state institution or institutional unit” provided pursuant to section 6326. It is essential to understand the significance of that phrase. The distinction between “state hospital” and “state institution or institutional unit” runs throughout the provisions of the statutes dealing with the commitment of mentally disordered sex offenders, the review of their condition, and their discharge from the program. (§§ 6316-6330.) It must, accordingly, be viewed as deliberate. A “state hospital” is not further defined in the mentally disordered sex offender law, but elsewhere in the code a number of such hospitals are listed and their function is stated to be “the care and treatment of the mentally disordered.” (§ 7200.) They are, in short, the traditional state mental health hospitals. Of these, it is to Atascadero State Hospital in San Luis Obispo County that virtually all persons found to be mentally disordered sex offenders amenable to treatment are committed. Such a person was the defendant in People v. Burnick, supra, ante, page 306. A “state institution or institutional unit,” by contrast, is not a hospital. As used in the mentally disordered sex offender law, it is a term of art. An “institutional unit” is defined in broad terms by paragraph 3 of section 6326: “The Director of Mental Hygiene, with the approval of the Director of Corrections and the Director of Finance, may provide on the grounds of,a state institution or institutions under the jurisdiction of the Department of Corrections or the Department of Mental Hygiene one or more institutional units to be used for the custodial care and treatment of mentally disordered sex offenders.” In practice, mentally disordered sex offenders who are committed or recommitted to an “institutional unit” are confined on the grounds of a prison facility under the jurisdiction of the Director of Corrections. Although a number of such facilities exist (Pen. Code, § 5003), the majority of persons found to be mentally disordered sex offenders not amenable to treatment are confined in the California Men’s Colony in San Luis Obispo County. The California Men’s Colony is a medium security state prison. (Pen. Code, § 2046 et seq.) Surely the loss of freedom suffered by confinement in a unit within the walls of a state prison is even greater than the restrictions accompanying placement in a state hospital. Surely also the odium resulting from imprisonment in the California Men’s Colony is even graver than the impairment of “good name” following commitment to Atascadero. The rationale of Burnick therefore applies a fortiori to the case at bar: the dual consequences of curtailment of liberty and moral stigma which attached to Feagley’s commitment were so serious that he was entitled to the due process safeguard of proof beyond a reasonable doubt of each of the two operative facts resulting in his confinement in the California Men’s Colony, i.e., that he was a mentally disordered sex offender and that he could not “benefit by treatment in a state hospital.” (See In re Winship (1970) 397 U.S. 358, 363-367 [25 L.Ed.2d 368, 374-377, 90 S.Ct. 1068]; Specht v. Patterson (1967) 386 U.S. 605, 608-610 [18 L.Ed.2d 326, 329-330, 87 S.Ct. 1209].) II Contrary to the assumption of the People throughout these proceedings, a person in Feagley’s class—i.e., who is committed to an “institutional unit” on the grounds of a state prison—has no statutory right to a jury trial as a means of reviewing the original order of commitment. Section 6318, the sole provision authorizing such trials, applies by its terms only to a person who is found to be a treatable mentally disordered sex offender and hence is placed “in a state hospital,” thus excluding by negative implication all those who are committed instead to an “institutional unit.” Nor is there any chance the limitation written into section 6318 is a legislative oversight, as its companion sections are identically limited. Thus pending the trial section 6319 authorizes a stay of all commitment proceedings for placement “in a state hospital.” Section 6321 prescribes the conduct of the trial, and provides that if the jury finds the person is a mentally disordered sex offender the court shall make “an order similar to the original order for commitment to the department for placement in a state hospital.” And the same restriction appears in sections 6322 (execution of writ of commitment) and 6323 (delivery of commitment documents). This selective denial of a jury trial is perhaps the most glaring example of legislative discrimination against those mentally disordered sex offenders who are committed to an “institutional unit” rather than a state hospital. Nevertheless, the unconstitutionality of the jury trial distinction under both the California and federal equal protection clauses is so obvious (see e.g., In re Gary W. (1971) 5 Cal.3d 296, 304-307 [96 Cal.Rptr. 1, 486 P.2d 1201]; Baxstrom v. Herold (1966) 383 U.S. 107 [15 L.Ed.2d 620, 86 S.Ct. 760]) that the People do not attempt to defend or enforce it. Feagley was therefore given such a trial despite section 6318 and in obedience to the constitutional mandate of equal protection of the law. (People v. Washington (1969) 269 Cal.App.2d 246, 251 [74 Cal.Rptr. 823].) Some protection, however, is more equal than others. Under the Legislature’s rules of the game, two strikes were called against Feagley before the jury even began to deliberate. At the outset of the trial the prosecutor stressed that the sole question to be submitted to the jury under the terms of section 6318 was whether Feagley was a mentally disordered sex offender. The court agreed, and ruled that no evidence would be admitted on the issue of whether Feagley could “benefit by treatment in state hospital.” Feagley’s counsel called this ruling “unduly restrictive,” but objected in vain. Thus although Feagley’s initial commitment to an “institutional unit” was predicated under section 6316 on .the court’s findings on two distinct issues—was he a mentally disordered sex offender? If so, could he benefit by treatment in a state hospital?—he was permitted to challenge only one of those equally crucial determinations at his jury trial. The prosecutor also relied on the fact that under former section 6316 Feagley had been sent to Atascadero for a 90-day period of observation and diagnosis and had been certified by that institution as not amenable to treatment in a state hospital. In such circumstances it was said to be the rule that the only issue at the jury trial “would be whether defendant is an MDSO, since the question whether he is amenable to hospital treatment is for the sole determination of the hospital authorities.” (People v. Washington (1969) supra, 269 Cal.App.2d 246, 252, fn. 3.) On the very day of Feagley’s jury trial, however, legislation took effect which eliminated the 90-day Atascadero observation placement from the mentally disordered sex offender law. (Stats. 1970, ch. 685, § 3, p. 1313.) Since that date the trial courts have had no guidance other than the often conclusionary testimony at the commitment hearing on the critical issue of whether the person could benefit from treatment in a state hospital; and even that testimony is no longer based on three months of institutional study, but typically on a prehearing conversation of an hour or less in county jail. Nor have the trial courts any statutory standard for resolving this issue: while the definition of “mentally disordered sex offender” in section 6300 (fn. 1, ante) is imprecise (see People v. Burnick, supra, ante, pp. 328-329, fn. 20), there is no standard whatever for determining when a defendant can or cannot “benefit by treatment in a state hospital.” The. possibilities of error are therefore manifest, and mandate the safeguard of a jury trial of the issue. The second setback came at the close of the trial. Feagley submitted an instruction which would have informed the jury that in order to reach a verdict “all twelve jurors must agree to the decision.” The court refused to give the instruction, and instead told the jury that “As this proceeding is governed by the laws relating to civil actions, a verdict may be delivered upon agreement of three-fourths of your number. . . As noted above, the verdict finding Feagley to be a mentally disordered sex offender was agreed to by the bare minimum vote of nine jurors to three. The court’s authorization for its instruction was section 6321, which provides in relevant part that “if tried before a jury the person shall be discharged unless a verdict that he is a mentally disordered sex offender is found by at least three-fourths of the jury.” We hold that the statute—which applies to all mentally disordered sex offenders who demand a jury trial—is unconstitutional on two grounds. First, it violates the provisions of the California Constitution guaranteeing due process of law (art. I, § 7, subd. (a)) and a unanimous jury verdict (art. I, § 16). It is true that neither of the cited provisions applies by its terms to “civil” actions. But “the California Legislature has recognized that the interests involved in civil commitment proceedings are no less fundamental than those in criminal proceedings and that liberty is no less precious because forfeited in a civil proceeding than when taken as a consequence of a criminal conviction.” (In re Gary W. (1971) supra, 5 Cal.3d 296, 307.) Moreover, the mentally disordered sex offender proceeding here challenged has all the trappings of a criminal prosecution, together with the worst consequences of the latter. Thus at the trial level the proceeding was entitled “The People of the State of California vs. Chester Cummings Feagley, Defendant”; it was assigned to the criminal docket, and was heard.by a judge of the criminal division of the superior court. The case against Feagley was presented by the district attorney. (§§ 6320, 6329.) Feagley was entitled to be present at the hearing (§ 6314), to have court-appointed counsel or the services of the public defender (id; see also § 6305), and to compel the attendance of witnesses by subpoena (§ 6313); all such witnesses were “entitled to the same fees and expenses as in criminal cases, to be paid upon the same conditions and in like manner.” (Id.) And pending determination of the issue Feagley had the right to be released on bail. (In re Keddy (1951) 105 Cal.App.2d 215, 21,8-221 [233 P.2d 159].) Similar indicia of the true nature of this proceeding appeared at the appellate level. Both in the Court of Appeal and in this court the case retained its “criminal” title and was given new “criminal” docket numbers. At Feagley’s request, counsel was appointed to represent him on appeal, to be paid by the courts. And the entire cost of the transcripts of the proceedings below was paid by the county. The authority for the latter payment is instructive. In Gross v. Superior Court (1954) 42 Cal.2d 816 [270 P.2d 1025], a defendant found to be a mentally disordered sex offender and committed to an “institutional unit” on the grounds of a state prison requested free transcripts of the commitment proceedings to aid him in presenting his appeal. Then as now, the sole authorization for such transcripts was Government Code section 69952, providing that “In criminal cases” the fee for a transcript shall be paid out of the county treasury. Because the statute was expressly limited to “criminal cases,” the clerk of the superior court refused the request. On the defendant’s application for writ of mandate, however, we ordered free transcripts to be prepared. We were not misled by the argument of county counsel that this was a civil proceeding: we recognized it was “not strictly a criminal case,” but stressed it had certain of “the features pertinent to such cases.” (Id. at p. 821.) We then reviewed the various rights of a defendant charged with being a mentally disordered sex offender—listed hereinabove—and concluded (ibid.), “Since those things are matters pertaining to the protection and rights of a person similar to one involved in a criminal case we believe he falls within the terms of section 69952 of the Government Code, supra.” (See also In re Brown (1969) 275 Cal.App.2d 537, 543-544 [79 Cal.Rptr. 897].) If a defendant charged with being a mentally disordered sex offender is thus entitled to free transcripts on appeal despite the express limitation of the statute to “criminal cases,” he must a fortiori be entitled to the far more important right of jury unanimity despite the implied limitation of the Constitution to criminal cases. In addition to the close procedural similarities between a criminal prosecution and a proceeding to establish that a defendant is a mentally disordered sex offender, the consequences of an adverse determination in each case are no less comparable. In People v. Burnick, supra, ante, page 306, we hold that a mentally disordered sex offender committed for an indeterminate period to a state mental hospital suffers súch a massive curtailment of liberty and such lingering moral stigma that he is entitled to the same standard of proof beyond a reasonable doubt accorded to a criminal defendant. For the same reasons, a mentally disordered sex offender committed to such a hospital is entitled to a unanimous verdict. And just as we have shown in Part I of this opinion that a mentally disordered sex offender committed to an “institutional unit” on the grounds of a state prison is a fortiori entitled to the standard of proof beyond a reasonable doubt, so also a person committed to such a unit is a fortiori entitled to a unanimous verdict. Because commitment to a prison “institutional unit” results, as we shall explain in Part III of this opinion, in confinement under conditions which are essentially indistinguishable from penal incarceration, Feagley was entitled to the procedural safeguards erected by the California Constitution against the erroneous infliction of such incarceration. Prominent among those safeguards is “the fundamental right to a unanimous jury verdict.” (People v. Superior Court (1967) supra, 67 Cal.2d 929, 932.) A holding to the contrary would in effect instruct the prosecutor that in order to publicly brand a man as a mentally disordered sex offender and confine him for “life imprisonment in a penal institution” (In re Bevill (1968) supra, 68 Cal.2d 854, 861), he need persuade only 75 percent of the jurors by only 51 percent of the evidence. We cannot believe such a rule would be obedient to either the letter or the spirit of the cited guarantees of the California Constitution. Secondly, the denial of a unanimous verdict pursuant to section 6321 offends the equal protection clauses of the California and federal Constitutions. (Cal. Const., art. I, § 7, subd. (a); U.S. Const.,. 14th Amend.) In 1967 the Legislature enacted a sweeping revision of the mental health laws of this state (Welf. & Inst. Code, § 5000 et seq., eff. July 1, 1969), known as the Lanterman-Petris-Short Act (hereinafter “LPS Act”). The statute provides that “mentally disordered” persons who. are dangerous to themselves or others or are gravely disabled may be detained for 72 hours for evaluation and treatment (§§ 5150-5156) and may then be certified for up to two additional 14-day periods of “intensive treatment” (§§ 5250-5268). Thereafter a petition may be filed in the superior court for an order committing the person for “postcertification treatment” on the ground he or she is an “imminently dangerous person.” (§§ 5300-5301.) The person is entitled to court-appointed counsel and a jury trial of the issue. (§ 5302.) And by a 1968 amendment to the original statute the Legislature specifically decreed that “The decision of the jury must be unanimous ....” (§ 5303.) The issue, therefore, is whether the state may constitutionally deny to persons committed under the mentally disordered sex offender law the right to a unanimous jury which it grants to persons committed under the LPS Act. As in People v. Burnick, supra, ante, page 306, we find guidance in decisions of the United States Supreme Court interpreting the equal protection clause of the Fourteenth Amendment to the federal Constitution. Baxstrom v. Herold (1966) supra, 383 U.S. 107, reviewed a New York statutory procedure for involuntary civil commitment of convicts whose prison term was about to expire and who were determined by the court to require care and treatment in an institution for the mentally ill. The statute did not provide for a jury trial of the issue, although all other classes of persons civilly committed in New York were granted that right. The United States Supreme Court held the denial of a jury trial to be unconstitutional, reasoning (at p. 111 [15 L.Ed.2d at p. 623]) that “the State, having made this substantial review proceeding generally available on this issue, may not, consistent with the Equal Protection Clause of the Fourteenth Amendment, arbitrarily withhold it from some.” Humphrey v. Cady (1972) 405 U.S. 504 [31 L.Ed.2d 394, 92 S.Ct. 1048], considered the Wisconsin Sex Crimes Act, which provided that upon conviction of any crime determined to be sexually motivated and a further finding by the court that the defendant needed treatment for his “mental and physical aberrations,” the latter could be civilly committed for a period equal to the maximum authorized for his crime. At the end of that time a series of five-year extensions of the commitment could be ordered upon a finding by the court that the defendant’s release would be dangerous to the public because of his mental or physical disorder. No jury trial was provided at either stage, whereas a person involuntarily committed under Wisconsin’s general Mental Health Act was granted that right. A defendant undergoing such a five-year extension of his commitment sought federal habeas corpus, and the United States Supreme Court held that his claim of denial of equal protection was so substantial in light of Baxstrom as to require a full evidentiary hearing. In particular the court noted (at p. 512 [31 L.Ed.2d at p. 404]) that “the Mental Health Act and the Sex Crimes Act are not mutually exclusive; that ‘aberrations’ warranting commitment under the latter might also amount to ‘mental illness’ warranting commitment under the former. The equal protection claim would seem to be especially persuasive if it develops on remand that petitioner was deprived of a jury determination, or of other procedural protections, merely by the arbitrary decision of the State to seek his commitment under one statute rather than the other.” (Fns. omitted; italics added.) We have likewise recognized in California that although it might not be true of all persons, “Many individuals who satisfy the definition of ‘mentally disordered sex offender’ would be subject to civil commitment to a mental institution under other provisions of the law,” citing, inter alia, the EPS Act. (In re Bevill (1968) supra, 68 Cal.2d 854, 860.) We are aware, of course, that Baxstrom and Humphrey dealt with the denial of the right to any jury rather than a unanimous jury. Yet they declared general principles which we find persuasive in the case at bar. Similarly, in Jackson v. Indiana (1972) 406 U.S. 715 [32 L.Ed.2d 435, 92 S.Ct. 1845], the United States Supreme Court was faced with a claim that the equal protection clause was violated by the fact that Indiana statutory procedure for pretrial commitment of incompetent criminal defendants provided a standard for release which was more stringent than that required for persons committed under the state’s general mental health laws. The court reasoned, “Baxstrom did not deal with the standard for release, but its rationale is applicable here.” (Id. at p. 729 [32 L.Ed.2d at p. 446].) Neither did Baxstrom deal with the jury unanimity requirement, “but its rationale is applicable here.” In Baxstrom the Supreme Court rejected the state’s attempted justification of the juiy trial discrimination on the ground of the asserted dangerousness of mentally ill persons who have been convicted of a crime, explaining that “Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made. [Citation.] Classification of mentally ill persons as either insane or dangerously insane of course may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given, but it has no relevance whatever in the context of the opportunity to show whether a person is mentally ill at all. For purposes of granting judicial review before a jury of the question whether a person is mentally ill and in need of institutionalization, there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments.” (Italics in original.) (383 U. S. at pp. 111-112 [15 L.Ed.2d at p. 624].) Here, too, dividing “mentally disordered” persons into two classes according to whether they are or are not assertedly predisposed to commit sex offenses may be a reasonable distinction for determining questions of custody and treatment—a question on which we express no view—but it is irrelevant to the question whether they are mentally disordered in the first place. The substantial distinction between the burden of convincing all the jurors and the burden of convincing only nine of them that a defendant is a mentally disordered sex offender is thus wholly unrelated to “the purpose for which the classification is made,” and hence constitutes a denial of equal protection. The People take the position that the issue was settled to the contrary by In re Gary W. (1971) supra, 5 Cal.3d 296. That is a considerable overstatement of Gary W. One of the two dispositive questions in the case was whether the equal protection clause was violated by the denial of a jury trial after a court order extending the control of the California Youth Authority over one of its wards beyond his normal release date. (Welf. & Inst. Code, §§ 1800-1803.) Relying at some length on Baxstrom, we held that the denial of a jury trial to such a person deprived him of equal protection in view of the fact that the same right was accorded in other classes of civil commitments. (Id. at pp. 303-308.) That is all we actually decided on the point. Having declared a new right to jury trial, however, we felt impelled to add a brief directive concerning its implementation. Finding at hand a convenient analogy to the commitment of mentally disordered sex offenders and civil narcotics addicts, we suggested that the three-fourths verdict procedure prescribed by statute in those programs also be followed injury trials thereafter held under section 1800. (Id. at p. 308.) But we did not decide the question whether that procedure violates the equal protection clauses of the California and federal Constitutions on the ground that unanimous verdicts are required in trials under the LPS Act. Indeed, the question was not even presented to us: it was not raised at the trial level, and was neither briefed nor argued on appeal. It is not our practice to decide constitutional issues by indirection and inference. Far more important for present purposes is the reasoning of Gary W. Citing leading cases on the law of equal protection, we said (at p. 306 of 5 Cal.3d): “The necessity for a rational distinction among persons whom the law treats differently is of particular importance in the area of involuntary commitment. Although normally any rational connection between distinctions drawn by a statute and the legitimate purpose thereof will suffice to uphold the statute’s constitutionality [citation], closer scrutiny is afforded a statute which affects fundamental interests or employs a suspect classification. [Citations.][]In such cases the state bears the burden of establishing both that the state has a compelling interest which justifies the law and that the distinction is necessary to further that purpose. [Citations.] “A variety of interests have been held to be so ‘fundamental’ as to0 impose this burden on the state. Voting [citation], procreation [citation], interstate travel [citation], and education [] have all been characterized as fundamental for this purpose. The right to a jury trial in an action which may lead to the involuntary confinement of the defendant, even if such confinement is for the purpose of treatment, is no less fundamental.” As noted above, we have likewise characterized the right to a unanimous verdict under the California Constitution as “fundamental.” (People v. Superior Court (1967) supra, 61 Cal.2d 929, 932.) It follows that under the rule of Gary W. (see also People v. Smith (1971) 5 Cal.3d 313, 318-319 [96 Cal.Rptr. 13, 486 P.2d 1213]) the state must bear the burden of demonstrating there is a compelling interest which justifies this significant distinction between the rights of mentally disordered sex offenders and those of persons committed under the LPS Act, and that the distinction is necessary to further such purpose. The People make no effort to comply with this rule. At most they attempt to show a “rational basis” for the distinction, and even that venture fails. The People emphasize that the commitment of a mentally disordered sex offender is “first triggered by a criminal conviction,” while a commitment under the LPS Act is not. But as we observed in People v. Burnick, supra, ante, pages 329-330, the criminal offense of which the defendant was convicted need have no relevance at all to the issues subsequently adjudicated in the mentally disordered sex offender proceedings. Moreover, it is clear from Baxstrom and Humphrey that an individual’s status as a prior criminal offender cannot of itself justify a classification denying him the fundamental right of trial by jury in subsequent civil commitment proceedings. For similar reasons it cannot support a denial of his right, no less fundamental under the California Constitution, to a unanimous verdict. Nor is it relevant that Feagley had already been adjudged a mentally disordered sex offender at the initial commitment hearing. (Cf. In re Franklin (1972) 7 Cal.3d 126 [101 Cal.Rptr. 553, 496 P.2d 465].) At that stage of the proceedings Feagley had no statutory right to a jury trial of any kind. (See §§ 6302-6316.) The trial here in issue was therefore his first and only opportunity to present to a juiy the evidence supporting his assertion that he was not a mentally disordered sex offender. At that trial the contrary finding of the judge at the commitment hearing was not disclosed to the jurors, and it properly had no part in their deliberations. New evidence was introduced, however, and medical witnesses testified who had not participated in the commitment hearing. The proceeding, in sum, was a full-scale trial de novo of the question whether Feagley was a mentally disordered sex offender. It was therefore indistinguishable in its effect and importance from the trial provided by section 5303, in which an individual proceeded against under the LPS Act also seeks for the first time to persuade a juiy that he is not a mentally disordered person. Accordingly, there is no rational basis for granting the latter the right to a unanimous verdict while denying it to the former. Finally, insofar as commitment procedures under the LPS Act and the mentally disordered sex offender law differ, it would appear that the latter should be encompassed by greater, not lesser, procedural safeguards than the former. The statutes may be contrasted in two principal respects. First, the standards for commitment are such that it is significantly easier for the state to obtain custody of a person under the mentally disordered sex offender law than under the LPS Act. In the first case the trier of fact need be persuaded only that by reason of mental disorder the person is “predisposed” to commit “sexual offenses” to the extent that he is “dangerous” to others. (§ 6300.) To commit a person for postcertification treatment under the LPS Act, however, it must be established that he “attempted, or inflicted physical harm upon the person of another,” and by reason of mental disorder presents “an imminent threat of substantial physical harm” to others. (§ 5304.) Commitment for a mere “predisposition” to cause harm is obviously a more lenient standard than an actual “attempt” or “infliction” of that harm; and a general showing of “dangerousness” is simpler to make than proof of an “imminent” threat of “substantial” physical injuiy. Secondly, the standards for release are such that it is much more difficult for a mentally disordered sex offender to obtain his freedom than it is for a person committed under the LPS Act. A mentally disordered sex offender is confined for an indefinite period either in a maximum security state mental hospital or in an institutional unit on the grounds of a state prison, and he may not be released until he has been certified by the institutional authorities or found by the court to be “unable to benefit” from further care and treatment and “no longer a danger to the health and safety of others.” (§§ 6316, 6325-6327.) A person committed for postcertification treatment under the LPS Act, however, may be placed in an intensive treatment facility located in his county of residence, and must automatically, be released at the expiration of 90 days. (§ 5304.) Indefinite commitment until the person can no longer “benefit” from treatment and is deemed no longer “a danger to the health and safety of others” is, of course, an immeasurably more stringent standard of release than automatic discharge after a fixed maximum of 90 or 180 days. It follows that in comparison with the procedure under the LPS Act, it is easier to commit a man as a mentally disordered sex offender and harder for him to secure his release. One would therefore expect the procedural safeguards in the latter proceeding to be commensurately greater. Instead, they are substantially lesser, in that the Legislature denies the mentally disordered sex offender the right to a unanimous jury verdict which it grants to a person committed under the LPS Act. This is common sense turned upside down, a discrimination without semblance of rational basis—let alone a compelling state interest, and a wholesale denial of equal protection of the laws under both the California and federal Constitutions. III Turning from deficiencies in the procedure of adjudication to the substance of the ensuing commitment, we confront grave questions concerning the conditions under which the state may constitutionally confine persons whom it has civilly committed. “The sexual psychopath law was passed by the Legislature because experience had shown that persons who came within the classification of sexual psychopaths were unable to benefit from ordinary penal confinement and were in need of medical treatment.” (People v. McCracken (1952) 39 Cal.2d 336, 345 [246 P.2d 913].) Not only is medical treatment the raison d’etre of the mentally disordered sex offender law, it is its sole constitutional justification. It is settled that “A person committed as a mentally disordered sex offender is not confined for the criminal offense but because of his status as a mentally disordered sex offender.” (Italics added.) (In re Bevill (1968) supra, 68 Cal.2d 854, 858.) It is this very fact which has been held to save the mentally disordered sex offender law from violation of the double jeopardy clause. (In re Keddy (1951) supra, 105 Cal.App.2d 215, 217.) But involuntary confinement for the “status” of having a mental or physical illness or disorder constitutes a violation of the cruel and unusual punishment clauses of both the state and federal Constitutions (Cal. Const., art. I, § 17; U.S. Const., 8th & 14th Amends.) unless it is accompanied by adequate treatment. (Robinson v. California (1962) 370 U.S. 660, 665-667 [8 L.Ed.2d 758, 762-763, 82 S.Ct. 1417]; In re Gary W. (1971) supra, 5 Cal.3d 296, 301; In re De La O (1963) 59 Cal.2d 128, 136 [28 Cal.Rptr. 489, 378 P.2d 793, 98 A.L.R.2d 705]; Martarella v. Kelley (S.D.N.Y. 1972) 349 F.Supp. 575, 585, 598-600; People ex rel. Kaganovitch v. Wilkins (1965) 23 App.Div.2d 178 [259 N.Y.S.2d 462, 465-466].) “When patients are so committed for treatment purposes they unquestionably have a constitutional right to receive such individual treatment as will give each of them a realistic opportunity to be cured or to improve his or her mental condition. [Citations.] Adequate and effective treatment is constitutionally required because, absent treatment, the hospital is transformed ‘into a penitentiary where one could be held indefinitely for no convicted offense.’ [Citation.] The purpose of involuntary hospitalization for treatment purposes is treatment and not mere custodial care or punishment. This is the only justification, from a constitutional standpoint, that allows civil commitments to mental institutions . . . .” (Wyatt v. Stickney (M.D.Ala. 1971) 325 F.Supp. 781, 784, affd. sub nom. Wyatt v. Aderholt (5th Cir. 1974) 503 F.2d 1305.) Relying on the foregoing authorities, Feagley contends he was illegally committed to an institution in which adequate treatment was not furnished. The Attorney General replies that Feagley has mistaken his remedy, emphasizing that portion of the above-quoted definition of “institutional unit” (§ 6326, par. 3) which characterizes its purpose as “the custodial care and treatment” of mentally disordered sex offenders. This language, argues the Attorney General, gives Feagley a statutory right to treatment; and if he is confined without treatment, he may enforce that right by seeking his release through a petition for writ of habeas corpus. As authority for this proposition the Attorney General relies on In re Gary W. (1971) supra, 5 Cal.3d 296, 302-303. Gary W. is indeed controlling, but not in the sense claimed by the Attorney General. It is true we there recognized the appropriateness of habeas corpus to test a civil confinement which is in violation of a statutory right to treatment, and we reaffirm that remedy. But Gary W. was not limited to that point. As noted above, the case dealt with the power of the California Youth Authority, under sections 1800 to 1803, to retain custody of a ward beyond his normal release date if he is found to be dangerous by reason of mental or physical disorder; if deemed unsuitable for treatment in a Youth Authority facility, such a person may be confined in a facility of the Department of Corrections. The ward in question challenged his continued custody on the ground, inter alia, that it constituted cruel and unusual punishment. We reasoned that the statutory scheme did not “imprison” the ward “as a criminal” because the Legislature had taken pains to assure that confinement thereunder “shall be only for the purpose of treatment. Thus, we need not decide whether confinement under these sections, with the potential for confinement in a state prison, would be constitutionally permissible solely for the purpose of protecting society.” (Italics added.) (5 Cal.Sd at p. 301.) By contrast, the California cases have made it plain that the mentally disordered sex offender law is designed to serve both such legislative aims, and although confinement thereunder is not “solely” for the protection of society, that is nevertheless its “primary purpose” (In re Bevill (1968) supra, 68 Cal.2d 854, 858); rehabilitative treatment of the mentally disordered sex offender is, at best, its “secondary purpose” (People v. Levy (1957) 151 Cal.App.2d 460, 468 [311 P.2d 897]). To say that confinement is for the “protection of society,” of course, does not insulate it from constitutional inquiry: “One of the reasons society imprisons those convicted of crimes is to keep them from inflicting future harm, but that does not make imprisonment any the less punishment.” (Italics added.) (United States v. Brown (1965) 381 U.S. 437, 458 [14 L.Ed.2d 484, 497, 85 S.Ct. 1707].) The constitutional issue recognized in Gary W. must therefore be confronted. We find guidance in the succeeding portions of the Gary W. opinion. After pointing out the statutory duty of the Youth Authority to provide treatment for the underlying cause of the ward’s dangerousness, we explained (5 Cal.3d at p. 302): “If the cause is not a physical or mental condition or the condition is not amenable to treatment, the Youth Authority may not extend its control over the ward pursuant to sections 1800-1803.” (Italics added; fn. omitted.) Feagley’s condition, it will be remembered, was specifically found to be “not amenable to treatment” in a state hospital; yet in the very same order he was committed to an institution for custodial care “and treatment.” It is evident that if the statutory scheme which authorizes this apparent contradiction is to have a rational explanation, “treatment” in a prison institutional unit must mean something other than “treatment” in a state hospital. It thus becomes necessary to determine what is the treatment, if any, actually furnished to mentally disordered sex offenders confined in a prison unit. The appropriateness of this inquiry is further indicated by Gary W. We there concluded (at p. 302) that the statutory scheme for potential long-term confinement of dangerous Youth Authority wards in facilities of the Department of Corrections did not constitute cruel and unusual punishment under Robinson v. California (1962) supra, 370 U.S. 660, “in the absence of any evidence that persons committed thereunder are incarcerated in penal institutions among the general prison population, or are customarily detained without treatment. . . ,” The clear two-fold implication of this language is (1) that the effect of a statutory declaration of the right to treatment may be negated by evidence that such treatment is not in fact provided and (2) that in such case the confinement will run afoul of the cruel and unusual punishment clause. In short, “the mere characterization of an act as ‘treatment’ does not insulate it from eighth amendment scrutiny.” (Knecht v. Gillman (8th Cir. 1973) 488 F.2d 1136, 1139, citing Trop v. Dulles (1958) 356 U.S. 86, 95 [2 L.Ed.2d 630, 639, 78 S.Ct. 590]; Vann v. Scott (7th Cir. 1972) 467 F.2d 1235, 1240; Inmates of Boys’ Training School v. Affleck (D.R.I. 1972) 346 F.Supp. 1354, 1366.) Rather, “to be sustained as a nonpenal statute, in its application to the defendant, it is necessary that the remedial aspect of confinement thereunder have foundation in fact. It is not sufficient that the Legislature announce a remedial purpose if the consequences to the individual are penal.” (Commonwealth v. Page (1959) 339 Mass. 313 [159 N.E.2d 82, 85].) This inquiry is but a specific application of the broader principle that constitutional issues are to be resolved by considerations of substance rather than form. In the first case to reach the United States Supreme Court challenging a sexual psychopath statute the high court admonished that such a law “though ‘fair on its face and impartial in appearance’ may be open to serious abuses in administration” (Minneso ta v. Probate Court (1940) 309 U.S. 270, 277 [84 L.Ed. 744, 751, 60 S.Ct. 523, 126 A.L.R. 530]). In Pearson, we note, the mentally disordered sex offender faced commitment to an asylum (id. at p. 276 [84 L.Ed. at p. 750]), not to a state prison. Similarly, in People v. Valdez (1968) 260 Cal.App.2d 895, 904 [67 Cal.Rptr. 583], the Court of Appeal rejected a constitutional challenge to the statutoiy scheme for civil commitment of narcotics addicts (Welf. & Inst. Code, § 3000 et seq.) by observing that the proceeding had repeatedly been described as “civil,” “non-punitive,” and “remedial.” In so doing, however, the court warned that “A situation may well arise where such characterization may break down in the face of the reality of the addict’s involuntary confinement.” Here, while not questioning the overall civil nature of mentally disordered sex offender proceedings (People v. McCracken (1952) supra, 39 Cal.2d 336, 346), it is time to face the “reality” of the treatment provided to those who are committed to a prison unit pursuant to sections 6316 or 6326. We begin with the first question suggested by Gary W., i.e., whether mentally disordered sex offenders committed to institutional units are “incarcerated in penal institutions among the general prison population.” In response to our request for supplemental briefing of the issue whether such confinement is penal in nature, Feagley advised the court that he was housed in a cell in “D Quad” of the California Men’s Colony, East Facility; that he mingled freely with the general prison population, wore standard prison clothing, worked for wages of a few cents an hour in the prison shop, submitted to full censorship of his mail, and was subject to all prison regulations concerning security. In his reply brief, however, the Attorney General declines to join the issue, neither conceding nor disputing the truth of these assertions; rather, he adopts the position that they involve matters outside the record and hence cannot be considered by us in this proceeding. Nevertheless, we are certainly not foreclosed from considering the language and effect of a number of statutory provisions bearing directly on this question. We are not unmindful of two general declarations of legislative intent that mentally disordered individuals should be regarded as “patients” and “sick persons.” (§§ 4132, 6250.) These are admirable sentiments. Unfortunately the Legislature seems to have overlooked them in prescribing the conditions of confinement of mentally disordered sex offenders unamenable to treatment in a state hospital. After defining the “institutional units” in which such persons must be placed, section 6326 provides that “Each such unit shall be administered in the manner provided by law for the government of the institution in which such unit is established.” In other words, a unit for the confinement of mentally disordered sex offenders on the grounds of a state prison must be administered in the same manner as the rest of the prison. In fact, in the case of the California Men’s Colony, which as noted above houses most of the mentally disordered sex offenders not amenable to hospital treatment, the entire institution has been designated as such a “unit” within the meaning of sections 6316 and 6326. (Inmate Classification Manual (Dept. Corrections) p. CL-IX-05, par. 5.) Mentally disordered sex offenders received at the California Men’s Colony “will be housed initially in D-Quad at the East facility, but some may qualify later for West facility [i.e., where a lower degree of security is maintained] after psychiatric clearance.” (Ibid.) Feagley was eventually transferred to the West Facility; at that location, however, “no therapy is available” {id. at p. CL-IX-03). D Qua.d, it should be added, is by no means devoted exclusively to housing mentally disordered sex offenders: as of December 31, 1972, for example, only 52 of the 600 men in D Quad were in that category. (Note, Toward a Less Benevolent Despotism: The Case for Abolition of California’s MDSO Laws (1973) 13 Santa Clara Law. 579, 602 [hereinafter cited as Santa Clara Note].) In addition, the rules and regulations governing the California Men’s Colony are made by the Director of Corrections. (Pen. Code, §§ 2046.3, 5058.) The general statutory provisions concerning the management of state prisons (Pen. Code, pt. 3) apply to the institution and its inmates. (Pen. Code, § 2046.6.) Among those provisions are laws requiring the Department of Corrections to furnish each inmate “with a bed of straw or other suitable material, and sufficient covering of blankets, and with garments of coarse, substantial material and of distinctive manufacture” (Pen. Code, § 2084), to sequester any personal property of value (Pen. Code, § 2085), to censor the inmate’s correspondence except with attorneys or public officials (Pen. Code, § 2600), and to suspend most of his civil rights (id.) The penal nature of these conditions of confinement is dramatically underscored by comparing the provisions of the Welfare and Institutions Code which guarantee a nonpenal form of custody to mentally disordered sex offenders found amenable to treatment and committed to a state hospital. Section 6328 authorizes the superintendent of the hospital to extend to such a person all privileges granted to other patients which are not incompatible with his detention or unreasonably conducive to escape. A more recent statute goes considerably further: “Any person admitted to a state hospital as a mentally disordered sex offender shall have the full patient rights specified in Article 7 (commencing with Section 5325) of Chapter 2 of Part 1 of Division 5.” (Italics added.) (§ 6300.2, enacted in 1972.) Two sections of the cited article are of particular relevance. Section 5325 guarantees the patient the right, inter alia, to wear his own clothes, to retain his personal possessions, to have visitors on a daily basis, to make and receive confidential telephone calls, and to send and receive uncensored mail. Supplementing this provision, section 5327 declares that a state hospital patient is entitled not only to exercise the listed rights but also to “retain all rights [i.e., civil rights] not specifically denied him under this part.” The contrast with the penal circumstances surrounding a mentally disordered sex offender committed to an “institutional unit” of a state prison, listed above, is stark indeed. Accordingly, the statutes fully support counsel’s appraisal of the realities of the situation—that under the conditions of confinement which prevail by law at the California Men’s Colony, Feagley was in fact “part and parcel of the mainstream of prison life.” We take up now the second issue raised in Gary W., i.e., whether mentally disordered sex offenders committed to institutional units are “customarily detained without treatment.” (5 Cal.3d at p. 302.) In reviewing the evidence on this point we shall proceed from the general to the specific. On the national level a number of commentators have called attention to the lack of any effective institutional treatment for mentally disordered sex offenders. The views of only two need be quoted, as they are typical of this consensus. Professor Paul W. Tappan, whose in-depth research on habitual sex offenders led to the enactment of landmark New Jersey legislation on the subject, has summarized his experience as follows: “As compared with other types of psychological and constitutional abnormality, we are peculiarly at a loss in the handling of abnormal sex offenders. Methods of effective treatment have not yet been worked out. The states that have passed special laws on the sex deviate do not even attempt treatment. The ‘patients’ are kept in bare custodial confinement. This point is central to the atrocious policy of those jurisdictions that commit noncriminals and minor deviates for indefinite periods to mental hospitals where no therapy is offered. Most psychiatrists indicate that psychotherapy of some sort should be given to sex offenders, but they are in agreement that professional staffing is not available to perform this work and that an unknown but undoubtedly very high percentage of deviates would not respond to such treatment.” (Tappan, Some Myths About the Sex Offender (June 1955) 19 Fed.Prob. 7, 11.) A recent large-scale study of the problem sponsored by the American Bar Foundation is no less pessimistic: “Sex psychopathy legislation appears to be an example of an. area where the law has assumed a state of medical (and perhaps social) advancement that has not yet been attained, particularly in relation to the question of treatment of the sexual psychopath. At present there is insufficient scientific knowledge to assure meaningful diagnosis and effective treatment—a medical problem greatly aggravated by the sociological one that personnel resources and physical facilities for sexual psychopathic patients are lacking.... In part such failure may be attributed to the lack of an adequate number of trained personnel in these facilities. But the problem appears to go deeper than that: even assuming total adequacy of staff and space resources, serious questions remain about the ability of medical science to cure or substantially improve the vast majority of sexual psychopaths.” (The Mentally Disabled and the Law (Brakel & Rock ed. 1971) p. 352.) In language particularly relevant to the constitutional issue now engaging our attention, the American Bar Foundation study concluded {id. at p. 353) that “certainly in this country, treatment of the sexual psychopath represents an ideal which is not attained in practice. Instances of successful rehabilitation are few and are purchased at the high cost of subjecting certain groups of individuals labeled as sexual psychopaths to prolonged detention without meaningful treatment and hence limited, perhaps questionable, impact on the general public safety. [¶] The lack of treatment constitutes a basic condemnation of the sexual psychopathy laws, since the very philosophy behind, and justification for, such legislation is that sex offenders should be treated rather than punished. Lack of treatment destroys any otherwise valid reason for differential consideration of the sexual psychopath.” (Fns. omitted.) A California legislative body has made similar findings. The Subcommittee on Sex Crimes of the Assembly Interim Committee on Judicial System and Judicial Process conducted a thorough investigation of the types and quality of treatment being furnished to mentally disordered sex offenders in California and elsewhere. (Prelim. Rep. (1950) pp. 49-55.) It reported that “The demand for treatment of these violators has been relatively sterile because there is no unanimity of thought within the professional groups normally engaged in the treatment of personal and social ills. Within the framework of existing knowledge there are many recommendations but few conclusive or verified assertions.” (Id. at p. 49.) Of the various methods of treatment considered, individual psychotherapy was considered the most promising but because of its cost it was found to be “prohibitive on a large scale.” (Id. at p. 50.) Surgical techniques (e.g., sterilization, lobotomy, or castration), chemotherapy (hormones and drugs), and electroshock procedures were found to have produced inconclusive or negative results. (Id. at pp. 50-53.) Group therapy remained as a possible treatment method, but it was emphasized (id. at p. 76) that “there are not sufficient facilities nor trained personnel to handle the ‘treatment’ of all sex offenders, or perhaps even of all ‘dangerous sex offenders.’ The subcommittee concludes, however, that much research is needed as to what constitutes treatment before large facilities or excess personnel could be used profitably. Psychiatrists in state institutions are underpaid and have too great a caseload.” In the light of this evidence the subcommittee concluded (ibid.) that “There is very little in the way of successful treatm