People v. FeagleyPeople v. Feagley
Opinion
In
In re Lynch
(1972)
Preliminarily we hold that as in
People
v.
Burnick, ante,
p. 306 [
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.
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.)
1
For present purposes it is not necessary to review the many steps in that procedure.
2
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
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 3 “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.)
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.
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.
5
The California
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)
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.”
6
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
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.
7
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)
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. 8 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 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
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). 10 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)
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.
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
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,
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.
Humphrey
v.
Cady
(1972)
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 [
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 [
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.
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.][ 11 ]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.]
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)
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)
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
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. 15
III
Turning from deficiencies in the procedure of adjudication to the substance of the ensuing commitment, we confront grave questions
“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)
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)
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
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,
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 (
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,
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
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
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 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.” 21
On the national level a number of commentators have called attention to the lack of any effective institutional treatment for mentally disordered sex offenders.
22
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
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.) 23
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
With this background we may now focus more sharply on current institutional practices in California. We are fortunate to have recent formal statements of policy by two responsible officials explaining the nature and purpose of the confinement of mentally disordered sex offenders in the California Men’s Colony. The statements are by Dr. Sterling W. Morgan, then medical director of Atascadero State Hospital, and Harold V. Field, then superintendent of the California Men’s Colony. 26 Dr. Morgan advises (at p. 4) that “A person determined to be a mentally disordered sex offender is considered to be amenable to treatment within the facilities of the Department of Mental Hygiene if he recognizes that he has a problem, indicates a desire for help, and cooperates in treatment programs offered at Atascadero. Such persons are retained at Atascadero State Hospital for treatment of their disorder.
“Conversely, someone who does not think that he has a problem, or who does not want help, or who cannot participate in or benefit from our treatment program because his predisposition towards violence renders him primarily a custodial problem, 27 is not considered amenable. He is sent back to the superior court as a person who is a mentally disordered sex offender but not amenable to treatment in order that he may either be sentenced as a felony offender or placed in a treatment unit within some facility of the Department of Corrections[ 28 ]as a mentally disordered sex offender.” (Italics added.)
Turning to the record in the case at bar, we find further evidence that essentially the only “treatment” furnished to a mentally disordered sex offender at the California Men’s Colony is incarceration until such time as he “recognizes his problem.” At the commitment hearing the trial court asked “what kind of treatment they give to these people.” The answer was provided by Raymond H. Faber, an experienced probation officer in charge of Feagley’s case who had handled more than 150 mentally disordered sex offender matters during the previous 1316 years. Mr. Faber explained to the court that after entering the system through the California Medical Facility, “the defendant is then taken and placed in the Men’s Colony in San Luis Obispo where they are fit into the program down there.” He will receive “some type of minimal treatment” until “the notion strikes him that he wants to recognize his problemthe defendant will then be transferred to Atascadero State Hospital, “where he can at that time begin hopefully treatment.” (Italics added.) Mr. Faber concluded, “So basically, the Department of Corrections really does not do anything with these type of individuals, but leaves him at the Department of Mental Hygiene at a facility close by [i.e., the California Men’s Colony, which is “close by” Atascadero State Hospital].” (Italics added.)
This is not treatment but coercion. It falls far short of the humane, therapeutic consideration which every person civilly committed has a right to expect in exchange for giving up his or her liberty. Even viewed sympathetically, the technique amounts to no more than a perverted form of “milieu therapy”: the environment is used not for a constructive, positive purpose, but for a wholly negative effect—to make the inmate want to get out. The same can be said, of course, for any prison. Whatever the theory of such confinement, its reality is therefore indistinguishable from penal custody.
This fact was clearly perceived by the Supreme Court of Michigan in the leading case
In re Maddox
(1958)
The Maddox opinion recalled that “The reason for our Court having previous to this time held that the criminal sexual psychopath act was constitutional was solely because it was interpreted as a civil and noncriminal proceeding. The origin and history of the act makes plain that this was its intention.” (Ibid.) Reviewing that history, the court stated (at p. 475): “Clearly then, in design and purpose and interpretation, we have a statute which purports to represent civil commitment for treatment due to a mental state or condition. And our courts have upheld the civil and noncriminal procedures of the statute in direct relationship to its stated purpose and to the treatment contemplated.” (Italics added.) The court then turned to the evidence before it, describing it as follows: “The hard fact posed by our current case is, that we are faced by a record which shows that a person committed under this remedial and corrective legislation for hospitalization and treatment is, in fact, serving potentially a life sentence in our biggest State prison, treated in all respects similarly to other criminals therein confined.” (Ibid.)
This sequence of events, ruled the Michigan court, deprived the defendant of due process of law: “This Court holds that incarceration in a penitentiary designed and used for the confinement of convicted criminals is not a prescription available upon medical diagnosis and order to an administrative branch of government.”
(Id.
at p. 476.) Moreover, “the violations of defendant’s constitutional rights may well have had an important practical effect upon his treatment and rehabilitation also.”
(Ibid.)
Emphasizing that the defendant was held in state prison largely because he refused to “recognize his problem” by admitting other sex crimes he was alleged to have committed, the court concluded (at p. 477): “In the event that defendant were actually innocent of the offenses charged (and on this record we ha^e no right to presume the contrary),
his right to proper medical treatment
would have been as badly violated by his imprisonment as his constitutional rights.” (Italics added.) (Accord,
Commonwealth
v.
Page
(1959)
supra,
The policy behind this apparent inconsistency is exposed in the diagnostic report on Feagley prepared by Atascadero: after certifying him to be a mentally disordered sex offender, the document recites that “This man cannot utilize treatment but is still a danger to society and should not be provided additional opportunity to victimize others. He should be returned to the criminal court for action. We recommend that he be sentenced for the criminal act if sentencing is mandatory or if he is charged with a felony. [¶] If he is charged with a misdemeanor, I recommend that he be committed to the Department of Mental Hygiene for an indeterminate period and sent to the Reception and Guidance Center, California Medical Facility, Vacaville, California, in compliance with Section 6316 of the Welfare and Institutions Code. . . .” (Italics added.)
This language, which is consistent with the statement of the medical director of Atascadero quoted hereinabove, is revealing in two respects. First, it draws a sharp distinction between two classes of mentally disordered sex offenders: those whose underlying crime was a felony, and those—including Feagley—who were merely misdemeanants. As to the former it recommends sentencing on the criminal charge as an adequate disposition, but as to the latter it does not. The clear implication is that a misdemeanor sentence is deemed too brief, i.e., that it would not keep Feagley behind bars long enough to insure that he never again have an “opportunity to victimize others.” Instead, therefore, the report recommends that he be committed “for an indeterminate period” to an institutional unit provided by section 6316—despite the announced fact that “This man cannot utilize treatment.” The only
The second significant aspect of this portion of the Atascadero report is that apart from the specification of the particular reception-guidance center to which the subject should be delivered, the entire passage quoted above is a printed form, 31 It follows that the recommendation in Feagley’s case must have been a routine application of a settled institutional policy. 32 If that policy is likewise followed by the trial courts, one would expect to find a greater proportion of misdemeanants than felons committed to “institutional units” under sections 6316 and 6326. And that is precisely what the official statistics show: during the years 1966 to 1970, 23.9 percent of the mentally disordered sex offenders originating from the lower courts were committed to the California Medical Facility, compared with only 10.6 percent of the superior court cases. (The Mentally Disordered Sex Offender in California (Bureau Crim. Statistics) p. 34.) 33 That misdemeanant mentally disordered sex offenders are being confined in prison units at more than double the percentage rate of felon mentally disordered sex offenders speaks eloquently of the true nature and purpose of this commitment. 34
Again, at the outset of the jury trial the prosecutor argued vigorously against allowing the jury to hear any testimony on the issue whether Feagley could benefit from treatment. In support of his position, the prosecutor stated to the court: “Now, if the jury were to be presented with questions or information which would enable them to know that the defendant might be facing the rest of his life in the Department of Hygiene under circumstances where he would be receiving substantially no treatment, which is possible, as the Court is well aware; they might look at this question of whether he is a mentally disordered sex offender quite differently.” (Italics added.) The prosecutor reiterated, “I think it would be a disastrous decision if the jury ... are permitted to speculate on how many years he may do and whether he is going to be given any treatment,” and concluded flatly, “This man has been sent back [from Atascadero] not amenable to treatment. So he has actually been found to be a mentally disordered sex offender at least for the present time. He doesn’t receive treatment.” (Italics added.)
In
In re Bevill
(1968)
supra,
Consistent with those guarantees, the state may not involuntarily confine a civilly committed mentally disordered sex offender for an indefinite period in a prison setting. But the public is not thereby exposed to danger. If the offender is found to be unamenable to treatment, the statute directs that he be “returned to the court in which the criminal charge was tried to await further action with reference to such criminal charge. Such court shall resume the proceedings and shall impose sentence or make such other suitable disposition of the case as the court deems necessary.” (§ 6316; see also §§ 6326, 6327.) The parameters of that sentence or disposition, of course, are fixed by the elected representatives of the people. And inasmuch as a well-known purpose of punishment is “to confine the offender so that he may not harm society”
(In re Estrada
(1965)
In view of our disposition herein, it is unnecessary to reach Feagley’s additional contentions.
The order appealed from is reversed.
Wright, C. J., Tobriner, J., and Sullivan, J., concurred.
I dissent, on three separate grounds. First, for the reasons set forth in my dissenting opinion in
People
v.
Burnick, ante,
p. 306 [
In April 1970 defendant was convicted of misdemeanor battery (Pen. Code, § 242) following his plea of guilty to that charge. Pursuant to law (Welf. & Inst. Code, § 6302 et seq.) 1 defendant was certified to the superior court for a hearing to determine whether he was a mentally disordered sex offender (“MDSO”). In May 1970, acting on the basis of psychiatric testimony, the court found that defendant was an MDSO and ordered him committed to Atascadero State Hospital for a period of not more than 90 days, for the purpose of observation, diagnosis and recommendation to the court. (See former § 6316; under a 1970 amendment, the 90-day diagnostic period was deleted from the section.)
Subsequently, in July 1970, Atascadero officials advised the court that defendant was a mentally disordered sex offender who was a danger to the health and safety of others, and that defendant was not amenable to treatment in a state hospital. These officials recommended that defendant be sentenced and, if he were convicted of a misdemeanor, that he be committed for an indeterminate period to the California Medical Facility at Vacaville, for custodial care and treatment at an institutional unit under the jurisdiction of the Department of Corrections. (See §§6316, 6326.)
Thereafter, in October 1970, the court held a second hearing and found that defendant was an MDSO who was a danger to the health and safety of others and who was not amenable to treatment at state hospital. The court,
acknowledging defendant’s need for “active involvement” in an institutional treatment program,
accepted the recommendation of Atascadero officials that defendant be committed to the California Medical Facility. Thereupon, defendant demanded a jury trial of the question of his status as an MDSO, as provided in section 6318. At the trial of this issue the jury, by a nine to three verdict, found that defendant was an MDSO and once again the trial court ordered defendant committed indefinitely to the California Medical Facility. The record indicates that defendant was retained at this facility for a short time and then transferred to California Men’s Colony in San Luis Obispo County, a state prison
1. Standard of Proof
In my dissent in People v. Burnick, supra, ante, page 306,1 suggest that the “beyond a reasonable doubt” standard of proof required in .criminal cases is inappropriate in MDSO proceedings, since these proceedings are essentially civil in nature, and conducted with a view toward predicting whether the defendant is likely to be dangerous to others by reason of a predisposition to commit sexual offenses. As I explained, we cannot reasonably expect the trier of fact to determine this complex medical and psychiatric question on the basis of a determination beyond all reasonable doubt; of necessity, doubts accompany any attempt to predict human behavior.
The majority suggest, however, that this rationale should not control here, since Mr. Burnick was committed to, and remained at, Atascadero, a state hospital, whereas defendant was found unamenable to treatment at Atascadero and was ultimately committed to a treatment facility on prison grounds. Evidently, the majority assume that Feagley’s commitment, accordingly, was a penal one and that he was therefore entitled to the procedural safeguards attendant to an ordinary criminal trial.
The majority misconstrue the intent and effect of the MDSO commitment process. The entire thrust of the statutory provisions is aimed at providing appropriate treatment for the MDSO. Under section 6316, the court may commit him to a state hospital if he is amenable to treatment there. If, however, he is not amenable to treatment at a state hospital, the court can commit him “for an indefinite period to the State Department of Health for placement in a state institution or institutional unit for the care and treatment of mentally disordered sex offenders designated by the court and provided pursuant to Section 6326.” (Italics added.) Under section 6326, the Director of Health “may provide on the grounds of a state institution or institutions under the jurisdiction of the Department of Corrections or the State Department of Health one or more institutional units to be used for the custodial care and treatment of mentally disordered sex offenders.” (Italics added.) California Men’s Colony, where defendant was transferred, contains such an institutional treatment unit.
A case close on point is
In re Cruz, 62
Cal.2d 307 [
We noted in
Cruz
that institutions such as the Rehabilitation Center are minimum security institutions and that sound security precautions may require a commitment to a more secure environment, such as a state prison facility. Nevertheless, as we explained in
In re De La O.,
By a parity of reasoning, I would conclúde the defendant’s commitment to California Men’s Colony was a “civil” commitment despite the
Thus, in the absence of proof that defendant has not received the “care and treatment” to which he is entitled, we must assume that his commitment was, and remained, “civil” in nature. 2 Accordingly, I would hold that defendant was not entitled to the benefit of the “beyond a reasonable doubt” standard of proof.
2. Lack of Treatment
As I indicate above, a major justification for the indefinite commitment of MDSOs is to provide opportunities for their treatment. The majority maintain that since Feagley was found unamenable to treatment, and has received no treatment, his commitment is in fact a “penal” one.
(See Robinson
v.
California, supra,
First of all, it is clear that defendant has never been found incurable or permanently unamenable to treatment. The trial court’s finding, based upon the report and recommendation of Atascadero officials, was that he was presently unamenable to treatment
at a state hospital.
As I noted above, the trial court expressly acknowledged the availability of, and need for, treatment at an institutional facility under the jurisdiction of the Department of Corrections. A finding of unamenability at Atascadero, a minimum security hospital, does not preclude a finding of amenability at an institutional facility. (See
In re Cruz, supra,
Moreover, the present record fails to establish that defendant failed to receive the treatment which, under the law (§§ 6316, 6326), must be provided to him. We must keep in mind that the instant case involves a direct appeal from a judgment of commitment; the facts regarding defendant’s subsequent treatment are not a part of the record. In the absence of facts of record disclosing the invalidity of defendant’s initial commitment, the proper remedy for one asserting a failure to receive adequate treatment is to seek habeas corpus. As we stated in
In re Gary W., supra,
It is uncontradicted that defendant and other MDSOs committed to an institutional unit at California Men’s Colony do receive group counseling and therapy by psychiatric and correctional staff.
3
In view of the fact that defendant’s own commitment has terminated, I see no purpose in speculating regarding the effectiveness of the treatment presently received by others in his position. As indicated above, such persons may
3. Unanimous Jury Verdict
Under section 6321, the concurrence of three-fourths of the jurors is sufficient to determine a defendant’s status as an MDSO. The majority point out that ordinary civil commitments under the Lanterman-Petris-Short Act (§ 5000 et seq.) require a
unanimous
jury verdict. (§ 5303.) They rely upon
Baxstrom
v.
Herold,
First of all, neither the Baxstrom nor Humphrey case is on point. Baxstrom held that a convicted prisoner who had completed his sentence could not be held in confinement for additional, compulsory treatment without affording him a jury trial. Humphrey held that Wisconsin’s sex offender commitment statutes offended equal protection principles by denying defendant a pre-commitment jury trial. Both cases agree that a person’s status as a prior criminal offender does not of itself justify denying him the fundamental right of trial by jury, a right provided to other persons sought to be committed as dangerous to society. Neither case, however, touches upon the question whether the state may, in bestowing that right, require less than a unanimous verdict to commit an MDSO.
On the other hand, this court has recently made it clear that the three-fourths verdict procedure (which is now applicable to several specialized commitments, . including MDSO, narcotics addict, and juvenile court ward commitments) does not offend equal protection principles. We stated that “although the procedures leading to the
It must be kept in mind that, unlike the person sought to be civilly committed under the general provisions of the Lanterman-Petris-Short Act, defendant had already been convicted of a criminal offense, and had (following a full judicial hearing) been adjudged an MDSO by the trial court. As we recently pointed out in
In re Franklin,
I would affirm the order of commitment.
McComb, J., and Clark, J., concurred.
Respondent’s petition for a rehearing was denied June 11, 1975. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.
Notes
Section 6300 defines a mentally disordered sex offender as “any person who by reason of mental defect, disease, or disorder, is predisposed to the commission of sexual offenses to such a degree that he is dangerous to the health and safety of others.” The earlier statutory term for such a person was “sexual psychopath.” (See former § 5500.)
Unless otherwise specified, all statutory references in this opinion are to the Welfare and Institutions Code.
If the statutory mechanism discussed in this opinion appears excessively complicated, it is because the Legislature has chosen to make it so. As Presiding Justice G. A. Brown observed, “The statutory scheme prescribes a ponderous labyrinthian procedure for the disposition of a person found to be an M.D.S.O. An M.D.S.O. may be moved back and forth, yo-yo-like, amongst the committing court, the state hospital (under the Department of Mental Hygiene), the criminal court and a state penal institution (under the Department of Corrections).”
(People
v.
Allen
(1973)
As of July 1, 1973, all references in the mentally disordered sex offender statutes to “Department of Mental Hygiene” were changed to “State Department of Health.” In this opinion we shall continue to use the appellation in force at the time of the commitment proceedings in question.
[Indeed, in this regard mentally disordered sex offenders, however minor their underlying crime, may be worse off than persons who are required to so register by reason of conviction of violent sexual felonies such ás assault with intent to commit rape or sodomy. Penal Code section 290.5 relieves the latter of the duty to register upon obtaining a certificate of rehabilitation pursuant to Penal Code section 4852.01 et seq. That section, however, applies only to felons; it is silent on whether mentally disordered sex offenders can take advantage of its provisions, and the silence arguably implies their exclusion.
Persons in this category are “processed in” at the California Institution for Men at Chino and the California Medical Facility at Vacaville. Some are retained at the latter location, and “cases requiring management control or security housing . . . may be housed at San Quentin.” (Inmate Classification Manual (Dept. Corrections) p. CLVII-02.) (For an example of the latter confinement, see'In
re Lopez
(1969)
Section 6318 provides in relevant part: “If a person ordered under Section 6316 to be committed as- a mentally disordered sex offender to the department for placement in a state hospital for care and treatment, or any friend in his behalf, is dissatisfied with the order of the judge' so committing him, he may, within 15 days after the making of such order, demand that the question of his being a mentally disordered sex offender be tried by a judge or by a jury in the superior court of the county in which he was committed.” (Italics added.)
There are other examples. The Legislature also declined to extend to such persons the benefits of the trial court’s statutory authorization to require periodic progress reports from the institution to which the defendant is committed (§ 6317) and, after reception at the institution, to conduct a new hearing as often as every six months for the purpose of reviewing the factual justification for his continued confinement (§ 6327). The absence of statutory provisions for judicial review of the cases of defendants committed to such units demonstrates beyond cavil that they are the forgotten men of this legislative scheme.
Section 6318 provides in relevant part: “The court shall adjudge whether the person is a mentally disordered sex offender, or if it is a trial by jury the judge shall submit to the jury the question: Is the person a mentally disordered sex offender?” This is further proof that section 6318 was intended to apply only to persons committed to a state hospital.
For example, in People v. Burnick, supra, ante, page 306, the People’s expert witness interviewed the defendant for “a half hour or so,” and testified this was “the usual procedure” in preparing for a mentally disordered sex offender hearing. Taken together, the three psychiatrists in that case examined the defendant for an average of 43 minutes each.
Johnson
v.
Louisiana
(1972)
Recent law review writers are divided on whether mental illness is itself a “suspect classification” requiring strict scrutiny when it is the justification for involuntary commitment. (Compare Noté, Mental Illness:-A Suspect Classification? (1974) 83 Yale L.J. 1237, 1258-1267, with Developments in the Law—Civil Commitment of the Mentally Ill (1974) 87 Harv.L.Rev. 1190, 1229-1230, fn. 153.)
Citing
Brown
v.
Board of Education
(1954)
The People also point to the fact that pursuant to Welfare and Institutions Code section 3108 a person may be civilly committed as a narcotics addict by a three-fourths verdict of the jury. If this is meant to be an argument in support of denying a unanimous verdict in trials of alleged mentally disordered sex offenders, it was refuted in
Gary W.
There the Attorney General attempted to sustain the denial of a jury trial to Youth Authority wards under section 1800 by arguing that the classification was reasonable because the statutes providing for commitment of mentally retarded persons likewise failed to grant the right of jury trial. We quickly rejected the argument, reasoning, “The state does not meet its burden of demonstrating a compelling interest in denying the right to jury trial to Youth Authority wards ... by pointing out that alleged mentally retarded persons are similarly discriminated against.” (
A second 90-day period of treatment—but no more—may be ordered by the court; and even that step requires a new petition and a new showing of imminent danger equivalent to that submitted in support of the original petition. (Id.)
Indeed, to the extent the same persons may be committed under either program, as we recognized in
In re Bevill
(1968)
supra,
Other recent decisions hold that the denial of adequate treatment to persons involuntarily confined upon a civil commitment violates the due process clause.
(Donaldson
v.
O’Connor
(5th Cir. 1974)
The topic has been much discussed in the legal periodicals. (See, e.g., Symposium, Right to Treatment (1969) 57 Geo.L.J. 673; Symposium, Right to Treatment (1969) 36 U.Chi.L.Rev. 742-801; Schwitzgebel, The Right to Effective Mental Treatment (1974) 62 Cal.L.Rev. 936; Schwitzgebel, Right to Treatment for the Mentally Disabled: The Need for Realistic Standards and Objective Criteria (1973) 8 Harv. Civ. Rights—Civ Lib. L. Rev. 513; Reisner, Psychiatric Hospitalization and the Constitution: Some Observation on Emerging Trends, 1973, Ill. L.F. 9, 13-17; Drake, Enforcing the Right to Treatment: Wyatt v. Stickney (1972) 10 Am.Crim.L.Rev. 587; Birnbaum, Some Remarks on “The Right to Treatment” (1971) 23 Ala.L.Rev. 623; George, Due Process in Protective Activities (1968) 8 Santa Clara Law. 133, 140-143; Birnbaum, The Right to Treatment (1960) 46 A.B.A.J. 499; Comment, Wyatt v. Stickney and the Right of Civilly Committed Mental Patients to Adequate Treatment (1973) 86 Harv.L.Rev. 1282; Note, A New Emancipation: Toward an End to Involuntary Civil Commitments (1973) 48 Notre Dame Law. 1334, 1343-1351; Note, Guaranteeing Treatment for the Committed Mental Patient: The Troubled Enforcement of an Elusive Right (1972) 32 Md. L.Rev. 42; Note, Involuntary Civil Commitment —A Constitutional Right to Treatment (1972) 23 Syracuse L.Rev. 125; Note, Due Process for All—Constitutional Standards for Involuntary Commitment and Release (1967) 34 U.Chi.L.Rev. 633, 636-654; Note, The Nascent Right to Treatment (1967) 53 Va.L.Rev. 1134; Note, Civil Restraint, Mental Illness, and the Right to Treatment (1967) 77 Yale L.J. 87.)
The order was entered pursuant to section 6316, which provides in relevant part that “If, however, such court [i.e., the court in which the criminal charge was tried] is satisfied that the person is a mentally disordered sex offender but would not benefit by care or
treatment
in a state hospital it may re-certify the person to the superior court of the county. The superior court máy make an order committing the person for an indefinite period to the Department of Mental Hygiene for placement in a state institution or
Similarly, in the only prior California decision to consider the issue in any depth
(People
v.
Rancier
(1966)
Chief Judge David L. Bazelon of the District of Columbia Circuit Court of Appeals, a principal architect of the right to treatment, has admonished that the uncertainty in the typical statutory definition and finding of dangerousness sufficient to warrant involuntary civil commitment “is tolerated on the rationalization that the person is not being imprisoned, but rather hospitalized for treatment. Of course, when no treatment is forthcoming, we cluck sympathetically but reluctantly refuse to release the individual because he is dangerous. [¶] This chicanery is intolerable. Courts cannot force legislatures to provide adequate resources for treatment. But neither should they play handmaiden to the social hypocrisy which rationalizes confinement by a false promise of treatment. Quite the contrary, courts should and must reveal to society the reality that often festers behind the euphemism of ‘hospitalization.’ ” (Bazelon, Implementing the Right to Treatment (1969) 36 U.Chi.L.Rev. 742, 749.)
Section 5325 specifies these rights as follows:
“(a) To wear his own clothes; to keep and use his own personal possessions including his toilet articles; and to keep and be allowed to spend a reasonable sum of his own money for canteen expenses and small purchases.
“(b) To have access to individual storage space for his private use.
“(c) To see visitors each day.
“(d) To have reasonable access to telephones, both to make and receive confidential calls.
“(e) To have ready access to letter writing materials, including stamps, and to mail and receive unopened correspondence.
“(f) To refuse shock treatment.
“(g) To refuse lobotomy.
“(h) Other rights, as specified by regulation.”
Commendably the People do not rely on
In re Cruz
(1965)
See, e.g., The Mentally Disabled and the Law (Brakel & Rock ed. 1971), pp. 352-353; Morris, Psychiatry and the Dangerous Criminal (1968) 41 So.Cal.L.Rev. 514, 538-539; Swanson, Sexual Psychopath Statutes: Summary and Analysis (1960) 51 J. Crim. L. C. & P. S. 215, 224-225; Fahr, Iowa’s New Sexual Psychopath Law—An Experiment Noble in Purpose? (1956) 41 Iowa L.Rev. 523, 531-546; Hacker & Frym, The Sexual Psychopath Act in Practice: A Critical Discussion (1955) 43 Cal.L.Rev. 766, 773-775; Tappan, Some Myths About the Sex Offender (June 1955) 19 Fed.Prob. 7, 11; Comment, California’s Sexual Psychopath—Criminal or Patient? (1967) 1 U.S.F. L.Rev. 332, 337; Comment, The Validity of the Segregation of the Sexual Psychopath Under the Law (1965) 26 Ohio St. L.J. 640, 655-657; Comment, Sexual Psychopathy—A Legal Labyrinth of Medicine, Morals and Mythology (1957) 36 Neb.L.Rev. 320, 339-344;.Note, The Plight of the Sexual Psychopath: A Legislative Blunder and Judicial Acquiescence (1966) 41 Notre Dame Law. 527, 550-555; Santa Clara Note, pages 600-603; see generally Schwitzgebel, The Right to Effective Mental Treatment (1974) 62 Cal.L.Rev. 936, 941-948; Burt, Of Mad Dogs and Scientists: The Perils of the “Criminal-Insane” (1975) 123 U.Pa.L.Rev. 258, 285-288.
The study added, “The courts in some jurisdictions have already indicated that the mentally disabled patient has a ‘right to treatment.’ It would be anomalous not to extend this right to the sexually deviant patient. In fact, the logic of several recent judicial decisions concerning the disposition of sex psychopath cases already suggests that a ‘right of treatment’ applies to such offenders.” (Fns. omitted.)
These and similar contemporary techniques of behavioral control are discussed in detail in Note, Conditioning and Other Technologies Used to “Treat?” “Rehabilitate?” “Demolish?” Prisoners and Mental Patients (1972) 45 So.Cal.L.Rev. 616, 621-640. (See also Burt, Of Mad Dogs and Scientists: The Perils of the “Criminal-Insane” (1975) 123 U.Pa.L.Rev. 258, 263-273.)
The practical barriers to adequate treatment of sex offenders in a correctional institution were described in a statement presented to the subcommittee by Dr. David G. Schmidt, chief psychiatrist at San Quentin. Dr. Schmidt’s firm position was that “prison is a poor place to treat sick patients.”
(Id.
at p. 171.) For a variety of reasons, he explained, the setting is inappropriate and largely counter-productive. Civilian personnel “may castigate these patients that have emotional problems, as nuts, and fruits, and sex fiends,” and “one sadistic official often destroys the work of a dozen officers.”
(Id.
at pp. 171,172.) Similarly, “the general prison population, is much less accepting, much less tolerant of patients and men that are not well physically or mentally than are the general population. This puts more pressure on these offenders who are proverbially the ones that get into sexual difficulties because of pressure and rigidity, because of a sense of inferiority, prison generally makes this sense of inferiority worse, develops more insecurity feelings in the individual, segregation may be necessary.”
(Id.
at p. 172.) But “segregation.alone without treatment is futjle, fixates the aberrated even more”
(ibid.).
Nor is vocational or industrial therapy a realistic alternative: “Since these men often lack initiative, they lose out of hobby and craft activities and positions that are more desirable, such as office work, positions in industry with prison pay. Th§y also come out on the tail-end often on recreation and other privileges”
(id.
at p. 171); “there is comparatively little work in the prison for psychotics and sex offenders that have large emotional or mental problems and they are often relegated to such idle tasks as yard sweeping ... which lessens their chances for recovery and rehabilitation.”
(Id.
at p. 172.) To further compound these difficulties, “Unfortunately we have not had sufficient staff to give each offender more than approximately two hours, of individual treatment or an
The statements, made under penalty of perjury, were filed with this court by the Attorney General in the case of In re Abney on Habeas Corpus, Crim. 15112, as exhibits to his response to a petition raising issues substantially identical to those now before us.
Feagley obviously presents no such problem. His Atascadero report stated that he “is very quiet, spends most of his time just sitting around,” and listed no behavioral incidents. His California Men’s Colony report stated that his disciplinary record was “clear,” he was “exceptional in attitude toward authority” and above average in emotional stability, and concluded: “Feagley is a very polite and neat individual. He is no problem in the unit and you hardly know he’s around. He spends most of his leisure time in his room reading and watches some TV. He has good associates.”
The significance of this alternative will be made clear later in this opinion.
Even this statement may be overoptimistic. The report of the California Men’s Colony discloses that Feagley was found “not motivated!’ for academic instruction and “not academically qualified” for vocational instruction, and that his regular work assignment was in the prison knitting mill. His only other formal activity was a “group counseling” session led by a “Correctional Counselor I.” Such sessions, occurring once a week for 75 minutes, constitute the sole “treatment” currently offered to mentally disordered sex offenders at the California Men’s Colony (Santa Clara Note, p. 602), and the program is wholly voluntary (Inmate Classification Manual (Dept. Corrections) p. CL-IX-05, par. 3). A “Correctional Counselor I,” of course, is not a medical professional; he is not even required to hold an undergraduate degree, but may qualify for the position with as little as one year’s experience as a “correctional case work trainee.” (State Personnel Bd. Specification, Rev. 10/4/73.) We have commented elsewhere on the inadequacy of group counseling as the exclusive treatment for sex offenders in a prison setting.
(In re Lynch
(1972)
supra,
The officer further noted that throughout the 11 years Feagley previously spent in state prison the doctors “continually” stated that he would not benefit from further treatment.
At the commitment hearing the court complained of this fact, characterizing the Atascadero report as a “mimeographed” and “very minimum-grade form letter" which furnished no explanation as to why Feagley was found to be not treatable in the state hospital.
An identical recommendation was made, for example, in
In re Brown
(1969)
supra,
Not surprisingly, persons so committed spent almost three times as long in custody as those committed to a state hospital. (Ibid.)
In
In re Davis
(1973)
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
For cases holding that MDSO commitments are essentially “civil” despite the possibility of confinement on prison grounds, see
In re Bevill,
Defendant has asserted that he was confined in the “D Quad” of the East Wing of California Men’s Colony, a cell block used especially for the incarceration of MDSOs. According to defendant, he “mingle[d] freely with the general prison population,” wore the usual prison attire, worked in the prison knit shop, was subject to prison “scrutiny and censorship” of his mail as well as all other prison regulations regarding security, and was deprived of rights and privileges made available to MDSOs committed to state hospitals. None of these assertions were properly part of the record on appeal.
As I have explained above, security considerations may require that persons confined to a prison treatment facility forego some of the privileges available to patients at a state hospital. (See
In re Cruz, supra,
We have noted that with respect to certain mentally disordered persons, it may be “inappropriate to place upon such persons the burden of initiating proceedings . . .” to secure habeas corpus relief.
(In re Davis,
The three-fourths verdict provision originally applied to all civil commitments of mentally disordered persons. (See, e.g., former Pol. Code, § 2174;
In re Shackleford,