dissenting:
I cannot accept the majority’s holding that insane persons cannot plead their disability at a probation-revocation hearing and are subject to punishment, though they were not mentally responsible for the conduct that the State says violated their probation. It is not questioned that such persons could have pleaded insanity and could not have been found guilty if the insanity existed when the criminal charges were brought. In the event of later developing disability and conduct violating terms of probation the majority’s view is that the probationer’s “continued presence outside of jail is unwarranted.” (109 Ill. 2d at 314.) The majority’s conclusion is founded on what I consider to be the strange construction that the General Assembly, in section 6 — 2(a) of the Criminal Code of 1961, intended that the defense of insanity would apply only to trial proceedings at which the guilt of the accused was to be determined. It appears obvious to me that the General Assembly, in enacting the statute making insanity a defense, intended to insure fairness toward persons with the specified mental disease or mental defect. It is inconceivable that the General Assembly intended that this fairness to handicapped persons would not be extended to all proceedings and especially to those in which punishment was sought by the State.
The majority says, too, that the real issue at the probation-revocation hearing was whether the defendant’s continued presence in society presented a danger. I consider that the important question here is whether this court should approve the denial of a hearing to a woman who, it is claimed, because of mental deficiency could not adequately understand or control conduct for which the State seeks her punishment.
To support its position the majority cites a decision which held that whether the conduct that violated the terms of probation was culpable is of no concern and that the only concern is whether the terms of probation have been observed. That is a view I cannot share.
The majority concludes by stating that it need not, on the ground of waiver, address the question whether the right to due process requires recognition of the insanity defense in a probation-revocation hearing. I believe that the question of due process and also the question of constitutional protection against cruel and unusual punishments are involved and that here both protections were ignored. Ford v. Wainwright (11th Cir. 1985), 752 F.2d. 526, cert. granted (1985), 474 U.S. _, 88 L. Ed. 2d 552,106 S. Ct. 566.
JUSTICE GOLDENHERSH joins in this dissent.