(concurring in the result):
I concur in the result but write separately to underscore the failure of the Utah Legislature, Department of Corrections, and Department of Social Services to adequately address the “long-festering problem” of mentally retarded and mentally ill criminal offenders. State v. Murphy, 760 P.2d 280, 287 (Utah 1988). In State v. Murphy, this Court sketched the history of the state’s inaction and noted that as early as 1965, the Governor’s Advisory Committee on Mental Retardation urged the state to establish “a separate facility to handle retarded delinquents and criminals whose problems require special attention and treatment.” Id. at 287 (quoting Mental Retardation, a Comprehensive Plan for Utah 9-23 (1965)). I repeat what I wrote in that case: “This state has failed dramatically in its moral obligation to provide adequate support systems for adults disabled by mental retardation, as well as by mental illness, who enter the criminal justice system .... Our laws in this area are useless and archaic, and our policies do not prevent injustice.” Id. at 289 (concurring opinion) (emphasis in original); see also id. at 290 (Zimmerman, J., concurring).
The apparent misapprehension by the trial judge in this case of the term “treatment” compounds the more general problem of inadequate facilities for mentally retarded offenders. Even where a complete cure is unavailable, treatment of mental retardation or mental illness serves to improve the quality of an offender’s life and can include behavior modification, social skills education, and self-maintenance training, as well as drugs or psychotherapy. Our society routinely treats patients who have chronic physical and psychological diseases, often acknowledging that the best outcome of treatment or therapy will not be total cure, but only some alleviation of discomfort or increase in function. The policy underlying our criminal commitment statutes is that people who are suffering from chronic conditions should receive appropriate treatment to enhance their capac*32ity to function normally and to protect them from abuse, suffering, and deterioration. The statutes seek to advance this policy by placing such people in treatment facilities rather than in prisons. This Court concluded unanimously in McClure v. State that “[t]he effects of mental retardation may be ameliorated with education and training....” 737 P.2d 1001, 1003 (Utah 1987). It is thus illogical to conclude, as the trial court apparently did here, that “treatment” for mental retardation is impossible within the meaning of section 77-35-21.5(4)(e) because the condition cannot be cured. The statutory requirement of “treatment ... that is adequate and appropriate to the defendant’s conditions and needs,” Utah Code Ann. § 77-35-21.5(4)(e) (Supp.1989), is satisfied by management of a person’s behavior and symptoms even where, as with mental retardation, the underlying condition is incurable.
The trial judge in this case was apparently influenced by testimony that there are psychiatrists at the prison who could counsel defendant. In the first place, there is no reason to believe that a prison psychiatrist is likely to be particularly skilled in dealing with mental retardation. In the second place, the mere possibility of counseling in prison should not be confused with the guarantee of counseling in the state hospital or other treatment facility. Whereas placing defendant in a treatment facility would ensure the provision of psychological and/or rehabilitative attention, the judge’s recommendation of special treatment for defendant in prison is not likely to have any effect at all; it is merely a recommendation which prison officials will either follow or ignore at their complete discretion. The trial court loses all jurisdiction over persons sentenced to prison.
I wrote in State v. Murphy that our current legislative policies do not prevent injustice. In light of the current case, in which a man with an IQ of sixty-nine at most is sentenced to prison in the face of testimony that he is highly vulnerable to exploitation and on the ground that defendant’s retardation cannot be treated or cured, I contemplate a deeper problem. Where the state fails to provide appropriate custodial facilities and services for offenders who are mentally retarded and then refuses to hospitalize them for treatment although similarly situated mentally ill offenders would be hospitalized, questions of fundamental fairness under the state and federal constitutions may arise.1 Such questions have not been raised and briefed here.
STEWART, J., concurs.. Likewise, the application of article XIX, section 2 of the Utah Constitution might be argued. See, e.g., Neuborne, State Constitutions and the Evolution of Positive Rights, 20 Rutgers L.J. 881 (1989); Collins, Reliance on State Law: Protecting the Rights of People with Mental Disabilities, 13 Vt.L.Rev. 305 (1988); Perlin, State Constitutions and Statutes as Sources of Rights for the Mentally Disabled: The Last Frontier?, 20 Loy.L. A.L.Rev. 1249 (1987).