It is with considerable bewilderment that one reads today’s majority opinion. Explicit words—not to mention fundamental premises—of a United States Supreme Court decision are ignored, as if they do not exist. Firmly established methods of equal protection analysis are fleetingly alluded to and then forgotten. Plain truths that this court has heretofore openly embraced are now somehow repealed.
I must respectfully dissent.
I
The relevant legal history begins in 1966 with the United States Supreme Court’s decision in Baxstrom v. Herold (1966) 383 U.S. 107 [15 L.Ed.2d 620, 86 S.Ct. 760]. Baxstrom was a prisoner serving a sentence for assault who was certified as insane and transferred to an institution for “dangerously mentally ill” persons. As Baxstrom’s prison sentence was about to expire, the state sought to have him civilly committed to the same institution. By statute, a civil commitment at the end of a prisoner’s term was permitted if the court found that the prisoner was *186still insane. However, if the state sought to civilly commit any person other than a prisoner whose term was expiring, that person had the right to a jury determination of the question of his sanity.
The Supreme Court found that the denial to Baxstrom of the right to jury review of the issue of insanity violated equal protection. In rejecting the state’s argument that this disparity in procedure was justified because Baxtrom’s conviction and sentence demonstrated his “dangerous or criminal propensities,” the high court stated that “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.” (383 U.S. at pp. 111-112 [15 L.Ed.2d at p. 624].)1
Six years after Baxstrom, the Supreme Court handed down Jackson v. Indiana (1972) 406 U.S. 715 [32 L.Ed.2d 435, 92 S.Ct. 1845], which is the benchmark decision in this area. There, petitioner Jackson stood accused of two robberies but was found incompetent to stand trial on the charges.2 Pursuant to Indiana statute, Jackson was ordered confined in an “appropriate psychiatric institution” until he became “sane.” Since the evidence adduced at Jackson’s incompetency hearing established there was “little likelihood of improvement” in his mental condition (see 406 U.S. at p. 723 [32 L.Ed.2d at p. 442]), the incompetency commitment amounted to a confinement for life.
Indiana had two other laws providing for the involuntary commitment of persons on the basis of their mental deficiencies. However, *187the commitment and release standards under these provisions were “substantially different” from those used in criminal incompetency proceedings. {Id., at p. 727 [32 L.Ed.2d at pp. 444-445].) For the “feeble-minded” and the “mentally ill,” commitment was more difficult and release easier than for persons adjudged to be incompetent. {Id., at p. 730 [32 L.Ed.2d at p. 446].)
The Supreme Court held in Jackson that the state’s use of more onerous commitment and release standards against incompetents alone violated equal protection principles. It found that this disparity could not be justified on the basis that alleged incompetents, unlike persons sought to be committed for feeble-mindedness or mental illness generally, were necessarily the subjects of formal criminal charges. “If [as Baxstrom had held] criminal conviction and imposition of sentence are insufficient to justify less procedural and substantive protection against indefinite commitment than that generally available to all others, the mere filing of criminal charges surely cannot suffice.” (406 U.S. at p. 724 [32 L.Ed.2d at p. 443].)
The court discussed in detail the specific question of disparities in release standards for institutionalized persons who were mentally ill. It ruled that a state may not, “without reasonable justification,.. . apply standards making [an individual’s] commitment a permanent one when standards generally applicable to all others afford him a substantial opportunity for early release.” (Id., at p. 729 [32 L.Ed.2d at p. 446].) Neither a pending criminal charge nor, indeed, a final criminal conviction would, the court held, supply the “reasonable justification” required by the Constitution for unequal release standards. {Id., at pp. 729-730 [32 L.Ed.2d at p. 446].)
The Supreme Court also held that Jackson’s indefinite commitment for incompetency violated due process. (Id., at p. 731 [32 L.Ed.2d at p. 447].) “At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” (Id., at p. 738 [32 L.Ed.2d at p. 451].) Jackson was committed for the purpose of enabling him to regain his competence to stand trial, yet the record established that this purpose was not being, and probably never would be, achieved. (See In re Davis (1973) 8 Cal.3d 798, 804 [106 Cal.Rptr. 178, 505 P.2d 1018].)
*188Accordingly, the court adopted a “rule of reasonableness.” (Jackson, supra, 406 U.S. at p. 733 [32 L.Ed.2d at p. 448].) It held that “a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal.” (Id., at p. 738 [32 L.Ed.2d at p. 451], fn. omitted.)
At the time Jackson was decided, California, like Indiana, had standards for commitment and release of persons incompetent to stand trial which were “significantly different” from those prescribed for all other persons sought to be civilly committed. (In re Davis, supra, 8 Cal. 3d at p. 805.) California statutes also authorized the indefinite commitment of persons found to be incompetent. Thus, relying on Jackson, this court invalidated those California procedures. (In re Davis, supra, 8 Cal.3d 798.)
The Legislature responded to Jackson and Davis by revising the incompetency laws of this state. (Stats. 1974, ch. 1511, p. 3316 et seq.) As amended, the laws still permit the lifelong institutionalization of an incurably incompetent person accused (but not convicted) of crime. However, the provisions authorizing such a commitment were moved from the Penal Code to the general civil commitment statutes. (The Lariterman-Petris-Short Act [hereinafter, the L.P.S. Act], Welf. & Inst. Code, § 5000 et seq.) Now, an indefinite commitment for incompetency is permitted only if the incompetent person has been indicted or held to answer for “a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person.” (Welf. & Inst. Code, § 5008, subd. (h)(2).) Moreover, according to the majority, the incompetent accused person must be presently dangerous. (Maj. opn., ante, at pp. 174-177.) However, while these revisions may have addressed some of the due process problems identified in Jackson and Davis, they did not begin to overcome the equal protection deficiencies.
*189II
At the heart of this appeal lies appellant’s claim that California law, providing for the indefinite commitment of certain incompetent persons accused of crime, denies him the equal protection of the law. The majority recognize that this contention involves a constitutionally fundamental interest and that “strict scrutiny is the correct standard of review.” (Maj. opn., ante, at p. 171, fn. 8.) This means that the state must (1) establish that it has a compelling interest which justifies the law and then (2) demonstrate that the distinctions drawn by the law are necessary to further that purpose. (See People v. Olivas (1976) 17 Cal.3d 236, 251 [131 Cal.Rptr. 55, 551 P.2d 375].)
Two equal protection questions are posed by this appeal. The first involves the state’s unequal statutory treatment of incompetent persons as compared to its provisions for other unconvicted persons who are dangerous as a result of mental disorder.3 (See Welf. & Inst. Code, §§ 5300-5306.) Whereas persons subject to the 90-day postcertification procedures may be committed only for “intensive treatment,”4 an incompetent individual (appellant herein) may be committed even if no treatment for his condition is available. Moreover, the length of an incompetent’s commitment is far greater than that permitted under the 90-day postcertification procedures. An incompetent person may be institutionalized for life; an imminently dangerous person may be committed for only 90 days and his commitment may not be renewed unless he has threatened, attempted, or engaged in violence during the prior 90 days’ confinement. (Welf. & Inst. Code, § 5304.)
These vast differences in this state’s handling of incompetent persons and imminently dangerous persons are upheld by the majority by means of a process of sophistical reasoning. The incompetency laws are said to serve a compelling state interest, i.e., protection of the public. Therefore, the majority assert, the disparities are justified on the basis that the Legislature could “reasonably” conclude that incompetent persons are presently more dangerous than imminently dangerous persons since the former are “formally charged with” a violent crime and have previously been held to answer for that crime after a judicial determination of probable cause.
*190The compelling nature of the state’s interest in protection of the public may be conceded, but the majority’s “logic” is fallacious at virtually every other step. At the outset, the mere “reasonableness” of the legislative classification scheme is not the correct constitutional yardstick in this case. (Cf., maj. opn., ante, at p. 172.) “[S]trict scrutiny is the correct standard of review” (maj. opn., ante, at p. 171, fn. 8), and under the second prong of the strict scrutiny test, this court is required to determine whether the statutory disparities are necessary to protect the public. (Cf., ante, at p. 189.) Obviously, it is not necessary for the protection of the public that nontreatable incompetents be institutionalized whereas imminently dangerous persons who are not treatable remain free; nor is it necessary that incompetents remain confined for life while imminently dangerous persons are released after 90 days. To avoid this ineluctable conclusion, the majority simply ignore this prong of the strict scrutiny test and apply the minimal scrutiny of the rational basis test.
Even viewing this case from the viewpoint of mere “reasonableness,” the majority’s conclusions do not withstand analysis. The reasoning that a judicial determination of probable cause justifies the unequal handling of incompetents is unpersuasive. It is present dangerousness that is relevant to the state’s compelling interest in protecting the public. As the majority recognize, the validity of the assumption that one who has been charged with a violent felony is currently dangerous diminishes with the passage of time. (Cf., maj. opn., ante, at p. 177.) The parties to this appeal have informed us that proceedings to permanently commit an incompetent individual under the L.P.S. Act are normally brought at least three years after the commission of the crime charged. (Cf., Pen. Code, § 1370.) By this time, the validity of the state’s assumption will have diminished to virtual insignificance. It surely cannot be said to justify the huge discrepancies which California law has created.
The validity of the state’s assertion as to the present dangerousness of incompetents is also undermined by the exceptionally limited nature of the “judicial determination of criminal conduct”5 from which that conclusion is drawn. A judicial determination that an accused should be held to answer for a violent crime is far less reliable as an indicator of his actual commission of that crime than is a conviction, since the state’s burden at a preliminary examination is much easier to meet than at trial. This would be true even if the accused were competent, but *191when he is. incompetent, the judicial determination of probable cause is even less reliable as an indication that he in fact committed a criminal act. “Counsel cannot effectively represent a defendant who is unable to understand the proceedings or to rationally assist him.” (Hale v. Superior Court (1975) 15 Cal.3d 221, 228 [124 Cal.Rptr. 57, 539 P.2d 817].) Thus, when an accused is incompetent at the preliminary hearing, there is at best an extremely limited opportunity for effective cross-examination or presentation of the defense point of view.
In sum, it is wholly unreasonable to conclude that because incompetent persons were held to answer for a violent crime committed some years in the past, they are currently more dangerous to the public than imminently dangerous persons. This profferred justification for the state’s enormously disparate treatment of the two groups should be rejected. Indeed, the United States Supreme Court has already explicitly done so. In Jackson and Baxstrom, it has held that neither the filing of criminal charges nor the obtaining of a final conviction are adequate “to justify less procedural and substantive protection against indefinite commitment than that generally available to all others. . . . ” (Jackson, supra, 406 U.S. at p. 724 [32 L.Ed.2d at p. 443].) If a person’s actual conviction is insufficient to justify “applying] standards making his commitment a permanent one when standards generally applicable to all others afford him a substantial opportunity for early release” (id., at p. 729 [32 L.Ed.2d at p. 446]), a fortiori the fact that the person has been held to answer is insufficient.
One searches today’s majority opinion in vain for some indication that they recognize the meaning of those words by the Supreme Court. The majority “do not regard [Jackson] as holding that the fact of criminal incompetency may never be a basis for involuntary confinement prescriptions.” (Ante, at p. 171.) But that statement is a truism. It does not, however, support the majority’s conclusion that California procedures comport with equal protection despite the clear language of Jackson. The majority have apparently determined to deal with Jackson and Baxstrom in the same fashion as they dealt with the second prong of the strict scrutiny test. They treat it as if, having conceded its existence, they can then ignore it.
Ill
Even if I were to accept the majority’s reasoning that a prior “judicial determination of criminal conduct” is sufficient to uphold the *192incompetency laws of this state against an equal protection challenge based on a comparison with the statutes relating to the 90-day postcertification procedures, it would be impossible to uphold the validity of the incompetency laws. It would then become necessary to compare the Legislature’s treatment of incompetent persons with its treatment of other persons who have suffered a “judicial determination of criminal conduct.”
The majority have identified three groups of such persons: (1) those found not guilty by reason of insanity (Pen. Code, § 1026 et seq.); (2) those found to be mentally disordered sex offenders (Welf. & Inst. Code, § 6300 et seq., hereinafter referred to as MDSO’s); and (3) those committed to the California Youth Authority (Welf. & Inst. Code, § 1800 et seq.). Under current law, all of these persons may under specified circumstances be indefinitely confined in an institution as a result of a mental defect.
However, the commitment and release standards for all three of these groups differ significantly from those provided for incompetents. No individual may be committed in the first instance under the procedures mentioned by the majority unless there has been a determination beyond a reasonable doubt that he or she is guilty of a crime. In addition, since the purpose of commitment under these three provisions is the treatment of the offender’s mental condition,6 the confinements thus authorized must be terminated if treatment is unfeasible or unavailable. (See Jackson, supra, 406 U.S. at pp. 731-738 [32 L.Ed.2d at pp. 447-451]; see also, Gary W., supra, 5 Cal.3d at p. 302.)
Neither of these substantial protections is accorded to a person subjected to incompetency proceedings in this state. As already noted, incurably incompetent persons may be committed without any proof beyond a reasonable doubt that they committed a felonious act, and they will remain confined even when it is determined that the state cannot treat their mental disorder.7
*193This discrimination against incompetents is clearly not “necessary” to safeguard the public since the greater protections are afforded to equally dangerous persons such as MDSO’s. The disparity is not even rational. And once again the Supreme Court’s prior decisions speak directly to this sort of unequal protection of the laws. Here, just as in Jackson, the incompetent individual has been “subjected] to a more lenient commitment standard and to a more stringent standard of release than those generally applicable” to all others whom the majority deem to be similarly situated. (See Jackson, supra, 406 U.S. at p. 730 [32 L.Ed.2d at p. 446].) “[B]y thus condemning him in effect to permanent institutionalization without the showing required for commitment or the opportunity for release afforded by [the statutes dealing with other persons who have suffered a prior judicial determination of criminal conduct], [California] deprived [appellant] of equal protection of the laws under the Fourteenth Amendment.” (Ibid.)
IV
In addition to the equal protection problems discussed above, this case also presents another important but difficult question concerning a government’s power to incarcerate its citizens. May an individual be institutionalized—against his will and for the remainder of his life—on the basis of his status of having a “dangerous” mental condition where (1) it has not been proved beyond a reasonable doubt that he committed any violent act amounting to a crime and (2) the state cannot treat his mental condition?
This question raises serious issues under our constitutional requirements of due process of law8 and our prohibitions against cruel and/or unusual punishments.9 To the extent these issues are considered at all, the majority appear to uphold such involuntary lifetime commitments solely on the basis of the state’s “compelling interest[] in public safety.” (Maj. opn., ante, at p. 171.) But the reasons underlying their conclusion are difficult to discern. No potentially counterbalancing considerations are even discussed. The state’s interest in public safety would seem to be equally strong with respect to “imminently dangerous” persons, yet it *194is not suggested—and I doubt every member of today’s majority would accept—that a person who has committed no crime may be “hospitalized” for life on the basis that some authority thinks he has an incurable mental defect which will result in future harm to society.
Perhaps an understanding of the majority’s conclusions can be gleaned from its discussion of the ex post facto question raised by appellant. There, the majority reveal that they regard appellant’s confinement as “not penal” in nature and as imposing no “punishment.” (Maj. opn., ante, at p. 182.)
These designations of appellant’s confinement are incredible. Incurably incompetent persons such as appellant are generally kept in institutions like Patton or Atascadero State Hospitals. This court has repeatedly recognized that these institutions do not differ appreciably from prisons.10 Within those same walls are persons convicted of and serving sentences for crime. Moreover, appellant’s commitment to these institutions is for the rest of his life. He is confined against his will. He is confined only because there has been a “judicial determination of criminal conduct.” He receives no treatment. The sole justification for his confinement is the protection of society, which this court has explicitly declared is a “well-known purpose of punishment.” (People v. Feagley (1975) 14 Cal.3d 338, 376 [121 Cal.Rptr. 509, 535 P.2d 373], italics added.) Under these circumstances, to conclude, as the majority do, that appellant’s extended confinement is not punishment is to exalt form over substance.
V
Since in my view the judgment against appellant was obtained in violation of the constitutional provisions regarding equal protection, due process, and cruel and/or unusual punishment, I would reverse.
Appellant’s petition for a rehearing was denied October 15, 1980. Bird, C. J., was of the opinion that the petition should be granted.
The court also held that Baxstrom had been denied the equal protection of the law in another respect, i.e., “by his civil commitment to an institution maintained by the Department of Correction beyond the expiration of his prison term without a judicial determination that he is dangerously mentally ill such as that afforded to all so committed except those, like Baxstrom, nearing the expiration of a penal sentence.” (Id., at p. 110 [15 L.Ed.2d at p. 623], italics added.)
“The capriciousness of the classification employed by the State is thrown sharply into focus by the fact that the full benefit of a judicial hearing to determine dangerous tendencies is withheld only in the case of civil commitment of one awaiting expiration of penal sentence. A person with a past criminal record is presently entitled to a hearing on the question whether he is dangerously mentally ill so long as he is not in prison at the time civil commitment proceedings are instituted. Given this distinction, all semblance of rationality of the classification, purportedly based upon criminal propensities, disappears.” (Id., at p. 115 [15 L.Ed.2d at p. 626].)
Under then-existing state law, an accused person was incompetent to stand trial if he “has not comprehension sufficient to understand the proceedings and make his defense....” (Former Ind. Ann. Stat., § 9-1706a (supp. 1971), quoted at 406 U.S. at pp. 717-718, fn. 1 [32 L.Ed.2d at p. 439].)
The provisions for the involuntary commitment of the latter group will be referred to as the “90-day postcertification” procedures, and the persons confined under these provisions as “imminently dangerous.”
See Welfare and Institutions Code sections 5300 and 5304.
Ante, at page 172.
In re Gary W. (1971) 5 Cal.3d 296, 302 [96 Cal.Rptr. 1, 486 P.2d 1201] [extension of Youth Authority commitment]; In re Moye (1978) 22 Cal.3d 457, 466 [149 Cal.Rptr. 491, 584 P.2d 1097] [commitment as an MDSO or as a person found not guilty by reason of insanity].
Incompetent persons accused of violent felonies may be the only individuals in this state who can be institutionalized for life on the basis of a mental defect that the state cannot treat.
See Jackson, supra, 406 U.S. at pages 736-738 [32 L.Ed.2d at pages 449-451]. Compare, United States Constitution, Fifth and Fourteenth Amendments; California Constitution, article I, sections I and 7.
See Robinson v. California (1962) 370 U.S. 660 [8 L.Ed.2d 758, 82 S.Ct. 1417]. Compare, United States Constitution, Eighth Amendment; California Constitution, article I, section 17.
See People v. Burnick (1975) 14 Cal.3d 306, 319-320 [121 Cal.Rptr. 488, 535 P.2d 352]; Conservatorship of Roulet (1979) 23 Cal.3d 219, 226-227 [152 Cal.Rptr. 425, 590 P.2d 1].