(dissenting). I respectfully dissent from that part of the opinion which holds that it is a denial of due process under the Fourteenth amendment to deny to a defendant convicted of a sex crime, who, pursuant to the Sex Crimes Act (sec. 959.15, Stats.), has been found by the department of public welfare to be in need of specialized treatment, the right to a hearing to contest the department’s report recommending specialized treatment.
Implicit in the Sex Crimes Act is the fact that commitment for specialized treatment of sex offenders is a phase of the penalty imposed for the crime of which the offender has been found guilty. In practice the sex offender so committed is imprisoned and receives specialized treatment, psychiatric in nature, while so confined. In other words he receives imprisonment plus treatment.
The majority opinion rests on the fallacious assumption that the determination of whether a convicted sex offender shall be committed to the department for such specialized treatment must be made by the judiciary and that it is a denial of due process for the legislature to entrust it to an administrative agency such as the department of public welfare. This issue was laid to rest long ago when the courts upheld the constitutionality of indeterminate sentence laws.1 It is not a valid ground of constitutional attack that such laws vest the power to determine the length of sentence in an administrative *531agency instead of the courts.2 This is because the legislature “has [the] power to define crimes and fix punishments, . . . limited only by the provision that they shall not be cruel or unusual or disproportionate to the character of the offense.” 3
If the legislature can vest in an administrative agency the power to fix the length of a sentence it can also vest in an administrative agency the power to determine whether a person convicted of a sex crime should receive the specialized treatment provided by our Sex Crimes Act and bind the sentencing court to sentence in accordance with such determination. No claim is made that such treatment constitutes cruel or unusual punishment in the sense in which these terms are used in the state and federal constitutions.
Let us suppose that the legislature had provided that if, after sentence of any prisoner to confinement for a sex crime the department determines that such prisoner is in need of specialized treatment for physical or mental aberrations having to do with sex, it should provide such treatment. This clearly would be constitutional in the absence of any showing that such treatment was cruel or unusual. This being so, why is it a denial of due process for the legislature to require the department to make such determination of need for treatment before sentence, but after conviction, and to make it mandatory that the court in its sentence commit the defendant to the department for such treatment. This was the rationale of our holding in State ex rel. Volden v. Haas.4
*532The fact that a convicted sex offender, whom the department determines is in need of specialized treatment, has such specialized treatment imposed on him as well as imprisonment while another sex offender whom the department finds is not in need of such treatment receives only imprisonment, does not violate the equal protection of the laws clause of the Fourteenth amendment. The classification made by the legislature rests on a reasonable basis, i.e., the determination by the department of the convicted offender’s need for treatment.
The majority opinion seems to intimate that the holding in Williams v. New York,5 that the due-process clause of the Fourteenth amendment does not require that a person convicted after a fair trial be permitted to cross-examine witnesses as to his prior criminal record contained in a presentence report, is passé. This is an assumption I refuse to indulge in. The opinion in Williams was written by Mr. Justice Black and concurred in by Mr. Justice Douglas, the only members of the court at the time Williams was decided who now remain on the court. It would be hard to envision a decision by the present court holding a denial of due process in a criminal case which would not command the concurrence of these two justices.
Furthermore, this court is committed to the holding in the Williams Case by our decisions in Brozosky v. State 6 and Waddell v. State.7 As this court declared in Bro-zosky:
“When one has been found guilty of an offense against society, no constitutional provision guarantees him the right to produce proof or to try out the issue of what his punishment shall be.” 8
*533I consider the report of the department to the court made pursuant to sec. 959.15 (4), Stats., to stand on an even higher plane than a presentence investigation report.
The constitutional arguments now leveled against use of the department’s report by the sentencing court without affording the convicted sex offender an opportunity to rebut the same were most carefully considered by this court in State ex rel. Volden v. Haas.9 I am no more impressed with the present arguments than I was then. The Volden Case was rightly decided and should be adhered to.
I would affirm.
Mutart v. Pratt (1917), 51 Utah 246, 170 Pac. 67; Cohn v. Ketchum (1941), 123 W. Va. 534, 17 S. E. (2d) 43; 24B C. J. S., Criminal Law, p. 543, sec. 1975. See also Note 43 Columbia Law Review (1943), 383, 386.
Mutart v. Pratt, supra, footnote 1.
State v. Woodward (1910), 68 W. Va. 66, 69, 69 S. E. 385. To the same effect, Mutart v. Pratt and Cohn v. Ketchum, supra, footnote 1.
(1953), 264 Wis. 127, 58 N. W. (2d) 577. Proposals have been made to employ the same device of the Sex Crimes Act to drug addiction motivated crimes and to require commitment for specialized treatment of such offenders as an alternative to a prison sentence.
(1949), 337 U. S. 241, 69 Sup. Ct. 1079, 93 L. Ed. 1337.
(1928), 197 Wis. 446, 222 N. W. 311.
(1964), 24 Wis. (2d) 364, 129 N. W. (2d) 201.
Supra, footnote 6, at page 453.
Supra, footnote 4.