(dissenting).
OUR STATE PRISON SHOULD NOT IMPRISON THE MENTALLY ILL WITHOUT TREATMENT
In State v. Robinson, 399 N.W.2d 324 (S.D.1987) (Robinson I), three Justices of this Court, over two dissents, told this defendant that his constitutional challenge to SDCL 23A-27-38 was not ripe for hearing, as “[n]one of the possibilities provided in the statutes have occurred to him....” Id. at 327. Robinson’s time has come, for the viper created by that statute has now hatched.
After a jury trial on charges of escape and aggravated assault, Robinson was found guilty, but mentally ill. He was sentenced to concurrent terms of five and twenty-two years in the State Penitentiary. As mandated by SDCL 23A-27-38, Robinson was examined by a psychiatrist (here, the prison psychiatrist), who found that Robinson needed treatment, and that such treatment was available. Between the time Robinson was sent to the Penitentiary on November 4, 1985, and the time of his habeas corpus hearing on April 4, 1987, he received no treatment for his mental illness. SDCL 23A-27-38 permits prison authorities to ignore the diagnosed mental illness of guilty but mentally ill prisoners. This scenario was presaged by the dissents in Robinson I. See Robinson I, id. at 330 nn. 4 & 5.
SDCL 23A-27-38, set out in the majority opinion, is unconstitutional in that it violates rights protected by the Eighth (cruel and unusual punishment) and Fourteenth (due process) Amendments to the Constitution of the United States.1 The majority’s reliance on cases interpreting the Illinois “Guilty But Mentally Ill” (GBMI) statutes is unfortunate, for the Illinois Legislature provided far more protection to the mentally ill than did its South Dakota counterpart.
*253The Illinois cases cited by the majority (People v. Kaeding,2 98 Ill.2d 237, 74 Ill. Dec. 509, 456 N.E.2d 11 (1983); People v. Carter, 135 Ill.App.3d 127, 90 Ill.Dec. 212, 481 N.E.2d 1012 (1985); and People v. Smith, 124 Ill.App.3d 805, 80 Ill.Dec. 310, 465 N.E.2d 101 (1984)), are inapposite to Robinson’s current appeal. The Illinois equivalent (using the term loosely) to SDCL 23A-27--38, Section 5-2-6 of the Unified Code of Corrections (Ill.Rev.Stat.1981, ch. 38, para. 1005-2-6), reads, in pertinent part, as follows:
(b) If the court imposes a sentence of imprisonment upon a defendant who has been found guilty but mentally ill, the defendant shall be committed to the Department of Corrections, which shall cause periodic inquiry and examination to be made concerning the nature, extent, continuance, and treatment of the defendant’s mental illness. The Department of Corrections shall provide such psychiatric, psychological, or other counseling and treatment for the defendant as it determines necessary.
Analysis of Section 5-2-6 (Illinois statute aforesaid) indicates that it may pass scrutiny under the Eighth Amendment. See Comment, Punishment versus Treatment of the Guilty But Mentally III, 74 J.Crim.L. & Criminology 428,449 (1983), published by the Northwestern University School of Law, Chicago, Illinois:
Since Illinois requires guilty but mentally ill inmates to receive “periodic inquiry and examination to be made concerning the nature, extent, continuance and treatment of the defendant’s mental illness,” cursory attention to this provision by the Department of Corrections will probably prevent any eighth amendment challenge. Right to treatment claims have generally failed when prison officials have made some attempt to treat. (Footnotes omitted.)
Contrasting the Illinois and South Dakota statutes reveals a profound divergence. These statutes are not substantially sim ilar. Unlike the Illinois law, SDCL 23A-27-38 does not require prison officials to do more than examine the prisoner. He may be treated later, but this is left entirely to the discretion of the board of charities and corrections. Even if treatment is determined to be necessary and available, the prisoner can be allowed to sit and rot without treatment under SDCL 23A-27-38: “If the defendant is sentenced to the state penitentiary, he shall undergo further examination and may be given the treatment that is psychiatrically indicated for his mental illness.” (Emphasis added.)
IMPRISONING THE MENTALLY ILL WITHOUT TREATMENT IS BARBARIC-VIOLATIVE OF THE EIGHTH AMENDMENT
The United States Supreme Court, in discussing prisoners’ rights under the Eighth Amendment, has written:
Our more recent cases, however, have held that the [Eighth] Amendment proscribes more than physically barbarous punishments. The Amendment embodies “broad and idealistic concepts of dignity, civilized standards, humanity, and decency ... ,” against which we must evaluate penal measures. Thus, we have held repugnant to the Eighth Amendment punishments which are incompatible with “the evolving standards of decency that mark the progress of a maturing society,” or which “involve the unnecessary and wanton infliction of pain,”....
These elementary principles establish the government’s obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.
Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S.Ct. 285, 290, 50 L.Ed.2d 251, 259 (1976) (citations omitted). “[Deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth Amendment.” Estelle, 429 U.S. at 104, 97 *254S.Ct. at 291, 50 L.Ed.2d at 260 (citation omitted). There is “no underlying distinction between the right to medical care for physical ills and its psychological or psychiatric counterpart.” Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir.1977). See also Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 763 (3d Cir.1979). The Fourth Circuit Court of Appeals, in Bowring, opined that convicted prisoners have a right to psychiatric treatment under both Eighth and Fourteenth Amendments for the following reason:
Concomitant with the general philosophy that “[tjhere is no iron curtain drawn between the Constitution and the prisons of this country,” Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974), prisoners are guaranteed the provision of life’s basic necessities for the period of their confinement. Constitutional doctrine has absorbed the common law view that “[i]t is but just that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty, care for himself.” Spicer v. Williamson, 191 N.C. 487, 490, 132 S.E. 291, 293 (1926).
Bowring, 551 F.2d at 46-47.
How well does SDCL 23A-27-38 compare to the “evolving standards of decency that mark the progress of a maturing society” (to use Estelle’s words)? Estelle, 429 U.S. at 102, 97 S.Ct at 290, 50 L.Ed.2d at 259. It fails miserably, representing no less than a throwback to the days when insane asylums were storage pens and little more. Compare our statute to the relevant section of its Michigan equivalent, Mich. Comp.Laws § 768.36(3); Mich.Stat.Ann. § 28.1059(3): “If the defendant is committed to the custody of the department of corrections, he shall undergo further evaluation and be given such treatment as is psychiatrically indicated for his mental illness or retardation.” The Michigan statute was upheld in People v. McLeod, 407 Mich. 632, 288 N.W.2d 909 (1980), where the Michigan Supreme Court ruled that departmental failure to follow the mandates of the statute did not make the statute unconstitutional. The opposite problem occurs here; our statute requires no treatment at all!
Given the due process violations noted by this author and Justice Sabers in Robinson I and the Eighth Amendment violation apparent here, this statute must be rejected. The public is ill-served by a scheme that allows the mentally ill to be stored away (out of sight, out of mind) without treatment, with their illness festering, only to be released on an unsuspecting populace years later. As the United States Supreme Court noted, in Jones v. United States, 463 U.S. 354, 364, 103 S.Ct. 3043, 3049, 77 L.Ed. 2d 694, 705 (1983) (wherein that Court wrote than an insanity acquittal reasonably supported an inference of continued mental illness and need of treatment), “[t]he fact that a person has been found, beyond a reasonable doubt, to have committed a criminal act certainly indicates dangerousness.” Id, (footnote omitted).
ROBINSON WAS DENIED DUE PROCESS OF LAW
Although Robinson’s current appeal appears to be at odds with his due process argument, presented in Robinson I, to the effect that compelled psychiatric treatment without a hearing, under SDCL 23A-27-38, constituted a violation of his rights to due process of law, the due process flaws of the statute, as seen in the earlier appeal, also arise here. However, our thoughts and analyses must probe this subject more deeply. The State, in arguing that Robinson has not been deprived of any rights, emphasizes that Robinson’s proof of his need for treatment is weak, as it is based on his own oral testimony. Had the constitutional mandates of Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (seven minimum procedural safeguards to ensure proper classification of prisoners, see Robinson I, 399 N.W.2d at 329 (Henderson, J., dissenting)), been followed, such a problem would not exist. There would have been a hearing establishing a record upon which we could rely. Instead, there is a limitation upon which to base our decision. No hearing was held because our statutes (unconstitutionally) *255require none. There are no procedural safeguards for defendants under this statutory scheme. Even if a correct determination of Robinson’s mental state was made (a question difficult to assess on this record), no treatment need be given. The lack of due process and inhumane nature of our statutes reinforce each other, to Robinson’s detriment.
In South Dakota, GBMI prisoners are trapped in limbo. They are painted with a “mentally ill” brush, subject to involuntary commitment without the due process protections of Vitek, 445 U.S. 480, 100 S.Ct. 1254, or worse, warehoused without any treatment at all, even where their need for mental care is established by the same authorities which deny them care, as has happened to Robinson. Even if the testing provided for in our statute, by itself, did not deny Robinson due process, the ability of the prison authorities to cavalierly disregard medical findings that definitely indicate a need for treatment is barbaric.
It has been said that GBMI prisoners are “incarcerated for their crimes, not their mental condition.” People v. Marshall, 114 Ill.App.3d 217, 233, 70 Ill.Dec. 91, 102, 448 N.E.2d 969, 980 (1983). In my opinion, that statement is only partly true. The label “mentally ill,” attached to them by statute, is a form of punishment itself: “[T]he long-lasting injury to reputation occasioned by being labelled ‘mentally ill’ may be even worse than that caused by a criminal conviction alone.” L. Fentiman, “Guilty But Mentally Ill”: The Real Verdict is Guilty, 26 B.C.L.Rev. 601, 632 (1985) (footnote omitted) (citing Bartley v. Kremens, 402 F.Supp. 1039, 1046 (E.D.Pa. 1975)). “Thus, far from obtaining special help for their mental problems, these GBMI prisoners are actually worse off than if they had simply been found guilty.” Fentiman, supra, at 632. It is apparent that Robinson and those like him are penalized because of (a) their guilt and (b) their mental condition for both concerns are inherent in the GBMI label.
[Ajlthough they [GBMI prisoners] are not subject to indefinite imprisonment, the stigma of their criminal convictions is compounded when they are labelled “mentally ill.” In light of this added stigma and in recognition of the likelihood that mental illness actually contributed to their criminal behavior, guilty but mentally ill defendants should be guaranteed treatment which meets fourteenth amendment standards.
Comment, Punishment versus Treatment of the Guilty But Mentally III, 74 J.Crim.L. & Criminology 428, 453 (1983) (emphasis added; footnote omitted). “[D]ue process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435, 451 (1972). It is not reasonable to heap an additional penalty on the GBMI prisoner because of his illness, when compared to those who commit their crimes with rational calculation. Compassion, understanding, brotherhood, followed by treatment — four healing hands — where are thee? Note this author’s expressions of concern for mental patients in this state in In re S.L., 419 N.W.2d 689, 694 (S.D.1988) (Henderson, J., dissenting).
Numerous authorities have opposed the legislative stampede by many state legislatures toward GBMI. This opposition is reflected in the American Bar Association’s Criminal Justice Mental Health Standards (Section 7-6.10(b), adopted on August 7, 1984), the American Psychiatric Association Statement on the Insanity Defense (December 1982), and a report by the National Mental Health Association’s Commission on the Insanity Defense (National Mental Health Association, Myths and Realities: A Report of the National Commission on the Insanity Defense,3 32-34 (March *2561983)). See Slobogin, The Guilty But Mentally Ill Verdict: An Idea Whose Time Should Not Have Come, 53 Geo.Wash.L. Rev. 494, 496 (1985). Many writers assail these statutes. See, for example, Fenti-man, supra; Slobogin, supra; Comment, Guilty But Mentally III: Broadening the Scope of Criminal Responsibility, 44 Ohio St.L.J. 797 (1983); Comment, Punishment versus Treatment of the Guilty But Mentally Ill, 74 J.Crim.L. & Criminology 428 (1983). Add my voice to this outcry against legislative lemmings. We, in South Dakota, joined the stampede.
CONSTITUTIONALITY OF SDCL 22-5-10
Appreciative of the deep concern of my colleague, Justice Sabers, for the procedural unconstitutionality of SDCL 23A-27-38, in which he continues to join my expressions per my dissent in Robinson I, and his serious reflections on the constitutionality of SDCL 22-5-10, I feel compelled to express my views on an allegedly improper instruction, concerning the proof of insanity, by clear and convincing evidence. Justice Sabers recognizes this as “plain error.” In my opinion, SDCL 22-5-10 is constitutional. The rule which prevailed in this state prior to 1985, providing that a rebut-table presumption of a defendant’s sanity existed, and, if that presumption was overcome, put the burden on the state to prove the defendant’s sanity beyond a reasonable doubt, was statutory, not constitutional, in origin.
In State v. Waugh, 80 S.D. 503, 509, 127 N.W.2d 429, 432 (1964), this Court wrote:
SDC 13.0201, which is the basis of our rule, classifies lunatics, insane persons, and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness, as persons not capable of committing crimes. On the other hand, SDC Ch. 13.05 enumerates defensive matters that excuse or exonerate from punishment. Insanity is not included in the list. (Emphasis added.)
The above passage reveals that this Court premised its decision, in Waugh, on two statutory bases which the Legislature removed in 1985 S.D.Sess.L. ch. 192 (H.B. 1369). Section 10 of the new law deleted SDCL 22-3-1(3), formerly part of SDC 13.-0201, which classified “insane” persons among those incapable of committing crimes.4 Section 11 of the new law added a new section (now SDCL 22-5-10), to SDCL ch. 22-5, which provides that insanity is an affirmative defense to be proven by the defendant by clear and convincing evidence. As both statutory props for the old rule have been removed by legislative action, the rationale for the old rule explained in Waugh is no longer valid.
As our former rule was statutory, not constitutional, our prior case law provides no constitutional authority invalidating SDCL 22-5-10. Justice Sabers’ contention that the new statutory scheme is unconstitutional is unsupported by overwhelming legal authority; weighty authority favors SDCL 22-5-10. See Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952). In an attempt to overturn Leland, some legal authority has utilized Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). However, this has been rejected by federal circuit courts considering the constitutional validity of the Insanity Defense Reform Act of 1984 (see 18 U.S.C. § 17), which is similar to SDCL 22-5-10. See United States v. Freeman, 804 F.2d 1574 (11th Cir.1986); United States v. Amos, 803 F.2d 419 (8th Cir.1986). The United States Supreme Court, after Mullaney, expressly refused to reconsider *257Leland. in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). On the foundation of Leland and Patterson, therefore, I respectfully disagree with my colleague, Justice Sabers.
Pertaining to the “clear and convincing” evidence required of any defendant under SDCL 22-5-10, I likewise would follow the United States Supreme Court’s lead in Leland, by which it is constitutional to require a defendant to prove his insanity beyond a reasonable doubt. “It is axiomatic, therefore, that a lesser standard of proof, such as the clear and convincing standard, may be imposed.” Amos, 803 F.2d at 421. The trial court’s instruction defining “clear and convincing” evidence was consistent with the language of this Court in In re S.H., 337 N.W.2d 179 (S.D.1983), and In re J.W.W., 334 N.W.2d 513 (S.D.1983). Therefore, I could not base a reversal on the unconstitutionality of SDCL 22-5-10.
HOPE FOR THE MENTALLY ILL?
It takes spirit to win a ball game and it takes spirit to win a war. It takes spirit to precipitate change. I am saddened by the decisions of this Court involving those stricken with mental illness. See, for example, dissent in In re S.L., 419 N.W.2d 689, 694-99 (S.D.1988) (Henderson and Sabers, JJ., dissenting); also, see dissent in In re J.Z., 423 N.W.2d 813, 815-18 (S.D.1988) (Henderson and Sabers, JJ., dissenting); see also dissent in Lather v. Huron College, 413 N.W.2d 369, 372-76 (S.D.1987) (Henderson and Sabers, JJ., dissenting). The mentally ill can come back; this is the message. In the past week, as I write, a report from Washington, D.C., has rebuked and assailed the caring for the mentally ill in this state. As recently as September 15, 1988, Governor George Mickelson of South Dakota addressed this scalding criticism. The Argus Leader article is reprinted here in full:
Gov. George Mickelson thinks criticism of mental health care in South Dakota can be blamed partly on the system’s organization, an aide said Wednesday.
Mickelson responded to a report issued Tuesday in Washington. It said: “Services for the seriously mentally ill in South Dakota are organized in such a bizarre fashion that it is a wonder that anything gets done.” South Dakota ranked 27th of 50 states.
The governor’s office is preparing a written response to the report. “The governor will state his belief that reorganization will improve mental health care and correct deficiencies noted,” said Bill Garnos, project director.
Mickelson already has proposed a constitutional amendment reorganizing the structure being blamed for some of the problems. Now, the state institutions are overseen by the Board of Charities and Corrections, and local community mental health centers are overseen by the state Office of Developmental Disabilities and Mental Health under the Department of Social Services.
Mickelson’s plan would place both under the Department of Human Services.
“Parts of the system are governed by different philosophies, different goals, and different bosses,” Garnos said. The reorganization would improve the system by bringing together the community-based and institution-based services, he said.
Donna Yocom, president of the South Dakota Alliance for the Mentally Ill, agreed that organizational problems are partly to blame for the criticism.
Families of mentally ill often complain that the system is fragmented, she said. Patients are released from state institutions without coordination with community centers.
John Henderson, administrator of the state Human Services Center in Yankton, said there is a communication problem between the Yankton institution and community health centers. Reorganization would streamline communication and allow for more timely follow-up on patients as well as better use of funds.
Henderson said parts of the report were dated and since have been corrected. He also responded to the report’s *258criticism that a federal inspection found cockroaches and mouse droppings in the center’s kitchen. “Anybody that lives in the Midwest knows when it gets cool this time of year, mice get in. We're not infested with mice, I guarantee.”
Mickelson: Mental health care needs to be reorganized, Argus Leader, Sept. 15, 1988, at 1C. This writer senses certain waves of change. Exemplifying this, is an Associated Press article of September 22, 1988, the day I finished this writing. Legislative committee endorses board split, Argus Leader, Sept. 22, 1988, at 3C. The thrust of the article is that a legislative interim committee, The Interim Committee on Correctional Issues, has decided, on an 8-to-l vote, to reorganize state government creating (if the voters would approve of a constitutional change) two new departments: A Department of Corrections to oversee adult prisons, parole programs, and treatment programs for juvenile offenders; and a Department of Developmental Disabilities and Mental Health.5 This latter department would control the Redfield State Hospital and School, Custer State Hospital, the Human Services Center at Yankton, and community programs which deal with mental health and disabled people, and the alcohol and drug abuse program, which is now in the Health Department, and the Division of Vocational Rehabilitation, same being currently an independent state department. Now, mental health services in this state are divided among three state agencies. Overlapping functions, created thereby, spell deláy in the care for the mentally ill in South Dakota under our present statutes. It is my fervent hope that as the mental health caldron bubbles, a goodness will surface to enrich these poor souls. Robinson, at this time, although mentally ill, per the prison psychiatrist, languishes in prison without treatment. An enlightened people should not tolerate such type of government, and the courts of law, where people seek refuge for wrongs, should stand firmly against such type of warped social justice. Philadelphia Freedom, shine the light, shine the light. Shine the light on the Robinsons warehoused in the prisons of this country.
On November 8, 1988, subsequent to my writing above, this Nation elected a new President, George Bush, and in the State of South Dakota, the people, via ballot, changed our constitution in several respects, including Constitutional Amendment D, which permits an improved management for and a separation of the State Penal System with such unrelated facilities as our state mental hospital and Veterans’ Home. Overwhelmingly, the people decided to change our constitution on Constitutional Amendment D; 171,087 votes yes and 121,731 votes no. We shall watch this constitutional amendment precipitate a change, as it flows from the state Veterans’ Home at Hot Springs, South Dakota, in the Black Hills, across the prairies to the “School for the Developmentally Disabled” at Redfield (formerly the school for the feeble-minded), thence to the “State Hospital for the Mentally Ill” (new official name) near the banks of the Missouri River in Eastern South Dakota, located at Yank-ton, and thence to the extreme eastern part of our state at Sioux Falls where the South Dakota State Penitentiary is situated. Hopefully, this amendment shall be a thoroughfare for healing thoughts and action so that beautiful souls become open and ready for all things.
. This is an appeal arising from denial of a writ of habeas corpus, the "Great Writ of Liberty." See Reutter v. Meierhenry, 405 N.W.2d 627, 631 (S.D.1987) (Henderson, J., dissenting). Robinson alleges he is unlawfully imprisoned, as he was convicted under a statute which unconstitutionally deprives him of due process and imposes cruel and unusual punishment. In the habe-as court below, he sought treatment, to remedy the Eighth Amendment violation, but his plea was shunted aside. Habeas Transcript, at pages 11-12.
. The Illinois Supreme Court, in Kaeding, was addressing a challenge based on equal protection, which Robinson did not raise in his habeas corpus appeal.
. Well do I remember the South Dakota State’s Attorney Association fervently lobbying our State Legislature for the current GBMI statutes. South Dakota newspapers covered these lobbying efforts extensively and the maneuverings concerning their ultimate passage. Legislative Research Council records, for the year 1983, reflect that Rick Johnson, then President-Elect of the South Dakota State Bar Association, appeared, on behalf of the lawyers of this state, to oppose this legislation. He was accompanied by the Honorable William Sahr, Secretary-Trea*256surer of the State Bar. Past sheriffs and then current sheriffs helped lobby this legislation through the Legislature.
. SDC 13.0201(4) contained the “lunatics, insane persons, and all persons of unsound mind ..." provision referred to in Waugh. 1976 S.D.Sess. L. ch. 158, § 3-1, amended SDCL 22-3-1(4), formerly SDC 13.0201(4), to provide that "mentally ill” persons were incapable of committing crimes. 1983 S.D.Sess.L. ch. 174, § 3 (S.B. 90) substituted “insane” for "mentally ill” and renumbered the subsection 22-3-1(3). SDCL 22-3-1(3) was deleted in 1985.
. If the constitutional amendment prevails, it would be wise for the State Legislature, who obviously must pass many amendments to existing statutes, to confront the unconstitutional GBMI statute scheme to eradicate the constitutional infirmity which now exists under the supreme law of this land as announced by the United States Supreme Court.