This is an appeal from a judgment of conviction following a verdict of guilty but mentally ill rendered on charges of escape and aggravated assault. We affirm.
Sometime in the early part of 1985, Kendall Robinson (Robinson) was taken into custody in connection with a series of burglaries that had occurred in Pierre, South Dakota. After a preliminary hearing he was bound over for trial on two counts of third-degree burglary and on possession of a firearm by a convicted felon. Robinson insisted that he was innocent of the burglary charges and had acquired the firearm from his brother only after being threatened by a person who resided directly below his apartment.
At the age of 25, Robinson had served prior sentences for burglary and escape in the South Dakota State Penitentiary. His activities thereafter drew the close attention of local law enforcement.
On May 8, 1985, before trial, Robinson and another inmate at the Hughes County jail overpowered a deputy and escaped. Robinson was apprehended a week later and charged with escape and aggravated assault. Robinson pled not guilty and not guilty by reason of insanity. Psychiatric examinations were provided by the Court. Two psychiatrists testified at trial. The jury found Robinson guilty but mentally ill on both counts (GBMI). Robinson appeals the verdict and conviction.
Robinson’s first point on appeal is that the trial court erred in not giving a proposed jury instruction concerning the mandatory commitment of defendants found not guilty by reason of insanity (NGBRI).
In 1983 our legislature approved a “Guilty but Mentally Ill” verdict, while retaining the traditional insanity defense. The earlier definition of “mentally ill,” formerly SDCL 22-1-2(22), was transferred to “insanity” under SDCL 22-l-2(18A). Insane people are legally incapable of committing crimes, but those people who are merely “mentally ill” may be held criminally responsible. If a defendant is acquitted by reason of insanity, the court shall enter its order that the defendant be committed to the Human Services Center until such time as he is eligible for release pursuant to SDCL 23A-26-12.5.
In this case the defendant proposed a jury instruction which provided that should the jury find a defendant not guilty by reason of insanity it was mandatory the defendant be committed to the Human Services Center. The court refused this instruction which he claims as error.
In State v. Huth, 334 N.W.2d 485 (S.D.1983) the defendant requested a similar instruction. This Court held:
This statute indicates that commitment to a mental hospital upon a verdict of not guilty by reason of mental illness is not mandatory. Whenever the verdict is “not guilty by reason of mental illness,” the trial court must find that it would be *326a danger to the public safety to discharge the defendant. “In South Dakota, commitment is not mandatory; the court must find the defendant ‘dangerous to the public peace and safety if left at large’.” We hold that it is not prejudicial error to fail to instruct on what is only a possible effect of the jury’s verdict. State v. Black Feather, 249 N.W.2d 261, 165 (S.D.1976) (Citations omitted). Accordingly, the trial court did not commit prejudicial error in failing to instruct the jury as appellant proposed.
334 N.W.2d at 487.
Since the Huth decision, the law has been changed to make commitment mandatory. However, a defendant, so committed may be released almost immediately. See SDCL 23A-26-12.5 for conditions of release. Although the commitment is now mandatory, the length of the defendant’s confinement is still speculative under the provisions of SDCL 23A-26-12.5, although he now sustains the burden of proof to be released. SDCL 23A-26-12.5 and SDCL 23A-26-12.3. Nevertheless, we believe the reasoning in Huth is applicable to the present case. Further, the purpose of the jury is to find the facts and determine a defendant’s guilt or innocence. Our sister state of North Dakota has recently passed upon this same issue. In State v. Huber, 361 N.W.2d 236 (N.D.1985), the court said:
The consequences of a verdict of not guilty by reason of a lack of criminal responsibility have no bearing on any issue which the jury must decide. An instruction of the kind requested would invite the jury to speculate about a defendant’s ultimate disposition and invite it to render a verdict on the basis of something other than the evidence before it. See State v. Garrett, 391 S.W.2d 235 (Mo.1965). “Punishment, or whatever may transpire after the verdict, is not the concern of the jury.” State v. Park, 159 Me. 328, 193 A.2d 1, 5 (1963). In short, “it is simply no business of the jury what happens to the accused if he is acquitted on the ground of insanity.” Annot., 11 A.L.R.3d 737, 742 (1967). We therefore hold that the trial court did not err in refusing to instruct the jury on the disposition of the defendant in the event the jury were to find him not guilty by reason of a lack of criminal responsibility.
In reaffirming their decision in State v. Park, 159 Me. 328, 193 A.2d 1 (1963), the Supreme Court of Maine stated that if it were proper to inform the jury that commitment to a mental institution results from a verdict of NGBRI it would be equally appropriate that the jury be instructed concerning the statutory circumstances under which the defendant’s future tenure in the institution could be terminated. Such instruction would substitute one unaccepted area of speculation for another. State v. Dyer, 371 A.2d 1079 (Me.1977), citing Garrett v. State, 320 A.2d 745, 750 (Del.1974). Many decisions on this subject are collected in Annot., 11 A.L.R.3d 737 (1967 and 1986 Supp.).
We uphold the decision of the trial court in refusing this requested instruction.
Robinson’s final claim on appeal is that the GBMI verdict violates a defendant's due process rights and subjects a GBMI defendant to cruel and unusual punishment. The arguments presented by the defendant are not specific nor persuasive. He claims a GBMI verdict exposes a defendant to liberty deprivations greater than those faced by a offender who is merely found guilty because SDCL 23A-27-38 provides that:
If a defendant is found ‘guilty but mentally ill’ or enters that plea and the plea is accepted by the court, the court shall impose any sentence which could be imposed upon a defendant pleading or found guilty of the same charge. 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. If treatment is available, it may be provided through facilities under the jurisdiction of the Board of Charities and Correction.... (Emphasis added.)
*327In addition, upon discharge of a guilty but mentally ill inmate from a treating facility prior to the expiration of an inmate’s sentence, the facility must report to the Board of Pardons and Paroles on the condition of the inmate. SDCL 23A-27-39. And further, SDCL 24-15-25 provides that continued treatment can also be a condition of parole and failure to continue said treatment would subject the appellant to a possible parole violation.
We believe Robinson’s arguments are premature. None of the possibilities provided in the statutes have occurred to him, except he has or will undergo examination at the penitentiary pursuant to SDCL 23A-27-38. At this point there is no determination he needs further treatment, that it is available, and that treatment will be a condition of his parole. We cannot speculate about the future course of appellant’s treatment, if any. The examination may very well show that he does not need any. The Legislature has provided anyone committed under SDCL 23A-26-12 (GBMI and NGBRI) may test by habeas corpus the illegality of his detention. SDCL 23A-46-6. If, in the future appellant can show some unlawful detention and applies for a writ of habeas corpus, we can address the issue at that time when it is ripe for determination.
Nor do we find any cruel and unusual punishment. It is difficult for us to equate treatment for a mental condition to cruel and unusual punishment as suggested by the defendant. We believe it is humane to provide mental treatment to inmates at the penitentiary, if it is required and available the same as treatment for any other illness. In our opinion, treatment for an illness, mental or otherwise, does not constitute cruel and unusual punishment.
The judgment is affirmed.
MORGAN, J., and POSHEIM, Retired Justice, concur. HENDERSON and SABERS, JJ., concur in part and dissent in part. MILLER, J., not having been a member of the Court at the time this action was submitted to the Court, did not participate.