(concurring in affirmance). I am in *665general agreement with my colleague’s analysis of the rights granted and procedures required by the statute creating the verdict of guilty but mentally ill 1 and with his conclusion that the trial court erred in finding the statute unconstitutional.2
1 write separately because the trial judge acted properly in holding hearings to determine what *666psychiatric treatment would be provided McLeod under the various alternatives available in sentencing an offender found guilty but mentally ill. This was the announced purpose of the hearings.
The questioning of the psychiatrists whom the judge called to testify focused primarily on what psychiatric treatment McLeod would, could, or should receive if he were sentenced to either prison or probation. Such an inquiry was a proper exercise of the judge’s responsibility to determine a sentence appropriate to the individual offender and all the circumstances of the case and not violative of his statutory and constitutional rights.
I agree with my colleague, however, that the judge erred in passing upon the constitutionality of the statute creating the verdict of guilty but mentally ill. Her factual determination that evaluation and treatment required by the statute would not be provided McLeod if he were sentenced to prison and therefore a prison sentence would violate his statutory rights made it unnecessary to decide whether such a sentence would violate his constitutional rights. I also agree with my colleague that the judge erred in holding that the probation sentencing provision of the statute denied equal protection of the laws.
I
The decision of the Court of Appeals reversing the judge’s determination that the statute is unconstitutional should be affirmed. The presentence inquiry that she conducted was, however, proper.
A
After finding McLeod guilty but mentally ill of *667arson3 in a bench trial, the judge conducted, on her own initiative, a pre-sentence hearing at which testimony was taken from three psychiatrists: Dr. Dennis Jurczak, Assistant Director of the Office of Health Care for the Michigan Department of Corrections, Dr. Mario Zamora, Director of the Forensic Department at Northville State Hospital, Michigan Department of Mental Health, and Dr. Emanuel Tanay, a private practitioner and Associate Professor of Psychiatry at Wayne State University. The judge said that the purpose of the hearings was to determine what treatment would be provided to McLeod if he were committed to the Department of Corrections or placed on probation with treatment by the Department of Mental Health made a condition of probation.4
After the hearings were completed, the judge filed a written opinion reviewing the psychiatrists’ testimony5 and holding the sentencing provisions *669of the statute "legally inert” and unconstitutional for the reasons summarized by my colleague in Part II of his opinion. She thereupon set aside the verdict of guilty but mentally ill and ordered a new trial.
B
We all agree that a defendant sentenced pursuant to a verdict of guilty but mentally ill is granted, by the statute providing for such verdicts, a right to "such treatment as is psychiatrically indicated for his mental illness or retardation” if he is committed to the custody of the Department of Corrections,6 or to treatment provided by an agency of the Department of Mental Health or by private sources at individual expense if he is *670placed on probation and treatment is made a condition of his probation.7
The obligation to sentence carries with it the responsibility to be informed regarding the conditions under which the sentence imposed will be served and the efficacy of the sentence in securing the interests of society and the individual defendant, and to avoid imposition of a sentence violative of the defendant’s statutory or constitutional rights. The sentencing judge has a responsibility to the offender as well as to society at large and should not impose a sentence based upon erroneous assumptions about the available resources for treatment and whether and how they will be applied.
Judges sometimes refrain from sentencing convicted offenders to jail or prison terms because they are aware that undesirable institutional conditions could lead to suffering or injuries entirely disproportionate to the severity of the offense and not in the societal interest.8
My colleague’s opinion may be read as suggesting that a judge is powerless to inquire into how a contemplated sentence will be translated into a day-to-day reality for the sentenced offender. This Court should not suggest that a trial judge may not openly and on an evidentiary record, in an attempt to answer questions often resolved on the *671basis of untested assumptions and informal ex parte discussions, inquire whether the consequences and conditions attending particular sentencing alternatives render those sentences appropriate and lawful for an individual offender.
Where a statute creates a right to treatment in a defendant sentenced under one of its provisions, a judge who has reason to believe that no treatment will be provided a defendant sentenced pursuant to that provision may properly hold a hearing and make a record to determine whether the statutory right to treatment will be honored and a prison sentence lawfully imposed. That is what the trial judge did in this case. Insofar as she concluded that she should not commit McLeod to the custody of the Department of Corrections because the statutory promise of "further evaluation and * * * such treatment as is psychiatrically indicated” would not be fulfilled, she acted properly.9
C
My colleague would hold that whether a defendant will or can be provided indicated treatment can only be determined if the Departments of Corrections and of Mental Health are represented *672parties to the legal proceeding and are afforded an opportunity to participate in developing the factual record. The implication is that whether indicated psychiatric treatment will or can be provided McLeod or any other defendant is a question which can be resolved only after McLeod or another defendant has been committed to the Department of Corrections, it develops that the evaluation and treatment mandated by statute is nonexistent or inadequate, and he has commenced a civil action to vindicate his rights in a circuit court with jurisdiction or has sought mandamus in the Court of Appeals.
While I agree that such procedures are normally the appropriate means for incarcerated persons to seek to vindicate rights allegedly denied by the conditions of their confinement, McLeod and others found guilty but mentally ill should not be relegated to such a slow and unsure remedy for a wrong which could be avoided by pre-sentence inquiry.
I would hold that a presentence inquiry can be conducted without making the Departments of Corrections and of Mental Health parties to the cause. The prosecuting attorney in commencing a criminal prosecution represents the people of the State of Michigan and can adequately protect their interest. This Court should not hold in effect that a sentencing judge is obliged to impose a sentence that can be shown to be violative of a defendant’s statutory or constitutional rights.
Clearly it is as much the judge’s duty to protect the defendant’s statutory and constitutional rights as it is her obligation to impose sentence. If a sentence is violative of the defendant’s statutory or constitutional rights, it cannot lawfully be imposed.
*673Although it might be desirable, as my colleague would require, for a trial court to have before it the departments charged with the responsibility for administering the statutory mandates, that cannot properly be made a sine qua non to relief unless this Court identifies or provides a means whereby a sentencing judge or a defendant can readily bring them before the trial court. Otherwise this requirement would erect an artificial procedural barrier to effective protection of statutory and constitutional rights.
In the instant case, persons in the employ of the correctional and mental health authorities testified. If the prosecuting attorney wished to offer additional testimony he could have done so either by deposition or in-court testimony.
If it is feared that a decision may be made without adequate input from the correctional and mental health authorities, we could by amendment of the court rules require notice to them and an opportunity to be heard before a decision is made. Or we could even require a defendant to join those authorities as parties and, again, identify or provide a means by which this could be done.
What we cannot properly do is relegate persons who have substantial claims to a process that we should know will not provide effective relief.
Persons asserting that they face irreparable injury can properly expect this Court to provide a meaningful remedy. No lawyer can fail to appreciate how devoid of meaning is a procedure which requires a defendant to encounter predictable noncompliance with statutory and constitutional requirements for such time as may provide the authorities with "a reasonable opportunity to comply with the statutory mandate”, to secure counsel *674to commence a civil action10 when that indeterminate time has elapsed, to have the action commenced, and to obtain a hearing and await appellate review. Years would go by before a final decision by the appellate courts which, indeed, might order further hearings on remand with still further appellate review.
D
Nor do I agree that "it is logically impossible to conclude that the required care will not be provided” until a defendant sentenced as guilty but mentally ill undergoes further evaluation in the custody of the Department of Corrections. I would require a hearing upon the department’s ability to furnish indicated treatment to be held in every case where the defendant requests such an inquiry and the judge does not rule out imprisonment as a sentencing alternative. Guilty but mentally ill defendants should not be sentenced to prison unless it affirmatively appears that the statutory right to treatment will be implemented.
Psychiatric reports and testimony presented to a trial court may afford a sufficient basis for assessing what treatment is psychiatrically indicated and predicting whether the department can pro*675vide such treatment. The Center for Forensic Psychiatry should address this question as part of the presentence report on the defendant’s present mental health held today to be required, but its judgment is not controlling and the defendant may introduce proofs.
Such a requirement concededly poses practical difficulties, including the prospect of numerous and often repetitious hearings, inconvenience to correctional officials and psychiatric staff called to testify regarding department capabilities, and difficult new questions for trial courts: What treatment (if any) is psychiatrically indicated for defendant? Is a particular form of recommended care "treatment”? Is the treatment available substantially identical to the treatment indicated?
Nevertheless, these difficulties are not insurmountable. To allow such considerations to dissuade us from instituting a procedure to avert violations of defendants’ rights would echo the correctional authorities’ plea: "We do not have the wherewithal” to secure offenders the rights conferred by the statute. I do not believe we are so devoid of resources or options.
The number of "guilty but mentally ill” verdicts returned is not overwhelming and the hearings we would require are not likely to be time consuming. One source indicates that 57 "guilty but mentally ill” defendants were committed to the custody of the Department of Corrections during roughly the first three years of the statute’s operation.11 The presentence testimony obtained from three psychiatrists in this case covers only 59 pages of transcript and might have been considerably shorter if the issue had been more narrowly defined.
*676The testimony of state officials and psychiatrists could be taken by arranging depositions at their places of employment, and testimony adduced in one case might be incorporated by stipulation in the case of another defendant having a similar condition. This Court could, if it proved necessary, develop special procedures to expedite resolution of these cases. We could, for example, order consolidation of cases presenting the same post-"guilty but mentally ill” verdict issues for purposes of resolving those issues alone or direct appointment of psychiatrists to act as special factfinders to aid sentencing courts in settling these matters.
The hearings just described should be held if timely requested by any defendant found guilty but mentally ill and not yet sentenced when this opinion is released or by any defendant hereafter found guilty but mentally ill. Hearings should also be required in all cases presently pending on appeal in which an express challenge to the verdict or sentence based upon alleged inability of the Department of Corrections to provide required treatment was made before or at sentencing.
In the instant case the judge heard testimony establishing that if McLeod were committed to the custody of the department as guilty but mentally ill, he would probably not "undergo further evaluation and be given such treatment as is psychiatrically indicated for his mental illness or retardation” unless he manifested symptoms that attracted attention to him and the only treatment indicated for his condition was psychiatric medication.
Whatever treatment might have been appropriate for McLeod,12 the clear showing that the de*677partment would neither automatically identify him as needing, nor promptly provide him with, further evaluation of his illness, demonstrated the department’s inability to comply with the statute and the judge could properly decline to sentence McLeod to prison under subsection (3)13 for that reason.
E
After a hearing regarding treatment and the *678likelihood of its being provided, a judge, as an alternative to not imposing a prison sentence, might sentence an offender to prison and order that the psychiatrically indicated treatment be provided.
This approach presents its own difficulties. In order to enforce such an order, the sentencing court would have to acquire jurisdiction over the correctional authorities. Apart from the jurisdictional obstacle, such a procedure would invite the enforcement problems associated with court-ordered mandates which tend to make courts circumspect about ordering such relief.14
F
There was no need for the judge to reach constitutional questions that might be implicated if McLeod were sentenced to prison. Having decided that McLeod’s statutory rights would be violated by such a sentence, she should have refrained, under familiar principles, from reaching those constitutional issues.
Further, I agree with my colleague that "Department of Corrections noncompliance with the statutory mandate for evaluation and treatment *679cannot render an otherwise constitutional statute unconstitutional”.
II
I offer a few additional observations suggested by the judge’s opinion.
Although the judge ultimately, after reversal by the Court of Appeals, placed McLeod on probation, she had expressed the view in her opinion that sentencing McLeod to probation with treatment as a condition of probation was not an available and acceptable alternative under the statute. In my opinion, probation might have been from the first an available and acceptable alternative. The judge’s insistence that the Department of Mental Health was unwilling to provide the treatment McLeod needed stemmed from her premise that the only acceptable treatment alternative involved long-term inpatient care in a state hospital. There is no indication that consideration was given to alternatives combining other forms of supportive care, e.g., placement in a halfway house or other supervised living situation, with close supervision by a probation officer. It may be that McLeod could properly have been placed on probation if alternative forms of supportive care could be provided. Accordingly, I agree with the Court of Appeals and my colleague that the judge should not have granted McLeod a new trial on the ground that he could not be sentenced.
Protecting McLeod from victimization in prison is also a theme which sounds strongly in the judge’s opinion, but that issue raises a set. of different questions not peculiar to the guilty but mentally ill verdict. It has already been noted that judges often elect — without holding extensive hearings — not to sentence offenders to prison because *680of their awareness of conditions within the correctional system. The judge’s decision that McLeod’s statutory rights would be violated by imposition of a prison sentence makes it unnecessary to decide whether it is permissible for a sentencing judge to rest a decision not to incarcerate upon that ground alone or whether the judge may for such a reason refuse to impose a sentence mandated by statute.
I would affirm the decision of the Court of Appeals for the reasons set forth in this opinion.
Kavanagh, J., concurred with Levin, J.1975 PA 180; MCL 768.36; MSA 28.1059.
In addition to the points made elsewhere in this opinion, I agree with Justice Ryan that:
(1) The statute requires a sentencing court to obtain from the Center for Forensic Psychiatry a current report on the present mental health of a person found guilty but mentally ill before sentencing the person pursuant to that verdict;
(2) "[A] defendant’s interest in the legislatively created sentencing alternative of probation will be protected adequately if the sentencing court is required to obtain a report on defendant’s present mental health prior to sentencing and provides a procedure for review to allow shortening or discontinuing the period of probation if the reasons for the five-year period no longer obtain”;
(3) ”[T]he statute permits a sentencing court to place a defendant on probation for a shorter period than five years and provides for periodic review of the continuing need for treatment and a procedure for discontinuing probation when there is no further need for treatment”;
(4) The probation sentencing provision of the statute does not violate equal protection because the Legislature could rationally establish a rebuttable presumption that a guilty but mentally ill offender requires a substantial minimum period of probation.
In upholding the probation sentencing provision, however, my colleague states:
"[T]he Legislature’s object in creating this new verdict was to assure supervised mental health treatment and care for those persons convicted under the laws of our state who are found to be suffering from mental illness, in the humane hope of restoring their mental health and possibly thereby deterring any future criminal conduct on their part.”
While the stated object appears to have motivated the Legislature to impose a modifiable requirement of an extended probation period for guilty but mentally ill defendants, we should not attribute the same purpose to the statute as a whole where it is unnecessary to do so. The purpose this statute was designed to serve was not briefed or argued in this case. It may be that different purposes underlie this statute or other portions of it (see Corrigan & Grano, 1976 Annual Survey of Michigan Law: Criminal Law, 23 Wayne L Rev 473, 474-475 [1977]) and defendants in subsequent cases may argue that those purposes are impermissible or unrelated to the distinctions drawn between guilty but mentally ill offenders and others. We should not prematurely foreclose those arguments.
MCL 750.72; MSA 28.267.
Before taking Dr. Jurczak’s testimony, the judge said:
"I have not placed [sic] sentence yet on Mr. McLeod. And the reason why I have not sentenced him yet is because I wanted to see what kind of treatment is available to Mr. McLeod. * * *
"And it is my desire to take testimony from [Dr. Jurczak] as to what treatment would be provided for Mr. McLeod should I sentence him to Jackson Prison or any other facility under the Department of Corrections.”
When beginning to question Dr. Zamora, the judge remarked:
“The record should reflect we are continuing to take testimony on the possibility for treating Mr. McLeod after having been found guilty but mentally ill by the court of arson.
"[B]asically why we have asked you to appear in court and testified [sic] today is because I want to find out if I were to place Mr. McLeod on probation with a stipulation that he be treated by the Department of Mental Health I want to know what kind of treatment would be provided by the Department of Mental Health and what would be the procedure involved.”
The judge’s questioning of the witnesses was consistent with these pronouncements. Questioning of Dr. Tanay focused upon his opinion that McLeod required in-patient institutional care in a state hospital setting.
The judge’s summary of the testimony is reproduced here because *668it helps to place her conclusions in perspective:
"Dr. Jurczak testified that he is the only full-time psychiatrist for a prison population of 12,000, although he estimated that at Jackson Prison alone there are probably five to six hundred inmates [out of a population of 5600] who need psychiatric treatment. * * * The psychiatric facilities at Jackson consists of approximately 100 beds in a psychiatric hospital ward known as the 'top six.’ Because there is only one registered nurse, most of the nursing is done by inmates. The patients in the 'top six’ are psychotic or suicidal. Treatment consists mainly of crisis intervention; if an inmate is acutely disturbed and unmanageable, he’s locked in a room and given medication. Dr. Jurczak described the conditions in the ward as 'less than adequate because we don’t have professional staff to supervise.’ 'Our problems are so acute that these 100 beds are always filled.’ * * *
“As to others mentally ill in the prison population, treatment is very limited. Presently there are 250 inmates on potent anti-psychotic medication. Although the doctor described them as needing psychiatric treatment, they receive none. The psychiatrist renews the medication for 60-90 days at a time but because there is no follow-up, there is no guarantee that any given person will receive the prescribed medication. * * *
"When asked what type of treatment would be provided for the defendant, he indicated that the defendant would come to his attention only if he was an extreme management problem. 'The kind of treatment he would get would be at best inadequate.’ There is no ongoing treatment other than medication and then no follow-up on that. As a matter of fact, he could be transferred to another institution where there is no psychiatric care at all. The doctor testified that at Jackson the defendant 'would probably be placed in the general population where a person who is mentally ill is at a real disadvantage.’ Assaults, both physical and sexual, are common; their personal property is stolen. 'They [the mentally ill] are really at the mercy of the rest of the prison population. * * * [W]e cannot provide them with the kind of protection that often the mentally ill do need within the prison system.’ In terms of his mental health 'it would do him more harm than good’ to be turned over to the Department of Corrections. ’We do not have the wherewithal to implement the legislation regarding the treatment of mentally ill in the corrections system.’ [Emphasis by trial judge.]
"Although there is provision in the Mental Health Code for transfer of mentally ill individuals from the Department of Corrections to the Department of Mental Health, it appears to be a slow and inadequately utilized procedure. * * * Since the act went into effect, 27 people (presumably representing the most acutely ill) have been recommended for transfer. Of these, 8 hearings have been held, 15 people accepted, but only 11 transferred as of this date. The average wait for a hearing was 2-1/2 weeks. The average wait between acceptance and transfer was three months (ranging from one month to eight months) with one person still waiting to be transferred since November 4, 1975. Of those transferred, one was kept less than a day and three stayed less than a week before being transferred back to the Department of Corrections.
"Dr. Mario Zamora, Director of Northville State Hospital, Forensic *669Department, Department of Mental Health, was also called as a witness by the court. Contrary to the opinion of other experts, he felt that Mr. McLeod 'was not presenting any symptoms suggestive to [him] to keep [McLeod] in the Department of Mental Health.’ He indicated that if the court placed Mr. McLeod on probation they would not treat him as an in-patient regardless of the conditions set by the court, and that if the court wanted the defendant treated as an in-patient he would have to be committed to the Department of Corrections.
"Dr. Tanay * * * diagnosed the defendant as a chronic regressive schizophrenic and described his behavior during the interview as at times rational, at times disjointed, at times appearing to be hallucinating. He testified that the history of the defendant indicates that he does not have the capacity to function independently. If placed in the community he poses a danger both to himself and to society, because it is likely that the defendant would do something of a bizarre or dangerous nature to get himself back into an institution (voices tell him to set fires). He described the defendant as ill beyond curative treatment and in need of what he characterized as continued environmental custodial care in the structured environment of a state hospital. He confirmed Dr. Jurczak’s opinion that the defendant has been and would be abused in a prison setting.”
Against this background, the judge concluded that McLeod was "in need of continued custodial care in a facility equipped to provide such care to chronically mentally ill persons and that such a place simply does not exist” for a guilty but mentally ill defendant.
MCL 768.36(3); MSA 28.1059(3).
MCL 768.36(4); MSA 28.1059(4).
While such concerns are seldom openly expressed, one United States District Judge has recently written:
"Sentencing decisions are acutely difficult, not only because they radically affect the lives of offenders and their families, but also because sentencing objectives are frequently at cross-purposes. A prison sentence heavy enough to punish may erase the possibility of rehabilitation. * * * Even the least questionable purpose of imprisonment — incapacitation ('keeping him off the street’) — must be weighed against the rape, mayhem, and murder which occur in prison.” Lasker, Presumption Against Incarceration, 7 Hofstra L Rev 407, 408 (1979).
It is said that People v McQuillan, 392 Mich 511; 221 NW2d 569 (1974), does not authorize the inquiry conducted by the judge into the practices of the correctional authorities. While McQuillan, a case involving a defendant’s post-conviction, post-incarceration challenge to the constitutionality of his confinement, is not authority for the judge’s actions in this case, by the same token it is not authority for disapproving those actions. Neither of the opinions in McQuillan suggests that a judge may not inquire, before sentence is passed and before physical custody of the defendant has been transferred to the appropriate state agency, into whether a particular sentence would be violative of a defendant’s statutory or constitutional rights or otherwise inappropriate.
The judge’s finding, supported by the evidence, that McLeod’s statutory rights would be violated if he were sentenced to prison, justified her decision not to impose such a sentence.
While this Court has held that an indigent person is entitled in particular circumstances to the appointment of counsel at state expense although the relevant legal proceedings might be characterized as civil in nature, People v David Johnson, 407 Mich 134; 283 NW2d 632 (1979) (civil contempt proceedings against witness for failure to testify before grand jury), Artibee v Cheboygan Circuit Judge, 397 Mich 54; 243 NW2d 248 (1976) (paternity action), no Michigan appellate decision obliges the state to provide counsel to incarcerated persons who are indigent to enable them to maintain an action challenging the conditions of their confinement. That is not to say that such a right to counsel should not be recognized. One can foresee additional years of litigation over whether such a right should be recognized. If it is not, the right to maintain civil proceedings against the responsible authorities may be entirely illusory.
Brown & Wittner, 1978 Annual Survey of Michigan Law: Criminal Law, 25 Wayne L Rev 335, 358, fn 144 (1979).
A question which we are not required to decide but which is suggested by the record in this case is whether the care the trial *677judge sought for McLeod would constitute "psychiatrically indicated treatment” within the meaning of MCL 768.36(3); MSA 28.1059(3).
The judge’s opinion recognized that Dr. Tanay "described the defendant as ill beyond curative treatment and in need of what he characterized as continued environmental custodial care in the structured environment of a state hospital”. Dr. Tanay testified that "there can be no reasonable expectation that if certain procedures are carried out within some foreseeable future Mr. McLeod would be free of his illness”. He indicated a preference for institutionalizing McLeod in a mental health setting rather than a prison setting because McLeod would be prone to suffer indignities and abuse in the penal institution.
One may question whether the Legislature contemplated that a defendant should be "treated” by institutionalizing him in a state mental hospital rather than a prison for the duration of his sentence simply because the hospital setting may be less dangerous or destructive to that individual. One might argue that the statutory guarantee of treatment extends only to remedial measures designed to alleviate a defendant’s condition and not to the provision of a more supportive, less hostile institutional environment. On the other hand, the statutory directive that the defendant be "given such treatment as is psychiatrically indicated for his mental illness or retardation” (emphasis supplied) may support the opposite conclusion since the notion of treatment for retardation appears more consistent with providing a supportive environment than supplying psychiatric medication or psychotherapy.
We note that 1978 PA 636; MCL 330.2001 et seq.; MSA 14.800(1001) et seq., establishes procedures for the transfer to the Center for Forensic Psychiatry program, under the jurisdiction of the Department of Mental Health, of prisoners certified as requiring psychiatric inpatient services. "Psychiatric inpatient services” is defined as including "milieu for social and recreational activities”. MCL 330.2001b(4); MSA 14.800(1001b)(4). But see MCL 330.2003, subds (a)(b); MSA 14.800(1003), subds (a)-(b).
The effect, if any, of this statute on persons convicted as guilty but mentally ill has not been briefed. However, it does not appear that this statute purports to supersede rights granted by the statute establishing the verdict of guilty but mentally ill.
MCL 768.36(3); MSA 28.1059(3).
There may be cases where a judge properly concludes that the Department of Corrections is not presently capable of providing indicated treatment to a guilty but mentally ill defendant yet the defendant is so apparently dangerous that the judge cannot in good conscience release him into the community on probation. In such circumstances, the judge may defer sentencing for a short time to enable the Department of Corrections to develop a plan and the capacity to provide the defendant with treatment. If jurisdiction cannot otherwise be obtained, the judge might request the department to submit to the jurisdiction of the court so that the judge could enter an enforceable order directing the department to provide indicated treatment at the time a prison sentence is imposed. The responsible state agencies should be capable of responding so that an obviously dangerous person is not released into the community.