People v. McLeod

288 N.W.2d 909, 407 Mich. 632, 1980 Mich. LEXIS 206

• Court: Michigan Supreme Court
• Decided: March 4, 1980
• Docket: 60368, (Calendar No. 5)
• Status: Published

Opinions

Ryan, J.

(to affirm). Leave to appeal was granted in this case to address several challenges to the constitutionality of the "guilty but mentally ill” verdict established by 1975 PA 180. We agree with the Court of Appeals that on the record in this case there is no showing of a clear and inevitable conflict between this new verdict and either the United States or Michigan Constitution. We affirm the judgment of the Court of Appeals.

I. The Statute

1975 PA 180 established a new verdict heretofore unknown to the jurisprudence of our state— guilty but mentally ill.

The statute provides, in pertinent part, that

"(1) If the defendant asserts a defense of insanity in compliance with section 20a, the defendant may be found 'guilty but mentally ill’ if, after trial, the trier of fact finds all of the following beyond a reasonable doubt:

"(a) That the defendant is guilty of an offense.

"(b) That the defendant was mentally ill at the time of the commission of that offense.

"(c) That the defendant was not legally insane at the time of the commission of that offense.” MCL 768.36(1); MSA 28.1059(1).

Section 20a, MCL 768.20a; MSA 28.1043(1), establishes certain procedures and rules that are applicable when a defendant in a felony case proposes to offer a defense of insanity.

Mental illness, as used in this statute,

"[M]eans a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.” MCL 330.1400a; MSA 14.800(400a).

Once a defendant is found guilty but mentally ill, MCL 768.36(3); MSA 28.1059(3) authorizes the court to impose any sentence which could lawfully be imposed upon any defendant who is found guilty of the same offense. The statute provides that upon commitment to the custody of the Department of Corrections, the defendant shall undergo further evaluation and be given such treatment for his mental illness or retardation as is psychiatrically indicated. Treatment is to be provided by the Department of Corrections or by the Department of Mental Health after transfer to that agency, pursuant to certain statutory procedures.¹

MCL 768.36(4); MSA 28.1059(4) establishes certain conditions and procedures for placing a defendant who is found guilty but mentally ill on probation.

The instant challenge to this statute concerns the sentencing provisions of MCL 768.36, subdivisions (3) and (4); MSA 28.1059, subdivisions (3) and (4).

II. Facts

The defendant, Joseph McLeod, was charged with arson, a felony, in violation of MCL 750.72; MSA 28.267. He waived a jury trial and asserted a defense of insanity. At the conclusion of his bench trial on May 17, 1976, he was found guilty of arson but mentally ill. The trial court made the three specific findings required under MCL 768.36(1); MSA 28.1059(1).²

Thereafter the trial Court, on its own motion, conducted three hearings to obtain the testimony of certain psychiatrists in an attempt to determine the type of treatment that might be provided to the defendant under the new statute’s sentencing alternatives. The court called the assistant director of the Office of Health Care for the Michigan Department of Corrections, the director of the Forensic Department, Northville State Hospital, Michigan Department of Mental Health, and an associate professor of psychiatry at Wayne State University.

After hearing the testimony of these three psychiatrists, obtaining some figures on the rate of transfer of mentally ill patients from the Department of Corrections to the Department of Mental Health, and receiving a post-conviction report concerning the defendant’s present mental health from the Recorder’s Court Psychiatric Clinic, the trial court filed a written opinion on September 21, 1976.

In its opinion the court found that defendant was presently and chronically mentally ill and required continued care, but held that the treatment mandated by MCL 768.36(3); MSA 28.1059(3) would not be provided if defendant was committed to the Department of Corrections. The court found that the conditions within the Department of Corrections, as described by the psychiatrist from that department, posed an immediate threat of irreparable harm to defendant.

The court also found that probation, conditioned on continued in-patient treatment by the Department of Mental Health, was not "a viable [sentencing] alternative because the state will not provide such care”. In that connection, the court concluded from testimony by a representative of the Department of Mental Health that the department’s policies would require the defendant’s release "as soon as the administration of strong anti-psychotic drugs masked the overtly gross symptoms” of his mental illness.³

The court found further that the statutory provisions for probationary sentences for persons found guilty but mentally ill, MCL 768.36(4); MSA 28.1059(4), violated state and Federal guarantees of equal protection of the laws by mandating a minimum five-year term of probation for such persons without regard to the existence or extent of their mental illness or the. time needed for treatment, while other persons convicted of the same probationable crimes face no such minimum term of probation.

The court held that MCL 768.36(3); MSA 28.1059(3) "is legally inert and cannot be given judicial implementation for the reason that compliance with its provisions as to treatment is impossible and the court is thereby deprived of its authority to enter a judgment of guilty but mentally ill or to sentence [defendant] thereunder”.⁴ The court, sua sponte, set aside the verdict of guilty but mentally ill, declared it a nullity and granted defendant a new trial, despite the fact that none was requested.

The Court of Appeals granted the prosecutor’s emergency petition for leave to appeal, reversed the order of the trial court granting a new trial and remanded the case for sentencing. 77 Mich App 327; 258 NW2d 214 (1977). The Court of Appeals held that the reasons asserted by the trial court to support the finding of unconstitutionality were premature because they all involved speculation that neither the Department of Corrections nor the Department of Mental Health would heed the mandate of the statute. Consequently, the Court of Appeals found no clear and inevitable conflict between the statute and the Constitution on the record presented at that time and remanded the case to the trial court for imposition of sentence.

Following this decision, the trial court sentenced defendant to five years probation with psychiatric treatment to be provided by the Department of Mental Health as a condition of probation. The trial court’s written order specifically acknowledged defense counsel’s objection to the five-year term of probation. The court stated that it was of the opinion that neither defendant’s nor society’s needs would be well served by the five-year term of probation and that it would have sentenced defendant to a shorter period of probation but for the mandate of the statute. MCL 768.36(4); MSA 28.1059(4).

Subsequently, this Court granted defendant’s delayed application for leave to appeal on the following issues:

“(1) Whether the failure of the Court of Appeals to consider the trial court’s factual finding of immediate and irreparable injury to the defendant impairs the ruling of the Court of Appeals that the trial court’s action was premature;

"(2) Whether under the circumstances of this case the sentencing court was an appropriate forum for determining that the sentencing provisions of MCL 768.36; MSA 28.1059 cannot be implemented;

"(3) Whether MCL 768.36; MSA 28.1059 violates due process of law because the act itself gives the defendant an undeniable right to such treatment as is psychiatrically indicated for his mental illness, when it is shown factually that defendant will not be afforded such psychiatric treatment;

“(4) Whether the actual operation of MCL 768.36; MSA 28.1059 violates the Eighth Amendment’s ban against cruel and unusual punishment;

"(5) Whether subsection (4) of MCL 768.36; MSA 28.1059 which provides a period of probation for those found guilty but mentally ill shall be not less than five years, violates equal protection and due process clauses of the constitutions?” 402 Mich 927-928 (1978).

III. The Availability op Treatment

The first four issues on which leave was granted are considered together because they are each related to the trial court’s determination that the treatment mandated by MCL 768.36; MSA 28.1059 would not be provided to defendant.

After careful consideration of the proceedings below, as well as the able argument and enlightening brief of defense counsel, we find ourselves in agreement with the Court of Appeals

"that matters relating to post-sentence treatment, or lack of treatment, are prematurely raised. The reasons asserted by the trial judge for her finding of unconstitutionality are premature in that they all relate to speculation that the Department of Corrections or the Department of Mental Health will not pay heed to the statute. While future events may prove the trial judge was correct in her surmise, to conclude that compliance with the statute is 'impossible’ is inaccurate.” 77 Mich App 327, 330; 258 NW2d 214 (1977).

We find, at the outset, that this new statute grants defendant, and other persons who are sentenced pursuant to this new verdict, an unequivocal statutory right to

"such treatment as is psychiatrically indicated for his mental illness or retardation.” MCL 768.36(3); MSA 28.1059(3),

upon commitment to the custody of the Department of Corrections, or the right to

"[treatment [which] shall be provided by an agency of the Department of Mental Health, or with the approval of the sentencing court and at individual expense, by private agencies, private physicians, or other mental health personnel.” MCL 768.36(4); MSA 28.1059(4),

if defendant is placed on probation with treatment as a condition of the probation.

While we recognize that the statute grants a right to such treatment as is psychiatrically indicated, we hold that on this record the sentencing court erred in attempting to determine whether that treatment would in fact be provided. In attempting to do so, the sentencing court failed to afford the departments statutorily charged with the responsibility for providing that treatment a reasonable opportunity to comply with the statutory mandate. Indeed, in exercising its sentencing function, the trial court did not even have before it the parties statutorily charged with the responsibility for administering the statute’s mandates. While a knowledgeable representative from each of the departments charged with certain duties under the statute cooperated with the court in its inquiry into the availability of the mandated treatment, that was not enough. In order for the sentencing court to have properly made the findings it purported to make concerning the actual availability and provision of treatment for defendant, it must first have had the responsible departments before it as parties to a legal proceeding, represented by counsel, and afforded a full and fair opportunity to develop a factual record to determine at least the following:

1) Whether treatment was psychiatrically indicated for defendant;

2) If so, the type and length of the treatment that was psychiatrically indicated;

3) Whether that treatment was being provided or would be provided; and

4) If not, the reasons for the failure to provide such treatment.

The sentencing proceedings below did not afford these departments an opportunity to develop such a record.⁵

The extraordinary procedure followed by the sentencing court in People v McQuillan, 392 Mich 511; 221 NW2d 569 (1974), is inapplicable to this situation. In McQuillan, this Court found that a sentencing court properly assumed jurisdiction pursuant to a "Delayed Motion to Vacate Commitment Order” to review the constitutionality of the automatic commitment statute by which that court had committed defendant to the Department of Mental Health. In a footnote response to the dissenting opinion in McQuillan, the majority characterized the procedure followed by that sentencing court as a proper exercise of its jurisdiction to review whether it had authority to commit a person to an institution in the first instance. The Court specifically said this was an altogether different thing from the sentencing judge reviewing whether rules or practices of the correctional authorities denied a person’s constitutional rights after a proper commitment, which its opinion would not justify. 392 Mich 523, fn 2.5.

The procedure followed by the sentencing judge in the instant case was an attempt to conduct a review of the rules and practices of the correctional authorities prior to commitment. Commitment was properly authorized under the statute. An attempt to determine before commitment was effected that the rules and practices of the correctional authorities would violate defendant’s constitutional rights after commitment was premature. McQuillan is not authority for the trial court’s actions in this case.

Moreover, until such time as Mr. McLeod "undergoes] further evaluation” in the custody of the Department of Corrections, as provided by the statute in question, no determination can be made of what "treatment [in the judgment of that agency] is psychiatrically indicated for his mental illness or retardation”. Thus, it is logically impossible to conclude that the required care will not be provided.

We are constrained to observe that even if a proper determination could have been made by the trial court that Mr. McLeod would not receive the required treatment, it does not follow that the statute is, for that reason, unconstitutional.

Department of Corrections noncompliance with the statutory mandate for evaluation and treatment cannot render an otherwise constitutional statute unconstitutional.

Therefore, we hold that on the record before us the sentencing court was an inappropriate forum to determine that the sentencing provisions of MCL 768.36; MSA 28.1059 could not and would not be implemented. We find that the trial court’s factual finding that the conditions at the Department of Corrections facilities posed a threat of immediate and irreparable injury to the defendant was made on an inadequate factual record and consequently does not impair our holding. Finally, because no full evidentiary record was properly developed below, it has not been established that defendant will not be afforded the treatment to which he has a statutory right nor that the actual operation of MCL 768.36; MSA 28.1059 violates the Eighth Amendment’s ban on cruel and unusual punishment.⁶ On this record those challenges to this statute must fail.

IV. The Probation Provision

A final challenge to the statute remains for our consideration.

Defendant contends that the provision governing the grant of probation to guilty but mentally ill persons violates the equal protection and due process clauses of our Federal and state constitutions⁷ by providing that the period of probation "shall not be for less than 5 years”. MCL 768.36(4); MSA 28.1059(4).

The challenged statutory provision provides:

"(4) If a defendant who is found guilty but mentally ill is placed on probation under the jurisdiction of the sentencing court pursuant to law, the trial judge, upon recommendation of the center for forensic psychiatry, shall make treatment a condition of probation. Reports as specified by the trial judge shall be filed with the probation officer and the sentencing court. Failure to continue treatment, except by agreement with the treating agency and the sentencing court, shall be a basis for the institution of probation violation hearings. The period of probation shall not be for less than 5 years and shall not be shortened without receipt and consideration of a forensic psychiatric report by the sentencing court. Treatment shall be provided by an agency of the department of mental health, or with the approval of the sentencing court and at individual expense, by private agencies, private physicians, or other mental health personnel. A psychiatric report shall be filed with the probation officer and the sentencing court every 3 months during the period of probation. If a motion on a petition to discontinue probation is made by the defendant, the probation officer shall request a report as specified from the center for forensic psychiatry or any other facility certified by department of mental health for the performance of forensic psychiatric evaluation.”

A. Argument

Defendant contends that the requirement of a minimum period of probation for defendants found to be guilty but mentally ill denies equal protection because it adversely affects their fundamental liberty interest vis-á-vis defendants found generally guilty of the same probationable offenses, without establishing a compelling state interest for the different treatment. This provision, it is argued, also subjects defendants found guilty but mentally ill to a greater deprivation of liberty than other guilty defendants on the basis of mental illness, without requiring a showing that the mental illness exists at the time of sentencing. Defendant also argues that even if mental illness at the time of sentencing is a legitimate consideration for differentiating between defendants, the statute still offends equal protection because it mandates treatment for the mentally ill class that will not be provided. Consequently, this classification is said to be unconstitutionally arbitrary.

Defendant’s final contention is that this provision violates due process by failing to provide a hearing on the issue of mental illness at the time of sentencing before imposing a more severe term of probation on guilty but mentally ill defendants than would otherwise be provided defendants convicted of the same probationable offenses.

B. Present Mental Illness

We note at the outset that it is our duty to presume the constitutionality of a statute and construe it as constitutional unless the contrary clearly appears. People v McQuillan, 392 Mich 511, 536; 221 NW2d 569 (1974); Sullivan v Michigan State Board of Dentistry, 268 Mich 427, 429-430; 256 NW 471 (1934).

It is evident from a reading of the probation provision, in the context of the entire statute, that the mental illness of defendants sentenced under it is the basis for the specific statutory directive for a five-year period of probation.

Concededly this provision does not explicitly require an inquiry into a defendant’s mental health at the time of sentencing. However, we find that it obviously contemplates such an inquiry and implicitly requires one.

This statutory provision specifically requires the sentencing judge who places on probation a defendant who has been found guilty but mentally ill to make treatment a condition of probation upon the .recommendation of the Center for Forensic Psychiatry. Practically speaking, no such recommendation could be made until the center has been afforded the opportunity to evaluate the defendant’s mental health and to determine the need for treatment, if any. Conversely, the sentencing court could not determine that treatment need not be a condition of probation until after it has considered all relevant factors, including the defendant’s mental health.

Consequently, we hold that this statute requires a sentencing court to obtain a report from the Center for Forensic Psychiatry evaluating a defendant’s present mental health prior to sentencing a defendant found guilty but mentally ill.

C. Due Process

Defendant appears to contend that more than this is required. He maintains, on the authority of People v McQuillan, supra, that guilty but mentally ill defendants are entitled by due process requirements to a hearing on the issue of their present mental health. If defendant means that a full civil commitment hearing akin to that provided in McQuillan is required, we do not agree.

McQuillan held that a person who had been found not guilty by reason of insanity could not thereafter and on that basis be committed automatically to the Department of Mental Health. That verdict only established that there was a reasonable doubt as to defendant’s sanity at the time of the crime and thus he was not to be held criminally responsible for his acts. Consequently, because institutionalization would constitute a significant restriction on such a person’s right to liberty, due process required a sanity hearing to determine that person’s present mental condition and equal protection required that the hearing be substantially similar to other civil commitment proceedings. 392 Mich 537.

Guilty but mentally ill defendants are in a wholly different position than defendants found not guilty by reason of insanity. The former have been found beyond a reasonable doubt to have been 1) guilty of an offense, 2) mentally ill at the time of the commission of the offense, and 3) not legally insane at the time of the offense.

They no longer have a right to unfettered liberty. They have been convicted of a crime. Their only interest is in obtaining a term of probation similar to other persons convicted of the same crime.

The McQuillan Court recognized that "[d]ue process analysis focuses on the question of which rights and protections are essential to constitutional procedure in a given situation”. 392 Mich 530-531.

This is consistent with the general approach taken by the United States Supreme Court for testing challenged state procedures under a due process claim. As recently stated by that Court, its general approach requires a balancing of the private interest that is affected by the official action, the state’s interest in the procedures it has adopted, and how well the procedures protect against arbitrariness in the making of the official decision. Parham v J R, 442 US 584, 599-600; 99 S Ct 2493; 61 L Ed 2d 101 (1979).

The private interest that is affected by the official action challenged here is one that is legislatively created. In People v Rial, 399 Mich 431, 437; 249 NW2d 114 (1976), this Court recognized, citing MCL 771.4; MSA 28.1134, that probation, in lieu of sentencing, is purely a matter of grace, not of right. It rests in the sound discretion of the trial court, People v Marks, 340 Mich 495, 499; 65 NW2d 698 (1954), with the source of the trial court’s probation authority in the Legislature. People v Davis, 392 Mich 221, 226; 220 NW2d 452 (1974). Consequently, we are not evaluating a restriction on defendant’s fundamental right to liberty, but a restriction on the granting of an interest that is legislatively created.

Balanced against this interest is the state’s interest in assuring that mentally ill criminals are provided supervised treatment for their mental illness for a sufficient period of time to assure that their mental health is restored.

We find that 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. Such procedures strike a constitutional balance between defendant’s interest in a period of probation of less than five years and society’s interest in assuring that mentally ill criminals are provided supervised treatment for a period of time sufficient to determine that their mental health is restored.

We have already found that this statute requires a report on defendant’s present mental health prior to sentencing. We hold further that the 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.

The apparently mandatory five-year period of probation is actually a qualified command to sentencing courts. The pertinent statutory language reads:

"The period of probation shall not be for less than 5 years and shall not be shortened without receipt and consideration of a forensic psychiatric report by the sentencing court.” MCL 768.36(4); MSA 28.1059(4).

In order to give commonsense meaning to the second phrase of this sentence, we read it as authorizing the sentencing court to shorten the presumptive five-year period of probation if any forensic psychiatric report obtained prior to sentencing or during the period of probation indicates that a shorter period would be appropriate.

Periodic review of the continuing need for treatment is statutorily required:

"A psychiatric report shall be filed with the probation officer and the sentencing court every 3 months during the period of probation.” MCL 768.36(4); MSA 28.1059(4).

Furthermore, the statute clearly authorizes a sentencing court to discontinue probation on the motion of the defendant when there is no further need for treatment.

"If a motion on a petition to discontinue probation is made by the defendant, the probation officer shall request a report as specified from the center for forensic psychiatry or any other facility certified by [the] department of mental health for the performance of forensic psychiatric evaluation.” MCL 768.36(4); MSA 28.1059(4).

We find, these provisions afford guilty but mentally ill defendants who are placed on probation required due process protections.⁸

D. Equal Protection

We cannot accept defendant’s argument that the classification of guilty but mentally ill defendants in the probation provision of this statute infringes on a fundamental right and can only be sustained if it satisfies a compelling state interest. As we have already stated, a guilty but mentally ill defendant has no right to the exercise of unfettered liberty. Such a defendant has been found guilty beyond a reasonable doubt in a judicial proceeding providing the full panoply of rights and protections guaranteed to the criminally accused under both our Federal and state constitutions. Such a defendant’s liberty may be constitutionally circumscribed by the state.

Consequently, we construe this argument as a challenge to the legislative classification of guilty persons who are mentally ill vis-á-vis guilty persons who are not. The classification of "mentally ill” in this context has none of the indicia of a suspect class.⁹

Because neither a suspect class nor a fundamental right is involved in this classification, it will be upheld in the face of an equal protection challenge under both our Federal and state constitutions if it rationally furthers the object of the legislation. San Antonio Independent School Dist v Rodriguez, 411 US 1, 40, 55; 93 S Ct 1278; 36 L Ed 2d 16 (1973); McGinnis v Royster, 410 US 263, 270; 93 S Ct 1055; 35 L Ed 2d 282 (1973); In re Kasuba Estate, 401 Mich 560, 568-569; 258 NW2d 731 (1977).

This is also in accord with the statement of the United States Supreme Court quoted approvingly by this Court in McQuillan, 392 Mich 534.

"Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.” Baxstrom v Herold, 383 US 107, 111; 86 S Ct 760; 15 L Ed 2d 620 (1966).

It is apparent that the 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.

In order to assure this treatment, the Legislature provided that probationary terms for guilty but mentally ill persons will be for a rebuttable five-year period under the continuing supervision of the sentencing court. The Legislature also provided that the probation could be shortened or discontinued if the need for treatment no longer obtained.

We think this classification rationally furthers the legislative object of providing supervised mental health treatment and care to guilty but mentally ill defendants who are placed on probation.

Finally, we cannot find this statute created an arbitrary classification because the mandated treatment would not be provided to guilty but mentally ill defendants placed on probation. We have already held the sentencing trial court was an inappropriate forum to decide this question in this case.

We find no violation of equal protection in the statute’s probation provision.

V. Conclusion

Although we, like the Court of Appeals, are not without sympathy for the commendable objectives of the trial judge, we find no constitutional infirmity in this statute on the record before us.

The judgment of the Court of Appeals is affirmed.

Coleman, C.J., and Fitzgerald, J., concurred with Ryan, J.

1 MCL 768.36(3); MSA 28.1059(3) provides:

"(3) If a defendant is found guilty but mentally ill or enters a plea to that effect which is accepted by the court, the court shall impose any sentence which could be imposed pursuant to law upon a defendant who is convicted of the same offense. 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. Treatment may be provided by the department of corrections or by the department of mental health after his transfer pursuant to sections 1000 or 1002 of Act No. 258 of the Public Acts of 1974, being sections 330.2000 or 330.2002 of the Michigan Compiled Laws. Sections 1004 and 1006 of Act No. 258 of the Public Acts of 1974 shall apply to the discharge of such a defendant from a facility of the department of mental health to which he has been admitted and shall apply to the return of such a defendant to the department of corrections for the balance of the defendant’s sentence. When a treating facility designated by either the department of corrections or the department of mental health discharges such a defendant prior to the expiration of his sentence, that treating facility shall transmit to the parole board a report on the condition of the defendant which contains the clinical facts, the diagnosis, the course of treatment, and the prognosis for the remission of symptoms, the potential for recidivism and for the danger to himself or the public, and recommendations for future treatment. In the event that the parole board pursuant to law or administrative rules should consider him for parole, the board shall consult with the treating facility at which the defendant is being treated or from which he has been discharged and a comparable report on the condition of the defendant shall be filed with the board. If he is placed on parole by the parole board, his treatment shall, upon recommendation of the treating facility, be made a condition of parole, and failure to continue treatment except by agreement with the designated facility and parole board shall be a basis for the institution of parole violation hearings.”

2 The trial court’s verdict reads, in pertinent part:

"First of all, I am convinced beyond a reasonable doubt that the offense of arson was committed by the defendant.

"Secondly, I must determine whether or not the defendant was legally sane at the time of the commission of this offense. And then I must determine, if I find the defendant was legally sane, beyond a reasonable doubt, then I must determine whether or not he is guilty but mentally ill.

"Now, the test for mental * * * for legal insanity is whether the defendant lacks the substantial capacity or ability to know that what he was doing is wrong. And whether he had the substantial ability to conform his conduct to the law which he’s charged with violating.

"It seems evident to me that the defendant had been drinking that day. And the statute specifically states that drinking in and of itself would not be a defense. In addition, the report of Dr. Danto indicates the defendant may be suffering from amnesia as a result of a large intake of alcohol the day of the offense.

"I think from the testimony of the defendant and from the reports that have been received into evidence that the defendant could appreciate the wrongfulness of his conduct, and that he had the substantial ability to conform his conduct to the requirements of the law that he is charged with violating.

"I think that what he did was to attract attention to himself in order to get help for himself. Although I think that he was legally sane at the time of committing this act, I think that he was mentally ill and is now mentally ill.

"So that my verdict is guilty but mentally ill. I am going to order that the Forensic Center take custody of him immediately. And present me with a report of their recommendations.”

3 See footnote 8, infra.

4 The trial court also held that the statute unconstitutionally denied equal protection of the laws to those defendants who believe they are mentally ill but not insane and consequently do not assert the defense of insanity as required to obtain an instruction on the guilty but mentally ill verdict. MCL 768.29a(2); MSA 28.1052(1)(2) and MCL 768.36(1); MSA 28.1059(1). This contention was not urged by defendant in his delayed application for leave to appeal nor was it an issue on which leave to appeal was granted. Consequently, it would not be proper for us to consider this challenge to the statute.

5 All of the cases cited by defendant as authority for courts to exert control over prison systems in which inmates are deprived of certain constitutional rights are inapposite to the instant case. In each of those cases the officials responsible for providing the care sought were parties to the proceeding before the court.

6 US Const, Am VIII.

7 US Const, Am XIV; Const 1963, art 1, §§ 2, 17.

8 The . trial court found that treatment would not be provided to defendant by the Department of Mental Health on an in-patient basis if in-patient treatment were made a condition of probation.

When defendant was sentenced to probation following the Court of Appeals opinion in this case, "psychiatric treatment proscribed [sic] by the Department of Mental Health, as mandated by [MCL 768.36(4); MSA 28.1059(4)]” was made a condition of probation. Nothing was said about in-patient treatment.

Whether a sentencing court has the authority to order in-patient treatment by the Department of Mental Health as a condition of probation is a question not presently before this Court. We note only that the due process procedures we find appropriate in this case are subject to further review if the question of the propriety of in-patient treatment as a condition of probation under this statute is ever presented to this Court.

9 The traditional indicia of suspectness are: the class is saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. San Antonio Independent School Dist v Rodriguez, 411 US 1, 28; 93 S Ct 1278; 36 L Ed 2d 16 (1973).