
339 Mass. 313 (1959)
159 N.E.2d 82
COMMONWEALTH
vs.
ARTHUR A. PAGE, JUNIOR.
Supreme Judicial Court of Massachusetts, Suffolk.
April 6, 1959.
June 2, 1959.
Present: WILKINS, C.J., RONAN, COUNIHAN, WHITTEMORE, & CUTTER, JJ.
Walter Powers, Jr., (Raya S. Dreben with him,) for the defendant.
Joseph A. Melley, Assistant District Attorney, for the Commonwealth.
WHITTEMORE, J.
This bill of exceptions puts in issue the validity of the defendant's indefinite commitment to the treatment center for sex offenders at the Massachusetts Correctional Institution in Concord under the provisions of G.L.c. 123A, as amended by St. 1957, c. 772 (the statute), and on a petition filed by the district attorney under § 5 applicable to a "prisoner under sentence."
Statute 1957, c. 772, is the third of four enactments designed to furnish protection from sex offenders and facilities for their treatment and cure. Statute 1947, c. 683, provided for the commitment of persons having "psychopathic personality" to the custody of the department of mental health. Statute 1954, c. 686, established in that department a treatment *315 center for "the care, treatment and rehabilitation" of "sex offenders." In other relevant respects it was similar to the statute before us. Statute 1957, c. 772, made certain amendments in c. 123A as enacted in 1954. Statute 1958, c. 646, struck out c. 123A, as amended in 1957, and inserted a new chapter which makes important changes, but leaves the statutory scheme in its basic aspects much as it was when set up in 1954.
The statute in § 2 directs that the commissioner of mental health establish a treatment center at a correctional institution approved by the commissioner of correction, and authorizes branches at other correctional institutions. The statute permits confinement and treatment in the center of persons under sentence for an indefinite period after their sentences have ended. In the event of "transfer" to a center under § 4 of a person sentenced for a sex crime, pursuant to procedure initiated after conviction and before sentencing, the transfer under § 4 is to continue until the person is "discharged from said center as provided under section eight." In the case of a prisoner under sentence who is adjudicated a sex offender under § 5, the commitment is "until his release shall have been ordered by proper authority." Section 8 applies in terms to persons transferred under § 4 as well as those committed under § 5. But the discharge provision is imprecise in that, in the event of the necessary finding by the court or verdict by the jury that the person is no longer a sex offender, "the court shall order the commitment of such person to the center to be discharged, and the person shall be returned to the prison from which he was transferred" (emphasis supplied).
The bill of exceptions shows that on October 4, 1957, the defendant was a prisoner under sentence at the Massachusetts Correctional Institution in Concord and was to be discharged on the following day. On October 4, the district attorney reported to a judge of the Superior Court that the defendant appeared to be a sex offender as defined in the statute and moved that he be committed to the center in Concord, as the statute provides, for examination, diagnosis *316 and special treatment for a period not exceeding sixty days. The defendant was so committed on that day. The report of two psychiatrists stating their opinion that the defendant was a sex offender was filed October 25, 1957. On October 28, the district attorney filed the petition to have the defendant committed under the statute. On October 30, the defendant was brought into court, ordered to recognize in the sum of $10,000 with sureties for his appearance for a hearing on the petition, and in default of bail was committed to jail. Hearing was held on November 22, 1957. Prior to the taking of evidence the defendant excepted to the denial of his motion for a jury trial. The defendant further excepted to the denial of this requested ruling, among others: "If no treatment center has been established in fact, although required under said c. 123A, then the remaining provisions are inoperative until such center has been established."
The request should have been granted. The judge's finding that the commissioner of mental health had established a treatment center for sex offenders was not rightfully made on the uncontroverted evidence. The testimony of the official responsible for the center showed that the center had twelve beds and was used only for diagnostic purposes and that persons committed for observation or treatment were housed with the general prison population at the correctional institution in Concord. There was no separate staff for the treatment of sex offenders and the only treatment then available to persons committed to the center and not under diagnostic observation was the "program of group and individual psychiatric therapy for the total prison population which might include sex offenders."
Our cases show that statutes providing for custody, care and treatment of neglected or delinquent children, and persons suffering from mental illness are not penal, and the constitutional guaranty of a jury trial in criminal cases does not apply. Farnham v. Pierce, 141 Mass. 203, 204. Dowdell, petitioner, 169 Mass. 387, 389. Robinson v. Commonwealth, 242 Mass. 401, 403. Sylvester v. Commonwealth, 253 Mass. *317 244, 246-247. Dubois, petitioner, 331 Mass. 575, 578-579. See People v. Lewis, 260 N.Y. 171, app. dism. sub nom. Lewis v. New York, 289 U.S. 709; Commonwealth v. Fisher, 213 Pa. 48, 53-54; Holmes' Appeal, 379 Pa. 599, cert. den. sub nom. In re Holmes, 348 U.S. 973. Statutes providing for the custody and treatment of persons dangerous to themselves or others because of sexual tendencies have been sustained elsewhere on the same basis. People v. McCracken, 39 Cal.2d 336, 344-346. In re Keddy, 105 Cal. App.2d 215. State v. Probate Court, 205 Minn. 545, 556-557, affd. sub nom. Minnesota v. Probate Court, 309 U.S. 270. In re Moulton, 96 N.H. 370, 372. Compare People v. Frontczak, 286 Mich. 51; Rappeport, Determination of Delinquency in the Juvenile Court: A Suggested Approach, Wash. Univ. L.Q. 123 (1958); Mihm, A Re-examination of the Validity of our Sex Psychopath Statutes in the Light of Recent Appeal Cases and Experience, 44 Jour. Crim. L. 716, 730-736.
Notwithstanding that the center was to be maintained only at correctional institutions, we assume, without deciding, that the statute was nonpenal in character and under its provisions the commissioner of mental health could have so organized and operated the center that the restraints, discipline and regimen made applicable to the defendant would have been only such as would be appropriate for the custody, care and treatment of a sexually dangerous person not under sentence.[1]
But to be sustained as a nonpenal statute, in its application to the defendant, it is necessary that the remedial aspect of confinement thereunder have foundation in fact. It is not sufficient that the Legislature announce a remedial purpose if the consequences to the individual are penal. While we are not now called upon to state the standards which such a center must observe to fulfil its remedial purpose, we hold that a confinement in a prison which is undifferentiated *318 from the incarceration of convicted criminals is not remedial so as to escape constitutional requirements of due process. In re Maddox, 351 Mich. 358, 370. White v. Reid, 125 F. Supp. 647, 649-650 (D.D.C.), S.C. 126 F. Supp. 867, 871. See Miller v. Overholser, 206 F.2d 415, 418-419 (D.C. Cir.); Benton v. Reid, 231 F.2d 780, 782-783 (D.C. Cir.). And see Jones v. Robbins, 8 Gray, 329, 349-350; Nolan's Case, 122 Mass. 330, 332-333. Each of these cases arose on a petition for a writ of habeas corpus. We think the issue of unconstitutional application was equally available on exception taken in the course of the proceedings leading to the order of commitment where the fact that confinement would be in a prison as a prisoner was established. The record shows that the defendant when not subject to be sentenced for any crime was committed to prison without benefit of a jury trial for an indefinite period beginning after he had served the only sentence imposed on him. The commitment was therefore invalid. Even if thereafter the center was properly constituted, as to which the record is silent, the invalidity would not be overcome.
In respect of remedial and protective action apart from G.L.c. 123A for a person "in danger of causing physical harm to himself or to others ... or ... likely to conduct himself in a manner which clearly violates the established laws, ordinances, conventions or morals of the community," see G.L.c. 123, §§ 1, 50, 51, as amended through St. 1955, c. 637.
It is not necessary to consider the defendant's other specifications of error.
Exceptions sustained.
NOTES
[1]  We note the significant new provision in G.L.c. 123A, § 2, as amended in 1958, that "[t]he commissioner ... may also establish branches of said center at any suitable facility of the department of mental health."
