Murel v. Baltimore City Criminal Court

PETITIONER:Albert Delanor Murel, et al.
RESPONDENT:Baltimore City Criminal Court, et al.
LOCATION:Patuxent Institution

DOCKET NO.: 70-5276
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 407 US 355 (1972)
ARGUED: Mar 28, 1972 / Mar 29, 1972
DECIDED: Jun 19, 1972

ADVOCATES:
Andrew E. Greenwald
Francis B. Burch –
Henry R. Lord – for the respondents
Karl G. Feissner – for the petitioners

Facts of the case

Maryland trial courts convicted Albert Murel and the other petitioners of various crimes and sentenced them to fixed terms of imprisonment. The petitioners were “defective delinquents,” so each was committed to the Patuxent Institution, a mental health facility, pursuant to the Maryland Defective Delinquency Law.

The petitioners sought a federal habeas corpus in district court. They challenged the conditions of their confinement and the procedures that led to their commitment. They also argued that Maryland’s statutory standard for the commitment of “delinquent defendants” was unconstitutionally vague. The district court denied relief. The United States Court of Appeals for the Fourth Circuit affirmed the lower court’s opinion. The petitioners appealed to the Supreme Court.

Question

Did the Maryland Defective Delinquency Law violate the constitutional rights of prisoners who were committed to a mental health facility?

Warren E. Burger:

Let us hear arguments next in Murel and others against Baltimore City Criminal Court.

Mr. Feissner, you may proceed when you’re ready.

Karl G. Feissner:

Mr. Chief Justice and may I please the court.

The petitioner will reserve 10 minutes for rebuttal if we may.

Your Honor, 0047 era was committed in the court below when the Fourth Circuit Court of Appeals affirmed the Maryland’s Defective Delinquency Law in its Patuxent Institution in meaning and application.

If I may, I would first invite Your Honor’s attention to Page 7 A of our brief in the rear, which sets forth the definition of a defective delinquent.

As can be observed, a defective delinquent or one who is claimed to be a defective delinquent requires a new finding of fact in our State Courts of four critical elements.

Firstly, that the individual has persistent aggravated anti-social or criminal behavior.

Secondly, that he has a propensity towards this criminal activity.

Thirdly, that he is found to have intellectual deficiency or emotional imbalance.

And fourthly, that he demonstrates and actual danger to society.

This particular definition Your Honors is triggered by the provisions of Paragraph 6-D of the Act which are on the very next page.

A request for an examination of a supposed defective delinquent is initiated with a request from almost any persons wherein it would state the individual suspects or supposes that the individual might have defective delinquency.

Now, we suggest firstly in our first position that the legislative food for thought of supposition or suspected that someone has a particular condition would give one constitutional indigestion.

We bring that to the courts attention for this reason.

First of all, the Lower Court has relied in our – nor the Attorney General has relied on this courts earlier decision in Minnesota EX REL Pearson v. Probate Court.

We think that that reliance is roughly misplaced for these three reasons.

Number one, the Minnesota statute which was reported to this court and the court only considered the matter on the basis of so to speak a demur at that time.

There was no procedural hearing such as we have in this case.

The statute in Minnesota Your Honor has required three things before you could indicate or begin this sexual psychopath statute as what they call it in Minnesota.

Number one, that the facts must first be submitted to the County Attorney.

Secondly, that he must make a finding of good cause.

And thirdly, that he then prepares a petition to be executed by a person having knowledge of the facts.

Now, Your Honors, on the basis of that construed and limited by the Minnesota Court held at Minnesota EX REL Pearson v. Probate Court was constitutional and we set that next to the Maryland Defective Delinquency Act which merely says that a request for examination maybe filed by anyone who suspects or supposes.

In this regard, it is enlightening to examine very briefly the Attorney General of California has seen fit to file a brief amicus curiae and we noted with interest in the back of his brief in the appendix section where he referred to the particular California Law and that law says, “If it appears to the Court—”

Warren E. Burger:

What page are you on?

Karl G. Feissner:

Page 1 in his appendix in the back.

Warren E. Burger:

1 in the appendix?

Karl G. Feissner:

Yes sir.

Warren E. Burger:

Thank You.

Karl G. Feissner:

It is under subparagraph eight Mr. Chief Justice.

It states in the sixth line down, “If it appears to the satisfaction of the court that there is probable cause—” and I think there’s a major difference sirs between probable cause and suspecting or supposing.

Secondly of note to turn the page to page two of the brief of the Attorney General of California, you will find that the California statute requires a finding that the person could benefit from treatment, that the person could benefit from treatment.

The Maryland law which we think was designed to read us perhaps of the socially obnoxious has no 0445 of treatment.

There is no necessity that there’ll be treatment.

There is no finding that their individual is susceptible of treatments.

We will come to that momentarily.

Mr. Karl G. Feissner—

Karl G. Feissner:

Yes Your Honor.

Before you 0456 difficult enough for me to follow the Maryland’s statute without trying also to read the California one but how does this actually work in fact?

This is only after somebody is convicted.

Karl G. Feissner:

Yes You Honor, it is [Voice overlap].

And it cannot be done after he’s been released from confinement after a conviction.

Is this normally done at the request of the Warden of the Prison?

Karl G. Feissner:

Sir, its normally done – well, you really can’t say normal sir because they have referrals both from the Warden of the Prison and from the State’s Attorney who tried the case.

There are four classes of people that can refer one for a defective delinquency examination, it can be the State’s Attorney who tried the case.

Interestingly enough, the petitioners own Attorney, the petitioner himself or the Warden of the Correctional own institute where he finds himself.

I believe there’s a fit one that has 0546 me at the moment of the court on its own motion.

The court on its own motion.

Karl G. Feissner:

Yes sir.

And where does that appear on this statutory brief?

Karl G. Feissner:

Tenth paragraph, sixth Your Honor B of page [Voice overlap].

Warren E. Burger:

What page now?

Karl G. Feissner:

7-A of the appendix Mr. Chief Justice.

Warren E. Burger:

Okay, 0605.

Karl G. Feissner:

Yes sir underneath that who may make request sir, Page 7 A of the appendix.

7 A.

Harry A. Blackmun:

Does this have a parallelism to the Federal System 42 to 44?

Karl G. Feissner:

I’m not competent to comment on that sir.

I do not know the Federal System 42 to 44.

Harry A. Blackmun:

Incidentally now that I’ve interrupted you.

How many of your petitioners are still at Patuxent?

Karl G. Feissner:

At last report Your Honor, we understand that three still or one I believe is on parole.

Harry A. Blackmun:

But some are out?

Karl G. Feissner:

They’re not out sir, they get released on parole for extended periods of time.

Harry A. Blackmun:

Is it haze, a knavery or perhaps 0644.

Karl G. Feissner:

Haze, knave and 0645 are still among those present.

It’s my understanding that Mr. Murel in between the Fourth Circuit and here has gotten the cure and has been released on probation.

Harry A. Blackmun:

And then secondly, I take at your raising no equal protection as you are here as compared with commitment civilly?

Karl G. Feissner:

We raise this potentially for protection argument that we will get to momentarily Mr. Justice Black.

Harry A. Blackmun:

Are you relying on Baxstrom v. Herold?

Karl G. Feissner:

Yes sir we are.

Harry A. Blackmun:

So this request can be made anytime after conviction and before he is released from custody resulting from that conviction?

Karl G. Feissner:

Yes sir.

Harry A. Blackmun:

And when a request is made then what happens?

Karl G. Feissner:

That is my second point sir.

He goes for examination.

Harry A. Blackmun:

He goes to Patuxent, always to Patuxent?

Karl G. Feissner:

Yes sir, but if I may just cover that bridge across that bridge momentarily with your permission.

Harry A. Blackmun:

All right.

Karl G. Feissner:

The last pointy I would invite your attention to is the fact that this definition of a defective delinquent is extremely broad and covers all.

Now, under the Maryland Law, when one is referred to Patuxent, he is referred without a notice, without a hearing, without the benefit of counsel and believe it or not, no right to appeal the fact that he is sent to Patuxent on the basis of suspicion or supposition.

The Maryland law allows only in appeal after you are in fact determined to be a defective delinquent.

So we have then sir once the request was made on the basis of suspicion or supposition at the individual, then goes to Patuxent.

He does have no notice, no hearing, no counsel.

And after a period of nine months to one year, the institution then makes its return to the court.

If the institution finds that he is a defective delinquent, then there is a hearing in court.

If they find he is not a defective delinquent, there is no appeal allowed by public authority or otherwise and the individual serves out his criminal term or criminal sentence assuming [Voice overlap].

Harry A. Blackmun:

During that nine months to one year period, is he physically in Patuxent himself?

Karl G. Feissner:

He is on the receiving 0849

Harry A. Blackmun:

And is it nine months to one year something in the statute or is that just by experience?

Karl G. Feissner:

It is by experience sir the way it works.

It just takes that period of time.

Its an administrative situation.

Harry A. Blackmun:

There’s no statutory limit on the time you can be confined there on the first referral?

Karl G. Feissner:

Well, in this respect, there is not sir because the statute indicates a period of 90 days.

But as the Director testified at the court below, lamentably, it takes nine months to a year.

He laments at the fact that that is the case.

Of course [Voice overlap].

Warren E. Burger:

That’s simply or not simply an administrative problem of the staff shortage and facilities is it?

Karl G. Feissner:

Indeed Mr. Chief Justice, and getting back to the court and getting a hearing and in their information gathering process, it takes a period of time.

Warren E. Burger:

In your review, how does this process of getting in after conviction compared in the due process since with or in any other sense with the reference before trial, the person to determine his condition either for purposes of trial of his general mental condition?

Karl G. Feissner:

Well, sir, if an individual pleads in sanity, he must submit to an examination by the [Voice overlap].

Warren E. Burger:

Yes but supposed it does not and the prosecutor requests, that often happens doe sit not?

That an examination is ordered at the request of the prosecution?

Karl G. Feissner:

Yes sir, that’s correct.

Well of course it’s the burden under the Maryland law for the accused and its also the burden of the Federal law for the accuse to offer some evidence of his insanity.

And until he does offer that evidence, the State does not have any duty to go forward.

But I don’t see the [Voice overlap].

Warren E. Burger:

I’m speaking of the pretrial period.

Karl G. Feissner:

Yes sir.

Warren E. Burger:

After the arraignment if agreed by the Federal Court for example, prosecutor comes to the court and says he would like to have this defendant examine to determine his condition.

The competency is done trial or possibly anticipating a surprise defense of the claim of lack of responsibility.

Now, do you see a difference – what differences would you point out between the two processes here?

Karl G. Feissner:

I really don’t see that materially different sir except that it is a different standard.

One is mental disease or defect under the merit of law to relieve someone from criminal responsibility.

Where under the defective delinquent law, its far broader.

In fact, under the Defective Delinquent Law, you can catch anybody in the net if you wish because the terms are so vague.

For example, intellectual deficiency, Mr. Chief Justice, I think that that as testified on the court below means someone who are 1127 did not endow with accouterments that perhaps the rest of us have.

Emotional unbalance is a question of degree was described.

Karl G. Feissner:

I think there is a more precision in the criminal test indeed that there is in the defective delinquent test.

Mr. Karl G. Feissner, I think under the Maryland procedure that if you’re client warded Patuxent during this period, he would be imprisoned.

Karl G. Feissner:

Perhaps sir, there are many men at Patuxent and we will come to this momentarily whose terms have expired and are still at Patuxent.

Patuxent is an indeterminant sense.

You’re original criminal sentence is suspended.

But that doesn’t become an indeterminant sense before the determination isn’t it?

Karl G. Feissner:

No sir, after the determination.

No referral, I was taking about the referral period of time.

Karl G. Feissner:

I beg your pardon, no sir to answer your question.

However, there are individuals at Patuxent, I believe the record indicates 50 or 60 who are seen fit to rely upon the Bill of Rights and have refused to discuss their condition with the psychiatrist and the State of Maryland in the case called 1229 which is cited and well discussed I believe in our brief has held.

And if you rely upon the Fifth Amendment, you will have to stay at Patuxent until you do talk even though you’re criminal sentence has expired.

Have any of them been in fact held beyond the expiration of their criminal sentence?

Karl G. Feissner:

Yes sir, there’s some in this record and I believe you have insert here another case 1251 where the same situation, man is there 11 years on a 5-year sentence.

Without any determination ever having been made?

Karl G. Feissner:

That’s correct sir.

Now, if we can [Voice overlap].

Thurgood Marshall:

If you will object the presence that’s up its own little Patuxent, would you?

Karl G. Feissner:

I’m sorry sir, I did not [Voice overlap].

Thurgood Marshall:

If you put a little Patuxent in the middle of the jail while the man is serving his time and they say, “We think you better be examined.”

Would you have any objection?

Karl G. Feissner:

Well, no sir.

If we have a little Patuxent, which had treatment or if we had a big Patuxent which had treatment, I think we’d have different issues here.

Thurgood Marshall:

1322 my question, if you have a place where they want to find out that the man’s insane, would you object to that?

Karl G. Feissner:

No sir, I think that the state has the right to determine if someone is insane.

Thurgood Marshall:

But then you don’t have objection to their reasonable commitment to Patuxent?

Karl G. Feissner:

Yes sir we do because the original [Voice overlap].

Thurgood Marshall:

Or to object what happens to a man to get [Voice overlap].

Karl G. Feissner:

No sir, we object to both.

Mr. Justice Marshall, we object to the original part because they individually shunted off without notice of what’s happening, without a hearing [Voice overlap]

Thurgood Marshall:

But he is transferred from one place of business to another place of business.

Karl G. Feissner:

Yes sir but there is going to be a second consequence of his being transferred.

Thurgood Marshall:

Well that’s what I’m saying.

I think 1402 find out isn’t really a real problem is after he gets to Patuxent.

Karl G. Feissner:

Yes sir, the fact that there is going to be a major consequences.

Thurgood Marshall:

1411.

Karl G. Feissner:

Yes sir, for example, to follow your point through sir in the original case which brought this matter to the attention of the courts, we had a young man who received an 18 months sentence and was there for seven years.

And eventually was released because it was found [Voice overlap] that he should have never gone there in the first place.

Thurgood Marshall:

Unless you cant find out what happens after he gets there.

Karl G. Feissner:

All right sir, that’s where we are coming to at the examination stage.

As we have indicated to you, the individual goes to Patuxent having been triggered by a criminal situation although its not criminal misbehavior that is the entrance requirement to be in alumni of Patuxent Institution.

He can have aggravated antisocial behavior.

Then when he gets to Patuxent Institute, three things occur which we find somewhat difficult to reconcile with constitutional law.

Number one, during the period of time that he is in Patuxent and being examined, he is not allowed to have a benefit of counsel or benefit of his own physician.

Number two, if he relies upon the Fifth Amendment as we have indicated, the Court of Appeals of Maryland in a case called 1517at 183 1519 second 368 has said that this is evidence of a hostile nature.

And they determined that because of his hostility in citing the Fifth Amendment that this would be ground for finding him a defective delinquent.

Thirdly, under the 1533 we have already brought into your attention, if an individual in fact takes advantage if the Fifth Amendment to the Constitution of the United States, then he stays there until he does decide to talk.

So the examination stage then goes to where the prisoner if called in and is given a battery of psychological and psychiatric test, he is confronted with information that the state has as to his past.

Unfortunately, he is not given an opportunity to refute the information that the State has against him.

For example, the very learned and distinguished Director of Patuxent in the Maryland cases and its found at Page 623 of the Maryland Appendix JAMD 623 stated that the individual can challenge only what we bring up.

So here, you have an individual sir who is twice cursed.

He’s a criminal and he’s trying to pay his debt.

Secondly, he is now accused of one of two things either being a dummy in a sense being intellectually deficient or emotionally unbalanced, mentally unwell.

He’s here before this doctors, he has no counsel, no doctor, no notice, no hearing, no right of appeal, no nothing.

And then they say to him, “Here’s what you did.

we have all this background information.

Now, you can comment on A, B and C.”

He gets no opportunity sir to refute what the institution has.

And this becomes painfully critical sir for this reason.

You will find in the case that brought this whole matter of called Director v. Daniels.

In the first trial of this young man, we turn back in 1964, JA4 at Page 403.

Karl G. Feissner:

The institution submitted a report to the court and their procedure at the Patuxent procedure is that just a report.

It goes to the court and the report is read and this is the States case.

This of course is the reason that we will get to discuss hearsay on a lawyer like basis with you in just a moment.

But the report goes to the court and it is then read to the jury.

Now [Voice overlap].

Mr. Karl G. Feissner I go back, I’m mildly surprised you haven’t drawn some parallel to the Federal System, after all, we deal with that day by day.

And perhaps after the argument, you could submit something.

In a way, some of your argument seem to me to be antagonistic to the Federal System also which I think has been upheld.

Karl G. Feissner:

It would be my pleasure to do that sir.

And I appreciate whatever help you can give us on that.

Karl G. Feissner:

I appreciate your asking me sir.

Now, as we indicated to an individual having little chance to refute and why this is so painfully critical.

You will find that the first inmate that brought this case for the Daniels’ case, the inmate in the report that was submitted to the court is said that this 15-year-old Negro lad attempted to entice an 8-year-old White girl into sexual activity but was frightened away from her mother.

This is 1838 to the trial and the individual has no opportunity.

The people who make this claims are not present and there’s no right for cross-examination.

This particular incident didn’t happen in any of your client?

Karl G. Feissner:

Yes it did sir, it said JA4 Page 4 [Voice overlap].

Mr. Daniels is one of your client here?

Karl G. Feissner:

Yes sir, its on Joint Appendix 4 Page 403 is where the report came in.

When we have to redetermination hearing allowed by the Court of Appeals of Maryland, we were able to summon the mother in.

And this is the testimony at JAMD 61 where the mother said this didn’t happen.

That the little girl was on her way to school, this fellow asked, “Do you want to play?”

She said, “No, I got to go school.”

And he went on to school and there was not enticement and social activity and no effort by the mother ton frighten this young man away.

So, you have the situation sir where you have a new finding of fact has to be made in four respects.

A new finding of fact in four respects by a trial court, a court which has before it a statute which is broad enough to ensnare anyone and then you have trial procedures which allow the most blatant form of hearsay.

The Patuxent report, which is just read to the jury and then now, it is up to the defendant to overcome it.

The man who is in custody having the least opportunity then must face this rambling sea of four or five pages of information that the Patuxent Institution has gotten on him and he has not had the opportunity to refute it.

He can only refute that which was brought up.

Lastly, we’d like to save this few minutes but we would want to bring to your attention the fact that under the Maryland Law, we think this is critical sir.

Karl G. Feissner:

That under the Maryland Law, there is no requirement that treatment be given.

We think the very basis for such a law such as this is so called indeterminant confinement to get the socially undesirable off the street should have a requirement that the individual be given treatment of some sort.

You just cant house people out there.

But our Court of Appeals in its wisdom in several cases but the main one Shields v. Director which we have cited in our brief states on an appeal that the inmate made that he was not given any treatment.

The appellates fourth contention is without merit.

Since there is no requirement that an inmate be given treatment unless the sane is appropriate.

One of the petitioners in this case sir who was there for 13 years because he stuttered, they didn’t have a stuttering teacher or speech teacher for 10 years.

This is what the Court of Appeals said on his appeal.

It said Page 15 of our reply brief, “As to the stuttering, there is no claim and no showing that it could be helped procured by treatment.

And in any event, Court of Appeals a claim of denial of proper medical treatment has been held to be irrelevant.”

Warren E. Burger:

What you are suggesting on that particular case is that that is the only reason he was sent there in the first place?

Karl G. Feissner:

Oh no sir, the Jury had to make this other determinations but when you [Voice overlap].

Warren E. Burger:

But he wasn’t sent there because he had a speech impediment was he?

Karl G. Feissner:

No sir.

He was sent there because there was a finding of these other things but as have said forth in the beginning of our brief, or under the subject or trial procedure [Voice overlap].

Warren E. Burger:

That is focused on what is the significance of not having a speech teacher.

That suppose he had allergies, fevers or something at that kind, they might not have any cure for that but how would that be relevant to this problem?

Karl G. Feissner:

I think Mr. Chief Justice that the very basis upon which this law is created and the only basis that this law could be sustained is the fact that there should be recognizable medical treatment.

In other words, a finding that the [Voice overlap].

Warren E. Burger:

A medical treatment for the [Voice overlap].

Karl G. Feissner:

Defective delinquency.

Warren E. Burger:

2221 for which he was sent there.

Karl G. Feissner:

Agreed.

Warren E. Burger:

Not necessarily for all the other ailments he may have.

Karl G. Feissner:

No question about it sir but the Court of Appeals of Maryland, our point is sir has held that the individual cannot bring up the question that its irrelevant as to whether treatment is available for his defective delinquency.

There is no requirement under the Maryland Law.

It is our point sir.

No requirement under the Maryland Law that a committed inmate be given treatment.

We would like to save the rest of our time with your permission sir.

Warren E. Burger:

Very well, Mr. Burch.

Francis B. Burch:

Mr. Chief Justice and may I please the court.

Several points were raised by Mr. Justice Stewart, before I get into my argument I would like to quickly respond to those.

If the members of the court will take a look at Page 19 of the blue respondents brief, there is a list in Pages 19 and 20 of the procedural safeguards that surround a convicted person before he maybe adjudicated as a defective delinquent.

This are summed 14 in number and are I think the court will agree elaborate, I think it was Judge Bell of the Fourth Circuit.

In the first 2350 case in 1964 who said that this trial and hearing procedures plays around the accused more procedural safeguards than any of the active or similar nature which have been upheld by the court against an attack of this sort.

The Fourth Circuit went on to say in that case in an unanimous opinion that the draftsman of the statute were obviously careful to conform to the definition approved by this court in Minnesota EX REL Pearson v. Probate Court.

Warren E. Burger:

Focusing at Page 20 on Number 11, he is entitled to counsel of his choice, in what stage does he got that.

Before he goes to Patuxent?

Francis B. Burch:

Your Honor, what happens is [Voice overlap].

Warren E. Burger:

Or is this in the criminal proceeding of that?

Francis B. Burch:

No, there of course will have to be and this is a counter I think to the statement – our indication for Mr. Feissner, there must be a conviction of one of the categories of crime enumerated in the statute before a person maybe sent to Patuxent.

It’s not just any social activity, whatever that might be in the broad sense.

It must be a conviction also.

Now, when he goes to Patuxent for determination, and this is the second point of Mr. Justice Stewart raised and I’ll touch on this in the answer to your question.

There must be a report made on whether or not he’s a defective delinquent within six months of the time he is sent to Patuxent.

He then must have a hearing within three months after the determination is made.

And it is at that hearing which is a civil in nature hearing on whether or not in fact, this particular individual is a defective delinquent that he is entitled to counsel.

He of course is entitle to counsel in this criminal trial and throughout that.

But this is a proceeding that does not commence until after there has been a criminal conviction and a sentence.

Thurgood Marshall:

Do you have a counsel before or at the examination or before?

Francis B. Burch:

He ahs counsel at his trial for the criminal offense.

Thurgood Marshall:

My question was at the examination.

Francis B. Burch:

At the examination he does not, the examination is [Voice overlap].

Thurgood Marshall:

Does anything he says available to be used against him?

Francis B. Burch:

Well, the States position [Voice overlap].

Thurgood Marshall:

Is it or not, yes or no?

Francis B. Burch:

Yes it is.

Thurgood Marshall:

And he doesn’t have counsel?

Francis B. Burch:

He does not have counsel at Patuxent.

Thurgood Marshall:

And he had no way of preventing that?

Francis B. Burch:

I missed your question.

Thurgood Marshall:

You have one of the person in this list says he should go to Patuxent for examination, he cant question that at all.

Francis B. Burch:

He is sent – if he meets the requirements which we believe meet the requirements of dues process, if he meets those, he must then be transferred to Patuxent for evaluation.

Thurgood Marshall:

As I understand your requirements or due process is if some officials says he should go to Patuxent, period.

Francis B. Burch:

Well, as a practical matter and I think the record will bare this out.

In the overwhelming majority of cases, this happens immediately after the court has sentenced the man after conviction.

He then recommends [Voice overlap].

Thurgood Marshall:

Under this procedure, can anybody in the penitentiary sign a piece of paper and send that man to Patuxent, period?

Francis B. Burch:

No, absolutely not.

Thurgood Marshall:

Well what in the statute reprimands it?

Francis B. Burch:

It says that the Department of Correctional may but that would be a [Voice overlap].

Thurgood Marshall:

Well that could be the third water boy in the Department of Correctional.

2708 there had to be an order of the Judge to send him to Patuxent.

Francis B. Burch:

That’s right, but I mean, the initiation.

No, but that doesn’t – no one can order anybody to go to Patuxent except the Judge?

Francis B. Burch:

No, the point made is this, there are five categories of people who can initiate a request to send a person to Patuxent.

He then is transferred by a Court Order to Patuxent.

I know but he doesn’t go to Patuxent without a Court Order.

Francis B. Burch:

That’s right.

And the court doesn’t need to sign the order just because somebody requested?

Francis B. Burch:

Oh, absolutely not.

The point I’m making is that it must comply with the statute.

Thurgood Marshall:

But what does the court do?

Does it hold a hearing?

The court?

Francis B. Burch:

Yes sir.

At the first stage?

Yes sir.

Francis B. Burch:

No, it does not.

He examines the request for transfer to see that it confirms with the statute.

Francis B. Burch:

And then if it does, he will sign an order transferring [Voice overlap].

2755 the lawyer until after he ahs gone to Patuxent – does he know about what’s going on before the Judge?

Francis B. Burch:

Does he, yes.

He is brought before the Judge.

Does he give him a copy of what’s written against him?

Francis B. Burch:

I believe it’s in his record, yes sir.

You believe?

Francis B. Burch:

Yes sir.

It was not required.

Francis B. Burch:

It is.

It is required?

Francis B. Burch:

Yes.

And then he goes to Patuxent?

Francis B. Burch:

Correct.

Thurgood Marshall:

Can his lawyer go along with him?

Francis B. Burch:

No.

Thurgood Marshall:

Can his lawyer go with him when there will be an examine by these doctors?

Francis B. Burch:

No.

Thurgood Marshall:

The lawyer present when report is prepared?

Francis B. Burch:

Absolutely not.

Thurgood Marshall:

When does the lawyer get it cracked?

Francis B. Burch:

When the report is returned to the court in the nature of a presentenced report.

Once returned to the court, the court must hold a hearing immediately.

And that point, he appoints counsel.

There’s been no determination made until there’s a Jury Trial or a Court Trial at the election of the petitioner.

Thurgood Marshall:

My question – that is the point with the counsel, 5854 counsel cannot do anything.

Francis B. Burch:

Counsel cannot involve himself in the proceedings at Patuxent until the matter is returned to court and it must be returned to court within six months of the time of his transfer.

Warren E. Burger:

Are you familiar with the Federal System of assignments, statutes, governing matters?

Francis B. Burch:

I’m generally familiar on it.

Warren E. Burger:

Well in the Federal System as of now, may an assignment be made from a conventional penal institution to Springfield or to St. Elizabeth’s Hospital if some mental operation seems to show up after the man is assigned to a penal institute?

Francis B. Burch:

I believe so Your Honor.

Warren E. Burger:

Is there any hearing in that process at all?

Francis B. Burch:

Yes, there’s a hearing as to whether or not he should be permanently sent there.

It’s the justice in nature of the hearing in this case.

Warren E. Burger:

is it an administrative or a judicial hearing?

Francis B. Burch:

Judicial hearing.

Warren E. Burger:

Judicial hearing.

Francis B. Burch:

But the point is the hearing stage and this is the point I think that the State presses is before there is any permanent commitment to Patuxent Institution, there is a hearing in court at which, the petitioner has a right to summon witnesses.

He has the availability of the file from Patuxent.

He has the right to counsel.

He has the right to Jury Trial.

He has the right to cross examine and it is only then after the court with the jury at his selection has made a determination that he is in fact a defective delinquent, with those due process protections that he is sent and committed to Patuxent Institution.

Which is the point that I think was overlooked in the statements made by Mr. Feissner.

Now, [Voice overlap].

Even the first referral cannot take place general law can it until after conviction and sentence?

Francis B. Burch:

That’s correct.

And must of be a prison sentence.

It has to be a crime punishable by imprisonment in the penitentiary but what if the sentence is not a prison sentence?

What if it is a suspended sentence?

Francis B. Burch:

Yes, he must be serving an actual sentence.

It must be sentence to at least serve that?

Francis B. Burch:

Yes correct.

Well the Fourth Circuit made that comment.

It has append there has to be an active prison sentence.

Francis B. Burch:

That’s right and I think when reading the definition of defective delinquent, the court should also read along with it.

The threshold crimes which can trigger a certification to Patuxent or an order transferring to Patuxent.

And that’s again why I believe that the statement that a simple undifferentiated antisocial behavior can somehow end you up in Patuxent.

That’s simply not true.

There must be a conviction of a certain category of crimes, a sense and then a Court Order.

And then subsequent proceedings.

Francis B. Burch:

Now, Patuxent [Voice overlap].

Warren E. Burger:

And this respect would you say that there are more or less safeguards than were provided by the Minnesota statute court was concerned with?

Francis B. Burch:

Your Honor, I firmly believe there are more safeguards and that has been the finding of the Court of Appeals at Maryland’s highest court and the finding on two occasions of the Fourth Circuit unanimously.

Now, the point that I’ll be coming to shortly is other aspects not just the hearing on defective delinquency.

That’s only part of the arguments that are being raised by petitioners.

There are also arguments similar to the questions in forthcoming for Mr. Justice Marshall that the nature of the examination at Patuxent Institution.

Now I would like to quickly give the court a thumbnail sketch of the background of the institution.

The statute incidentally was drafted by the 1950 and 51 by the professor of constitutional law at the University of Maryland Law School.

And as the Fourth Circuit has indicated in strict conformity with the Minnesota EX REL Pearson v. Probate Court.

And this is a statement from a group of six psychiatrists who were with this statute in the preparation stage in the late 1940s.

And I think its essential to understand what Maryland is trying to do with Patuxent to get a grasp of what these psychiatrists are concerned with.

This is in research report 29, which is in the record on this case dated 1950.

The problem is more important and more difficult with those criminals who have deficient emotional balance and control or the so-called psychopaths.

These are not merely the habitual offenders but the offenders who on the basis of their seriously distorted emotional makeup persist in carrying out serious depredations against society.

Examination and observation by a competent and experienced psychiatrist together with recently devised projective psychological tests is able to separate these offenders from the rest of the criminal group.

However, recommendation in nearly every instance will have to be based impartibly on antecedent behavior.

Then it goes on to say, “When Maryland has an institution of the proposed type, many of the most serious crimes can be prevented.

Had Eugene James been observed in such a diagnostic clinic ten years before the murder of Marcia Brill when he was found guilty of two unmotivated stabbings of White women on the streets of Baltimore, that little girl would still be alive.

Herman Ducor would never have had an opportunity of callously murdering a milkman.

Duffy Salinger who was recently tried in our Criminal Courts for a series of armed robberies would not have been at large in the community had we had such a facility in 1947.”

Warren E. Burger:

What date are they speaking?

Francis B. Burch:

1950.

Warren E. Burger:

50.

That’s 3438 built wasn’t it?

Francis B. Burch:

Right, in ’55, it opened Your Honor.

Thanks a lot.

Francis B. Burch:

And in closing they say, “In many ways, the Maryland plan for handling this complicated problem is the best that is yet been projected.

If put into affect, it will bring the State into the forefront of Penological advance, with the possibility of calling on John Hopkins’s University and the University of Maryland for cooperation.

There is a real opportunity for scientific knowledge to be advanced in a field comparable to the scourge of cancer.

So far as its affective on the welfare of society.”

Francis B. Burch:

Now one of the signers of that report was Dr. 3512 who many of you may have heard off.

He was [Voice overlap].

Thurgood Marshall:

I know Dr. 3517 very well but since you give me that report, can I read some of the reasons 3522 I’m reading about Patuxent?

Francis B. Burch:

Yes indeed.

I was just trying to show Your Honor the origin and theory of Patuxent when it began [Voice overlap].

Thurgood Marshall:

I’m not – my only problem with it is constitutional 3538.

Francis B. Burch:

Right.

Thurgood Marshall:

Next point is, is it true that he can be held that longer than his original sentence?

Francis B. Burch:

That is true.

It’s an indeterminant sentence Your Honor.

And let me point out [Voice overlap]

Is that after the Judicial hearing following the report?

Francis B. Burch:

Yes, after the finding of defective delinquency, he is sentenced to an indeterminant sentence.

And once again, this is something that the enormous record on this case will bare out I think as been [Voice overlap].

Thurgood Marshall:

And which has not appeal except by consent?

Francis B. Burch:

That’s right.

Its appealable by request for leave to appeal to the appellates courts?

Thurgood Marshall:

It has not appeared with the matter of rights.

Francis B. Burch:

Now, you maybe interested in knowing that the min sentence to people sent to Patuxent is ten years.

And the meantime served before parole at Patuxent is five years.

So from the way the statute is administered certainly if you have a short sentence, its unlikely that you will spend much longer than your sentence [Voice overlap].

Thurgood Marshall:

Wouldn’t you agree that the man is sentenced unconstituted for one day that’s bad?

Francis B. Burch:

I agree Your Honor.

Thurgood Marshall:

Well what is the standard approved?

Its 3653 isn’t it?

Francis B. Burch:

That’s correct.

At the hearing on whether or not he’s a defective delinquent, the standard is 3658 of the evidence.

And the findings of this courts below is a joint record from the Court of Appeals and the Fourth Circuit Court of Appeals overwhelmingly support the fact that this proceeding is civil in nature and a subsequent completely unrelated to a criminal conviction in the sentence.

Now, Your Honors, may I take the position that labels are not that important.

That’s what the 3725 case said and we agree entirely.

Francis B. Burch:

In fact, the Fourth Circuit made a statement that labels are not particularly helpful and it’s a futile exercise in semantics to argue criminal versus civil.

The point is that the Court of Appeals of Maryland and the Fourth Circuit have both held that this is civil ion nature.

Now, certainly, there are safeguards that have to be provided in the law and the point of the State urges today is that these safeguards do exist sufficiently to protect the interest of the petitioners here and also the interest of the State of Maryland in rehabilitating the [Voice overlap].

3800

Francis B. Burch:

That’s right.

That in fact of course is the reverse side of the coin, that is an additional right in the civil area that does not exist in the criminal area.

And this is provided for if Your Honor will consider the statute, this discovery rights in the defective delinquent statute are provided for explicit, the right to interrogatories and depositions, the full right to access to the file and summons witnesses and cross examine witnesses.

And while I’m on this point of civil versus criminal, I would like to elude to a statement that was made in the conquering opinion by Mr. Justice Harland in the 3845 case because it really is this point I think that many of this questions that are before the court today can be decided upon.

Mr. Justice Harland said there is nor automatic congruent between the procedural requirements imposed by due process and criminal cases.

And those imposed by a due process in juvenile cases.

It is of great importance in my view that procedural strictures not be constitutionally imposed to jeopardize the essential elements of the States purpose in creating juvenile courts.

Now, if you substitute for juvenile court in that statement, this whole business of the treatment of defective delinquency recognized or identified with group of people in society, that is the State’s position in essence.

You can call it civil or you can call it criminal.

But you must recognize that the States has a legitimate interest in carrying out its programs as Mr. Justice Harland recognized in his concurrence and that there maybe certain constitutional rights.

And Mr. Justice Marshall has eluded to one or two of them that simply from a standpoint of medical treatment cannot be imposed on the State of Maryland in an institution of this type.

This is an institution which treats patients that are committed there.

The population of the whole prison system of Maryland is over 5000 people and there are less than 500 at Patuxent to small single cell institution where people are sent for psychiatric examination.

I think the Fourth Circuit made the point more quotiently than I can do it in my own language when it said that it is difficult to imagine anything more stultifying to a psychiatrist as dependent as he is upon the cooperation of his patient.

And the presence of a lawyer objecting to the psychiatrist questions and advising his client not to answer this question in that.

The injection of broad legal restraints into the diagnostic and treatment procedures that will deny Patuxent’s substantial prospect for improvement over our earlier practices might well restrain most other experimentation looking toward conversion of our correctional institutions into effective rehabilitating agencies.

Now I urge that this court take exactly the same position.

When the court – the DC circuit in a case called Torton 4117 several years ago indicated that perhaps there should be a right to counsel at the psychiatric examination stage.

As far as I know, no other circuit has adopted and there was a vigorous descent in that case.

Here, we have a case on a full record where the Court of Appeals of Maryland and the Fourth Circuit including all of its members in the separate opinion of Mr. Justice – I mean, Senior Judge 4144 came to conclusion that it would be 4147 disruptive and that there is no constitutional right to counsel at a psychiatric examination.

Now, a point that I want to make here because statistics of this sort have only recently been available since Patuxent’s only been open since 1955 is that this concept that was quoted earlier from the researcher port is to what Patuxent was trying to do with this category of people actually works.

The statistics have demonstrated it and I address Your Honor to the appendix of the appellates brief and the article from the American Journalist Psychiatry of September 1971, which is reprinted therein.

Page 126 I believe of the blue brief.

Dr. Emory Hodges, a psychiatrist from Washington on his own conducted an evaluation because the proposed statute of this type has been discussed in the State of Commonwealth of Virginia.

And he evaluated the Patuxent experience based on its first 11 years.

He found that the National Right of Recidivism for people convicted of crime had been that they would commit their next offense within three years of the time of their release.

Francis B. Burch:

And that 65% to 70% of people so released would commit their next crime within three years.

The record at Patuxent is that those released on parole from Patuxent by the Institutional Board of Review is exactly half, 37% rate of recidivism.

Half of a national average.

Warren E. Burger:

How many people – what are the numbers involved?

Francis B. Burch:

They’re in the report Your Honor.

It’s hundreds of people and it’s a large enough sample to be represented.

And over a period of how many years?

Francis B. Burch:

This is the first 11 years of Patuxent experience.

11 years.

Francis B. Burch:

And based – bare in mind, it is using a time of three years to see what happens.

So he stopped his statistics in 1966 and wrote his report in ’70 and delivered his paper in 1971.

This paper had not been released at the time of the Fourth Circuit’s opinion nonetheless upholding the statute but I’m sure it would’ve been of interest to that court.

Now, there’s another statistics in the Hodges report that I think is terribly important and that is this.

Of the untreated group, namely those where there had been a recommendation that they be committed to Patuxent but a court of a jury under the Civil Rights which each petitioner has found to the contrary and did not send that particular person to Patuxent.

There was an 81% rate of recidivism.

So that is more than double and it is over of the national average by 11%.

Warren E. Burger:

We will continue in the morning at that point.

The Honorable Court 4455