Humphrey v. Cady 8212 5004, 70

• Decision Date: 22 March 1972
• Docket Number: No. 70,70
• Parties: Donald Gilbert HUMPHREY, Petitioner, v. Elmer O. CADY, Warden. —5004
• Court: U.S. Supreme Court

405 U.S. 504

92 S.Ct. 1048

31 L.Ed.2d 394

Donald Gilbert HUMPHREY, Petitioner,

v Elmer O. CADY, Warden.

No. 70—5004.

Argued Dec. 7, 1971.

Decided March 22, 1972.

Syllabus

Petitioner was convicted of contributing to the delinquency of a minor, a misdemeanor punishable by a maximum sentence of one year. In lieu of sentence, he was committed to the 'sex deviate facility' in the state prison, for a potentially indefinite period, pursuant to the Wisconsin Sex Crimes Act. That Act provides that when a court finds that a convicted person was 'probably directly motivated by a desire for sexual excitement,' it may commit the defendant to the Department of Health and Social Services for a social, physical, and mental examination, and if the Department recommends specialized treatment, the court must hold a hearing on the need therefor. If the State establishes the need for treatment, the court must commit the defendant for treatment in lieu of sentence for a period equal to the maximum sentence authorized for the crime. At the end of that period the Department may petition for a renewal of the commitment for five years. After notice and hearing, the court may renew the commitment if it finds that discharge would be 'dangerous to the public.' Further five-year renewals may be similarly obtained. Petitioner is subject to a five-year renewal order, obtained at the expiration of his one-year sentence. He challenges the original and renewal commitment procedures. He argues that commitment for compulsory treatment under the Sex Crimes Act, at least after the original commitment, is essentially equivalent to commitment under Wisconsin's Mental Health Act, which provides for jury determinations, and that his commitment without jury action deprives him of equal protection of the laws. He also claims that he was denied effective assistance of counsel at both hearings and the opportunity to be present and to confront the State's witnesses at the renewal hearing. He charges equal protection and due process violations as a result of his commitment to state prison rather than to a mental hospital, as provided by the Mental Health Act. At the renewal hearing his counsel argued that a new commitment would constitute double jeopardy and indicated a broad constitutional challenge to the Sex Crimes Act. However, no further action on petitioner's behalf was taken. The District Court dis- missed his habeas corpus petition on the grounds that his claims were lacking in merit and that they had been waived by failure to present them adequately to the state courts. The Court of Appeals refused to certify probable cause for an appeal, on the ground that the claims were frivolous. Held:

1. Petitioner's claims are substantial enough to warrant an evidentiary hearing. Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620; Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326. Pp. 508—514.

(a) The renewal proceedings bear substantial resemblance to the post-sentencing proceedings in Baxstrom, supra, and the Wisconsin Supreme Court has held that even the initial commitment is not just a sentencing alternative but an independent commitment for treatment, comparable to commitment under the Mental Health Act. Pp. 508—511.

(b) The Mental Health Act and the Sex Crimes Act are apparently not mutually exclusive, and an equal protection claim would be persuasive if it develops on remand that petitioner was deprived of a jury determination or other procedural protections merely by the arbitrary decision to seek commitment under one Act rather than the other. P. 512.

(c) Remand will provide ample opportunity to develop facts relevant to the State's claim of mootness as well as to petitioner's other constitutional claims. Pp. 512—514.

2. Federal habeas corpus is not barred by every state procedural default, and an evidentiary hearing is required to determine whether petitioner knowingly and intelligently made a deliberate strategic waiver of his claims in state court. Pp. 514 517.

Reversed and remanded to District Court.

Irvin B. Charne, Milwaukee, Wis., for petitioner.

George L. Frederick, Madison, Wis., for respondent.

Mr. Justice MARSHALL delivered the opinion of the Court.

Petitioner was convicted of contributing to the delinquency of a minor, a misdemeanor punishable by a maximum sentence of one year. Wis.Stat.Ann. § 947.15 (1958). In lieu of sentence, he was committed to the 'sex deviate facility,' located in the state prison, for a potentially indefinite period of time, pursuant to the Wisconsin Sex Crimes Act. Wis.Stat.Ann. § 959.15 (1958), as amended, Wis.Stat.Ann. c. 975 (1971). In this petition for federal habeas corpus, he seeks to challenge the constitutional validity of the statutory procedures for commitment and the conditions of his confinement. The District Court dismissed his petition without an evidentiary hearing, on the ground that (1) his claims were for the most part lacking in merit as a matter of law, and (2) his claims had been waived by his failure to present them adequately to the state courts. The Court of Appeals refused to certify probable cause for an appeal, 28 U.S.C. § 2253, relying not on the ground of waiver but solely on the ground that the claims lacked merit.¹ We granted certiorari to consider the constitutional challenge to the statute. 401 U.S. 973, 91 S.Ct. 1202, 28 L.Ed.2d 322 (1971). We have concluded that an evidentiary hearing is necessary to resolve petitioner's constitutional claims, and also to resolve the question of waiver; consequently we remand the case to the District Court for a hearing. ²

I

The Wisconsin Sex Crimes Act provides that after a person is convicted of any crime, the court may consider whether the crime was 'probably directly motivated by a desire for sexual excitement.' If the court finds such motivation, it may commit the defendant to the Department of Public Welfare (now the Department of Health and Social Services) for a social, physical, and mental examination. If the Department recommends specialized treatment for the defendant's 'mental and physical aberrations,' the court must hold a hearing on the need for such treatment. If the State establishes the need for treatment by a preponderance of the evidence, the court must commit the defendant to the Department for treatment in lieu of sentence, for a period equal to the maximum sentence authorized for the defendant's crime. At the end of that period, the Department may petition for an order renewing the commitment for five years. After notice and hearing, the court may renew the commitment if it finds that the defendant's discharge would be 'dangerous to the public because of (his) mental or physical deficiency, disorder or abnormality.' Further five-year renewals may be similarly obtained without limitation.

Petitioner is presently subject to a five-year renewal order, obtained at the expiration of his one-year maximum sentence. His principal claims relate to the procedure that resulted in the order renewing his commitment. In addition, he challenges the original commitment procedures, and the conditions of his confinement.

A review of petitioner's claims compels us to conclude that they are at least substantial enough to warrant an evidentiary hearing, in light of this Court's decisions in Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), and Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). Thus we reject the contrary conclusion of the Court of Appeals, implicit in its decision to deny leave to appeal.

A. One of petitioner's principal arguments is that commitment for compulsory treatment under the Sex Crimes Act, at least after the expiration of the initial commitment in lieu of sentence, is essentially equivalent to commitment for compulsory treatment under Wisconsin's Mental Health Act, Wis.Stat.Ann., c. 51 (1957); that a person committed under the Mental Health Act has a statutory right to have a jury determine whether he meets the standards for commitment, Wis.Stat.Ann. § 51.03; and that petitioner's commitment under the Sex Crimes Act without such a jury determination deprived him of equal protection of the laws.

In Baxstrom, substantially the same argument was advanced by a convicted prisoner who was committed under New York law for compulsory treatment, without a jury trial, at the expiration of his penal sentence. This Court held that the State, having made a jury determination generally available to persons subject to commitment for compulsory treatment, could not, consistent with the Equal Protection Clause, arbitrarily withhold it from a few. 383 U.S., at 110—112, 86 S.Ct., at 762—763. The Court recognized that the prisoner's criminal record might be a relevant factor in evaluating his mental condition, and in determining the type of care and treatment appropriate for his condition; it could not, however, justify depriving him of a jury determination on the basic question whether he was mentally ill and an appropriate subject for some kind of compulsory treatment.

Since 1880, Wisconsin has relied on a jury to decide whether to confine a person for compulsory psychiatric treatment.³ Like most, if not all, other States with similar legislation, Wisconsin conditions such confinement not solely on the medical judgment that the defendant is mentally ill and treatable, but also on the social and legal judgment that his potential for doing harm, to himself or to others, is great enough to justify such a massive curtailment of liberty.⁴ In making this determination, the jury serves the critical function of introducing into the process a lay judgment, reflecting values generally held in the community, concerning the kinds of potential harm that justify the State in confining a person for compulsory treatment.⁵

Commitment for compulsory treatment under the Wisconsin Sex Crimes Act appears to require precisely the same kind of determination,...