Dower v. Boslow

• Decision Date: 05 March 1976
• Docket Number: Nos. 75-1802,75-1803,s. 75-1802
• Citation: 539 F.2d 969
• Parties: James Lee DOWER et al., Appellees, v. Harold M. BOSLOW, Director, Patuxent Institution, Appellant. James Lee DOWER, Appellant, v. DIRECTOR, PATUXENT INSTITUTION, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 969

539 F.2d 969

James Lee DOWER et al., Appellees, v. Harold M. BOSLOW, Director, Patuxent Institution, Appellant.

James Lee DOWER, Appellant, v. DIRECTOR, PATUXENT INSTITUTION, Appellee.

Nos. 75-1802, 75-1803.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 3, 1976.

Decided March 5, 1976.

Karl G. Feissner, Hyattsville, Md. (court-appointed counsel) (Feissner, Garrity, Levan & Schimel, Hyattsville, Md., on brief), for appellants in 75-1803 and appellees in 75-1802.

John J. Garrity, Hyattsville, Md. (court-appointed counsel), for appellees in 75-1802.

Alan S. Davis, Baltimore, Md. (Albert J. Matricciani, Jr., Charles F. Morgan and Luther G. Blackiston, Baltimore, Md., on brief), for amicus curiae for Legal Aid Bureau, Inc.

Donald R. Stutman, Asst. Atty. Gen. of Md., Baltimore, Md. (Francis B. Burch, Atty. Gen. of Md., and Clarence W. Sharp, Asst. Atty. Gen. of Md., Baltimore, Md., on brief), for appellants in 75-1802 and appellees in 75-1803.

Before CRAVEN, RUSSELL and FIELD, Circuit Judges.

CRAVEN, Circuit Judge:

Petitioners-Appellants, all presently confined in Patuxent Institution, sought habeas corpus relief in the district court. Their claim was that commitment pursuant to adjudication as defective delinquents under 3 Md.Ann. Code art. 31B, § 5 violated the due process and equal protection clauses of the fourteenth amendment. ¹ The statutory definition of defective delinquent is as follows:

For the purposes of this article, a defective delinquent shall be defined as an individual who, by the demonstration of persistent aggravated antisocial or criminal behavior, evidences a propensity toward criminal activity, and who is found to have either such intellectual deficiency or emotional unbalance, or both, as to clearly demonstrate an actual danger to society so as to require such confinement and treatment, when appropriate, as may make it reasonably safe for society to terminate the confinement and treatment.

Judge Kaufman, in a carefully reasoned opinion, ² held there had been no violation of due process. We agree. He concluded, however, that Carl ³ was denied equal protection by the different burden of proof employed in determining defective delinquency from that used for effectuating involuntary civil commitment. ⁴ We disagree as to the equal protection claim, and conclude that petitioners below have failed to establish such a constitutional violation. We affirm in all other respects for the reasons stated in the opinion of the district judge.

I.

In considering the equal protection claim, Judge Kaufman examined the different procedures utilized for determining whether an individual should be committed as a defective delinquent as compared with the procedures for effecting an involuntary civil commitment. ⁵ In the latter case, the determination is made by an administrative hearing officer, under regulations of the Department of Health and Mental Hygiene, which provide in relevant part that

(a)t such hearing, in order to justify admission or retention of the patient, it must be affirmatively shown by clear and convincing evidence that each of the following elements exists:

(1) That the person whose admission or retention is sought is suffering from a mental disorder, and

(2) that the person whose admission or retention is sought is in need of institutional in-patient care, or treatment, and

(3) that the person whose admission or retention is sought presents a danger to his own life or safety or the life or safety of others.

Regulation 10.04.03 G (emphasis added). Defective delinquency procedures provide that whether a person is to be confined will be determined by a judge or jury, as the prisoner may prefer, with the burden of proof being the greater preponderance of the evidence. Under both categories the burden rests on the state.

Reasoning from the directive of the Supreme Court in Murel v. Baltimore City Criminal Court, 407 U.S. 355, 357-58, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972), that challenges to the defective delinquency law "should be considered in relation to the criteria, procedures, and treatment that the State of Maryland makes available to other persons, not 'defective delinquents,' committed for compulsory psychiatric treatment," the district court held that the use of a lower standard of proof for defective delinquency determinations violated equal protection. It is not an easy question, but we are inclined to think the obvious differences are not of constitutional magnitude. ⁶

We are unable to conclude that a person is afforded less protection by a judicial procedure which requires proof by a preponderance of the evidence, but which also grants the important right of jury trial, than he is given by an administrative procedure before a single hearing officer, even though the state is required there to prove the issue by clear and convincing evidence. We are inclined to think it may be greater.

Few lawyers, we think, would give up trial by jury in favor of a higher burden of proof before an administrative officer. The right to a jury may well more than counterbalance a difference in standard of proof. ⁷ Indeed, in a similar context the Supreme Court held that failure to provide "judicial review before a jury" to persons committed at the expiration of his criminal sentence, where that right was afforded to those involuntarily committed outside the criminal context, denied equal protection. Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966). See also Humphrey v. Cady, 405 U.S. 504, 512, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). Balanced against that substantial right, we find a difference in standard of proof of indeterminate and conceivably negligible value. ⁸ See Tippett v. Maryland, 4 Cir., 436 F.2d 1153, 1158-59 (1971). ⁹ In this context, we hold that petitioners have failed to establish a denial of the equal protection of the laws. ¹⁰ "(T) he Equal Protection Clause does not require absolute equality or precisely equal advantages." San Antonio School District v. Rodriguez, 411 U.S. 1, 24, 93 S.Ct. 1278, 1291, 36 L.Ed.2d 16 (1973).

II.

Judge Kaufman held that our decision in Tippett, supra, effectively determined all due process claims adversely to petitioners' position. We agree. But we reiterate that nothing in this decision is intended to preclude reexamination of these claims "if later experience should show serious unfairness in the administration of the Act." Tippett, supra at 1158 n. 18.

III.

Because the district court granted Appellant Carl relief under his equal protection claim, it did not consider his contention that the evidence introduced against him at the defective delinquency hearing was insufficient to warrant his confinement under that statute. Dower v. Director, Patuxent, 396 F.Supp. 1070, 1073 n. 5 (D.Md.1975). We remand for consideration of that claim.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

1 The district court detailed petitioners' claims as follows:

Plaintiffs raise three primary contentions herein. First, they allege that their rights under due process and equal protection principles were violated when Patuxent officials failed to inform them of their "rights" before their examinations at Patuxent and also when those officials failed to respect those rights during the course of those examinations. The rights that plaintiffs claim they are entitled to have during the examination process include the right to counsel, the right to remain silent, and the right to assert, and to have respected, the privilege against self-incrimination. Second, plaintiffs allege that their due process rights were violated because the standard of proof which the State was required to meet at their delinquency determination hearings was the "preponderance of the evidence" test rather than either the "proof beyond a reasonable doubt" or the "proof by clear and convincing evidence" standard. Finally, plaintiffs allege that they were not afforded their rights, under the Equal Protection Clause when the criteria, procedures and treatment afforded to them under the Maryland Defective Delinquency Act, 3 Md.Ann.Code art. 31B, §§ 1-19 (1973 Cum.Supp.) are . . . considered in relation to the criteria, procedures, and treatment that the State of Maryland makes available to other persons, not "defective delinquents," committed for compulsory psychiatric treatment. . . .

(Footnotes omitted.)

2 Dower v. Director, Patuxent, 396 F.Supp. 1070 (D.Md.1975). All parties to this action appealed.

3 Of the four petitioners in the district court, only Carl was determined to be a defective delinquent after the effective date of the involuntary civil commitment regulations which raise the standard of proof for commitment under that statute to clear and convincing evidence. As a result, Judge Kaufman determined that...