Sas v. State of Maryland, 9094

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation334 F.2d 506
Docket Number9098,9096,9095,9143.,No. 9094,9094
PartiesJohn SAS, Appellant, v. STATE OF MARYLAND, Director of Patuxent Institution, Appellees. Albert Delanor MUREL, Appellant, v. STATE OF MARYLAND and Director of Patuxent Institution, Appellees. James C. SHINE, Appellant, v. STATE OF MARYLAND, Director of Patuxent Institution and the Maryland State Legislature, Appellees. Timothy Patrick O'CONNOR, Appellant, v. STATE OF MARYLAND Director, Patuxent Institution, Appellees. George L. CRESWELL, Appellant, v. DIRECTOR, PATUXENT INSTITUTION, Appellee.
Decision Date16 June 1964



Brodnax Cameron, Jr., Bel Air, Md., and John D. Alexander, Jr., Baltimore, Md. (court-assigned counsel), for appellants.

Gerard Wm. Wittstadt, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., and Jacques E. Leeds, Asst. Atty. Gen., on brief), for appellees.

Before BOREMAN and J. SPENCER BELL, Circuit Judges, and CRAVEN, District Judge.

J. SPENCER BELL, Circuit Judge.

This is a consolidated appeal of five petitions for writs of habeas corpus filed by five inmates of Maryland's Patuxent Institution wherein they seek to have the Maryland Defective Delinquent Act, Ann.Code of Md., Article 31B (Supp. 1961) hereinafter the Act, under which they are confined declared unconstitutional. The petitions were denied by the district court without the issuance of a writ of habeas corpus or show cause order, without requiring the state to file returns, without appointment of counsel for the indigent petitioners and without argument or hearing.1

The petitioners allege facts which raise serious questions of a non-frivolous nature which concern the constitutionality of the Act. We hold that statute to be facially constitutional; i. e., it is within the power of the state to segregate from among its lawbreakers a class or category which is dangerous to the public safety and to confine this group for the purpose of treatment or for the purpose of protecting the public from further depredations. We remand the case in order that the district court may appoint counsel, issue a show cause order to the State of Maryland, and permit the filing of an answer to the petition. Thereafter, the district court will accord to each petitioner whatever type hearing may be appropriate in accordance with the standards promulgated in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and will then determine whether the statute is being constitutionally applied. In addition to any points which counsel may raise, the court should consider and determine whether the statutory definition of a defective delinquent as applied by the Maryland courts is sufficiently definitive to permit its practical application within constitutional limitatons; whether the procedures embodied in the statute are applied in such a manner as to afford due process to the accused within the confrontation requirements of the sixth amendment; whether the proposed objectives of the Act are sufficiently implemented in its actual administration to support its categorization as a civil procedure and justify the elimination of conventional criminal procedural safeguards, Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); whether the interpretation and application of the statutory requirement that a defective delinquent be found to be "an actual danger to society" may within the eighth amendment's prohibition against cruel and unusual punishment include those whose conduct indicates no more than a danger to property rights as distinguished from violence to the person; whether Patuxent does in fact furnish treatment for treatable defective delinquents as distinguished from other lawbreakers which would support the Act under the equal protection clause of the fourteenth amendment. Only when these and any other questions raised by the petitioners at the hearing are answered can the requirements of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745 (1963), be satisfied.

The Defective Delinquent Act of Maryland is the end result of a series of studies made in Maryland between 1948 and 1950. In 1947 the Legislature authorized and directed the Governor to appoint a commission consisting of doctors, judges, psychiatrists, psychologists and lawyers to study the problems of medico-legal psychiatry raised by recidivism. On December 28, 1948, the commission completed its work and submitted a report.2

Meanwhile, the Maryland Board of Correction had appointed a special advisory committee of seven eminent psychologists and psychiatrists to study the same general problem, and this committee rendered its report in January 1949. Ultimately, the two groups made a joint recommendation that a new institution should be set up for "criminal mental and emotional defectives", such institution to include a unit to function as a diagnostic clinic. It further recommended an indeterminate sentence law for criminal defectives to fulfill the purposes of the new institution. Thereafter, the Legislative Council of Maryland appointed a Committee on Medico-Legal Procedure, charged with the responsibility of making a study of the joint recommendations of the commission and the committee, and of drafting the proposed legislation. In 1951, the bill prepared by this committee was passed by the Legislature with a few minor amendments as the Defective Delinquent Act of Maryland and codified as Article 31B of the Annotated Code of Maryland (1951).

The first four sections of the Act provide for the establishment of the Patuxent Institution, the composition of its staff and its general administrative organization. It requires that the Director be a psychiatrist of at least five years experience in practice or teaching. Two of the Associate Directors must be psychiatrists with at least three years experience. An operating staff of psychiatrists, social workers, psychologists and sociologists is provided to operate the diagnostic clinic and to provide the treatment for the inmates of Patuxent.

Section five, the heart of the Act, defines the term defective delinquent as follows:

"Defective Delinquents
"§ 5. Defined.
"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."

The remainder of the Act provides, in essence, that persons convicted of specified offenses may be thereafter tried as defective delinquents and if found to be such may be confined for an indeterminate period.

Section 6(a) lists the offenses conviction of which will subject one to trial for being a defective delinquent. It includes: (1) felonies; (2) serious misdemeanors; (3) crimes of violence; (4) certain sex crimes; and (5) two or more convictions for any offenses or crimes punishable by imprisonment in a Maryland criminal court. These classifications include both felons and rogues, vagabonds and other offenders against property. See, e. g., Reed v. Warden, 212 Md. 645, 129 A.2d 92 (1957) (rogue and vagabond). See generally Brumbaugh, A New Criminal Code for Maryland?, 23 Md.L.Rev. 1 (1963).

A convict may be examined for possible defective delinquency upon the request of the Department of Correction, the prosecuting State's Attorney in the criminal case, the convict or his attorney, or the convicting criminal court, "on any knowledge or suspicion of the presence of defective delinquency." Act, Section 6(b). This request may only be made if the convict has been sentenced to or is then serving a criminal sentence in a state penal institution. Act, Section 6(c). The request is filed with the convicting criminal court, which thereafter retains jurisdiction over the defendant. Act, Sections 6(d), (e).

After the examination is ordered, the convict suspected of defective delinquency is transferred to Patuxent Institution and examined by a medical physician, a psychiatrist and a psychologist, who on the basis of their examination and study of the suspected defective delinquent and the circumstances of the originating crime, copies of any probation or other reports about him, and reports as to his social, physical, mental and psychiatric condition and history determine whether the suspected person is or is not a defective delinquent. Act, Section 7(a).

If the institutional report states that the suspected person is a defective delinquent, he is brought before the criminal court which sentenced him and is entitled to counsel of his choice and a jury trial. The right to speedy trial under the sixth amendment and Article 21 of the Maryland Declaration of Rights does not apply. McCloskey v. Director, 230 Md. 635, 187 A.2d 833 (1963). At the defective delinquency determination hearing, the state has the burden to establish, by a preponderance of the evidence, and not beyond a reasonable doubt, that the criminal is a defective delinquent. Purks v. Director, 226 Md. 43, 171 A.2d 726 (1961); Blizzard v. State, 218 Md. 384, 147 A.2d 227 (1958). If a jury is prayed, the jury is judge of the fact only and not of law and fact, as in criminal cases under the Maryland Constitution, Article 15, Section 5. Blizzard v. State, supra. The defendant may not argue law to the jury, as in criminal cases. Purks v. Director, supra.

The state's evidence at the hearing is essentially that of expert witnesses, whose "expert findings and conclusions are to be accorded very serious consideration, particularly in a case such...

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