State v. McCray

Decision Date01 December 1972
Docket NumberNo. 45,45
PartiesSTATE of Maryland et al. v. Milton McCRAY et al.
CourtMaryland Court of Appeals

Henry R. Lord, Deputy Atty. Gen. and Donald R. Stutman, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Josef E. Rosenblatt, Emory A. Plitt, Jr. and Harry A. E. Taylor, Asst. Attys. Gen., Baltimore, on the brief), for appellants.

Julian Tepper, Washington, D. C., and W. Anthony Fitch, Williamsburg, Va., for appellees.

Baltimore Legal Aid Bureau, Inc., Prisoner Assistance Project (Charles F. Morgan and Michael A. Millemann, Baltimore, on the brief), amicus curiae.

Argued before BARNES, McWILLIAMS, SINGLEY, DIGGES, CHARLES E. ORTH, Jr. (specially assigned), W. ALBERT MENCHINE (specially assigned) and JAMES L. WRAY (specially assigned), JJ.

ORTH, Judge.

Almost 2000 years ago Juvenal asked: 'Sed quis custodiet ipsos custodes?' 1 Who will watch the keepers themselves is still a question of critical importance, and the need of a proper solution is never more acute than when the rights of the individual are involved. A declared purpose of the federal constitution is to 'secure the Blessings of Liberty' to the people and their posterity, 2 and under our philosophy of government the rights guaranteed by the constitution of the people are jealously guarded. Curtailment of them is to be permitted only to the extent necessary to maintain the fine balance between the rights of the individual and the rights of society.


The appeal before us concerns persons from whom the demands of society have lawfully taken a fundamental right-freedom, or liberty from incarceration. Each of them through the due processes of the law has been found guilty beyond a reasonable doubt of the commission of a crime and sentenced to imprisonment. However, none of them is incarcerated in a penal institution. The legislature has established a special category of criminal known as the defective delinquent. 3 Director v. Daniels, 243 Md. 16, 49, 221 A.2d 397 (1966). The Maryland Defective Delinquents Act, Code, Art. 31B, provides that a person convicted of any felony, or certain misdemeanors, and sentenced in a court of this State, may be committed to the Patuxent Institution (Patuxent) for an indeterminate period, if it is judicially determined that he is a 'defective delinquent'. McNeil v. Director, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972). We have stated that the legislative history of the Defective Delinquents Act 'clearly demonstrates that its sole objective and purpose was not penal but an effort to segregate a known group of mentaily disordered people who are found guilty of criminal acts, by confining them in an institution housing only members of their group in a sole effort to protect society and provide treatment to effect, if possible, a cure of the illness.' Director v. Daniels, supra, 243 Md. at 38, 221 A.2d 397 at 410. We said: 'From the history it is clear that the legislative imposition of sanctions by restraining the individual results from studies that indicate that such restraint is necessary both for the protection of society and to provide medical treatment to further curative measures.' Idem. The persons concerned in this appeal are inmates of Patuxent, either detained there for examination as possible defective delinquents, or confined there upon judicial determination that they are defective delinquents. Code, Art. 31B, §§ 6-9. See McNeil v. Director, supra; Murel et al. v. Baltimore City Criminal Court, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972).


During the first six months of 1971 sixteen inmates of Patuxent filed fifteen actions in the Circuit Court for Montgomery County and six actions in the Circuit Court for Howard County. 4 Nine of the actions prayed for the issuance of a writ of habeas corpus and twelve of them sought an 'ex parte injunction.' 5 See Appendix A. The habeas corpus actions sought relief from cruel and unusual punishment prohibited by the eighth amendment and denial of the due process of law guaranteed by the fourteenth amendment. The cruel and unusual punishment pertained to conditions and practices to which the inmates alleged they had been subjected, including extended confinement in disciplinary and administrative segregation units. The procedures by which they were transferred to such segregation units were claimed to be lacking in due process of law. They sought declaratory and injunctive relief from censorship practices which they asserted were unconstitutional as violative of their rights under the first, fourth, sixth and fourteenth amendments. The cases were consolidated 6 and it was stipulated that the consolidated cases constituted a class action within the contemplation of Maryland Rule 209 'for all persons within the Patuxent Institution who were in a similar position to these petitioners.' The cases were heard by Miller and Watts, JJ. 7

An evidentiary hearing of thirteen days was held at Patuxent during the period 22 July to 13 August 1971, followed by oral argument on 31 August. The opinion and order of the court dated 11 November was filed 18 November. The court concluded that the three areas of complaint-'the alleged absence of procedural due process, cruel and unusual punishment and mail censorship'-could be 'corrected by the adoption of certain prescribed rules and regulations to govern future conduct of the Patuxent Institution and by a change in some of the Institution's present policies.' It appended the rules in these areas to its opinion and order. However, in addition to the three principal contentions of appellees, it discovered 'other matters' which it felt required attention and it also appended rules and regulations in these areas 'to correct practices and bring the Patuxent Institution within constitutional bounds.' It pointed out: 'Except in a few places where drafted to implement constitutional guarantees covered in the opinion, the following rules (appended) were supplied by counsel for the petitioners, the Attorney General's office and the Patuxent Institution. * * * Where there has been a conflict in the rules or proposals the Court has selected the rule which is most applicable according to the controlling case law.' The rules appended were under the following main headings: Violations, Punishment, Disciplinary Procedures, Disciplinary Segregation Regulations, Administrative Segregation Regulations, Patient Correspondence Rules, Medical Facilities, Visiting Rules, Searches, Physical Force by Custodial Personnel, Dietary Regulations. The court ordered 'the Board of Patuxent Institution to comply in all respects with the matters set forth in this opinion and to promptly adopt the rules and regulations appended hereto and to otherwise discontinue those practices and procedures which violate the inmates' constitutional rights.' It reserved jurisdiction over the petitions and the subject matter thereof for one year 'to see that its orders are complied with.' The rules and regulations were 'to be published and furnished to each patient presently in or hereafter coming to the Patuxent Institution.'

On 1 December appellees filed a petition for appellants to show cause why they should not be held in contempt for failure to comply with the order of 11 November. Upon hearing on 20 December the lower court rescinded its order filed 18 November and appellants dismissed without prejudice an appeal they had noted. The order of 20 December directed that appellants 'immediately make reasonable effort to adopt and implement procedures that are in substantial compliance with the rules and Court's opinion, that the opinion of the Court of 11/18/71 is adopted as the Opinion of the Court and that the order of the Court is rescinded subject to the court entering a final order thereafter; that Respondents file with this Court within thirty (30) days from the date of this Order a comprehensive set of rules and regulations which are in substantial compliance with this Court's opinion and rules appended thereto of November 18, 1971; that Petitioners shall note to this Court any objections to the rules and regulations filed by Respondents within thirty (30) days of the date the rules and regulations are filed with this Court; further, after consideration of the rules and regulations and any objections thereto filed with this Court, a hearing will be ordered at which time argument by counsel will be heard and a final order of this Court will be rendered subsequent to such hearing.' A hearing was held on 17 January 1972 following a series of conferences in which counsel for all parties participated. Agreement was reached on over two hundred rules and regulations pertaining to the operation of Patuxent and the treatment of its inmates. 8 There was discord on only ten matters. It was agreed that the court would decide the constitutional sufficiency of appellants' proposals on the disputed matters based on memoranda submitted and without further hearing. The court's determination was set out in its order of 24 February 1972, filed the next day. Appellants' proposals as to four of the matters were found to be constitutionally sufficient and the court found no need for further action with regard to them. 9 The court found that there was constitutional deficiency in the failure to require:

(1) an independent hearing officer on the institutional disciplinary committee;

(2) an officer to be stationed full time to service disciplinary segregation areas;

(3) daily visits to the disciplinary segregation areas by the institution's physicians;

(4) accelerated treatment and therapy for inmates in the administrative segregation unit;

(5) nutritional substitutes to be provided for persons unable because of religious belief to eat the regular institutional fare.

The sixth area of disagreement concerned censorship of inmates' mail. The court ordered:

(1) that appellants promptly implement those rules and regulations agreed to and found...

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