Tippett v. State of Maryland

• Decision Date: 04 January 1971
• Docket Number: 13434 and 13441.,13421,13433,No. 13415,13426,13415
• Citation: 436 F.2d 1153
• Parties: Charles Mason TIPPETT, Appellant, v. STATE OF MARYLAND, and Director of Patuxent Institution, Appellees. Albert Delanor MUREL, Appellant, v. BALTIMORE CITY CRIMINAL COURT, and Director of Patuxent Institution, State of Maryland, Appellees. Robert HAYES, Jr., Appellant, v. Harold M. BOSLOW, M.D., Director, Patuxent Institution, Appellee. William R. MONROE, Appellant, v. DIRECTOR OF the PATUXENT INSTITUTION, and State of Maryland, Appellees. Bradley Arlington AVEY, Appellant, v. STATE OF MARYLAND, Harold M. Boslow, as Director of Patuxent Institution, and Vernon L. Pepersack, as Commissioner, State Department of Corrections, Appellees. George L. CRESWELL, Appellant, v. DIRECTOR, PATUXENT INSTITUTION, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

436 F.2d 1153 (1971)

Charles Mason TIPPETT, Appellant, v. STATE OF MARYLAND, and Director of Patuxent Institution, Appellees.

Albert Delanor MUREL, Appellant, v. BALTIMORE CITY CRIMINAL COURT, and Director of Patuxent Institution, State of Maryland, Appellees.

Robert HAYES, Jr., Appellant, v. Harold M. BOSLOW, M.D., Director, Patuxent Institution, Appellee.

William R. MONROE, Appellant, v. DIRECTOR OF the PATUXENT INSTITUTION, and State of Maryland, Appellees.

Bradley Arlington AVEY, Appellant, v. STATE OF MARYLAND, Harold M. Boslow, as Director of Patuxent Institution, and Vernon L. Pepersack, as Commissioner, State Department of Corrections, Appellees.

George L. CRESWELL, Appellant, v. DIRECTOR, PATUXENT INSTITUTION, Appellee.

Nos. 13415, 13421, 13426, 13433, 13434 and 13441.

United States Court of Appeals, Fourth Circuit.

Argued May 8, 1970.

Decided January 4, 1971.

Karl Feissner and Andrew E. Greenwald, Hyattsville, Md. (Court-assigned) William L. Kaplan, Thomas P. Smith, Fred R. Joseph, and Feissner, Kaplan & Smith, Hyattsville, Md., on brief, for appellants.

Alfred J. O'Ferrall, III, Asst. Atty. Gen. of Md. (Francis B. Burch, Atty. Gen. of Md. and Edward F. Borgerding, Asst. Atty. Gen., on brief), for appellees.

Curtis R. Reitz, Philadelphia, Pa. (Richard L. Bazelon, Philadelphia, Pa., on brief), for amicus curiae.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, and BUTZNER, Circuit Judges.

HAYNSWORTH, Chief Judge:

These consolidated appeals arise from a previous order of this Court¹ in which we directed the District Court to determine, after a full hearing, numerous questions involving the application of the Maryland Defective Delinquents Act.² Following an extensive series of hearings, and on consideration of the record of equally thorough proceedings in the state courts,³ the District Court dismissed the petitions.

The petitioners contend that, as applied, the Act is constitutionally deficient in the following respects:

1. The definition of defective delinquency is too vague to be susceptible to any objective medical or legal application, and in fact defective delinquency is not determined on an objective basis;

2. The examination procedures offend due process in that (a) a person suspected of being a defective delinquent is not given prior notice of the request for examination, nor is he given an opportunity to contest the order referring him for examination; (b) he is required to submit to personal interviews with institutional psychiatrists, with a resulting risk of self-incrimination; and (c) he is not allowed to have an attorney present during the examination process;

3. The procedures for judicial determination of defective delinquency offend due process in that (a) hearsay evidence is admitted; (b) the state is not required to prove beyond a reasonable doubt, but only by a preponderance of the evidence, that the subject is a defective delinquent; (c) the indeterminate period of confinement, substituted for a previously imposed sentence of imprisonment for a term of years when a person is found to be a defective delinquent, violates the constitutional protection against double jeopardy;

4. The Act violates the prohibition against cruel and unusual punishment by including within its scope those persons whose conduct indicates a danger only to property rather than danger of violence to the person; and

5. Patuxent Institution lacks sufficient staff, facilities and finances to effectuate the purposes of the Act and, in consequence of these deficiencies, has failed to provide treatment as contemplated by the Act, thus depriving it of its character as a mental health institution and rendering it no more than a warehouse for obnoxious and antisocial elements of society.

The District Court considered each of these contentions in detail and found that the present application of the Act does not operate to deny any of the petitioners' constitutional rights. We affirm on the District Court's opinion. Sas v. State of Maryland, D.Md., 295 F.Supp. 389.

The Defective Delinquents Act is the outgrowth of Maryland's dissatisfaction with the result of more conventional methods of dealing with habitual criminal offenders. In 1948 and 1949 two special commissions, one consisting of lawyers, judges, physicians, psychiatrists and psychologists appointed by the Governor, and the other made up of psychiatrists and psychologists appointed by the Board of Corrections, made studies of the medical and legal aspects of recidivism in an effort to suggest a more effective method of coping with the problem. The result of the studies was a joint report recommending that a separate institution be established for "criminal mental and emotional defectives" with a diagnostic clinic to determine what persons were susceptible to specialized treatment in the institution. In 1951 the recommendations were adopted by the legislature. Patuxent Institution was established to house and care for defective delinquents, defined by the statute as including any

"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."⁴

The Act sets up a comprehensive scheme for referral, examination, commitment, treatment and release of persons suspected of being defective delinquents. A request for examination may be made only after the imposition of an active prison sentence upon a defendant's conviction of one of several enumerated classes of criminal offenses.⁵ Examinations may be requested by the prosecutor, the Department of Correction, the trial judge on his own motion, or the defendant himself.⁶ An order referring a defendant for examination is not reviewable. Once at Patuxent, the prisoner is examined by a physician, a psychiatrist and a psychologist, who are required to furnish a report to the committing court stating whether or not they believe him to be a defective delinquent. If the report is negative, he is returned to a penal institution to complete service of his sentence, with full credit for the time spent at Patuxent.⁷ If the examiners believe him to be a defective delinquent, he is afforded a full and prompt judicial hearing, at which he is entitled to the assistance of retained or appointed counsel⁸ and to receive a trial by jury.⁹ He is allowed full access to all records, reports and papers in the possession of the institution or the court, including the report made by the independent, private psychiatrist who, on the prisoner's request, may be appointed to examine him at the expense of the state.¹⁰ If he is found to be a defective delinquent he is committed to Patuxent for an indeterminate period with the right of judicial review of his classification after the expiration of the greater of two years or two-thirds of his original sentence, and thereafter at three year intervals. Appellate review of any court order subsequent to the original referral for examination is provided.¹¹

In addition to periodic judicial determinations, the Act requires review of each inmate's classification by the Institutional Board of Review not less than once each year.

The Board has the power to grant paroles or leaves of absence at any time, or to report to the committing court if it concludes that an inmate need no longer be classified as a defective delinquent.¹² If the court concludes that his condition is so improved that confinement at Patuxent is no longer required, it may order him returned to the Department of Correction to complete service of the original sentence with full credit for the time spent at Patuxent, order him released conditionally on parole or leave of absence, or order him released unconditionally, whether or not the original sentence would otherwise still be in effect.¹³

Critical to the appellants' argument is the premise that, without regard to the terminology used, Patuxent is in fact a penal institution, and the proceedings for determination of defective delinquency are equivalent in practice to criminal prosecutions. Almost without out exception, their various contentions rest on this foundation.¹⁴ The District Court's rejection of this basic contention, which we affirm, of necessity defeats their arguments. As written by the legislature, construed by the courts, and applied by the staff, the Act selects a medically and legally recognizable class of persons for special treatment.¹⁵ Although criminal conduct is necessarily bound up in every case, the inquiry does not focus on particular criminal acts but on the mental and emotional condition of the person thought to be a member of the statutorily defined class. It is that, and no other factor, which ultimately determines his classification and treatment. In this context, the denomination of the proceedings as civil rather than criminal is not a semantic exercise but a factual description of what occurs. The procedural safeguards erected by the statute are adequate to meet present needs and to protect the petitioners' constitutional rights.

In sum, the Act represents an enlightened and progressive experiment aimed at rehabilitating persons whose anti-social activities are occasioned, at least in part, by mental disorders. The present administration of the Act demonstrates a sincere and vigorous attempt to effectuate its policies. By the petitioners' own account, the state has expended to date $28,000,000 for plant and facilities at Patuxent. Legislative appropriations for its operation have continuously increased, not only in absolute terms but also for each inmate and as compared with the appropriations for operating regular penal institutions. Currently the appropriations per...