HAYNSWORTH, Chief Judge:
These consolidated appeals arise from a previous order of this Court
The petitioners contend that, as applied, the Act is constitutionally deficient in the following respects:
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
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.
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.
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.
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 inmate are three times the amount allocated to the Reformatory, four times that provided for the House of Correction, and five times the amount allotted for the Penitentiary. Improvements in and expansion of staff, therapeutic facilities, vocational and educational training, and out-patient services continue.
We recognize that many problems remain and that there are many areas of possible improvement. For example, it might prove fruitful to permit the independent psychiatrist to participate in the proceedings at an earlier stage than is presently allowed; his participation in staff conferences may be beneficial to the staff and to the inmate he examines. But, in this comparatively new field of medical rehabilitation, experience is more likely than fiat to suggest constructive avenues for change.
The interests of society and of the prison population demand the sort of innovative reappraisal of our correctional institutions, their practices and procedures, for which the Chief Justice has pled. At the very least, Patuxent is an encouraging example of one kind of approach to a solution of these difficult problems. Time is required to appraise its ultimate effectiveness, but there is firm foundation for hope that it will prove a material and positive step toward the rehabilitation of mental and emotional defectives, and the protection of society from those anti-social defectives who are beyond rehabilitation.
The approach of Maryland's Defective Delinquent Act is essentially a medical approach, but the clear promise it has demonstrated would be withdrawn should it be held, as the petitioners contend, that the diagnostic and treatment processes must be converted into an adversary legal process in which the patient is entitled to all the constitutional protections available to a defendant in a criminal proceeding. It is difficult to imagine anything more stultifying to a psychiatrist, as dependent as he is upon the cooperation of his patient, than the presence of a lawyer objecting to the psychiatrist's questions and advising his client not to answer this question and that. The injection of broad legal restraints into the diagnostic and treatment procedures that would deny Patuxent's substantial prospect for improvement over our earlier practices might well restrain most other experimentation looking toward conversion of our correctional institutions into effective rehabilitating agencies.
The suggestion in the dissenting opinion that counsel be brought into the proceedings to a limited extent at an earlier time, like our similar suggestion with respect to the private psychiatrist, may have merit as one for future trial and experimentation. Its concededly tentative nature, in light of the uncertainties permeating this field of knowledge, however, hardly leads to the conclusion that it presently is an absolute requirement of the due process clause. The question before us is whether the procedures embodied in the statute meet the minimal requirements of the Constitution. In the appraisal of that question, settled notions of the essential elements of fairness play a great part, but the fact that we can conceive of tentative avenues for future trial experimentation to determine their impact upon the fairness of the procedures does not support a conclusion that our hesitant suggestions are already clad in the full regalia of due process.
The burden of persuasion is in the same category. We might all be happier had it been stated in terms of clear and convincing proof rather than in terms of a preponderance of the evidence. However meaningful the distinction may be to us as judges, however, it is greatly to be doubted that a jury's
Since the Act's provision for judicial review of a defective delinquent's initial commitment to Patuxent and his continued confinement there are adequate, we conclude that the Constitution does not require that the procedures under the Act be treated as if they were criminal proceedings subject to the self-defeating strictures which the Constitution appropriately throws around the shoulders of defendants facing criminal charges in adversary legal proceedings.
SOBELOFF, Circuit Judge (concurring in part and dissenting in part):
I am enabled to concur in part with my brethren largely because of their explicit statement in footnote 18 that:
This is a wise and necessary reservation and deserves emphasis, for as Judge Bell observed in Sas v. State of Maryland, 334 F.2d 506, 516 (4th Cir. 1964), the Act is "fraught with the possibility of abuse * * * if not administered in the spirit in which it is conceived * *."
One of the issues we should consider open for future evaluation is the adequacy of treatment at Patuxent. Our approval of the Maryland Defective Delinquent Act is grounded partly on the assumption that the state will continue to furnish Patuxent with sufficient funds, personnel and facilities to justify realistic hopes of rehabilitating its inmates. Any future review must appraise not only the general treatment program, but whether the particular prisoner before the court is receiving the benefits of Patuxent's program. It does him no good if there is a program of treatment, but it has been arbitrarily withheld from him.
Notwithstanding the District Court's finding that treatment at Patuxent is presently adequate, this remains an undeniably difficult case. The majority dismisses petitioners' serious constitutional challenges by the simple expedient of labeling the defective delinquency proceedings "civil." But the attempt to sidestep constitutional issues by asserting that the process is "noncriminal" was disapproved by this court in Sas, supra, as a "futile exercise in semantics" and has been expressly rejected by the Supreme Court as insufficient justification for disregarding the strict safeguards accorded in criminal cases.
The guarantees constitutionally required in criminal prosecutions are dictated by the severity of the sanctions imposed, which may deprive an individual of his liberty. The consequences of commitment under the Patuxent scheme are hardly less onerous. Patuxent inmates are involuntarily confined under maximum security conditions. Some may remain at Patuxent in a prison-like environment for life because they are deemed too dangerous either to life or to property to be released. As the District of Columbia Circuit has aptly noted:
Although prisoners are entitled to due process protections regardless of the nature of the proceeding, and the Defective Delinquent Act is in many ways indistinguishable from a criminal statute, an unmodified application of the full procedural safeguards afforded in criminal cases may render the Act unworkable. The Maryland act represents an innovative approach appropriate to deal with an identifiable segment of the criminal population, and until the results can be adequately appraised, some flexibility in the procedures employed by the state is justified. While experiments in penology do not warrant suspending constitutional rights, the unique context in which the Act operates may justify some variation in the manner of their application. However, because the Maryland act bears such close resemblance to the criminal process, the state must make the least drastic departure from the safeguards applicable to criminal proceedings as will avoid destruction of the statutory scheme. The means employed to resolve the dilemma must not sacrifice the essentials of the constitutional safeguards, and the burden of justifying any challenged procedure or practice rests upon the state.
I. RIGHT AGAINST SELF-INCRIMINATION
Upon referral to Patuxent, a prisoner is required to submit to a battery of tests and interrogations by the social service staff, a psychiatrist and a psychologist. The statute directs the staff to make inquiry into the crime for which the prisoner has been sentenced and the circumstances surrounding the crime. The interviews also focus on any other crimes and antisocial behavior in his
The history of petitioner Bradley Avey aptly illustrates the consequences of refusal to submit to the examinations. Avey was committed in December 1965 for an evaluation by the staff. For four years he continuously refused to submit to personal interviews on the ground that his right against self-incrimination would be violated. Consequently he never received a hearing on his defective delinquency status and remained in the receiving ward of the Institution.
The reluctance of Patuxent inmates to respond to the staff's probing is understandable. Admissions made concerning mental state and past criminal behavior provide significant evidence for the state to use at the judicial hearing on defective delinquency.
With the continuing reservation that this issue is open to further consideration, I agree, for the present, that the right against self-incrimination cannot be rigidly applied in Patuxent proceeding. I rest, however, not on the asserted ground that the Act is "civil" but that, because of the unusual nature of the necessary inquiries, the legitimate objectives of the legislation would be frustrated were inmates permitted to refuse cooperation. Granting the inmate the right to silence would in many instances thwart the personal examinations and interviews considered indispensable in determining whether the prisoner is or is not a defective delinquent.
II. THE RIGHT OF CONFRONTATION
The records compiled by the Patuxent staff, upon which they rest their conclusions, contain extensive reports from various sources as to the inmate's past criminal and antisocial behavior. These reports are admissible at the judicial hearing, though based on observations and conclusions of persons who do not testify in court. The introduction of this hearsay evidence in a criminal prosecution would unquestionably violate a defendant's right to confront and cross-examine witnesses against him as guaranteed by the Sixth Amendment.
The hazard of hearsay reports is that they may become vehicles whereby false allegations enter the judicial proceedings — allegations which the prisoner may be hard pressed to refute. Although any witness subject to the jurisdiction of the court may be subpoenaed, the prisoner's counsel may often be unable to find and produce witnesses to contest reported incidents thus introduced at the judicial hearing.
Yet it must be recognized that a meaningful evaluation of the inmate's mental condition will often depend on an assessment of numerous incidents, some long in the past. If the jury is to be apprised of the considerations underlying the psychiatrists' conclusions without imposing a truly impossible burden on the state authorities, flexibility in departing from strict rules of evidence may be unavoidable. At issue is the subject's entire lifetime behavioral pattern, not whether a certain act was committed. In light of the special and unusual nature of the inquiry, hearsay evidence may be necessary for the staff to rely upon in forming its opinion; and if in the subsequent judicial review the jury is not to abdicate its obligation to
Of course, beyond the confrontation issue, due process commands that a reliable evidentiary foundation be laid in defective delinquency proceedings, as in any other proceeding, civil or criminal. Accordingly, any assessment of the sufficiency of the evidence to support a defective delinquency finding involves scrutiny of the character as well as the substance of the admitted evidence. If at the judicial hearing there appears serious doubt as to the reliability or trustworthiness of the reports of antisocial or criminal behavior, the trial judge should in the exercise of his discretion exclude the hearsay. Likewise, as to hearsay evidence which is admitted, the jury should be duly cautioned on the risks inherent in any hearsay testimony.
III. RIGHT TO COUNSEL
Although counsel is provided at the judicial hearing itself, he is presently entirely excluded from the interrogations and investigations conducted by the staff for the purpose of determining defective delinquency. One perceives a strong analogy, however, between the initial steps at Patuxent and the pre-trial stages of criminal prosecutions in which the Supreme Court has insisted on the right to counsel: Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (police interrogations); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (lineups); and Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L. Ed.2d 387 (1970) (preliminary hearings before magistrates). Both the Patuxent prehearing stages and preliminary criminal phases are critical links in chains potentially leading to long confinement, and the same due process considerations dictate counsel's presence under both schemes. The assistance of counsel during the fact-gathering and adjudicating process at Patuxent might protect the inmate against misguided or erroneous conclusions by the staff
As discussed in the preceding section, the record compiled by the staff embodies an accumulation of information some of which may be of doubtful reliability.
The majority makes this interesting suggestion:
I agree, but do not see why a measure of participation by counsel should not be tolerated. As Judge Bell of this court has declared:
Timmons v. Peyton, 360 F.2d 327, 331 (4th Cir. 1966).
Indeed, there is reason to think that much of the present resistance of prisoners to submitting to the Patuxent interrogations arises from suspicion and misunderstanding on their part which a lawyer could in many cases dispel, thus facilitating the staff's work. Staffmen, at the beginning at least, are likely to be suspect simply because they are members of the institutional apparatus.
The retained or appointed counsel should consult with the prisoner as soon as practicable after his admission to the Institution. I would not insist that counsel be present during the individual psychiatric examinations, but counsel should be allowed access to the information concerning the prisoner's history as it is assembled. When the inmate is admitted into the final conference for questioning by the staff, counsel should be allowed to attend, to interrogate his client in order to clarify matters in dispute, and to make a statement on his client's behalf. Although the staff may of course consult with one another in private, a free and open discussion by counsel with the psychiatric staff as to the basis of their report should be encouraged. It would enhance the fairness of the process and enable counsel to obtain a minimal familiarity with the complex psychiatric issues a defective delinquency determination is likely to involve. It is not my purpose to convert the staff conference into a full-fledged adversarial proceeding, but only to guard as far as possible against the informal fact-gathering's resulting in an inaccurate factual basis for the psychiatrists' conclusions.
There is no justification for the unlimited confidence accorded to the staff members and the apprehensions the majority expresses over the allowance of any role to lawyers. I rather think that the staff is inclined to overestimate the need and the usefulness of secrecy, and that if a more flexible policy were adopted it would be found not unworkable, but beneficial. It would help to clear away suspicion that fundamental fairness is being destroyed under a cloak of concealment.
The above suggestions with respect to the right of counsel are advanced tentatively. If adopted, they should be deemed, like other conclusions of mine and the majority's own holdings, subject to review and reconsideration from time to time as experience dictates.
IV. THE STANDARD OF PROOF
The Defective Delinquent Act does not itself specify the burden of proof that the state must sustain in order to commit an individual to Patuxent for an indefinite period. The Maryland courts have sanctioned the civil standard of "fair preponderance." See Purks v. State, 226 Md. 43, 171 A.2d 726 (1961).
The objections to the preponderance standard apply with equal force in defective delinquency hearings — indeed they are even more compelling in the latter class of cases, since indefinite incarceration is at stake. Due process commands that the jury must be satisfied beyond a reasonable doubt as to all objective facts in dispute, including the truth of any alleged incidents relied upon by the psychiatrists in reaching their recommendation.
It must be recognized, however, that as to the ultimate issue of the inmate's dangerousness, the beyond a reasonable doubt standard may in practical operation be too onerous. After all, the ultimate issue is not as in a criminal case whether an alleged act was committed or event occurred, but the much more subjective issue of the individual's mental and emotional character. Such a subjective judgment cannot ordinarily attain the same "state of certitude" demanded in criminal cases. A number of commentators have suggested that a standard lying between the civil and the criminal may suffice where a determination of "dangerousness" is at issue. Frequently advocated is a standard of "clear and convincing evidence."
This measure of proof is not entirely lacking in judicial support. In Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed. 2d 362 (1966), the Supreme Court was faced with a dilemma similar to the one we now confront. The issue was what standard of proof is required in deportation proceedings. The Court held that deportation could not be considered tantamount to a criminal conviction, and did not call for the same standard of proof. Yet, perceiving that deportation was a drastic deprivation, the Court held it impermissible for an individual to be "banished from this country upon no higher degree of proof than applies in a negligence case." 385 U.S. at 285, 87 S.Ct. at 487. The Court fashioned an intermediate standard of "clear, unequivocal, and convincing evidence."
In light of the views set forth in Parts III and IV, I would reverse the decision of the District Court and require the state to hold new defective delinquency hearings for the petitioners under a proper standard of proof. In any factfinding and adjudicative process hereinafter conducted by the Patuxent staff, counsel should be allowed to participate in the manner described in Part III.
As already indicated, I think that the courts should regard Patuxent with a benign eye and that for the present a degree of flexibility is appropriate in dealing with Patuxent issues. I venture now to add a word of admonition to the officials of the Institution. In formulating and executing institutional policies the administrators should defer to traditional standards of fair procedure prized, even though not specifically commanded, by the courts. The officials' aim should not be minimal compliance to escape judicial condemnation, but maximum compliance with the spirit and essence of the Bill of Rights protections. Present policies and practices should be thoroughly examined by them in light of these principles. Administered with this unstinting attitude, the Institution's still experimental program will the more likely progress smoothly and meet with general satisfaction.
Avey's incarceration at Patuxent has not run beyond the original sentence imposed for his underlying criminal conviction. We are thus not faced with a situation where confinement rests solely on a refusal to cooperate. The state would undoubtedly have to bear a heavy burden in justifying extended commitment where there has been no judicial hearing.
There is an additional complication where the prisoner has pending an appeal from his conviction. In no event should any information divulged or evidence developed from information divulged be admissible against the prisoner if a new trial is awarded.
These matters need not be further pursued since they are not now before us.
407 F.2d at 699.