Petitioner, who was given a five-year sentence, was referred
under an
ex parte order to the Patuxent Institution for
examination to determine whether he should be committed for an
indefinite term as a defective delinquent. In this proceeding for
post-conviction relief, he challenge his confinement after
expiration of that sentence as violative of due process. Respondent
contends that petitioner's continued confinement is justified until
petitioner cooperates with the examining psychiatrists and thus
facilitates an assessment of his condition. The trial court denied
relief, holding that a person confined under Maryland's Defective
Delinquency Law may be detained until the statutory procedures for
examination and report have been completed, regardless of whether
or not the criminal sentence has expired.
Held: In the circumstances of this case, it is a denial
of due process to continue to hold petitioner on the basis of an
ex parte order committing him to observation without the
procedural safeguards commensurate with a long-term commitment,
Jackson v. Indiana, 406 U. S. 715; and
without affording him those safeguards his further detention cannot
be justified as analogous to confinement for civil contempt or for
any other reason. Pp.
407 U. S.
247-252.
Reversed.
MARSHALL, J., delivered the opinion for a unanimous Court.
DOUGLAS, J., filed a concurring opinion,
post, p. 252.
Page 407 U. S. 246
MR. JUSTICE MARSHALL delivered the opinion of the Court.
Edward McNeil was convicted of two assaults in 1966, and
sentenced to five years' imprisonment. Instead of committing him to
prison, the sentencing court referred him to the Patuxent
Institution for examination, to determine whether he should be
committed to that institution for an indeterminate term under
Maryland's Defective Delinquency Law. Md.Ann.Code, Art. 31B (1971).
No such determination has yet been made, his sentence has expired,
and his confinement continues. The State contends that he has
refused to cooperate with the examining psychiatrists, that they
have been unable to make any valid assessment of his condition, and
that, consequently, he may be confined indefinitely until he
cooperates and the institution has succeeded in making its
evaluation. He claims that, when his sentence expired, the State
lost its power to hold him, and that his continued detention
violates his rights under the Fourteenth Amendment. We agree.
I
The Maryland Defective Delinquency Law provides that a person
convicted of any felony, or certain misdemeanors, may be committed
to the Patuxent Institution for an indeterminate period if it is
judicially determined that he is a "defective delinquent." A
defective delinquent is 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
Page 407 U. S. 247
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."
Md.Ann.Code, Art. 31B, § 5.
Defective delinquency proceedings are ordinarily instituted
immediately after conviction and sentencing; they may also be
instituted after the defendant has served part of his prison term.
§§ 6(b), 6(d). [
Footnote 1] In
either event, the process begins with a court order committing the
prisoner to Patuxent for a psychiatric examination. §§ 6(b), 6(d).
The institution is required to submit its report to the court
within a fixed period of time. § 7(a). [
Footnote 2] If the report recommends commitment, then a
hearing must be promptly held, with a jury trial if requested by
the prisoner, to determine whether he should be committed as a
defective delinquent. § 8. If he is so committed, then the
commitment operates to suspend the prison sentence previously
imposed. § 9(b).
In
Murel v. Baltimore City Criminal Court, post, p.
407 U. S. 355,
several prisoners who had been committed
Page 407 U. S. 248
as defective delinquents sought to challenge various aspects of
the criteria and procedures that resulted in their commitment; we
granted certiorari in that case, together with this one, in order
to consider together these challenges to the Maryland statutory
scheme. For various reasons, we decline today to reach those
questions,
see Murel, supra. But Edward McNeil presents a
much more stark and simple claim. He has never been committed as a
defective delinquent, and thus he has no cause to challenge the
criteria and procedures that control a defective delinquency
hearing. His confinement rests wholly on the order committing him
for examination, in preparation for such a commitment hearing. That
order was made not on the basis of an adversary hearing, but on the
basis of an
ex parte judicial determination that there was
"reasonable cause to believe that the Defendant may be a Defective
Delinquent." [
Footnote 3]
Petitioner does not challenge in this Court the power of the
sentencing court to issue such an order in the first instance, but
he contends that the State's power to hold him on the basis of that
order has expired. He filed a petition for state post-conviction
relief on this ground,
inter alia, pursuant to
Md.Ann.Code, Art. 27, § 645A. The trial court denied relief,
holding that
"[a] person referred to Patuxent under Section 6, Article 31B
for the purpose of determining whether or not he is a defective
delinquent may be detained in Patuxent until the procedures for
such determination have been completed regardless of whether or not
the criminal sentence
Page 407 U. S. 249
has expired."
App. 35-36. The Court of Appeals of Maryland denied leave to
appeal. App. 37-38. We granted certiorari, 404 U.S. 999 (1971).
II
The State of Maryland asserts the power to confine petitioner
indefinitely, without ever obtaining a judicial determination that
such confinement is warranted. Respondent advances several distinct
arguments in support of that claim.
First, respondent contends that petitioner has been committed
merely for observation, and that a commitment for observation need
not be surrounded by the procedural safeguards (such as an
adversary hearing) that are appropriate for a final determination
of defective delinquency. Were the commitment for observation
limited in duration to a brief period, the argument might have some
force. But petitioner has been committed "for observation" for six
years, and, on respondent's theory of his confinement, there is no
reason to believe it likely that he will ever be released. A
confinement that is, in fact, indeterminate cannot rest on
procedures designed to authorize a brief period of observation.
We recently rejected a similar argument in
Jackson v.
Indiana, 406 U. S. 715
(1972), when the State sought to confine indefinitely a defendant
who was mentally incompetent to stand trial on his criminal
charges. The State sought to characterize the commitment as
temporary, and on that basis to justify reduced substantive and
procedural safeguards. We held that, because the commitment was
permanent in its practical effect, it required safeguards
commensurate with a long-term commitment.
Id. at 723-730.
The other half of the
Jackson argument is equally relevant
here. If the commitment is properly regarded as a short-term
confinement with a limited purpose, as the respondent suggests,
then lesser safeguards
Page 407 U. S. 250
may be appropriate, but, by the same token, the duration of the
confinement must be strictly limited.
"[D]ue process requires that the nature and duration of
commitment bear some reasonable relation to the purpose for which
the individual is committed."
Id. at 738. Just as that principle limits the
permissible length of a commitment on account of incompetence to
stand trial, so it also limits the permissible length of a
commitment "for observation." We need not set a precise time limit
here; it is noteworthy, however, that the Maryland statute itself
limits the observation period to a maximum of six months. While the
state courts have apparently construed the statute to permit
extensions of time,
see n 2,
supra, nevertheless the initial legislative
judgment provides a useful benchmark. In this case, it is
sufficient to note that the petitioner has been confined for six
years, and there is no basis for anticipating that he will ever be
easier to examine than he is today. In these circumstances, it is a
denial of due process to continue to hold him on the basis of an
ex parte order committing him for observation.
B. A second argument advanced by the respondent relies on the
claim that petitioner himself prevented the State from holding a
hearing on his condition. Respondent contends that, by refusing to
talk to the psychiatrists, petitioner has prevented them from
evaluating him, and has made it impossible for the State to go
forward with evidence at a hearing. Thus, it is argued, his
continued confinement is analogous to civil contempt; he can
terminate the confinement and bring about a hearing at any time by
talking to the examining psychiatrists, and the State has the power
to induce his cooperation by confining him.
Petitioner claims that he has a right the Fifth Amendment to
withhold cooperation, a claim we need not consider here. But
putting that claim to one side, there
Page 407 U. S. 251
is nevertheless a fatal flaw in the respondent's argument. For
if confinement is to rest on a theory of civil contempt, then due
process requires a hearing to determine whether petitioner has in
fact, behaved in a manner that amounts to contempt. At such a
hearing, it could be ascertained whether petitioner's conduct is
willful, or whether it is a manifestation of mental illness, for
which he cannot fairly be held responsible.
Robinson v.
California, 370 U. S. 660
(1962). Civil contempt is coercive in nature, and consequently
there is no justification for confining on a civil contempt theory
a person who lacks the present ability to comply.
Maggio v.
Zeitz, 333 U. S. 56
(1948). Moreover, a hearing would provide the appropriate forum for
resolution of petitioner's Fifth Amendment claim. Finally, if the
petitioner's confinement were explicitly premised on a finding of
contempt, then it would be appropriate to consider what limitations
the Due Process Clause places on the contempt power. The precise
contours of that power need not be traced here. It is enough to
note that petitioner has been confined, potentially for life,
although he has never been determined to be in contempt by a
procedure that comports with due process. The contempt analogy
cannot justify the State's failure to provide a hearing of any
kind.
C. Finally, respondent suggests that petitioner is probably a
defective delinquent, because most noncooperators are. Hence, it is
argued, his confinement rests not only on the purposes of
observation, and of penalizing contempt, but also on the underlying
purposes of the Defective Delinquency Law. But that argument proves
too much. For if the Patuxent staff members were prepared to
conclude, on the basis of petitioner's silence and their
observations of him over the years, that petitioner is a defective
delinquent, then it is not true the that he has prevented them from
evaluating him. On that theory,
Page 407 U. S. 252
they have long been ready to make their report to the court, and
the hearing on defective delinquency could have gone forward.
III
Petitioner is presently confined in Patuxent without any lawful
authority to support that confinement. His sentence having expired,
he is no longer within the class of persons eligible for commitment
to the Institution as a defective delinquent. Accordingly, he is
entitled to be released. The judgment below is reversed, and the
mandate shall issue forthwith.
Reversed.
[
Footnote 1]
But not after he has served all of it. The statute has always
provided that no examination may be ordered or held if the person
has been released from custody; since 1971, it has also prohibited
the examination if the person is within six months of the
expiration of sentence, § 6(c), as amended in 1971. The State
asserts that about 98% of the referrals to Patuxent are made
immediately after conviction. Tr. of Oral Arg. 27;
see
Respondent's Brief 82 n. 33.
[
Footnote 2]
The statute originally required the report to be submitted
within six months, or before expiration of sentence, whichever
later occurs. Since 1971, it has required a report within six
months, or three months before expiration of sentence, whichever
first occurs. § 7(a), as amended in 1971. The state courts have
construed the statute to permit extension of the allowable time,
however, in the case of a noncooperative defendant who resists
examination.
State v. Musgrove, 241 Md. 521, 217 A.2d 247
(1966);
Mullen v. Director, 6 Md.App. 120,
250 A.2d 281 (1969).
[
Footnote 3]
Brief for Petitioner 6 n. 5;
see Art. 31B, § 6(b):
request for examination is made to court "on any knowledge or
suspicion of the presence of defective delinquency in such person."
It appears that, in this case, the trial court issued the order
sua sponte; prior to sentencing, the court had ordered a
psychiatric evaluation by its own medical officer, who, in turn,
recommended referral to Patuxent for further evaluation and
treatment.
MR. JUSTICE DOUGLAS, concurring.
This is an action in the Maryland courts for post-conviction
relief which was denied, with no court making a report of its
decision. The case is here on a petition for writ of certiorari,
which we granted. 404 U.S. 999.
McNeil was tried and convicted in a Maryland court for assault
on a public officer and for assault with intent to rape. He took
the stand and denied he had committed the offenses. He had had no
prior criminal record. The sentencing judge asked for a psychiatric
evaluation of the accused, though neither side at the trial had
raised or suggested any psychiatric issues. A medical officer
examined him and recommended that he be considered for evaluation
and treatment at Patuxent Institution, a state psychiatric
agency.
The court sentenced McNeil to "not more than five years" to
prison in Hagerstown. [
Footnote
2/1] and, without modifying
Page 407 U. S. 253
or suspending that sentence, ordered him referred to Patuxent.
Under Maryland law, a defendant convicted of any felony or certain
misdemeanors may be referred to Patuxent for determination whether
he is a "defective delinquent." Md.Ann.Code, Art. 31B d(1971). A
"defective delinquent" is defined in Art. 31B, § 5, 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."
Under Art. 31B, the staff -- which includes a psychiatrist, a
psychologist, and a physician -- shall examine the person and
"state their findings" as to defective delinquency in a written
report to the court. Art. 31B, § 7(a). And it is provided that,
once transferred to Patuxent, the person in question shall remain
there
"until such time as the procedures . . . for the determination
of whether or not said person is a defective delinquent have been
completed, without regard to whether or not the criminal sentence
to which he was last sentenced has expired. [
Footnote 2/2]"
Art. 31B, § 6(e) (Supp. 1971).
The examination normally entails psychiatric interviews and
evaluation, psychological tests, sociological and
Page 407 U. S. 254
social work studies, and review of past history and records,
including police, juvenile, penal, and hospital records. Personal
interviews include a series of questions to elicit and to determine
the past criminal record, and antisocial and criminal behavior of
the individual.
If the report shows that he should not be classified as a
defective delinquent, he is retained in custody under his original
sentence with full credit given for the time confined at Patuxent.
Art. 31B, § 7(a) (Supp. 1971). If the report says that he should be
classified as a defective delinquent, a hearing is held, at which
the defendant is entitled to counsel and a trial by jury. Art. 31B,
§ 8.
McNeil, though confined at Patuxent beyond the term of five
years for which he was sentenced, has never had such a hearing, for
he has never been declared a "defective delinquent." [
Footnote 2/3] He has not been so declared,
and, on the other hand, has not been cleared, because he has
refused on at least 15 separate occasions to submit to the
psychiatric tests and questions. Nor has he received in the interim
any rehabilitative treatment or training. The State, indeed,
intends to keep him there indefinitely, as long as he refuses to
submit to psychiatric or psychological examinations. [
Footnote 2/4]
McNeil's refusal to submit to that questioning is not quixotic;
it is based on his Fifth Amendment right to be
Page 407 U. S. 255
silent. McNeil remains confined without any hearing whatsoever
as to whether he has a propensity toward criminal activity, and
without any hope of having a hearing unless he surrenders his right
against self-incrimination. [
Footnote
2/5]
The Fifth Amendment prohibition against compulsory
self-incrimination is applicable to the States by reason of the
Fourteenth.
Malloy v. Hogan, 378 U. S.
1. The protection extends to refusal to answer
questions
Page 407 U. S. 256
where the person "has reasonable cause to apprehend danger from
a direct answer."
Hoffman v. United States, 341 U.
S. 479,
341 U. S. 486;
see Spevack v. Klein, 385 U. S. 511. The
questioning of McNeil is in a setting and has a goal pregnant with
both potential and immediate danger. To be labeled a "defective
delinquent," McNeil must have demonstrated a "persistent aggravated
antisocial or criminal behavior" and "a propensity toward criminal
activity." Art. 31B, § 5.
McNeil was repeatedly interrogated not only about the crime for
which he was convicted, but for many other alleged antisocial
incidents going back to his sophomore year in high school. One
staff member, after interviewing McNeil, reported: "He adamantly
and vehemently denies, despite the police reports, that he was
involved in the offense"; "Further questioning revealed that he had
stolen some shoes, but he insisted that he did not know that they
were stolen . . ."; "but in the tenth grade, he was caught taking
some milk and cookies from the cafeteria"; "He consistently denies
his guilt in all these offenses"; "He insisted that he was not
present at the purse snatching"; "He was adamant in insisting on
this version of the offense despite the police report which was in
the brief and which I had available and discussed with him"; "He
continued his denial into a consideration of a juvenile offense . .
."; "He denies the use of all drugs and narcotics"; ". . . I
explained to him that it might be of some help to him if we could
understand why he did such a thing, but this was to no avail."
Brief for Petitioner 36 n. 43.
Some of the questioning of McNeil was at a time when his
conviction was on direct appeal or when he was seeking
post-conviction relief. Concessions or confessions obtained might
be useful to the State on a retrial or might vitiate
post-conviction relief. Moreover, the privilege extends to every
"link in a chain of evidence
Page 407 U. S. 257
sufficient to connect" the person with a crime.
Malloy v.
Hogan, 378 U.S. at
378 U. S. 13.
Whether or not a grant of immunity would give the needed protection
in this context is irrelevant, because we are advised that there is
no such immunity under state law.
Finally, the refusal to answer results in severe sanctions,
contrary to the constitutional guarantee.
First, the staff refuses to diagnose him, no matter how much
information that may have, unless he talks. The result is that he
never receives a hearing, and remains at Patuxent indefinitely.
Second, if there is no report on him, he remains on the
receiving tier indefinitely, and receives no treatment.
Third, if he talks, and a report is made, and he is committed as
a "defective delinquent," he is no longer confined for any portion
of the original sentence. Art. 31B, § 9(b). If he does not talk,
McNeil's sentence continues to run until it expires, and yet he is
kept at Patuxent indefinitely. We are indeed advised by the record
in the
Murel case that 20% of Patuxent inmates at that
time were serving beyond their expired sentences, and, of those
paroled between 1955 and 1965, 46% had served beyond their expired
sentences.
Whatever the Patuxent procedures may be called -- whether civil
or criminal -- the result under the Self-Incrimination Clause of
the Fifth Amendment is the same. As we said in
In re
Gault, 387 U. S. 1, 49-50,
there is the threat of self-incrimination whenever there is "a
deprivation of liberty;" and there is such a deprivation, whatever
the name of the institution, if a person is held against his
will.
It is elementary that there is a denial of due process when a
person is committed or, as here, held without a hearing and
opportunity to be heard.
Specht v. Patterson, 386 U.
S. 605;
Humphrey v. Cady, 405 U.
S. 504.
McNeil must be discharged forthwith.
[
Footnote 2/1]
Under Maryland law, that sentence was subject to statutory
reductions for good behavior, industrial or agricultural work, and
satisfactory progress in education and vocational courses.
Md.Ann.Code, Art. 27, § 700 (1971).
McNeil would have been eligible for parole after one-fourth of
the term, or a little over one year.
[
Footnote 2/2]
At the time of McNeil's referral, the Act required that the
report be filed no later than six months from the date he was
transferred to Patuxent or before expiration of his sentence,
whichever last occurred. Md.Ann.Code, Art. 31B, § 7(a) (1957 ed.,
Supp. 1966). An amendment effective July 1, 1971, required that the
report be filed no later than six months from the date he was
transferred to Patuxent or three months before expiration of his
sentence, whichever occurs first. Art. 31B, § 7(a) (Supp.
1971).
[
Footnote 2/3]
Detention beyond the expiration of court-imposed sentences
occurs in Communist China, where "public security organs [have] the
authority to impose, as well as administer, punishment," and "the
discretionary power to extend the duration of imprisonment beyond
the original sentences." Shao-chuan Leng, Justice in Communist
China 34 (1967).
[
Footnote 2/4]
In the District Court proceedings in
Murel v. Baltimore City
Criminal Court, post, p.
407 U. S. 355, Dr.
Boslow, the Director of Patuxent, testified:
"[The Court] . . . Take the case of a person who is referred for
diagnosis and he fails, let us say, 100 per cent, to cooperate; he
won't talk to anybody, he won't undergo any tests, he won't
participate, though I don't think he gets group therapy."
"[Dr. Boslow] No, sir."
"[The Court] But he will do absolutely nothing, and will take no
advantage of whatever opportunity if any there may be."
"He, therefore, assuming that the law is valid, and assuming
that the administration in that respect is supportable, could he
remain there indefinitely unclassified? Is that correct?"
"[Dr. Boslow] Under the present state of things, yes."
[
Footnote 2/5]
As stated in a provocative and searching study in Virginia:
"Certainly, a prisoner is not entitled to all the constitutional
rights enjoyed by free citizens, but the burden of showing what
restrictions are necessary for the preservation of prison order
should fall upon prison officials. Widespread, sweeping denials of
freedom should not be tolerated. Ideally, the legislative and
executive branches of government should decide the extent to which
liberty must be denied. No organ of government is better suited
than the legislature to consider the penological developments of
the last few decades in order to determine the extent to which
restrictive practices are warranted. But after legislative command,
or in its absence, the courts must decide whether the balance of
competing interests effected by legislative compromise or executive
fiat comports with specific constitutional guarantees and
traditional notions of due process. In this context, the 'hands-off
doctrine' has no place. The judiciary functions as more than a
final arbiter; it has a responsibility for educating the public,
and, where it fails to act, it functions to legitimize the
status quo. The simple failure of the courts to review
prison conditions blunts the success of important constitutional
inquiries, impedes the flow of information, and encourages
abuse."
Hirschkop & Millemann, The Unconstitutionality of Prison
Life, 55 Va.L.Rev. 795, 835-837 (1969).