JACKSON v. INDIANA

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Argument of Frank E. Spencer

Chief Justice Warren E. Burger: We'll hear arguments next in No. 5009, Jackson against Indiana.

Mr. Spencer.

Mr. Frank E. Spencer: Mr. Justice and may it please the court.

I hope you won't consider my comment too dramatic under the circumstance, if I respectfully call to the Court's attention at the outset that at this time, the petitioner here is confined in the Central State Hospital for the insane in Indianapolis because of two charges, which were filed against him in May of '68, charging the commission of two robberies, ten months before that in 1967, that there has been no hearing in respect to probable cause that the petitioner is a deaf mute, neither able to hear nor to speak, having a mental age of a 3 or 4 year-old child and that the --

Justice Potter Stewart: He is a deaf child?

Mr. Frank E. Spencer: Yes Sir, I say he is deaf, he is unable to speak.

Justice Potter Stewart: I thought he was a mental age with 3 or 4-year-old deaf child.

Mr. Frank E. Spencer: The witness at that instance emphasized that and I appreciate your calling that to my attention and he will be confined unless this Court sees fit to do something about it for the rest of his life.

I depreciate the contention of the State of Indiana in this cause, that it makes no difference, that there is no difference between a civil or criminal commitment in this proceeding.

And that he may recover flying in the face of the evidence which was heard by the trial court.

Justice Byron R. White: Mr. Spencer, if he had been civilly committed, where would he be confined today?

Mr. Frank E. Spencer: He would be at Muscatatuck your honor.

There are two institutions in Indiana, one at Fort Wayne and one at Muscatatuck -- with his age and the area of the state, which he is from, he would be at Muscatatuck.

Justice Byron R. White: Is this conceded by your opposition that he definitely would be there?

Mr. Frank E. Spencer: I don't.

Well, they disputed to the extent that with a vale of words, they say that he couldn't get there, I don't think that they dispute that if he were in fact committed as a feeble minded person, that he would be at Muscatatuck.

They also repeat their statement of the Supreme Court of Indiana, a very superficial statement that there is nothing to worry about anyway because as a charge of the department of mental health, he could be transferred to Muscatatuck.

It is our position that there is a great difference and that by the holding of our Court for the first time that Muscatatuck is by definition under our statute a psychiatric institution and therefore, that a transfer could be made from the psychiatric institution at Central State Hospital to Muscatatuck does not answer the problem.

He is not at Muscatatuck and if he were at Muscatatuck under a transfer, he would still be held by reason of the commitment of the Criminal Court.

Justice Byron R. White: Didn't your Supreme Court say however that irrespective of the root, he would be at the same place?

Mr. Frank E. Spencer: They didn't say he would be, they said he could and --

Justice Byron R. White: You are asking us to not accept to that statement?

Mr. Frank E. Spencer: For practical purposes, I think there is a world of difference and it does not answer the problem Your Honor.

The fact that they now hold and this was a holding for the first instance, and as far as I know, there never has been such a transfer.

They hold as a matter of law.

Now in this case, that the department through the commissioner would have the power to transfer him to Muscatatuck, but that doesn't answer the problem because arriving at Muscatatuck under a transfer does not change the nature of his commitment and he has been committed as a person found to be insane under an Indiana statute designed for the use in instances in which person's insane had been charged with crimes and under the judgment of the Criminal Court of Marion County, he cannot be released until he has recovered his sanity.

Justice Byron R. White: Now, I have to subordinate questions here.

When you use the word insane in the context of that statute, if what it means or I am asking does it mean that he is incompetent to stand trial?

Mr. Frank E. Spencer: Well, under the statute and I dispute the position of the Indiana Court in this regard.

The statute speaks in terms of insanity, the determinative principle as to whether or not he will be committed on the one hand or held to trial on the other, and go to trial is the determination of his comprehension or lack of comprehension to understand the nature of the proceedings and to assist his counsel in defense.

The State of Indiana, through the Attorney General has taken the position that that is insanity and not only that, but that is the same insanity to use that word as contemplated in the section of the statute in regard to what I referred to as the civil commitment, which requires as a condition precedent that a physician certify that the person for whom application is made is not insane.

I don't see any great difficulty involved in differentiating between the two.

The statute in respect to a person charged with crime contemplates that some persons, not all, who are insane will be found to lack comprehension to understand the nature of the proceedings and to assist in their defense and those persons, not everyone who is insane, but those persons who are found to lack comprehension shall be committed.

On the other hand, there is no standard in respect to the civil commitment of a feeble minded person to Muscatatuck, except that which I respectfully submit is now generally considered and denominated a mental illness.

The statute --

Justice Byron R. White: There is my second question and then I will let you proceed.

I have read both briefs and they seem to speak of this feeble minded commitment procedure you have and also the one in the criminal context.

Does Indiana also have a third procedure for the commitment of the mentally ill?

Mr. Frank E. Spencer: Yes Sir.

Justice Byron R. White: I find this unmentioned in either brief.

Mr. Frank E. Spencer: That is correct.

Justice Byron R. White: And this is because it is of no significance here?

Mr. Frank E. Spencer: I do not think it is of any significance, except to render questionable or at least indicate question in regard to the state's position that insanity, in the statute for commitment has reference to the same insanity, the same concept of insanity in the provision, in the criminal proceedings.

There is a difference.

Persons who are insane maybe committed under an entirely separate procedure, persons that we are speaking of are persons who are mentally ill, persons who are committed to Muscatatuck in the school at Fort Wayne are committed because they are feeble minded and that the legislature for a long period of time has determined as a matter of policy that those persons who are mentally ill should not be so committed that they go some place else and therefore, as provided this condition precedent that a physician certify that they are not insane.

The provision in regard to the person charged with crime, dealing with persons who are insane is only concerned with the one aspect of mental illness whether or not there is such mental illness there that the effective result is that they lack the comprehension to understand the nature of the proceedings and to assist in their defense.

To me, that does not equate the terminology of insanity in the one statute with the terminology of insanity as negative as a condition precedent in the other statute.

We are talking about two different things and I think that the existence of the separate procedure for feeble minded persons emphasizes what I am talking about even though both statutes have existed for a long time in Indiana.

If it has come up before I am unaware of, this is the first instance that I know of in Indiana where a Muscatatuck feeble minded person has been committed under this statute designed to take care of the person with a mental illness who lacks comprehension to understand the nature of the charges against him and who therefore is committed until he shall become sane, until he shall regain that much comprehension, in spite of his prior existing mental illness.

I would like to invite your attention to some statements made by the state of Indiana.

Excuse me.

I'd better go back for just a moment in regard to how this developed.

It is very clear in the transcript and I have set out in the Appendix, at the conclusion of the hearing held in the trial court.

This contemplates the appointment of two physicians and these two physicians were appointed and tested by Dr. Nai and Dr. Houster (ph) also the superintendent who had worked with this man, who had experience in background at the desk, had worked with this man.

He had attempted to communicate and was available to the two physicians who examined him and there is no dispute in the testimony before the Court that this is a condition that will remain, that we're not talking about a mental illness, we're talking about a retardation.

It is a condition that does exist and has existed, a retardation and the fact that this man is even unable to understand and comprehend the usual sign language of the deaf mutes, just a very, very small amount of that can he even comprehend.

To emphasize the limitations of this comprehension in his testimony this supervisor informed the Court that the man has no comprehension of time, he has no comprehension of when, he has no comprehension of how, and then as I state the --

Justice Byron R. White: Well, would you say that, let's suppose the state had proceeded to commit your client as a feeble-minded person under the Section 1907?

Mr. Frank E. Spencer: Yes sir.

Justice Byron R. White: And that committed him in courts with the procedure outlined for the statute and putting in the institution Muscatatuck or whatever it is, and he was there.

Would you say to the state to keep him there, or as long as his condition improves?

Mr. Frank E. Spencer: Well, and to conclusion of your question you used the word which the state has used, which I dispute.

It is not a matter as to whether or not he improves, as contended by the state.

Justice Byron R. White: Well, I just want to know whether your contention is that before a state may restrain a person, for as long as this young man has been restrained or will be restrained, there must be some finding that in the proceeding somewhere that he is dangerous to himself or others?

Mr. Frank E. Spencer: No, that is not a necessity and that's not my contention.

The determination must --

Justice Byron R. White: You say that the state may take custody of the feeble-minded person, even though he's not dangerous to himself or others and keep him?

Mr. Frank E. Spencer: Whether or not he's dangerous is not a sole determination.

That may be a determination --

Justice Byron R. White: So you are saying that without that kind of interpreting they may take custody of the feeble-minded person and keep him?

Mr. Frank E. Spencer: Yes sir.

If he needs treatment, if the interest of society and he is in fact feeble-minded and there is an interest there he can be --

Justice Byron R. White: Right and if he needs treatment, the state may keep in custody while they give him.

Mr. Frank E. Spencer: Absolutely.

No question about that.

Chief Justice Warren E. Burger: What if it's just custodial care, not treatment?

Mr. Frank E. Spencer: Well, I'm not going to take the position that the care offered by the State of Indiana at Muscatatuck is merely custodial.

As far as I'm concerned, if he were committed on a civil commitment of this fashion, he would be receiving more than custodial care.

They have a good setup.

The difference lies not in how he's being treated, but in how, when and under what circumstances he is able to be released and what the attitude is.

There is no chance, the way he has been committed in the criminal proceedings merely because of pendency of two criminal charges for which there is never even been a hearing as to probable cause.

There is no chance he will ever be released because --

Justice Byron R. White: Does existence of the criminal bar now prevent a commitment under the feeble-minded in the statute?

Mr. Frank E. Spencer: No sir, but it is a moot question because he is in fact in the custody of the state.

Justice Byron R. White: Would you resist such a procedure?

Mr. Frank E. Spencer: No sir.

But I would resist doing anything that would not also include the dismissal of the criminal charges.

Justice Byron R. White: Why is that?

Mr. Frank E. Spencer: Because he can not be released under any circumstances as long as the present commitment stands based upon the existence of the two criminal charges.

He cannot be released until he recovers his sanity.

Justice Byron R. White: Why not?

Mr. Frank E. Spencer: Something that he never lost except in terms of comprehension.

Justice Byron R. White: I sort of thought you were claiming that if they reverse the charges back, he can't stand trial because he is incompetent to understand proceeding, that the state while they may keep the criminal charges pending can't just put him in the jail --

Mr. Frank E. Spencer: No sir.

That is not my position.

There are persons who are taking the position.

Justice Byron R. White: It cannot be ineffective because you say the criminal charges must be dismissed.

Mr. Frank E. Spencer: No.

Let me say this.

Because of the aspects in this case, he is not only a deaf, mute unable to communicate, but he has a mental age of 3 or 4 that in these circumstances he is feeble-minded, he should be in Muscatatuck.

There is no basis for the existence of the criminal charges as a matter of fairness and justice, these prevent his civil commitment because they are the basis of his criminal commitment.

Justice Byron R. White: The department of mental health apparently can transfer him right now to Muscatatuck or whatever.

Mr. Frank E. Spencer: That's what the Supreme Court says.

But he --

Justice Byron R. White: It seems to me like the State Court has addressed himself to many of the state law issues that we are bringing.

Mr. Frank E. Spencer: If the Court please, the State Court did not address itself to the basic issue involved as to the applicability of the statute and the result.

They related at the outset what the position of --

Justice Byron R. White: In any event isn't that a State Court question?

Mr. Frank E. Spencer: No sir.

Absolutely not.

This man is imprisoned for life and has never had a trial and cannot get out under any procedure.

Justice Byron R. White: I know, but concededly he can be placed in the institution you want him to be placed in.

Mr. Frank E. Spencer: And can never get out.

And on a civil commitment he can get out merely on the determination of the superintendent that it is in his interest and that it's okay in effect.

Justice Byron R. White: Well you are claiming that the state may not charge a person with crime and then keep him in jail forever just because he is incompetent to stand trial?

Mr. Frank E. Spencer: No, I think this case is broader than that.

I think this case is broader than that.

Justice Byron R. White: But you need to go anyway, whatever your broad claim is, it includes that.

Mr. Frank E. Spencer: That is a part of it.

That is correct but only honest on the facts of this case, I'm not going to contend before you that all of the law should be changed, that there should be a tremendous upheaval maybe yes, maybe no.

But under these circumstances even the State of Indiana concedes that there is no criminal responsibility here and yet the basis for his being maintained is the existence of the criminal charge.

I invite your attention.

Justice Harry A. Blackmun: What would happen if you instituted feeble-minded commitment proceedings and he were still committed today?

Would the state dismiss its criminal charges out of him?

Mr. Frank E. Spencer: There is nothing that the state can do at this point as far as I concede because the commitment unless you do something about it is a final judgment.

At any give point along the way, the state could have dismissed the criminal charges.

But there is a judgment rendered and it except for the disposition in this Court has become final and he will be held until he is certified sane and that will never be.

Chief Justice Warren E. Burger: Mr. Spencer let me try one hypothetical -- purely hypothetical.

Suppose we held that it is a violation of Due Process in these circumstances to hold such a person as your client in confinement in an institution for more than whatever reasonable time is required to determine his capacity to stand trial.

The expiration of that reasonable time, he must be civilly committed if he has to be confined at all.

Would that satisfy your problems?

Argument of Frank E. Spence

Mr. Frank E. Spence: Well it certainly be a better help.

Chief Justice Warren E. Burger: Well what more would be problem than that?

Rebuttal of Frank E. Spencer

Mr. Frank E. Spencer: As far as I am concerned the judgment of the Lower Court should be reversed.

Chief Justice Warren E. Burger: Well just take the things I pose.

That we said after reasonable time and assume also add to the hypothetical that we would say that nine years is obviously a reasonable time.

And that they must now begin proceedings to commit him civilly, within 90 days or discharge him from custody.

Would that give you all the relief you wanted?

Rebuttal of Frank E. Spence

Mr. Frank E. Spence: No.

Chief Justice Warren E. Burger: What else do you want?

Mr. Frank E. Spence: The man has already been in there Your Honor for --

Chief Justice Warren E. Burger: But he is going out in 90 days unless, on this hypothetical, unless civil proceedings are commenced.

Mr. Frank E. Spence: Well, if this Court would determine that has of the time of your decision that the state must take such action.

That would be the relief.

If it's that you may keep him now for another seven or eight years.

Chief Justice Warren E. Burger: No, 90 days I have said.

90 days they must commence the civil proceedings within 90 days or discharge him from custody, haven't you got then all the relief you want?

Mr. Frank E. Spence: If I understand you correctly,yes.

The thing that I strenuously object to, is the prospective application of the judgment throughout the life, of the man who has been charged with no possibility of release.

Chief Justice Warren E. Burger: There is no judgment in hypothetical, I have given you.

Mr. Frank E. Spence: Yes sir.

Chief Justice Warren E. Burger: It merely is a proceeding and if they can't sustain the burden of proving that he must be committed civilly, then he would not be confined.

Now I don't know what your standards are for civil commitment in detail, or what the practice is, but you don't insist that they dismiss the criminal charges as part of this process.

If you got the relief I am talking about you, do you?

Mr. Frank E. Spence: If there was nothing further done on the criminal charges and if he were civilly committed.

No I wouldn't care, what would happen as far as the charges that would take care of itself.

But they have proceeded by reason of those charges.

The way things stand now.

So that he is committed merely by a reason of the existence of those charges.

If he were civilly committed, so that he could be released just on the basis of determination of the Superintendent at Muscatatuck.

That under the circumstances that's what should be done.

That's what the statute amounts to.

I don't think that; that two, three, four, five years from the time that he goes in, that the state is going to be interested in proceedings in respect to the criminal charges.

I invite the Court's attention to the statement made by the State of Indiana at page 4 of the brief of the respondent, stating that should, Jackson recover.

His present incompetency could effectively absolve Jackson of all criminal responsibility, for the acts of robbery themselves even though there has been no trial on the merits to determine whether Jackson committed the acts charged.

And if so whether he was criminally responsible at the time they were committed, but what the state is asking is that you postpone that determination or that that determination be postponed, until he has recovered his sanity, which will never be.

And this is what they have referred to in their brief as “The Indiana solution” and they additionally point out for the edification of this Court, that his incompetency does not bar the state from charging robbery even though no further proceedings maybe held.

In this situation, it is the same, as if they were charging a three-year-old child.

And in essence they are writing about the, power that the state has to bring the charge and cause a life commitment, because of the existence of the charge, when they in fact admit that under these circumstances when they get around to determining it, after infinity that there was and never has been any criminal responsibility.

I started to mention that a few minutes ago, and I want to point that out.

The Trial Court even though the Supreme Court, three judges, haven't didn't appear to be particularly bothered.

The Trial Court was concerned about the result that was impending in these proceedings.

He made a point at the conclusion of inquiring as to whether the attorney then representing the defendant felt that any other statute could be used.

And then he directed that attorney who by the way was proper counsel, directed that attorney to file a motion for a new trial, agreeing with him that this determination was an appealable determination.

And he has maintained his interest that this matter be pursued for final solution.

Justice Potter Stewart: That he being who the judge or --?

Mr. Frank E. Spence: The judge, the judge was very much disturbed by what appeared to be the necessary result in the application of this statute and I respectfully submit that on its face, this statute was designed for an entirely different circumstance.

And it is an abortion to apply it, to a situation like this.

And I respectfully submit that the only solution as a matter of Due Process, is that the state be allowed an opportunity to obtain civil commitment, and the criminal charges be dismissed or even if they are going to pend at least that no further proceedings be had and that this commitment until he recovers his sanity be vacated.

Justice Byron R. White: Let us come back to your Indiana procedure, may only the state institute a proceeding for commitment to feeble-mindedness?

Mr. Frank E. Spence: Yes Your Honor.

Justice Byron R. White: Be relative to adopting.

You could not --

Mr. Frank E. Spence: Differentiating in between the Court and the State.

No, the Court can initiate it when anything comes to his attention which raises a question as to the comprehensive ability of the defendant, the defendant's counsel can do it, the prosecuting attorney can do it.

The judge in open court observing --

Justice Byron R. White: Precisely in other words, you could do it, if you wanted to by a petition.

Justice Byron R. White: Under civil commitment.

Mr. Frank E. Spence: You are talking about under the criminal statute.

Justice Byron R. White: Under civil commitment for feeble-mindedness, who may institute that proceeding?

Mr. Frank E. Spence: Any resident in the county.

Justice Byron R. White: Any record of the citizen?

Then let me go back to a question I asked long time ago.

Mr. Frank E. Spence: Rapidly yes sir.

Justice Byron R. White: What's the barrier to doing this, and thereby unraveling this procedural somatic difficulty in your state?

Mr. Frank E. Spence: Because of the outstanding commitment from which we are dealing.

Chief Justice Warren E. Burger: How do you know that?

Have you tried that remedy that Justice Blackmun has suggested?

Mr. Frank E. Spence: Judge, Your Honor I know of no precedent anywhere in the law that the persons involved in litigation as against whom a final judgment has been rendered, particularly coerce in commitment, can at any given point merely ignore it.

It's there and he is in fact being held in custody by reason of this.

Now if we add another civil commitment to it, or ten commitments it will not erase or change the fact, that until the judgment of the trial court is set aside committing him under the statute designed for insane persons, until he shall recover his sanity, he cannot be released.

Justice Byron R. White: Well isn't that part of your application for relief and your feeble-mindedness procedure to ask that the other judgment be set aside?

Mr. Frank E. Spence: That could not be done, no that would be a collateral attack on a judgment in an entirely separate case

Justice Byron R. White: Isn't that in the same court?

Mr. Frank E. Spence: I beg your pardon.

Justice Byron R. White: Isn't it in the same court?

Mr. Frank E. Spence: No sir, no sir, the court in which these proceedings were had has criminal jurisdictional.

The civil commitment would be in our Superior or Criminal Court and as the state has also pointed out, as long as the present commitment stands, we have a judicial determination, res judicata, as between the State of Indiana and this defendant that he is insane, and they contend it's the same concept of insanity and until this is set aside and vacated, it would be a complete bar to a determination in a civil proceedings, that he is not insane.

Justice Byron R. White: Well what about that State Habeas, do you have Habeas Corpus in Indiana?

Mr. Frank E. Spence: Yes sir.

Justice Byron R. White: Does it lie to a relieve -- they claimed illegal custody pursuant to a criminal proceeding?

Mr. Frank E. Spence: Well whether or not it would in some instance where no appeal had been pursued, I don't know.

It could not lie here because appeal was pursued in the highest court and the State of Indiana has affirmed the commitment.

Justice Byron R. White: Did you raise in that court all grounds you are raising here?

Mr. Frank E. Spence: Yes sir.

Justice Byron R. White: Well how about Federal Habeas?

Mr. Frank E. Spence: If you had denied certiorari I would try it.

You accepted certiorari and it's your baby and I am very happy to be here now.

Justice Byron R. White: There it seems to me that there are compatible --

lot of factual differences in this situation.

Mr. Frank E. Spence: The state contends that I see none.

I don't see the necessity.

Justice Byron R. White: There are major differences between the two of them.

Mr. Frank E. Spence: Yes sir.

Justice Byron R. White: For example, of whether or not that this person was committed as an insane person whether this person is a feeble-minded person, whether commitment under the 1907 is available to this particular person under the Indiana law.

All of them are argued here, before us in the briefs.

You have major differences between --

Mr. Frank E. Spence: Well major in the nature of the conclusion not major in nature of the basis, I submit that it's a veil of words as far as the Attorney General is concerned.

That there are no major differences in terms of the facts.

I think they are concession here in regard to the incompetence, is in direct conflict with many of other insertions which they make.

Thank you gentlemen.

Justice Potter Stewart: Your basic constitutional argument that closely parallels the dissenting opinion of Justice DeBruler absolutely in court.

Trial Counsel was you say the signed counsel because Jackson as an indigent.

Trial Counsel was assigned by the Court.

Mr. Frank E. Spence: Yes sir, as are we, proper counsel all the way.

Justice Potter Stewart: What explains the change in counsel?

Mr. Frank E. Spence: No change, we are proper counsel.

Justice Potter Stewart: But you sad you didn't represent him.

Mr. Frank E. Spence: Oh I am sorry I misunderstood, as a matter of procedure with which I certainly approve that it's been a custom for sometime, our two criminal courts in Marion County do not appoint the same attorney to proceed on appeal as was in the trail.

We have the benefit of everything they did, they are there to confer with, but over a long period of time as a matter of practice, they appointed another attorney to proceed with the appeal in any criminal case.

There is nothing there, than a matter of custom and determination of policy.

Nothing in this case that call for that.

Justice Potter Stewart: That leaves counsel on appeal free to make the claim that there was ineffective assistance of counsel at the trial.

Mr. Frank E. Spence: Occasionally.

Chief Justice Warren E. Burger: Do they get paid in the state system?

Mr. Frank E. Spence: Yes sir.

Chief Justice Warren E. Burger: Under a state counterpart of the Criminal Justice Act?

Mr. Frank E. Spence: Pretty much case law Your Honor.

Pretty much case law in Indiana.

Chief Justice Warren E. Burger: But it's paid by the state.

Mr. Frank E. Spence: The county treasure yes sir, but it is not a statutory procedure setup.

Thank you sir.

Chief Justice Warren E. Burger: Very well.

Mr Breskow.

Argument of Sheldon A. Breskow

Mr. Sheldon A. Breskow: Mr. Chief Justice and may it please the court, may I present my associates at the counsel table with me Professor James Weavers of the Indiana University Law School and Assistant Attorney General Robert Colder(ph).

May it please the court, based with the dilemma concerning Jackson's condition as described by the petitioner in his argument, just what was Indiana to do.

Indiana had three alternatives, Indiana could try Jackson anyway.

Indiana could discharge him by dismissing the criminal charges against him or Indiana could do what it did and that is commitment to an appropriate psychiatric and rehabilitative institution, until Jackson gained the necessary comprehension to be tried.

In order to make its choice, Indiana looked at the decisions of this Court and found that in Pate versus Robinson, it would have been a Fourteenth Amendment violation to try Jackson.

It was conceded by the state in that court in that decision, that the defendant in that case -- it would have been a Fourteenth Amendment violation to try him, but the court went on to say in its opinion that it was error and an Fourteenth Amendment violation for the court not to give the defendant in that case a competency hearing on its own motion, even where it was not specifically requested by counsel in Pate versus Robinson.

So the Fourteenth Amendment precluded Indiana from trying Jackson.

The second alternative that Jackson be released on a dismissal of the criminal charges was not appealing or appropriate to Indiana.

It was not constitutionally required respondent submits, certainly not by the equal protection arguments and the cruel and unusual punishment arguments that petitioner makes to this Court by his brief.

And it would have been that the peace in dignity of Indiana was offended by the commission of the two robberies, which Jackson was charged.

To release him and discharge him would have further offended the state and would have offended Mrs. Farley and Mrs. Lions.

The alleged victims of those robberies.

Justice Thurgood Marshall: Is that civil commitment?

Mr. Sheldon A. Breskow: I beg your pardon Your Honor.

Justice Thurgood Marshall: Is that civil commitments?

Mr. Sheldon A. Breskow: Your Honor the state's position is essentially this and it was the position of Judge Arterburn in the Supreme Court of Indiana decision.

The commitments in Indiana are all the same.

There is no criminal commitment as such.

Jackson by his commitment --

Justice Thurgood Marshall: Do you call this a civil commitment?

Mr. Sheldon A. Breskow: I do Your Honor, I do.

Justice Thurgood Marshall: Well, civil commitment for life.

Mr. Sheldon A. Breskow: It is not, it would be for life, if he were committed under any statute Your Honor if he is not going to recover.

Justice Thurgood Marshall: Rent standards.

Mr. Sheldon A. Breskow: It's non-comprehension in the case of 1917 06A Your Honor, non-comprehension in the case of the commitments statute to which petitioner would have a commit.

The standard is --

Justice Thurgood Marshall: I am not interested in standard of commitment.

I am interested in standard of getting out.

Rebuttal of Frank E. Spence

Mr. Frank E. Spence: The discharge provisions are essentially the same Your Honor.

Jackson as a practical matter would be in as good, as position to be released under what has been described as the criminal commitment statute 9-1706 A when he gains comprehension --

Justice Thurgood Marshall: In each instance?

Mr. Frank E. Spence: The superintendent of the institution Your Honor.

Justice Thurgood Marshall: In each one.

Rebuttal of Sheldon A. Breskow

Mr. Sheldon A. Breskow: In each instance and the superintendent of the -- and the institution Your Honor is determined on the basis of where the mental health --

Justice Thurgood Marshall: That man, if he were picked up without these criminal charges and was civilly committed, right?

Mr. Sheldon A. Breskow: Yes sir.

Justice Thurgood Marshall: How long would he stay?

Mr. Sheldon A. Breskow: He would stay until he had sufficient --

Justice Thurgood Marshall: You said that he was no longer unnecessarily to be confined.

Mr. Sheldon A. Breskow: Until – if the test is Your Honor when he had sufficient mental and physical capacity to the satisfaction of superintendent that's a paraphrase, that he'll be released.

Justice Thurgood Marshall: Now what has to be determined that he is competent to stand for him, am I right or wrong?

Mr. Sheldon A. Breskow: No sir, that he have a sufficient comprehension to understand the nature of a criminal proceeding, to understand the charges and assistant --

Justice Thurgood Marshall: What did I just say?

I said comprehension to stay in trial.

Rebuttal of Frank E. Spence

Mr. Frank E. Spence: Your Honor let me submit to you that --

Unknown Speaker: You are not going to tangle me up with those words.

Rebuttal of Sheldon A. Breskow

Mr. Sheldon A. Breskow: Your Honor let me submit to you that Jackson --

Justice Thurgood Marshall: If Jackson was sane, how long would he possibly be put into penitentiary?

Mr. Sheldon A. Breskow: If Jackson was sane and tried for robbery, robbery carries 10 to 25 years sentence in Indiana.

And he is charged with two charges of robberies.

Under the New York test that he would be--

Justice Thurgood Marshall: Well under any statute do you mean tell me in America they put jail for 25 years for stealing four bucks?

Mr. Sheldon A. Breskow: By force and violence or by fear Your Honor which makes it robbery.

The stealing of the $4 is not --

Justice Thurgood Marshall: I can understand why instead of putting him in for 50 years, you put him in in for life.

Mr. Sheldon A. Breskow: Your Honor in Indiana, if a man by force and violence takes $0.25 by force and violence, robbery being with crime against the person, not against the property.

He is subject to the robbery penalty of 10 to 25 years.

No matter the amount of money or the value of the property involved.

Not so for largely Indiana.

Indiana has the $100 limit on felony larceny anything under $100 is credit larceny, but not so with robbery.

Robbery doesn't relate to the value of taking.

So that we see that Pate versus Robinson would not let Indiana try, it would not be constitutionally required that Indiana release Jackson, and the third proposition that he be committed is completely within the decisions of this Court so far.

Baxstrom versus Herold has said to New York with respect to the commitment of the Baxstrom that you cannot procedurally handle Baxstrom any different from any other potential civil committee in New York.

Baxstrom nearing the end of a criminal penal sentence had to be afforded the same jury trial that other potential civil committees were afforded in New York.

In Indiana, Jackson is given the same Due Process hearing with respect to his failure to have comprehension that he would have gotten with respect to a 22-1907 feeble-mindedness.

Justice Potter Stewart: I take it one of your – as I read your brief, you suggest that under Indiana law he cannot then be committed under 1907?

Mr. Sheldon A. Breskow: No, Your Honor, it's an alternative argument.

We are saying, if insane means something, the same as 9-1706 A, non-comprehension that he couldn't have been committed as feeble-minded but it is equally arguable that insane does not mean that, that insane in a non-comprehension statute merely means that you don't know anything about a criminal case.

You don't understand as Mr. Justice Marshall pointed out, the nature of a criminal case.

Justice Byron R. White: Do you argue that's what your Supreme Court decided in this case?

Mr. Sheldon A. Breskow: No Sir, no sir our Supreme Court said, quite the opposite.

Our Supreme Court said that Jackson could go to Muscatatuck school for feeble mind.

Justice Byron R. White: Well, he could be placed there by the department?

Mr. Sheldon A. Breskow: By the department and the vehicle by which he gets there is precisely what Mr. Justice Blackmun was pointing out to the counsel for the petitioner, that some responsible citizen in the county in which Jackson resides files a petition for civil commitment.

Justice Byron R. White: Could that be done now?

Mr. Sheldon A. Breskow: Yes Your Honor.

But I submit you have this very same result by taking that fact as you do in the instant case because he is committed under either statute to the Department of Mental Health, at the discretion of the commissioner's placement.

He isn't precisely --.

Justice Potter Stewart: That is to say if we have a civil, and where what do you called this place?

I can't quite --

Mr. Sheldon A. Breskow: Muscatatuck.

Justice Potter Stewart: Muscatatuck, and he was committed there, that the authority of the commission of the transfer, would have committed the commission of transfer right where he is now?

Mr. Sheldon A. Breskow: Yes Sir, absolutely.

Absolutely, the Indiana Supreme Court decision which this court certainly wants to pay attention to says in interpreting the Indiana state law, that Jackson can go anywhere, any mental institution is the language at the discretion of the commission for action and he says to Jackson it's not for you to say Mr. Jackson.

Justice Potter Stewart: How can there be a proceeding initiated, whether it's under this commitment or under the civil commitment to get the Due Process hearing that he now can comprehend the thing?

How does that come to that?

Mr. Sheldon A. Breskow: It comes, if I understand your question Mr. Justice.

Justice Potter Stewart: No, I thought you said earlier that under either this commitment or a civil commitment, it's possible to have a Due Process hearing and which it shall be determined whether he is to remain committed or to be released or ?

Mr. Sheldon A. Breskow: Yes, that's true.

Justice Potter Stewart: How is that initiated?

Mr. Sheldon A. Breskow: Let me give you -- there are two separate proceedings and the case of a non-comprehension commitment as we have in the instant case.

The court on the suggestion, that he may not have sufficient comprehension appoints two physicians to examine the petitioner and report to the court there is a full-blown hearing with rights of petitioner to be present, cross examine, call his own witnesses which he did in this case, by his counsel and at the conclusion, the commitment order is reviewable by the appellate court of Indiana.

Now compare it, if you will Your Honor.

Justice Potter Stewart: My question goes to, how now can there be a hearing to determine whether he ought to be released to understand trial, that's what I meant?

Mr. Sheldon A. Breskow: Well, first of all, how can there be a hearing?

He has habeas corpus available to him.

Presumably if his treatment is not right, and we have a Nason type situation, he can file a habeas corpus.

Justice Potter Stewart: Suppose there have never been any criminal charges here, but someone had initiated a civil judgment and he were now at either place under civil commitment and he want it out.

How could he initiate a proceeding to get out?

Mr. Sheldon A. Breskow: He could file a habeas corpus.

Justice Potter Stewart: Only by habeas?

Mr. Sheldon A. Breskow: He could file a habeas corpus.

I presume that he would also have the opportunity to petition the court, to claim that he is now sane.

He could do it better.

Justice Potter Stewart: But right now, you just say you assume that.

Mr. Sheldon A. Breskow: Yes, but he could do it better because he attacks the discretion of the superintendent in saying that he is not and therefore he is being illegally detained by habeas corpus, Your Honor.

That's the appropriate remedy.

Justice Potter Stewart: Jackson's remedy is only habeas corpus.

Mr. Sheldon A. Breskow: Jackson's remedy is habeas corpus.

If Jackson is saying.

Justice Potter Stewart: That is, he can comprehend.

Mr. Sheldon A. Breskow: Yes.

Justice Potter Stewart: Yeah.

And if he filed habeas corpus will he get a full scale reprocess hearing on the question whether he is now saying --

Mr. Sheldon A. Breskow: Yes, he would Your Honor, both in state court and in federal.

Justice Potter Stewart: Well, Jackson is not eligible now for any follow ups.

Mr. Sheldon A. Breskow: Let me say this, Your Honor.

Justice Potter Stewart: Well, his theory is this --

Mr. Sheldon A. Breskow: Yes.

Justice Potter Stewart: At this place?

Mr. Sheldon A. Breskow: No.

Not where he is now.

Justice Potter Stewart: Alright, that's what I want to know.

At this place he is not eligible for anything.

Mr. Sheldon A. Breskow: That is right Your Honor.

Justice Potter Stewart: If he had been committed civilly as a feeble-minded person and had been placed in this particular prison --

Mr. Sheldon A. Breskow: Not where he is now.

Justice Byron R. White: Let’s assume he had been placed, you say that he could have have.

Mr. Sheldon A. Breskow: He could not have been placed in Central State Hospital, Your Honor.

That is not for feeble-minded.

Chief Justice Warren E. Burger: When you told me just a while ago, I know I told Justice Brennan that if this man, if Jackson had been committed as the feeble-minded person, the Department of Mental Health, could still have placed him in the very institution where he is now.

Mr. Sheldon A. Breskow: Yes.

Justice Byron R. White: So he had that placement then.

Justice Potter Stewart: After the commitment of feeble-minded, would he be then be eligible for furlough?

Mr. Sheldon A. Breskow: No probably not because it isn’t the institution that carries a furlough proposition.

Justice Byron R. White: Alright.

Now he would have to be in Muscatatuck in order to be eligible for furlough and he could be placed there inherently.

Mr. Sheldon A. Breskow: Yes.

Justice Byron R. White: Until he is placed there and (Inaudible)

Mr. Sheldon A. Breskow: Yes, that's precisely right.

But it’s because of the nature of the institution not the nature of the commitment.

Justice Byron R. White: But why no furlough at the Central State Hospital?

Mr. Sheldon A. Breskow: I don't know.

Classically, historically Central State Hospital was for more serious cases.

Justice Byron R. White: Well, have you ever known a feeble person admitted under the re is feeble-minded Section 1907 where two have been placed in the facilities of Jackson.

Mr. Sheldon A. Breskow: No.

This is it.

This is a case of personal prejudice, petitioner would have say it.

Had you understand?

There has never been a decision in Indiana that someone committed for non-comprehension is able to be sent to Muscatatuck, but it’s reasonable to say that with the 67 Amendment of the Indiana statute that equates mental institution with psychiatric institution and makes no distinction and allows the commissioner to have discretion in the manner.

Justice Byron R. White: But even so as I understand it other than the differences to furlough, no matter where Jackson is confined, if he has to have any release, he has to initiate a habeas proceeding under your practice to get it.

Mr. Sheldon A. Breskow: That would be my understanding, together with I have to equivocate Your Honor.

I would think he would be in a position to petition the court, the committing court and claim his sanity whereas there are nine ways to get into mental institutions, nine vehicles by this Indiana statutory scheme.

They overlap, they repeal that my implication, they supersede in part but in spite of all that our position is that all the statutes procedurally treat the committee alike procedurally, certainly the criteria might be different as Mr. Justice Marshall pointed out to me.

Non comprehension in the one instance against mentally feeble-minded and needing care because you can’t take care of yourself.

Justice Hugo L. Black: Well, now in this instance, I guess it is a practical platform, this being a non-comprehension commitment.

Jackson is now 27.

Mr. Sheldon A. Breskow: He must be about 39 Your Honor, he was 27 at the time of -- .

Justice Hugo L. Black: He is there for the rest of his life unless he can establish the comprehension.

Mr. Sheldon A. Breskow: Yes.

Now let me take the edge off that a little bit Mr. Justice.

He has two pending criminal cases.

They are presently pending in the Marion Criminal Court in Indiana.

Presumably the Marion Criminal Court judge would inquire periodically as to the welfare of Jackson particularly in light of recent history and the need to suppose of cases, group cases.

Justice Potter Stewart: I gather are those offenses (Inaudible) So that means if he will be there at least 50 years before he would serve -- the possible term he could serve.

Mr. Sheldon A. Breskow: Yes sir.

And it’s interesting to note that the New York statute that attempts to handle the problem of this guy say that the criminal charges must be dismissed if length of time to be in a commitment is more than two-thirds of the sentence.

In this case it would be something like 32-37 years.

Justice Potter Stewart: Well, we don't even have that much of the statute?

Mr. Sheldon A. Breskow: We have more, Your Honor.

We have more, we have the opportunity for Jackson to periodically petition and file habeas corpus.

Justice Potter Stewart: But my point would be -- comprehension, you lose all those application.

Mr. Sheldon A. Breskow: Yeah.

Justice Potter Stewart: But so he stays there for the rest of his life.

Mr. Sheldon A. Breskow: But he would anyway.

That's our point.

He would anyway under the civil commitments statute.

And he would go to the Mental Health Department under those statutes.

Justice William J. Brennan: Okay, he spent first 27 years this way apparently with his mother.

He had two jobs.

One in Mississippi and one in Indiana, he wouldn't be under your statute, had he been he civilly committed to this unpronounceable place, had perhaps been dis-chargeable under your Indiana Code 1971, 1615-412, that says, he can be discharged from the said colony, when in the judgment of the superintendent, no matter what physical condition of the patient, justifies it, I say not in custody for 27 years and he apparently until this case rose, and had never been the subject to difficulty.

Mr. Sheldon A. Breskow: Yes, Your Honor, but I might point out that it only became -- it came to the attention of the government, of the state government by these criminal charges.

I would submit to Your Honor that--

Justice Potter Stewart: I was addressing my question only to your statement that he very clearly could never be released, if he were civilly committed.

Mr. Sheldon A. Breskow: Very possible, very possible.

Justice Potter Stewart: I just wondered how inevitable that was --

Mr. Sheldon A. Breskow: He says that in his own case that his condition is such that he will never recover.

Justice Potter Stewart: It doesn't require that a person recovers.

This language I just read to you, not at all.

Mr. Sheldon A. Breskow: Your Honor, it requires that he at least be able to communicate with the superintendent or someway give the superintendent reason to know that he has this sufficient mental and physical ability that he can be released.

Justice Potter Stewart: Let me point out to you that for 27 years he was not in an institution.

Mr. Sheldon A. Breskow: But that is to say --

Justice Potter Stewart: And he had two jobs.

Mr. Sheldon A. Breskow: But that is to say that he should not have been Your Honor.

That is to say that he should not have been.

He has the intellect of a three or four-year-old child.

Justice Potter Stewart: Well not most three and four year children are not in institutions.

Are they?

Mr. Sheldon A. Breskow: He has the intellect of --

I would be derelict in my responsibility to my young daughter, if I placed her on the streets of Indianapolis Your Honor.

The same way as the state would be derelict to this person who has the intellect of three or four-year-old child.

Justice Potter Stewart: His mother is still living?

Mr. Sheldon A. Breskow: Yes I assume so.

She testified the case.

Justice Byron R. White: But the Indiana, I don't think, there have never been any criminal charges here it means to me that (Inaudible)

Mr. Sheldon A. Breskow: No sir Your Honor.

Unknown Speaker: That's all Indiana now has against him, you have to in terms of --

Mr. Sheldon A. Breskow: That might be an act, a very significant argument.

I think probably that's what this case is all about Your Honor.

In some other case other than Jackson's where someone just didn't know about the criminal case.

It was alright in every other respect but in Jackson's case, Jackson would have been committed any way.

Justice Byron R. White: (Inaudible) Why doesn't state commit him civilly and then let the civil statutes operate therefore?

Mr. Sheldon A. Breskow: Because it would be redundant Your Honor.

He is -- under the same sort of procedure that he would be in a civil commitment.

Justice Byron R. White: Well, there has never been established in Indiana, yet that he is a feeble minded person -- .

Mr. Sheldon A. Breskow: That's true.

That's true.

But if --

Justice Byron R. White: Well, why you take this redundant?

Mr. Sheldon A. Breskow: The commissioner of mental health I submit to you Your Honor could make that determination unilaterally without a court, it could transfer Jackson to his Muscatatuck.

Justice Byron R. White: I thought maybe because (Inaudible)

Mr. Sheldon A. Breskow: The criteria Your Honor -- the criteria in order to meet one institution or another is determined by the Mental Health Commission.

Justice Byron R. White: I know, I know, but that's all of the assumption that the state has come over just because it can't understand the criminal charges.

Mr. Sheldon A. Breskow: That as I say to you Your Honor that would be significant but in Jackson's case with the condition of Jackson as it's been described here.

Chief Justice Warren E. Burger: Mr. Breskow, I want you to address yourself to the hypothetical questions I put to your friend.

Namely, what would the State of the Indiana do now if hypothetically this Court says Due Process requires that he can be held as he is now being held only for a period reasonably long enough to determine whether he is competent to stand trial, or whether forcibly will be competent to stand trial.

Then after that, he must be released unless the civil commitment is started within 90 days.

What would you do in fact?

What would you recommend?

Mr. Sheldon A. Breskow: I would have to recommend the civil commitment proceedings be started.

Chief Justice Warren E. Burger: Well, if the civil commitment proceeding had been started, let's say six months ago or a year ago you wouldn't be here.

Mr. Sheldon A. Breskow: If he were transferred to Muscatatuck, we probably wouldn't be here either Your Honor.

Chief Justice Warren E. Burger: Well --

Mr. Sheldon A. Breskow: But that is probably true, that is probably true Your Honor.

But I want to reemphasize Your Honor, that it would be redundant because it doesn't matter, under which statute, he goes ultimately to the Commissioner of Mental Health of Indiana.

Chief Justice Warren E. Burger: Well it may be redundant as an administrative matter but perhaps not as the constitutional problem.

And that's when I was addressing myself to and you had answered the question.

Mr. Sheldon A. Breskow: Thank you Your Honor.

Justice Byron R. White: But didn't you say that, you know of no other case where the feeble minded ended up from Central State Hospital.

Mr. Sheldon A. Breskow: I know of no other case personally Your Honor.

And as I say, the Jackson case decided in '71, was the case of first impression with respect to sending people to Muscatatuck, under the non-comprehension commitment.

Justice Byron R. White: Certainly, where he is now, he has no furlough possibility, he would have at Muscatatuck.

Mr. Sheldon A. Breskow: Yes sir, because of the nature of the institution, not the nature of the commitment.

Justice Byron R. White: Yes, but there isn't any practical possibility for a person (Inaudible) have you ever heard that for instance has been committed for his inability to understand the criminal charge(Inaudible) being transferred to Muscatatuck?

Mr. Sheldon A. Breskow: No I don't, no I haven't Your Honor.

The decision referring you to the Appendix of page 26 of Judge Arterburn, says that he can't be though Your Honor, he can be so transferred to Muscatatuck.

This 9-1706 A, non-comprehension committee.

Now, we've already discussed that, Greenwood Baxstrom, Williams if you will and Robinson versus California, the classic cruel and unusual punishment cases, would not preclude Indiana from taking alternative 3, the commitment alternative that it does now because that as was pointed out by Mr. Justice Douglas in the Robinson versus California, in his concurring opinion.

It is not the confinement which amounts to cruel and unusual punishment.

It's the confinement together with the conviction of a crime.

We don't have that in this situation.

In closing, let me submit to the Court, that the Indiana treats procedurally all potential committees alike, whether they would be civil committees or criminal committees as designated by the petitioner.

Procedurally alike, admittedly the criteria is different.

Baxstrom does not require that the criteria be the same.

For this Court to say so would be for this Court to establish a test for insanity, to all be it non-comprehension in Indiana.

Different from the Indiana legislature's definition of insanity, for purposes of non-comprehension, and classically, the sovereignty of Indiana.

The states necessarily treat and handle they are insane.

The same as they do with respect to other cases that are strictly the states, divorce, marriage, title to real estate and insane.

And the Indiana legislature has adopted the non-comprehension test.

For this Court to say, that there has to be the non-comprehension test plus something more would be to establish a different test.

Justice Potter Stewart: Well, then the non-comprehension test for not trying (Inaudible)

Mr. Sheldon A. Breskow: Only if the charge pending against him.

Justice Byron R. White: That could be help for him?

Mr. Sheldon A. Breskow: Pardon me.

Justice Byron R. White: The court has ever decided that.

Mr. Sheldon A. Breskow: No, no court has ever decided that.

Justice Thurgood Marshall: Well, if not these two charges, he would be in Muscatatuck or wherever it is.

Mr. Sheldon A. Breskow: Your Honor, either way, it that doesn't bear on his being able to go in Muscatatuck, the charges, that's Arterburn's point.

Justice Thurgood Marshall: My question was, what for the two charges, where would he be between Central Hospital and Muscatatuck?

Mr. Sheldon A. Breskow: I have to assume Your Honor that if the commissioner acted regularly and he'd still be at Central State, no matter --

Justice Thurgood Marshall: Feeble-mind –-

Rebuttal of Frank E. Spencer

Mr. Frank E. Spencer: No matter what --

Justice Thurgood Marshall: Feeble-minded person, I thought you said feeble-minded didn’t go there.

Mr. Frank E. Spencer: Yes sir, and after the --

Justice Thurgood Marshall: What for the two charges he would have been found to be feeble-minded and would be in the civil place?

Mr. Frank E. Spencer: After the Jackson decision in this case, by the Indiana Court, he could have very well gone to Central State.

Justice Thurgood Marshall: Well, he wouldn't have had the Jackson decision in this case if they weren’t for the charges solely because of the charges he ends up in the hospital, suddenly insane, solely because of the charges.

Mr. Frank E. Spencer: I submit to you Mr. Justice Marshall that we are not saying here that Jackson had to go Central State because he was insane under 9-1706 A and then therefore not feeble-minded under the other statute.

Justice Thurgood Marshall: In contrary (Inaudible) criminal charges were pending against him.

Mr. Frank E. Spencer: I don’t take that position; I say he was sent there because the mental heath commissioner decided that was the best place for him, who had the alternative to send him to Muscatatuck.

Justice Thurgood Marshall: That’s not what you have just said, you have told me that feeble-minded people didn’t go to Central, you said that.

Mr. Frank E. Spencer: I said, I didn’t know of any case where feeble-minded were sent to Muscatatuck when I asked why, I said because that’s to Central State because historically Central State that has been for more serious.

Justice Thurgood Marshall: Criminally --

Mr. Frank E. Spencer: Serious.

Justice Thurgood Marshall: Wouldn't it be criminally insane?

Mr. Frank E. Spencer: That isn’t necessary for the Central State.

Justice Thurgood Marshall: For the act.

Mr. Frank E. Spencer: We don’t make the distinction in Indiana Your Honor between criminally insane and civilly insane.

Justice Thurgood Marshall: But all my -- my one question I guess facts will bear it out, that if he didn’t have these two charges anything else had been filed against it, he would have ended up with civil?

Mr. Frank E. Spencer: That is not the case.

He would not have ended up in Muscatatuck absent the charges.

He would have ended up where the mental health commissioner sent him which may have well been Central State.

That discretion is within the mental health commissioner and as Justice Arterburn said in his opinion that’s his expertise, not Jackson’s.

Chief Justice Warren E. Burger: Very well.

Thank you, Mr. Spencer.

Thank you gentlemen.

The case is submitted.