MUREL v. BALTIMORE CITY CRIMINAL COURT

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Argument of Henry R. Lord

Chief Justice Warren E. Burger: -- in Murel against the Baltimore City Court.

Mr. Lord you have eight minutes remaining.

I presume you?re saving for a rebuttal and there is eight minutes remaining for Mr. Greenwald for rebuttal.

You have eight minutes of your argument in chief left, Mr. Lord, excuse me.

You may proceed.

Justice William H. Rehnquist: Mr. Lord, I am still a little bit confused about the status of the particular petitioners before this Court.

As I understand it, at least from your brief, Murel has been released, has he not?

Mr. Henry R. Lord: That?s correct.

Justice William H. Rehnquist: And --

Mr. Henry R. Lord: That?s been -- that?s an outright release incidentally on a re-determination hearing.

Justice William H. Rehnquist: And Hayes was sentenced to eight years imprisonment in 1965.

He has been referred to Patuxent, but there has been no adjudication in his case.

Mr. Henry R. Lord: That?s correct.

Justice William H. Rehnquist: In Creswell, there has been an order committing him to Patuxent?

Mr. Henry R. Lord: Correct.

Justice William H. Rehnquist: And Avey, there was an order of committing him to Patuxent?

Mr. Henry R. Lord: Yes.

As I recall it in Avey and Creswell?s case, there has been a judicial determination of defective delinquency.

In the case of Hayes, I don?t believe there has.

Justice William H. Rehnquist: But his prison term would not have expired?

Mr. Henry R. Lord: Has not -- not expired as of yet.

Does that answer your question?

Justice Byron R. White: Can I ask you, is it only people who?ve been convicted of a crime of the specified nature that maybe committed as defective delinquency?

Mr. Henry R. Lord: That?s correct.

That?s spelled out in the statute sir.

Justice Byron R. White: Well, on what grounds may people normally be civilly committed?

Mr. Henry R. Lord: There?s a civil commitment procedure in Article 59 of the Maryland code which is on the certificate of two doctors that --

Justice Byron R. White: But the procedures there are -- the procedures available give no more protections than the procedure here, I take it.

Mr. Henry R. Lord: Considerably less.

Justice Byron R. White: Considerably -- but now, how about the -- how about the grounds towards commitment?

Mr. Henry R. Lord: In civil commitment, the provision is only that two doctors are satisfied that the person in question has a mental disorder and that treatment is necessary to cure this disorder.

Justice Byron R. White: Mental disorder and treatment is necessary and is an indeterminate commitment?

Mr. Henry R. Lord: That?s correct.

There is no hearing at the time of commitment.

Justice Byron R. White: No necessity to find dangerousness?

Mr. Henry R. Lord: No.

Justice Byron R. White: And how often do they get review?

Mr. Henry R. Lord: Well --

Justice Byron R. White: Just a habeas corpus or what?

Mr. Henry R. Lord: I would doubt that he -- that they have a right to habeas corpus in the view of the fact that it?s purely civil in nature, but he can of course --

Justice Byron R. White: Apply?

Mr. Henry R. Lord: Apply for --

Justice Byron R. White: He can get into Court anyway.

Mr. Henry R. Lord: Yes.

Justice Thurgood Marshall: Mr. Lord, is it still true that they need one of the two doctors has to be a psychiatrist?

Mr. Henry R. Lord: That?s true.

I might say that --

Justice Thurgood Marshall: Now that?s a different.

Oh!

Go ahead, I?m sorry.

Mr. Henry R. Lord: Well, that?s statute is being reconsidered and worked on by a commission now and I would hope that perhaps even at this session in the general assembly that considerable number of Due Process protections will be added to that civil commitment statute.

Justice Thurgood Marshall: But as I understand the old Maryland law, two obstetricians could put you in the institute --

Mr. Henry R. Lord: Almost two veterinarians unfortunately.

Justice Thurgood Marshall: Yes, [Laughter] while the other thing, Patuxent is limited, doesn?t -- Patuxent takes several commitments at a time?

Mr. Henry R. Lord: No, absolutely not.

Justice Thurgood Marshall: Civil commitments would be the one at the civil institutions?

Mr. Henry R. Lord: When you say civil, you mean purely civil?

Justice Thurgood Marshall: Yes.

Mr. Henry R. Lord: No, it only takes commitments arising after a criminal conviction.

At the adjournment yesterday --

Justice Byron R. White: Well, what about a prisoner who?s already in jail, and he developed some mental disorders and he needs treatment, does he go to Patuxent?

Mr. Henry R. Lord: He may be referred to Patuxent on a judge?s order.

Justice Potter Stewart: But that?s only, I gather, if he?s been convicted of one of these --

Mr. Henry R. Lord: Absolutely.

Justice Potter Stewart: -- categories of crime?

Mr. Henry R. Lord: Correct, and then he may -- there may be a recommendation from the correction department to the Court that he be transfered.

The Court will then decide whether he should be transferred.

Chief Justice Warren E. Burger: But he -- would you say that?s more protection or less protection than the federal statute gives in transfers from ordinary penal institution to Springfield or Saint Elizabeth?s?

Mr. Henry R. Lord: It?s more of a protection.

The hearing under the federal statute and incidentally two questions were raised by Mr. Justice Blackmun and by yourself on this point.

The statute is 18 U.S.C. Section 4241 and that provides for no hearing at the time of transfer.

The only time the hearing arises is at the time of the expiration of the sentence, to determine whether he can be held past his sentence.

There is then a provision in the federal statute for a court trial.

Now, at the adjournment yesterday, I?ve made the point that the statistics analyzed down straight, the system at Patuxent works, that there is an identifiable group that can be recognized by medical examination.

One of the reasons for this is the size of the staff at Patuxent.

They?re budgeted for 10 psychiatrists, and 11 psychologists, and a total professional staff of nearly 75 people, including social workers, medical doctors, vocational-educational instructors, and this is bear in mind for a population of patients there, of only 492.

So the ratio is very high.

At Patuxent, annually the State of Maryland spends almost exactly twice as much per patient at Patuxent that it spends per inmate at the rest of the penitentiary system or prison system, the figures being $7,994.00 per patient at Patuxent, and $4043.00 for the general inmate population of the prisons.

Now, a question I think in the back of the minds of some of the members of the Court was that this is maybe an almost automatic process for the determination.

It?s absolutely not the case.

The figures in the record will indicate that only 66% of those people sent to Patuxent for evaluation are determined by the staff at Patuxent to be defective delinquents.

And then when that 66% returns to Court, in a Court trial, those statistics indicate that 87% are found to be defective delinquents, and in the jury trial 80%.

So, you have an effective rate of about 50% of the people who are actually referred for determination actually being committed to Patuxent.

So, the other 50% would be returned to the normal prison population, and would be found not to be qualified.

Justice William J. Brennan: Are there any statistics as to the number who remained at Patuxent after the completion of these procedures beyond the expiration of their prison terms?

Mr. Henry R. Lord: No, I don?t have any.

There isn?t a case as I?m sure you know that set down for argument in about a month that will --

Justice William J. Brennan: Is that that two judge?

Mr. Henry R. Lord: -- deal with that question.

No, it?s not.

That case is still at the trial level.

It?s going up through the state appeal process.

This is the case called McNeil --

Justice William J. Brennan: Oh!

That?s here.

Oh!

Yes.

Mr. Henry R. Lord: -- which is coming here.

I don?t -- all I can say is that I agree with Mr. Feissner that there are such people, but then again under the federal statute, there certainly are such people also.

Justice William J. Brennan: Do you suppose that if, even though it?s not perhaps here, the burden of proof, the standard of preponderance as opposed to beyond a reasonable doubt, becomes relevant in those cases though?

Mr. Henry R. Lord: Well, I suppose it?s relevant in this case.

It's certainly an issue in this case.

The State takes a position that your opinion in the Winship case does not necessarily follow that it should be extended to a proceeding of this type.

Justice William J. Brennan: Instantly, is this the point on which Judge Sobeloff dissented?

Mr. Henry R. Lord: Judge Sobeloff concurred in part and dissented in part, and I think he -- no, he did not on this point.

He agreed that the preponderance test was correct, because it was basically a fact finding process, the state of a man?s mind that?s almost impossible to prove beyond a reasonable doubt.

If I could just finish with one quote, the Hodge's report ends with this statement.

?If the statute is again upheld, and since the effectiveness of the law is now been demonstrated, I predict that most States will enact the similar statute within the next 5 to 8 years.

I further predict that 20 years hence, psychiatric historians will regard this statute as one of the major accomplishments in the middle third of the 20th century.?

Justice Byron R. White: Mr. Lord, could I just -- do you think that any of these or major part of these so called defective delinquents could be committed civilly as having a mental defect?

Mr. Henry R. Lord: I would say that virtually all of them could because the test is much more flexible for civil commitment.

Justice Byron R. White: Thank you.

Justice Potter Stewart: Mental disorder, I thought civilly --

Mr. Henry R. Lord: That?s right, and --

Justice Potter Stewart: And to be a mental defective under this statute, one need only be -- have a limited intellectual capacity, and not having a mental disorder at all?

Mr. Henry R. Lord: Well, he has to demonstrate a persistent and aggravated, and social or criminal behavior.

Justice Potter Stewart: Yes, yes, but he need not be disturbed.

He can be only of limited intelligence?

Mr. Henry R. Lord: Yes.

Justice Byron R. White: He has to have to be a danger though, doesn't he?

Mr. Henry R. Lord: Yes, he does.

Justice Byron R. White: There has to be a finding that he?s dangerous?

Mr. Henry R. Lord: Yes, and of course the criminal conviction is a prerequisite threshold point.

Chief Justice Warren E. Burger: That?s not true in the civil commitment, is it?

There?s no finding of dangerousness?

Mr. Henry R. Lord: I?m not absolutely positive, but as I recall it, it?s only a requirement that to be found a mental disorder and that treatment is necessary for that disorder.

My recollection is, in Article 59, there?s no requirement of dangerousness.

Justice Byron R. White: Do you know that -- do you know -- are there any Maryland cases which indicate that in civil commitment proceedings, proof of -- proof like as used against the so called mental defective delinquency would be adequate to prove a mental disorder?

Mr. Henry R. Lord: No, I do not, but there is not a hearing procedure under the civil commitment, so that?s unlikely there would be such a case.

Justice Potter Stewart: Thank you.

Chief Justice Warren E. Burger: As I recall Judge Sobeloff?s very narrow dissent, he took the position that an adversary proceeding was not what he was advocating?

Mr. Henry R. Lord: Absolutely not.

Chief Justice Warren E. Burger: Thank you.

Mr. Henry R. Lord: The point he went off on was part of the self-incrimination point.

He felt that possibly under some circumstances there could be a self-incrimination as I recall.

Chief Justice Warren E. Burger: Well, he was somewhat concerned about the hearsay aspects of reliance by the psychiatrists and other experts on what was told then by the patient, and by staff reports?

Mr. Henry R. Lord: Of course the State?s answer to that, is that that record is fully available to the petitioner and his counsel way in advance of hearing, and if he sees things in there that he would like to rebut, he can -- he has a full right to subpoena any witness into Court.

So, there need not be hearsay if the petitioner would like to bring that person into Court.

Chief Justice Warren E. Burger: In the trial of a criminal case, determining guilt or innocence when there is a claim of absence of criminal responsibility, hearsay of that kind is admissible as it comes through the psychiatrist, is it not?

Mr. Henry R. Lord: I believe so, yes sir it is.

Chief Justice Warren E. Burger: He is not admissible to prove the truth of the statement, but to prove that this is the information on which the psychiatrist relies.

Mr. Henry R. Lord: In order to determine the state of the mind of the defendant.

Chief Justice Warren E. Burger: Very well.

Mr. Henry R. Lord: Thank you.

Chief Justice Warren E. Burger: Mr. Greenwald?

Argument of Andrew E. Greenwald

Mr. Andrew E. Greenwald: Mr. Chief Justice --

Chief Justice Warren E. Burger: You have eight minutes Mr. Greenwald.

Mr. Andrew E. Greenwald: Thank you sir.

May it please the Court.

There are three factors that I would like to very briefly mention to the Court.

In a case called Anderson versus Solomon, which was reported at 315 Federal Supplement 1192, a three-judge panel of the District Court declared that as written, the Maryland Civil Commitment statute was unconstitutional, that is why it is being revised at the present time.

Point number two, Judge Sobeloff in the Fourth Circuit was very much bothered by the question of reasonable doubt in preponderance of the evidence.

And he stated in his concurring and dissenting opinion, ?I cannot agree that the constitution tolerates an indeterminate confinement at Patuxent on no higher level of proof that applied in a civil proceeding for money damages? and that?s critical and was critical to Judge Sobeloff in his dissenting and concurring opinion.

What we?re trying to say in this case, what we?re trying to say and bring to the attention of this Court is, not that the Patuxent Institution as formulated in the theory of penal reform is bad, because it?s not.

No one is arguing and disputing the question that we need to do something about our prisons, and we need to do something about rehabilitation.

We all agree with that.

What we are saying is, that in this statute as forward and as in the future as it may be, it has problems, and those problems can?t be ignored in a run to try to correct the system.

We must look at the flaws and we must say, ?These things can be corrected.?

We can't sacrifice a great experiment and sacrifice human lives as well.

That?s not the real question, and that?s why we have raised these points and we consider them to be critical, number one, the statute, is it civil or criminal?

A man maybe the subject of involuntary confinement indeterminately.

Does he have a right when he faces that prospect?

We believe, most definitely, he does.

A case that we have reviewed recently that is not in our belief, which we would like to call to the Court?s attention, is Heryford versus Parker, reported at 396 F 2d, at page 393.

The Court in that case said it much better than I?m able to say it, and I?m quoting ?It matters not whether the proceedings are labeled civil or criminal, or the subject matter be mental instability or juvenile delinquency, it is the likelihood of involuntary incarceration, whether for punishment, rehabilitation or for treatment,? that?s what?s important.

Chief Justice Warren E. Burger: What Circuit is that by the way?

Mr. Andrew E. Greenwald: I?m sorry, sir?

Chief Justice Warren E. Burger: What Circuit?

Mr. Andrew E. Greenwald: The Tenth Circuit, Your Honor.

What we?re saying is, we agree that there is a group of criminals or those who have engaged in criminal activity, who need certain forms of treatment and we?re saying that it is of good idea, and it is a forward idea to give treatment to these people, but we are saying that when you take a man out of group A from the criminal population, and you put him in group B, you?ve got to have a rational basis for doing it.

There?s got to be a reason for segregating him and treating him different, and that reason could be treatment and that is a good reason, if in fact, there was treatment.

The Attorney General tells you that practically speaking, --

Justice Thurgood Marshall: Is there anything in this record that shows that Patuxent is worse than state penitentiaries?

Mr. Andrew E. Greenwald: Yes sir, there is the testimony of Commissioner Peppersack which is found in the Maryland Court of Appeals, Volume 1 at page 520, where he states that only one out of every four come back to the penitentiary.

The records from the Hodge report which --

Justice Thurgood Marshall: That wasn?t my question.

Mr. Andrew E. Greenwald: I?m sorry.

Justice Thurgood Marshall: My question was, are the facilities at Patuxent worse than the facilities at the penitentiary?

Mr. Andrew E. Greenwald: No sir, the facilities themselves are not worse, and they are not the problem.

Justice Thurgood Marshall: And what?s your complaint?

Mr. Andrew E. Greenwald: The problem sir is --

Justice Thurgood Marshall: The case I?m talking about is where a man is in for 20 years.

Mr. Andrew E. Greenwald: Yes sir.

Justice Thurgood Marshall: And at the end of his second year, he goes to Patuxent, what?s your complaint?

Mr. Andrew E. Greenwald: The complaint is sir, that he would be eligible for parole in a certain period of time in the 20 year sentence.

If he goes to Patuxent because it has been determined that he has a particular mental problem which needs to be corrected, then the problem is that that problem should be seen to.

The record indicates for example, on page Volume 1 of the Maryland report at page 553 that inmate Elwood Towers was in Patuxent for nine years and received no treatment.

In the same volume at page 589 --

Justice Thurgood Marshall: But what treatment did he receive at the penitentiary?

Mr. Andrew E. Greenwald: He didn?t receive any at the penitentiary sir, but what we?re saying is that if you?re changing him from 20 years to indeterminate, there?s got to be a reason.

He?s got to have something different.

Justice Thurgood Marshall: If he?s got it -- well, if a man?s in for life, you make any complaint?

Mr. Andrew E. Greenwald: He?s still eligible for parole sir.

Justice Thurgood Marshall: At what stage?

Mr. Andrew E. Greenwald: I believe in Maryland, it?s after 12.5 years.

Justice Thurgood Marshall: Well, at ten years, does he have a complaint?

Mr. Andrew E. Greenwald: I think he has a complaint any time hope is gone, and he is cast aside into this type of a situation for an indeterminate period of time, I think he has a complaint.

Justice Thurgood Marshall: But it can be determined that he should be released?

Mr. Andrew E. Greenwald: But he has nothing sir, at this point.

He has nothing to strive for, in a sense.

Mr. -- The State has pointed out to the Hodge report, which on its face appears to be somewhat significant.

However, in answering this question Mr. Chief --Mr. Justice Marshall, I would like to call the Court?s attention to appendix 1A of the reply brief.

Justice Thurgood Marshall: I have relied on that report.

I?m just trying to get a simple answer to my question.

Mr. Andrew E. Greenwald: Yes sir.

Justice Thurgood Marshall: The man is in the penitentiary for 40 years.

At the end of two years, he?s transferred to Patuxent, at that stage, what is your complaint?

Mr. Andrew E. Greenwald: My complaint is that he now has a sentence which was fixed, he is now indeterminate, and he is getting nothing different from in the penit -- from when he was in the penitentiary now that?s he?s at Patuxent.

Justice Thurgood Marshall: Well, what?s his complaint?

Mr. Andrew E. Greenwald: His complaint is that in the penitentiary --

Justice Thurgood Marshall: His complaint is that he might be kept there more than 40 years.

Mr. Andrew E. Greenwald: Yes sir, that?s right.

Justice Thurgood Marshall: I?m asking, what is the complaint in the second year.

Mr. Andrew E. Greenwald: I?m sorry I didn?t hear --

Justice Thurgood Marshall: What is his complaint in the second year?

Mr. Andrew E. Greenwald: That he may be kept there for a longer period of time?

Justice Thurgood Marshall: Oh!

They may be kept there for a longer period, that?s your --

Mr. Andrew E. Greenwald: Yes sir.

Justice Lewis F. Powell: Mr. Greenwald, you said he had no hope or any other remedy, what about Section 10 which allows him to have a rehearing, a re-determination at the end of two years?

Mr. Andrew E. Greenwald: Sir, there have been cases and I don?t have them right at my command at this moment that are in our brief, where at the re-determination hearing the evidence that was necessary for the State to prevail is the same that was at his original hearing.

What we?re saying is that the man who doesn?t even examine this petitioner, or this suspected defective delinquent, reads to the Court the staff report.

The State rests in many cases, and the burden then shifts to the defendant to cross examine what?

To present what?

To question who?

Those are part of the problems that he --

Chief Justice Warren E. Burger: He?s can draw in everybody, can't he?

Mr. Andrew E. Greenwald: I?m sorry?

Chief Justice Warren E. Burger: He could call in all the records?

He could call in the psychiatrists, and cross-examine them?

Mr. Andrew E. Greenwald: As a technical matter, he possibly could subpoena everyone from the institution.

As a practical matter, it doesn?t usually work that way, sir.

Chief Justice Warren E. Burger: Well, the statute commits it, how do you suggest that it can?t be done?

Mr. Andrew E. Greenwald: The statute permits it sir, but in many cases it doesn?t work out that way due to the shortages of staffs at Patuxent, due to the administrative conflict.

May I in closing --

Justice Lewis F. Powell: (Voice Overlap) The statute provides that he has access to process to subpoena witnesses?

Mr. Andrew E. Greenwald: Yes sir, but he?d has no help, and no counsel, and no rights until the determination is made that he is a defective delinquent by the staff at Patuxent.

And at that point when the hearing is set, that all of his rights come into play that are -- were -- we?ve been discussing, and that is not we contend, the proper time for this man to be aware.

May I conclude --

Justice William H. Rehnquist: Mr. Greenwald, do you think it?s likely that if the facts exist that justify a commitment to Patuxent as provided in the statute that the parole board would parole the man?

Mr. Andrew E. Greenwald: No sir, I?m not contending that a dangerous man in any respect should be freed.

I?m only saying that this is a different situation.

May I close with one sentence from the reply brief, sir?

In the report that refutes the Hodge report that the State is mentioned, Dr. Stone of the American Psychiatric Association and Professor at Harvard University has this to say --

Justice Potter Stewart: At appendix A of the reply brief?

Mr. Andrew E. Greenwald: The appendix A sir, on page 3A.

Justice Potter Stewart: And I was going to ask you, is this a Dr. Stone?

Mr. Andrew E. Greenwald: Dr. Stone.

Justice Potter Stewart: This was published somewhere, it?s an excerpt from a publication?

Mr. Andrew E. Greenwald: Yes sir.

He said, ?Until we can demonstrate that treatment for defective delinquent in fact exists, and that the capacity to predict dangerousness exists as well, we cannot encourage government to create more Patuxents.?

Questions were --

Chief Justice Warren E. Burger: Now, from the doctor there, is expressing a belief on a broad social and legal issue, he?s not addressing the psychiatric opinion, is he?

Mr. Andrew E. Greenwald: It is sir, because he also went over the statistics or purported statistics used by Dr. Hodge.

Yesterday questions were asked regarding the federal statute if the Court desires Mr. Feissner has those answers, if the Court pleases, thank you.

Chief Justice Warren E. Burger: If you have any comment on those items, you may submit them in a memorandum, and of course send them to Mr. Lord.

Thank you, gentlemen.

The case is submitted.