# Williams & Fulwood v. Director, Patuxent Institution

> Court of Appeals of Maryland · November 7, 1975 · 276 Md. 272

URL: https://www.frixlaw.com/law-library/cases/9637976

## Case

- **Full name:** Williams and Fulwood v. Director, Patuxent Institution
- **Court:** Court of Appeals of Maryland
- **Decided:** November 7, 1975
- **Citations:** 276 Md. 272; 347 A.2d 179; 1975 Md. LEXIS 728
- **Precedential status:** Published
- **Opinion:** Dissent by Eldridge
- **Judges:** Smith, Eldridge
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Eldridge, J.,
dissenting:
The lengthy incarceration of petitioners in this case, now continued beyond their prison sentences and for the indefinite future because they decline to communicate with the psychiatrists and psychologists at the Patuxent Institution, cannot be squared with the Fifth and Fourteenth Amendments to the Constitution of the United States. Compelling petitioners to talk to and furnish test information to the State’s psychiatrists and psychologists, where petitioners’ responses are to be used in proceedings brought against them to determine whether they shall be deprived of their liberty for potentially life sentences, abridges the Fifth Amendment privilege against self-incrimination. Moreover, confining petitioners for almost four years under the orders referring them to the Patuxent Institution for examination, without any judicial hearings and adjudication that such confinement was justified either on the theory of defective delinquency or on the theory of contempt, violates due process.
(1)
The majority recognizes that forcing petitioners to communicate with the psychiatrists and psychologists may result in their divulging incriminating information that could be used against them, for the majority holds that if the trial court did not under Maryland law have the power to grant petitioners “ ‘use and derivative use immunity,’ ” the orders for examinations pursuant to the statute “would be uncon stitutional.”
Nevertheless, if a grant of immunity is to be a valid basis for an order compelling communications, and for a contempt judgment for refusing to obey the order, the grant must be as broad as the constitutional privilege against self-incrimination. The Supreme Court reiterated this *315 principle recently in Kastigar v. United States, 406 U. S. 441, 449 , 92 S. Ct. 1653, 1659 , 32 L.Ed.2d 212 (1972):
“The constitutional inquiry, rooted in logic and history, as well as in the decisions of this Court, is whether the immunity granted ... is coextensive with the scope of the privilege. If so, petitioners’ refusals to answer based on the privilege were unjustified, and the judgments of contempt were proper, for the grant of immunity has removed the dangers against which the privilege protects. ... If, on the other hand, the immunity granted is not as comprehensive as the protection afforded by the privilege, petitioners were justified in refusing to answer, and the judgments of contempt must be vacated.”
The grant of immunity by the trial judge in the instant cases was restricted to the use of the information as a basis for subsequent criminal prosecution. The orders obviously would not prevent the information from being used against petitioners in the present defective delinquency proceedings. In fact, the entire purpose of the orders here under review was to compel petitioners to divulge information about themselves, to be used in the defective delinquency proceedings, which could lead to indeterminate sentences. Thus, if the privilege against self-incrimination is applicable to the defective delinquency proceedings, the grant of immunity in these cases “is not coextensive with the scope of the Fifth Amendment privilege against compulsory self-incrimination, and therefore is not sufficient to supplant the privilege and compel testimony over a claim of privilege.” Kastigar v. United States, supra, 406 U. S. at 448 .
Today’s holding by this Court, that the Fifth Amendment privilege against self-incrimination is not applicable to defective delinquency proceedings, is based on the assertion that defective delinquency proceedings are “civil” and not “criminal.” Although relying on statements in earlier opinions of this Court categorizing defective delinquency proceedings as “civil,” the majority opinion does *316 acknowledge that at least since the Supreme Court’s decision in In re Gault, 387 U. S. 1 , 87 S. Ct. 1428 , 18 L.Ed.2d 527 (1967), merely labeling or categorizing a particular proceeding as “civil” does not govern the applicability of the privilege against self-incrimination. This Court recently stated in Matter of Spalding, 273 Md. 690, 703 , 332 A. 2d 246 (1975), “ [w]hatever else is established by Gault , it is clear that labels are not controlling.. ..” Consequently, the several cases in this Court relied on by the majority, all decided prior to Gault , stating that various guarantees of the Bill of Rights were not applicable to defective delinquency proceedings because such proceedings were labeled “civil,” have little precedential value.
In Gault , dealing with juvenile delinquency proceedings, the Supreme Court set forth certain broad principles governing the applicability of the privilege against self-incrimination ( 387 U. S. at 49 , emphasis supplied):
“It is true that the statement of the privilege in the Fifth Amendment, which is applicable to the States by reason of the Fourteenth Amendment, is that no person ‘shall be compelled in any criminal case to be a witness against himself.’ However, it is also clear that the availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites. The privilege may, for example, be claimed in á civil or administrative proceeding, if the statement is or may be inculpatory.”
The Court went on ( 387 U. S. at 49-50 , emphasis supplied):
“It would be entirely unrealistic to carve out of the Fifth Amendment all statements by juveniles on the ground that these cannot lead to ‘criminal’ involvement. In the first place, juvenile proceedings to determine ‘delinquency,’ which may lead to commitment to a state institution, must be regarded as ‘criminal’ for purposes of the privilege against self-incrimination. To hold otherwise would *317 be to disregard substance because of the feeble enticement of the ‘civil’ label-of-convenience which has been attached to juvenile proceedings. Indeed, in over half of the States, there is not even assurance that the juvenile will be kept in separate institutions, apart from adult ‘criminals.’ In those States juveniles may be placed in or transferred to adult penal institutions after having been found ‘delinquent’ by ¿ juvenile court. For this purpose, at least, commitment is a deprivation of liberty. It is incarceration against one’s will, whether it is called ‘criminal’ or ‘civil.’ And our Constitution guarantees that no person shall be ‘compelled’ to be a witness against himself when he is threatened with deprivation of his liberty — a command which this Court has broadly applied and generously implemented in accordance with the teaching of the history of the privilege and its great office in mankind’s battle for freedom.”
As Gault indicates, the central inquiry in determining whether the privilege is applicable is whether the nature of the statement or admission is such that it could lead to a deprivation of liberty. 1 Consequently, the privilege against self-incrimination should attach to any statements made to state psychiatrists and psychologists in connection with defective delinquency proceedings which could lead to an indeterminate deprivation of liberty in the Patuxent Institution. If the possibility of a child’s confinement in a *318 juvenile institution until he reaches the age of twenty-one, based upon his being adjudicated a “delinquent,” is sufficient for the availability of the privilege against self-incrimination, then the danger of petitioners’ confinement in a maximum security prison for possibly the rest of their lives, based upon their being criminally convicted and then being adjudicated “defective delinquents,” is certainly sufficient for the availability of the privilege.
The majority opinion correctly points out that this Court in Matter of Spalding, supra, 273 Md. at 703-705, 710 , viewed Gault, In re Winship, 397 U. S. 358, 359 , 90 S. Ct. 1068 , 25 L.Ed.2d 368 (1970), and Ivan V. v. City of New York, 407 U. S. 203 , 92 S. Ct. 1951 , 32 L.Ed.2d 659 (1972), as establishing a “two-pronged” standard for determining whether juvenile proceedings based on the juvenile’s alleged misconduct should be considered the same as adult criminal proceedings with respect to the applicability of certain constitutional safeguards, including the privilege against self-incrimination. The “two-pronged” test was summarized by the Court in Spalding as follows ( 273 Md. at 704-705 ):
“In sum, then, Due Process requires that various of the federal constitutional guarantees accompanying ordinary criminal proceedings, specifically including the privilege against self-incrimination, be made applicable at the adjudicatory stage of those juvenile proceedings in which the act charged would constitute a crime if committed by an adult and which may result in confinement of the child to a state institution.”
The majority in the present case seems to hold that this test is the formula for generally deciding what is a “ ‘criminal case’ within the ambit of the Fifth Amendment.” The majority goes on to conclude somehow that a defective delinquency proceeding is not a “criminal case” under this “two-pronged” test.
. It is doubtful if the Supreme Court or this Court in *319 Spalding intended that the “two-pronged” test there utilized for determining the availability of certain constitutional safeguards in juvenile proceedings, should constitute a rigid formula for generally deciding whether an individual is entitled to invoke the privilege against self-incrimination.
However, assuming arguendo that the test applied in Spalding governs the availability of the privilege against self-incrimination in proceedings under Maryland’s defective delinquency law, the result would be no different and the privilege would still be applicable. The “two-pronged” test, as set forth in Spalding, is that the privilege is applicable to proceedings “in which the act charged would constitute a crime . .. and which may result in confinement... to a state institution.” 273 Md. at 704-705 . The second “prong” of the test is clearly met here, as an adjudication of “defective delinquency” results in an indefinite sentence to the Patuxent Institution. With regard to the first “prong,” a defective delinquency proceeding stems from a person having been charged with a criminal act. If petitioners had not been convicted of criminal acts, there could be no defective delinquency proceedings under Maryland law, and one of the factors which must be established in the proceedings before an individual may be adjudged a “defective delinquent,” is that the individual “evidences a propensity toward criminal activity.” Maryland Code (1957, 1971 Repl. Yol.), Art. 31B, §§ 5, 8 (c). Thus, contrary to the assertion in the majority opinion, a defective delinquency proceeding does involve “an inquiry into a violation of . . . law.”
Whether the privilege against self-incrimination may give a person a right not to communicate with psychiatrists and psychologists in connection with a bona fide civil commitment to a mental hospital on the ground that he is dangerous to himself or others is not the question presented for decision in this case. 2 A proceeding leading to an *320 indeterminate sentence to Patuxent Institution is not a civil commitment proceeding in any realistic sense. 3 Moreover, Patuxent is no mental hospital. It is a maximum security prison under the jurisdiction of the Department of Public Safety and Correctional Services. 4
A judicial proceeding which could lead to life imprisonment, which is based upon the fact that the defendant has committed a criminal act, and which necessarily involves, inter alia, an inquiry into whether he “evidences a propensity toward criminal activity,” is in substance a “criminal case” for purposes of the Fifth Amendment privilege against self-incrimination. To hold *321 otherwise, in my judgment, makes the availability of the privilege merely depend upon the label attached.
(2)
Wholly apart from the violation of petitioners’ rights under the self-incrimination clause of the Fifth Amendment, petitioners’ confinement would appear to be inconsistent with the due process principles set forth by the Supreme Court in McNeil v. Director, Patuxent Institution, 407 U. S. 245 , 92 S. Ct. 2083 , 32 L.Ed.2d 719 (1972).
The petitioner in McNeil was convicted of two assaults in 1966, was sentenced to five years’ imprisonment, and was referred by the sentencing court to Patuxent Institution for examination to determine whether he was a defective delinquent. McNeil refused to communicate with the examiners at Patuxent, and the State, without seeking any further judicial hearing and determination, continued to hold McNeil under the order referring him for examination. The State had not sought any further adjudication concerning McNeil when the Supreme Court decided the case six years later in 1972, after McNeil’s original five year sentence had expired. Under these circumstances, the Supreme Court held that the continued confinement of McNeil, without any hearing and adjudication, deprived him of due process of law guaranteed by the Fourteenth Amendment.
With respect to the first four years after the referrals to Patuxent, the facts in the instant case are like those in McNeil . On January 15, 1970, and on February 5, 1970, petitioners Williams and Fulwood were ordered to Patuxent Institution for examination. They were received at the Institution on February 16, 1970, and March 6, 1970. It was not until January 21, 1974, that each of the petitioners was ordered to cooperate with the examiners, and it was not until February 14, 1974, and February 20, 1974, that hearings were held and adjudications made holding petitioners in civil contempt for their failure to cooperate.
Petitioners were thus confined for almost four years pursuant to the order directing them to be examined at *322 Patuxent without any hearing and adjudication that they were either defective delinquents or that they should be held in contempt for their failure to communicate with the psychiatrists and psychologists. During this period there might have been a defective delinquency hearing and adjudication based upon observation of petitioners or other data, a type of examination made at Patuxent which this Court recently sanctioned under appropriate circumstances in Weeder v. State, 274 Md. 626 , 337 A. 2d 67 (1975), 5 or if under the circumstances a diagnosis was impossible without the petitioners’ willingness to communicate with the doctors, the State could have, much sooner than it did, sought hearings and adjudications that petitioners were in contempt. However, the State did neither of these things until almost four years had elapsed.
The majority concludes that McNeil is not controlling, and that the lengthy confinement here comports with due process, because in McNeil the original criminal sentence had expired without the State taking any steps to seek an adversary hearing, whereas here the State did, although belatedly, take action prior to the expiration of the sentences. While this difference is certainly a major distinguishing factor, I read the McNeil opinion somewhat more broadly than does the majority.
The State’s initial argument in McNeil was that petitioner had been committed “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.” The Court’s response was: “Were the commitment for observation limited in duration for a brief *323 period, the argument might have some force.” McNeil, supra, 407 U. S. at 249, emphasis supplied. Mr. Justice Marshall, writing for the Court, later went on (id. at 249-250, emphasis supplied):
“If the commitment is properly regarded as a short-term confinement with a limited purpose, as the respondent suggests, then lesser safeguards 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.’ [Quoting from Jackson v. Indiana, 406 U.S. 715, 738 , 92 S.Ct. 1845, 1858 , 32 L.Ed.2d 435 (1972).] 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.’ ”
As to the permissible length of the confinement for “examination” at Patuxent before an adversary hearing must be provided, the Supreme Court continued (id. at 250):
“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, . . . nevertheless the initial legislative judgment provides a useful benchmark.”
Certainly the Court in McNeil seemed to be holding that the period of confinement prior to an adversary hearing, under an order referring one to Patuxent for examination, must be relatively short. Although the Court did not set a “precise time limit,” it referred to the statutory time limit of six months as “a useful benchmark.” It did not refer to the period of the original sentence as the “useful benchmark.”
At first glance, there might seem to be merit in the *324 argument that the State may hold one committed to Patuxent for examination until the expiration of his original criminal sentence without seeking a defective delinquency or contempt hearing and adjudication. Since the State is entitled to deprive the individual of his liberty for the period of his criminal sentence, the argument goes on, it should make no difference that the confinement takes place at the Patuxent Institution instead of at a prison under the jurisdiction of the Division of Correction. It could be contended that the original criminal trial and adjudication furnished the “due process” basis for holding one committed to Patuxent for the period equivalent to his original sentence.
However, the fact that the State may legitimately hold someone in a certain manner for one purpose, for a period of time, does not necessarily mean that the State can for the same period of time confine someone in a totally different manner for a different purpose without any hearing and adjudication related to the purpose for which he is actually being confined. Because of the long confinement at Patuxent without a hearing or adjudication until almost four years had elapsed, petitioners suffered disabilities beyond those associated with the confinement in a regular correctional institution based upon a criminal conviction. As noted by the Supreme Court regarding McNeil, petitioners Williams and Fulwood were for a long time denied an opportunity “to challenge the criteria and procedures that control a defective delinquency hearing,” 407 U. S. at 248. Because their confinement was pursuant to an order referring them to Patuxent for examination, petitioners were ineligible for parole consideration, Herrman v. Director, 229 Md. 613, 616 , 182 A. 2d 351 (1962). Petitioners were also ineligible for various programs which may ameliorate prison confinement, such as the work release programs, compassionate leave, family leave, weekend leave or other special leave, and assignment to minimum security camps. Code (1957, 1971 Repl. Vol.), Art. 27, §§ 700A, 700B, 700C, 700D, 700D-1 and 689 (f).
The most significant disability, perhaps, is that *325 petitioners were not given the benefit of the statutory good time credits and work time credits to which they would be entitled if confined in a correctional institution based upon their criminal conviction and sentence. Art. 27, § 700. If the normal good time credits were taken into account, then the contempt hearings and adjudications in this case would have occurred after the expiration of petitioners’ criminal sentences, and McNeil would be almost directly in point. As the majority correctly points out, petitioners are not as a matter of State law entitled to the credits because their confinement is under an order referring them to Patuxent for examination. Nevertheless, if the original criminal trial and sentence to the jurisdiction of the Division of Correction is to serve as the “due process” basis for confining petitioners until the contempt adjudication almost four years later, as the majority holds, then the statutory provisions for good time credits which are applicable to that sentence should be considered. Viewed in this light, McNeil would clearly require that petitioners be granted their freedom.
The delay of between three and four years before the contempt hearings and adjudications in this case was solely attributable to the State. The petitioners requested no postponements. At any time during this period, the State could have sought adjudications of defective delinquency based upon data other than interviews with petitioners, or the State could have instituted contempt proceedings. When contempt proceedings were finally started, it was the State which sought and was granted postponements. For the State to hold petitioners for almost four years under orders merely referring them to Patuxent for examination, particularly where the Legislature has imposed a six-month time limit with respect to such examinations, is in my judgment a denial of due process.
Judges Digges and Levine authorize me to state that they concur in the views expressed herein.
. In Miranda v. Arizona, 384 U. S. 436, 467 , 86 S. Ct. 1602, 1624 , 16 L.Ed.2d 694 (1966), the Court said that
“there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.”
See also Haskett v. State, 255 Ind. 206, 210-211 , 263 N.E.2d 529, 532 (1970), where the Supreme Court of Indiana held the privilege against self-incrimination applicable to a sexual psychopath proceeding, stating:
“Much more fundamental [in determining whether the privilege applies], however, is the fact that upon determination that a defendant is a criminal sexual psychopathic person, the defendant may be incarcerated in a state psychiatric institution for an indefinite period, possibly for life.”
. Cf., e.g., People v. Keith, 38 Ill. 2d 405 , 231 N.E.2d 387, 390 (1967), suggesting the inapplicability of the privilege under such circumstances.
. The standard for deciding whether a mentally ill person should be involuntarily committed to a mental hospital, namely whether “ [f]or the protection of himself or others, [he] needs inpatient medical care or treatment,” Maryland Code (1957, 1972 Repl. Vol.), Art. 59, § 12 (a) (2), is not the standard for determining whether one should be committed to Patuxent Institution. As previously pointed out, commitment to Patuxent is based initially upon the fact that one has committed a crime. But for the criminal conviction, there can be no commitment to Patuxent. Of those who have been convicted of crimes, only a defective delinquent, defined as one who “evidences a propensity toward criminal activity,” is sent to Patuxent. Art. 31B, § 5.
. Code (1957, 1971 Repl. Vol.), Art. 41, § 204A; Code (1957, 1971 Repl. Vol.), Art. 31B, § 1 (a). Also, the governing board of Patuxent Institution is specifically subject to the authority of the Secretary of Public Safety and Correctional Services, and the members of the board are appointed by that Secretary, Art. 31B, § 1 (b). On the other hand, the public mental hospitals in this State are all under the jurisdiction of the Department of Health and Mental Hygiene, with their superintendents appointed by the Secretary of Health and Mental Hygiene. Art. 41, § 206 (e); Art. 59, § 30 (a).
For a description of the Patuxent Institution, see Comment 22 Am. Univ. L. Rev. 619, 626, n. 40 (1973), based upon the briefs in McNeil v. Director, Patuxent Institution, 407 U. S. 245 , 92 S. Ct. 2083 , 32 L.Ed.2d 719 (1972):
“Maryland’s Patuxent Institution, especially created for the treatment of defective delinquents, has been described as having all the attributes of a prison:
“ ‘íhe guards are not specifically trained and have no special qualifications. Tiers are closed off by steel doors. In addition, each cell is sealed by two separate doors — one “a steel grill work door that is always closed except when someone is going in or coming out” and the other a metal, solid door with a window. These cells are nine by six feet in size and have only a bunk, commode, wash basin, table and under drawer table for the (rank. Inmates can shower once a week. Those who engage in infractions are placed in the “hole”; it has only a bunk. Armed guards watch from inside towers inside a barbed wire fence surrounding the grounds.’ ”
. As we stated in Weeder v. State, 274 Md. at 633 :
“It seems to us that the time has come when a clear delineation must be made between an interview and the term ‘personal examination and study’ used in Art. 31B, § 7 (a). The statutorily mandated examination normally contemplates both an interview and observation. The recalcitrant inmate, who refuses to talk does not necessarily insulate himself from examination, however. He may still be observed and studied, and, in a proper case, a valid diagnosis reached.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9637976. Public record. Not legal advice.