Petition for Writ of Certiorari — Maryland v. Anderson

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Supreme Court of the United States

OctrosBer TERM, 1987

THE STATE OF MARYLAND AND DEPARTMENT OF

HEALTH AND MENTAL HYGIENE OF THE

STATE OF MARYLAND,

Petitioners,

Vv.

CHARLES ANDERSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF MARYLAND

J. JOSEPH CURRAN, JR.,

Attorney General

State of Maryland,

C. FREDERICK RyLAND,*

Susan SuGar NATHAN

Assistant Attorneys General,

Rosert T. Fontaine,

Special Attorney,

300 West Preston Street,

Suite 302,

Baltimore, Maryland 21201,

(301) 225-1846,

Counsel for Petitioners.

*Counsel of Record

a PR PeSURIONY ee PAE TNS SRE

The Daily Record Co., Baltimore, MD 21202 vias» &

— a — a —

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING, IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILT. BE ISSUED.

QUESTION PRESENTED

Does the ex post facto clause prohibit

Statutory change in procedures by which

person, found insane under prior laws and

committed to a mental health facility,

obtains release?

PARTIES TO THE PROCEEDING

The following are named as parties to

the proceeding in the Court of Appeals of

Maryland:

Department of Health and Mental Hygiene

for the State of Maryland, the State of

Maryland! and Charles Anderson.

. Under Maryland law, the committed

individual, the State's Attorney and the

Department of Health and Mental Hygiene are

entitled to separate representation in

release proceedings for individuals found not

criminally responsible by reason of

insanity. Maryland Health-General Code

Annotated §12-114(e)(6) (1982 Volume and 1987

Supp.) At all times in this proceeding, the

interests of the State of Maryland and of the

Department of Health and Mental Hygiene have

been congruent. They have both been

represented by the Office of the Attorney

General for the State of Maryland.

ARTERY PON py Pe TN SEE!

TABLE OF CONTENTS

QUESTION PRESENTED.........

PARTIES TO THE PROCEEDING..

TABLE OF AUTHORITIES.......

DECISIONS BELOW... cc cccccce

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.........

STATEMENT OF THE ee

PRESERVATION OF THE FEDERAL QUESTION

IN STATE COURT PROCEEDINGS.........

REASONS FOR GRANTING THE a) ee

SE We Sa ee soc kc ccc ccccccs

Appendix A - Decision of the Court

of Appeals of Maryland

dated “uly 30, 1987....,

Appendix B -

Decision of the Court

of Special Appeals of

Maryland

Page

dated October 9, 1985.... 34A

iii

Page

Appendix C - Decision of the Circuit

Court for Baltimore City

dated March 7, 1985.....-. 54A

Appendix D - Order of the Circuit

Court for Baltimore City

dated June 4, 1985....... 78A

Appendix E - Application for Leave to

Appeal to the Court of

Special Appeals

filed June 29, 1985...... 81A

Appendix F - Maryland Insanity

Commitment Statutes...... 84A

TABLE OF AUTHORITIES

Cases Page(s)

Anderson v. Department of Health

and Mental Hygiene, 310 Md. 217,

220 Agee BES CEPST) ceocccoees 2,19,13-16,21

Anderson v. Department of Health

and Mental Hygiene, 64 Md. App.

674, 498 A.2d 679 (1985).... 2,.9,12,15

Cox Broadcasting Corp. v. Cohn,

rit as | 6h) |) ree

Cummings v. Missouri, 4 Wall. 77,

325 through 326, 18 L.Ed. 356

i A ee ann

Dorsey ve. Solomon, 604 F.2d 271

(4th Cit. ae reer

In Re Medley, 134 U.S. 160 (1890).....

Kring v. Missouri, 107 U.S. 221

es 3 | i ae ea

Miller v. Florida, 0.8. P

ee eee EU Sec cbeca ceed cece

Pennsylvania v. Ritchie,

U.S. + 55 U.S.L.W. 4180,

4182 ft. 7 (February 24 1987).....

United States v. Kowal,

5996 F. Supp. 375 (D. Conn. 1984)...

Weaver v. Graham, 450 U.S. 24

[eee ceases de e6 8 eeeee oeeeveeeeeeeeee

cece Page(s)

Constitutional Provisions:

United States Constitution:

Article I, SECtiON Qececceccscees os

Article I, Section isons be ews 628 Ot

Ex post facto Clause Passim

Maryland Declaration of Rights:

Article LJecesvessrastseweaeseseeseeees

Statutes:

18 U.S.C. § 4243 (Federal

Insanity Defense Reform Act)..e-ee-s

28 U.S.Co § 1257(3) eevee eeeeeeeeses

Md. Health-General Code Ann

Post 1984 Statutes:

1984 Md. Laws, Chapter 50l....

§ 12-113 (1984 Supp.)...eeeees

§ 12-113(d) (1984 Supp.)......

§ 12-114(e)(6) (1987 Supp.)...

§ 12-118 (1987 Supp.) cee eeees

Pre 1984 Statutes

§ 12-113(b) (d) (1982)... eeee

§ 12-114(C) (1982)... eee eee eeees

District of Columbia Code

§ 24-301(d)—(e@) ee cocccecceseseeceses

PRI’ vr ae Ro -

Page(s)

Other Authorities:

Tribe, Lawrence H.,

American Constitutional Law,

§ 103 CEP bee céceaes oeeweeeeeeeeeee 16

Van Tine, Parole Guidelines

as Ex Post Facto Laws,

62 B.U.L.Rev. 515-535 be) ere 16

vii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

NO.

THE STATE OF MARYLAND, DEPARTMENT OF

HEALTH AND MENTAL HYGIENE OF THE

STATE OF MARYLAND, et al., Petitioners

CHARLES ANDERSON, Respondent.

Petition For Writ Of Certiorari To The

Court Of Appeals Of Maryland

Petitioners, Department of Health and

Mental Hygiene of the State of Maryland and

the State of Maryland, respectfully pray that

a Writ of Certiorari issue to review the

judgment of the Court of Appeals of the State

of Maryland, which reversed the judgment of

the Maryland intermediate appellate court,

the Court of Special Appeals, and remanded

the case with the directions to reverse the

judqment of the Circuit Court for Baltimore

City and to remand the case to the Circuit

Court for Baltimore City for further

proceedings.

DECISIONS BELOW

The opinion of the Court of Appeals of

the State of Maryland, reproduced in Appendix

A at 1A, is reported at 310 Md. 21, 528 A.2d

904 (1987).

The Opinion of the intermediate

appellate court, the Court of Special Appeals

of Maryland, is reproduced in Appendix B at

34A. It is reported at 64 Md. App. 674, 498

A.2d 679 (1985).

The opinion of the Circuit Court for

Baltimore City has not been reported. The

opinion and the judgment of the Circuit Court

is reproduced in the Appendix C at 54A.

JURISDICTION

The judgment of the Court of Appeals of

the State of Maryland was entered on July 30,

1987. This Petition is filed within 90 days

of that date. The jurisdiction of this court

is invoked pursuant to 28 U.S.C. Section

1257(3).

The judgment of the Court of Appeals of

the State of Maryland is a final judgment of

the question presented by this petition. The

issue of the application of ex post facto

prohibitions to individuals under insanity

commitments has been authoritatively decided

by the highest court of Maryland. 2

Argument may be advanced, in opposition -to

this petition, that the Maryland Court of

Appeals decision is not a final judgment in

this case. This is incorrect. Requiring the

petitioners to await the remand of the case

and raise anew issues already governed iy the

law of the case on a new set of appeals would

be wasteful of both state and federal judi-

cial resources. This Court has construed

finality so as not to require these fruitless 3

steps. Pennsylvania v. Ritchie, U.S.

55 U.S.L.W. 4180, 4182 ft. 7 (February 24,

1987); Cox Broadcasting Corp. v. Cohn, 420

(cont'd)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case rests on interpretation of

Article he Sections 9 and 10 of the

Constitution of the United States, which

provide, in pertinent part, as follows:

Section 9.

eee No Bill of Attainder or

ex post facto Law shall he passed.

Section 10.

«+. No State shall ... pass any ...

ex post facto Law, ..-

The Maryland constitutional provision,

found in its Declaration of Rights, reads as

follows:

Article 17. Ex post facto laws;

retrospective oaths or restrictions.

That restrospective Laws, punishing

acts committed before the existence

of such Laws, and by them. only

declared criminal, are oppressive,

unjust and incompatible with liberty;

U.S. 469 (1975).

wherefore, no ex post facto Law ought

to be made; nor any retrospective

Oath or restriction be imposed, or

required.

Maryland statutory provisions on

commitment of individuals found insane, in

effect both pre July 1, 1984 and subsequent

to July 1, 1984, are incorporated in Appendix

F at 81A.

STATEMENT OF THE CASE

Charles Anderson ("Anderson") was found

insane of first degree murder on April 8,

1981. He was subseguently committed to a

mental health facility operated by the

Maryland Department of Health and Mental

VRS Tee:

Hygiene for inpatient care and treatment.

Effective July 1, 1984, the Maryland

Legislature changed the procedures by which a

person committed to a mental health facility

after a finding of insanity obtains i

release. Specifically, when that person

seeks release through an Administrative

Hearing, the burden of persuasion has been

shifted from the State to the person.?

3 Under prior Maryland law, after an initial

hearing, a person committed to a State mental

health facility after a finding of insanity

(the "patient") had the opportunity to seek

periodic review to determine the need for

continued confinement. The patient could

seek release either through an administrative

proceeding with judicial review or through a

civil judicial release proceeding, either

with or without a jury.

(cont'd)

On October 11, 1984, Anderson filed an

application for release through an

When a patient chose the judicial trial

option, the patient had the burden of proving

by a preponderance of the evidence’ the

fitness for release. Maryland Health-General

Code Annotated, §12-114(c) (1982), Appendix F

at 84A, Dorsey v. Solomon, 604 F.2d. 271

(4th Cir. 1979).

In the administrative hearing option, the

state and the department had the procedural

burden of proving by clear and convincing

evidence that the patient met the criteria

for retention. Maryland Health-General Code

Annotated, §12-113(b)(1) (1982), Appendix F

at 84A.

After John Hinckley's attempted

assassination of President Ronald Reagan, the

Maryland Governor convened a task force to

study laws pertaining to persons’~ found

insane, including both the initial commitment

and subsequent release procedures. Based on

the recommendations of that task force, the

1984 Maryland Legislature made substantial

revisions in Maryland's law affecting such

individuals. 1984 Maryland Laws Chapter

501. In the area of release, while both the

administrative heecing and judicial trial

release options were continued, the burden of

proving release eligibility in administrative

hearings was shifted to be the same as the

burden already existing in the judicial

proceedings -- the patient now has the burden

of proof by a preponderance of the

evidence. Maryland Health-General Code

Annotated, §12-118 (Supp. 1987).

administrative hearing with judicial

review. On November 21, 1984, the Circuit

Court for Baltimore City granted Anderson's

request for an administrative hearing and

srdered that the hearing be governed by

Maryland Health-General Code Annotated, Siz-

113 (Supp. 1984), which became effective in

July of that year. Anderson filed a "Motion

to Strike Consent" claiming that the law in

effect prior to the date should be applied in

his case.

Anderson's motion was denied by the

Baltimore City Circuit Court in a memorandum,

opinion and order dated March 7, 1985.

Appendix C at O54A. The administrative

hearing was subsequently conducted on March

21, 1985. The department's hearing officer

required Anderson to establish his

eligibility for release by a preponderance of

the evidence under Maryland Health-General

Code Annotated, §12-113(4d) (Supp. 1984).

Following receipt of the hearing officer's

report —_and Anderson's exceptions tod that

report, the Circuit Court continued

Anderson's commitment to the Department of

Health and Mental Hygiene for care and

treatment in an order dated June 4, 1985.

Appendix D at 78A.

The Court of Special Appeals granted

Anderson leave to appeal, and affirmed the

order of the Circuit Court for Baltimore City

finding that the application of the current

law to Appellant does not violate the ex post

facto clause because the purpose of

commitment is treatment. Anderson T.

Department of Health and Mental Hygiene, 64

Md. App. 674, 498 A.2d 679 (1985). Appendix

B at 34A.

The Maryland Court of Appeals granted

Anderson's Petition for Writ of Certiodrari on

January 6, 1986. Following oral argument on

April 3, 1986, the Maryland Court 59f Appeals

issued its decision on July 30, 1987. It held

that the statutory change violated the

ex post facto clause because Anderson's

commitment to a mental health facility was a

consequence of a criminal act. Appendix A at

lA. Anderson v. Department of Health and

Mental Hygiene, 310 Md. 217, 528 A.2d 904

(1987). Chief Judge Murphy and Judge

Rodowsky dissented on the grounds” that

Anderson's commitment is for treatment, that

punishment of those found insane is

legislatively proscribed, and that,

therefore, the ex post facto clause was not

applicable. 310 Md. at 231. Appendix A at

29A.

PRESERVATION OF THE FEDERAL

QUESTION IN STATE COURT PROCEEDINGS

At each stage in the proceedings, the

central legal question of this case has been

whether the federal ex post facto clause

prohibits a statutory change in release

procedures applicable to persons found insane

and committed under prior statutes.

The Maryland Circuit Court determined

that "a law is only ex post facto if its

purpose is punishment ... The new law has

tceatment as its objective." Appendix C at

69A. The Court therefore concluded "... that

the ex post facto Laws of the federal and

state Constitutions are not violated.

Appendix C at 73A-74A.

Anderson appealed from the decision of

4 Based on the Circuit Court's direction, an

administrative hearing was held under the new

statute. The Circuit Court subsequently

ordered that Anderson's commitment to the

Department of Health and Mental Hygiene be

continued. Appendix D at 78A-79A.

the Circuit Court. His Application for Leave

to Appeal to the Court of Special Appeals

states: "It was a constitutionally prohibited

application of ex post facto law for the

lower court to require Mr. Anderson to prove

his eligibility for release by a

preponderance of the evidence.” Appendix E

at 82A.

The Court of Special Appeals therefore

again considered whether the ex post facto

clause prohibited the application of the new

statute to Mr. Anderson. It determined that

the ex post facto clause applied only where

the purpose of confinement was punishment.

It further found that the purpose of

confinement after the finding of insanity was

treatment, even though it is certainly a

consequence of his criminal act. Therefore,

it held that the ex post facto clause was not

violated. Appendix B at 53A.

The same issue was raised in the Court

o May) A

OE tae de INE LOSS TERE PLS ES, GN pi atiititinn D ete eee ne

meee

of Appeals. That Court stated:

"[Anderson] contends that, because

the burden of proof provisions for

release were changed subsequent to

his criminal activity, application of

Chapter 501l's new burden of proof

provision to his administrative

release hearing would operate to his

disadvantage and, therefore, would

violate the Federal and State

Constitutional prohibition against

ex post facto Laws. The State, while

not disputing that the change in the

burden of proof operates to

Anderson's disadvantage, contends

that the ex post facto prohibition is

inapplicable because his confinement

in a mental hospital does not

constitute 'punishment.'"

310 Md. at 223. Appendix A at 11A. The

Court of Appeals concluded that, because

Anderson's treatment in a mental health

facility was a "consequence" of his criminal

act, “we believe that the confinement does

implicate the ex post facto prohibition."

Anderson, 310 Md. at 230. Appendix A at

28A. The Court of Appeals therefore reversed

the holding that the pre-existing law should

have been applied.

REASONS FOR GRANTING THE WRIT

SUPREME COURT CASES HAVE PRESENTED

CONFLICTING POSITIONS AS TO WHETHER

THE EX POST FACTO PROHIBITION APPLIES

TO ALL CONSEQUENCES OF A CRIMINAL ACT

OR ONLY TO THOSE CONSEQUENCES THAT

AFFECT PUNISHMENT.

This case presents an important question

of federal law? about which the state courts

and lower federal courts require guidance.

That question is whether the ex post facto

clause applies to statutes governing the

release of persons committed to mentalhealth

facilities after a finding of insanity.

These individuals are in such facilities

for the purpose of treatment. The services

received by the individual are derived

exclusively from a plan created by an

12A.

The Maryland Court of Appeals acknowledged

that the Maryland Declaration of Rights

ex post facto clause is "viewed as having the

Same meaning as the federal prohibition."

ANderson, 310 Md. 217, (1987); Appendix A at

PT a PRs

interdisciplina-y team of mental health

profesionals. The plan, approved by the

treating psychiatrist, determines the

individual's daily treatment regimen.

Further, the length of treatment and the

corresponding length of placement within the

hospital is determined, not by the crime

committed, but instead by the degree of

improvement in the individual's mental

condition.

The Maryland trial court and

intermediate appellate court, as well as the

chief judge and another judge of the Court of

Appeals (in dissent), read this Court's cases

on the ex post facto clause and determined

that the clause was not applicable because

punishment was not involved. A majority of

the Maryland Court of Appeals read the same

cases and disagreed because Anderson's

commitment is a consequence of a criminal

act; yet they tos. recognized conflict in the

positions presented by those cases.

The Maryland Court observed:

"At times, the Supreme Court has said

that the change in consequences must

be penal or punitive or must enhance

punishment for the ex post facto

prohibition to be implicated. ...

More often, however, the Court has

emphasized that the prohibition

embraces consequences affecting

- substantial rights if they

‘disadvantage the offender' or are

"more onerous.'"

Anderson, supra, 310 Md. at 226; Appendix A

at 18A (citations omitted).

The Maryland Court of Appeals derived

Support for the broader "all consequences"

interpretation from cases dated in the

1800s. As construed by the Maryland Court,

Kring v. Missouri, 107 U.S. 221 (1883) states

6 The Maryland Court further stated "[iJt

has been intimated that the Supreme Court's

ex post facts opinions do not represent a

model of consistency. See e.g. Lawrence H.

Tribe, American Constitutional Law §103

(1978); Van Tine, Parole Guidelines as

Post FactS Laws, 62 B.U.L. Rev. 515-535

(1982). See also United States v. Kowal, 596

F.Supp. 375 (D. Conn. 1984)." Anderson 310

Md. at 226; Appendix A at 21A.

a oa le eee ee

—~.

a a Le

that "the prohibition extends broadly to ‘any

law passed after the commission of an offense

which ... in relation td that offense, or its

consequences, alters the situation of a party

to his disadvantage.'" Anderson, 310 at 224

citing Kring, 107 U.S. at 235; Appendix A at

13A.

The Maryland Court also substantially

relied upon In Re Medley, 134 U.S. 160

(1890): “any law which was passed after the

commission of the offense ane is an

ex post facto law, when it inflicts a greater

punishment than the law annexed to the crime

at the time it was committed ... or which

alters the situation of the accused to his

disadvantage". Anderson, 310 Md. at 226,

227, citing In Re Medley, 134 U.S. at 171;

Appendix A at 20a./

The broader interpretation attributed to

these cases by the Maryland Court is in fact

dicta. Both of these cases’ concerned

punishment. They did not concern any other

(cont'd)

In contrast, the recent ex post facts

cases, also cited by the Maryland Court,

clearly state that that clause applies only

to punishment. Weaver v. Graham, 450 U.S. 24

(1981), concerns the calculation of "gain

time." Thus, only the length of sentence

(punishment) was involved. Weaver repeatedly

States that the ex post facto prohibition is

implicated only where punishment is at

issue: "The ex post facto prohibition

‘forbids the Congress and the States to enact

any law ‘which imposes a punishment for an

act which was not punishable at the time it

was committed; or imposes additional

punishment to that then prescribed.'"

Weaver, 450 U.S. at 28, citing Cummings v.

Missouri, 4 Wall. 77, 325 through 326, 18

L.Ed. 356 (1867).°®

"consequence." Thus, the Maryland Court

extrapolating from dicta.

See also Weaver, 450 U.S. at 30 ("The

ex post facto prohibition ... forbids the

Teont'd)

This Court's most recent construction of

the ex post facts clause again reflects the

Narrower interpretation that it applies only

to changes in punishment. Miller v.

Florida, U.S. , 107 S.Ct. 2446 (1987),

reviewed sentencing guidelines. Again,

punishment, not other "consequences", was

implicated. This Court reiterated: "almost

from the outset, we have recognized that

central to the ex post facto prohibition is a

concern for “the lack of fair notice and

governmental restraint when the legislature

INC REASES PUNISHMENT beyond what was

prescribed when the crime was consummated."

Miller, 107 S.Ct. at 2451 (emphasis added),

imposition of punishment more severe than the

punishment assigned by law when the act to be

punished occurred."); 450 U.S. at

(referring to the "judge's calculation of the

sentence to be imposed."); 450 U.S. at 33

(referring to the "quantum of punishment");

and 450 U.S. at 36 (determining that the

statute "runs afoul of the prohibition

against ex post facto laws" because it "makes

more onerous the punishment’ for crimes

committed before its enactment.").

citing Weaver v. Graham, 450 U.S. 24, 30

(1981). Miller again determined that the

ex post facto clause prohibited the change in

legislation because "[t]he law ... ‘makes

more onerous the punishment’ for crimes

committed before its enactment.'"” Miller,

107 at 2454, citing Weaver, 450 U.S. at 36.

The Maryland Court chose one of two co-

existing and conflicting interpretations of

the ex post facto clause. Because this

conflict exists, the Maryland Court was

allowed to strike down a statute that changed

an individual's burden of persuasion where he

sought release, not from the confines of

punishment, but from a mental health facility

where he is committed for treatment."? Only

9 The Maryland Court acknowledged that the

purpose of Anderson's commitment is

treatment.

It is true that the [Maryland] General

Assembly does not deem commitment to a

mental hospital, as a result of a criminal

case, to be the imposition of “criminal

(cont'd)

the Supreme Court can resolve this conflict.

Resolution by this Court is even more

important because it affects other

jurisdictions besides Maryland. In the wake

of John Hinckley's attempted assassination of

President Ronald Reagan, other states as well

as the federal government -- the jurisdiction.

where Hinckley iS now committed -- have

enacted statutes shifting the burden of proof

to committed individuals, previously found

insane, when those individuals seek

responsibility." In addition, the

purposes of the commitment are treatment

and the protection of society against

dangerous individuals. Anderson 310 Md.

at 228; Appendix A at 23A.

It is also noted, however, that Anderson was

committed to a hospital that is a maximum

security facility that also received prison

inmates who are in need of mental health

treatment. Because some Supreme Court cases

indicate that the ex post facto clause

applies to all consequences of a criminal

act, the Maryland Court did not’ reach

conclusion as to whether the confinement was

punitive in nature.

release. !°9 Resolution of this issue is

therefore of significant public importance

and may only be achieved by this Court.

CONCLUSION

The Maryland Court of Appeals’_ has

decided an important question of Federal law

-- when the ex post facto prohibition

applies. Further, that Court has decided the

guestion in a manner that conflicts with this

Court's most recent decisions and relies

exclusively on dicta from this Court's

decisions of many years ago. A grant of

10 In fact, if the federal courts were to

adopt the Maryland Court of Appeals'

interpretation of the ex post facto clause,

it would prohibit the Federal Insanity

Defense Reform Act of 1984 from applying in

the case of Hinckley, as well as others

committed prior to October 12, 1984. Compare

District of Columbia Code §24-301(d)-(e)

(burden on committed person to prove F

entitlement to release by a preponderance of

the evidence) with 18 U.S.C. §4243 (1987

Supp.) (burden on individual who commits

offense involving bodily injury to prove lack

of substantial risk by clear and convincing

evidence).

Fh EIN CAIN ET rey

certiorari in this case is therefore both

essential and in the public interest.

WHEREFORE, for the foregoing reasons,

this petition should be granted and a writ of

certiorari issued tos review the judgment and

opinion of the Court of Appeals of the State

of Maryland.

Respectfully submitted,

J. JOSEPH CURRAN, JR.

ATTORNEY GENERAL OF

MARYLAND

C. :

C. Frederick Ryl

Susan Sugar Nathan

Assistant Attorneys General

Robert T. Fontaine

Special Attorney

Suite 302

300 West Preston Street

Baltimore, Maryland 21201

(301) 225-1846

Counsel for Petitioners

*Counsel of Record

Peal nigel os

’

APPENDIX

- s@

—— —_—_— -

1, levi le a ll eat gt Li aa al eay FEN aan

APPENDIX A:

DECISION OF THE

COURT OF APPEALS OF MARYLAND

DATED JULY 30, 1987

528 A.2d 904

Charies ANDERSON

DEPARTMENT OF HEALTH AND MENTAL

HYGIENE et al.

No. 137, Sept. Term, 1985.

Court of Appeals of Maryland.

July 30, 1987.

George E. Burns, Jr., Asst. Public Defender

(Alan H. Murrell, Public Defender, on the

brief) Baltimore, for appellant.

Susan Sugar Nathan, Asst. Atty. Gen. (Stephen

H. Sachs, Atty. Gen., Baltimore, and C.

Frederick Ryland, Sn. Atty., Clifton T.

Perkins Hosp., Jessup, on the brief), for

appellee.

Argued before MURPHY, C. J., and SMITH’.

ELDRIDGE, COLE, RODOWSKY, COUCH* AND

McAULIFFE, JJ.

ELDRIDGE, Judge.

SMITH, J., and COUCH, J., now retired,

participated in the hearing and conference of

this case while active members of this Court;

after being recalled pursuant to the

Constitution, Article IV, Section 3A, they

also participated in the decision and

adoption of this opinion.

Charles Anderson, at the conclusion of

his first degree murder trial, was found "not

guilty by reason of insanity"! On April 8,

1981. The Criminal Court of Baltimore

ordered him to the custody of the Department

of Health and Mental Hygiene for an

examination and evaluation to determine

whether he should be confined in a mental

hospital. In accordance with the

recommendation of the Department, the court

committed Anderson on April 21, 1981, to the

Clifton T. Perkins Hospital Center.

Three years later, on October 1l, 1984,

In Langworthy v. State, 284 Md. 588, 599

nm 12, 359 Awd 578 (1979), this Court

pointed out that this terminology was "a

holdover from common law concepts and prior

Statutory provisions regarding insanity and

the commission of crimes" and did not

properly refer to the trial court's finding

that defendant was guilty of the crime

charged but insane when he committed the

crime. See, in addition, Ford v. Ford, 307

Md. 105, 113-118, 512 A.2d 389 (1986);

Pouncey v. State, 297 Md. 264, 465 A.2d 475

(1983).

Anderson applied to the Circuit Court for

Baltimore City for an administrative release

hearing, asserting that he "no longer meets

the standards for commitment to a mental

institution." The circuit court granted

Anderson's request for an administrative

hearing but ruled "that defendant's

administrative hearing shall be conducted

under the standard of Maryland's new law on

incompetency and criminal responsibility,

effective July 1, 1984." Specifically, the

portion of the new law which the circuit

court held applicable provides that’ the

individual seeking release should bear the

burden of proof in the administrative

proceeding. Previously, the State had borne

this burden of proof. Anderson had argued

that applying the new law to him would

violate the constitutional prohibition

against ex post facto laws, but the ctrouit

court rejected the argument. Anderson

appealed to the Court of Special Appeals

which affirmed. Anderson v. Dep't of Health

& Mantal Hyg., 64 Md. App. 674, 498 A.2d 679

(1985). The appellate court held that the ex

post facto prohibition was inapplicable

because the purpose of Anderson's confinement

"was solely for ‘in-patient care or

treatment' ... [and] not a penal or punitive

consequence" of the criminal act, 64 Md. App.

at 693-694, 498 A.2d 679. Thereafter we

issued a writ of certiorari to determine

whether the application to Anderson of the

new burden of proof provision would violate

the prohibition against ex post facto laws.

II.

The relevant statutory background is as

follows. In 1982 the Governor created a

"Task Force to Review the. Defense of

Insanity" in criminal cases. Enacted

pursuant to the report of the Task Force,

Chapter 501 of the Acts of 1984, effective

July 1, 1984, altered certain aspects of the

insanity defense laws. 2

Prior to July 1, 1984, upon a plea of

insanity and introduction of sufficient

evidence to raise an issue as tod _ the

defendant's sanity, the State had the burden

of proving, beyond a reasonable doubt, that

the defendant was sane at the time of the

Criminal activity. Bradford v. State, 234

Md. 505, 200 A.2d 150 (1964). See Trimble v.

State, 300 Md. 387, 394 n. 1, 478 A.2d 1143

(1984), cert. denied, 469 U.S. 1230, 105 S.

Ct. 1231, 84 L.Ed.2d 368 (1985); State v.

The insanity defense laws in effect when

Anderson committed the crime were set forth

in Maryland Code (1957, 1979 Repl. Vol, 1980

Cum. Supp.), Art. 59, §§ 23 through 28. By

Ch. 21 of the Acts of 1982 the General

Assembly recodified these provisions into

title 12 of the Health-General Article.

Pursuant to Ch. 501, the laws relating to

insanity as a defense in criminal cases are

now contained in Code (1982, 1986 Cum.

Supp.), §§ 12-101 through 12-121 of the

Health-General Article.

Pratt, 284 Md. 516, 524, 398 A.2d 421 (1979);

State v. Evans, 278 Md. 197, 209 ns 2, 362

A.2d 629 (1976); Fowler v. State, 237 Md.

508, 511-513, 206 A.2d 802 (1965).

Thereafter, if the State failed to prove

Sanity beyond a reasonable doubt and the

trial court found the accused guilty of the

crime charged but insane at the time of the

offense, Maryland Code (1982), § 12-110 of

the Health-General Article, required the

trial court immediately to

"[c]ommit the individual to the

Department for an examination and

evaluation to determine whether the

individual:

(i) Is mentally retarded or has a

mental disorder; and

(ii) (Because of mental retardation

Or a mental disorder, would be a

~danger to the individual or _ the

person or property of another, if

released from confinement ...."

This initial commitment was only for a

limited time for the purpose of examination

and evaluation. This was followed by a

hearing at which the State was required to

prove by clear and convincing evidence that

the criminal defendant met the standards for

indefinite commitment. See § 12-113(b) and

Comment to § 12-113 of the Health-General

Article (1986 Cum. Supp.).

Once committed for an indefinite period,

a defendant could periodicaily request to be

released. He could choose either an

administrative proceeding with judicial

review, or a direct statutory judicial

proceeding, or a habeas corpus proceeding.

Section 12-114(c) authorized the direct

judicial release proceeding, either with or

without a jury, at which the- criminal

defendant had the burden of proving by a

preponderance of the evidence his fitness for

release. The habeas corpus proceeding was

provided for in § 10-804. Section 12-114(b)

authorized the administrative release hearing

before the Department at which, prior to July

1, 1984, the State had the burden of proving

by clear and convincing evidence that the

Criminal defendant should continue to be

confined. See Salinger v. Superintendent,

206 Md. 623, 629-631, 112 A.2d 907 (1955);

Dorsey v. Solomon, 604 F.2d 271, 273-275 (4th

Cir. 1979); Daniels v. Superintendent, 34 Md.

App. 173, 366 A.2d 1064 (1976).

Ch. 501 of the Acts of 1984 abolished

the rule that in the criminal trial the State

had the burden of establishing the

defendant's sanity. Section 12-109 of the

Health-General Article (1986 Cum. Supp.) now

provides:

"(b) Burden of Proof. -~ The

defendant has the burden to

establish, by a preponderance of the

evidence, the defense of not

criminally responsible." %

Chapter 501 also eliminated the initial

commitment examination and hearing

procedures; instead it contained an automatic

commitment requirement. Section 12-111l(a)

provides that "after a verdict of not

criminally responsible, the court immediately

shall commit the defendant to the Department

for institutional, inpatient care or

treatment." This automatic commitment

continues indefinitely until the criminal

defendant prevails at an administrative

proceeding or a judicial release hearing or

obtains a writ of habeas corpus.

Lastly, Ch. 501 abolished _ the

requirement that, in an administrative

release hearing, the State has the burden of

proving the necessity for the criminal

defendant's continued commitment. Section

12-113(d) now places the burden of proof on

the defendant to show by a preponderance of

the evidence that he no longer meets the

Standards for commitment. Thus, under the

new statute, the criminal defendant must

prove his eligibility for release whether in

a judicial proceeding or an administrative

proceeding.?

Additionally, Ch. 501 contained a

section expressly dealing with the

applicability of its provisions tS various

situations where the criminal act occurred

prior to Ch. 50l's effective date of July 1,

1984. Section 4 of the statute stated, inter

alia, that the new provisions would apply to

a criminal defendant adjudicated insane "who

is under commitment to the Department of

Health and Mental Hygiene on or after the

effective date of this Act ...."

III.

In challenging the decisions of both

courts below, Anderson relies solely on the

Chapter 501 made other amendments to the

insanity defense laws which are not relevant

to this case. See @.9-, § 12-112(c)

(inclusion of data in central computer on

insanity committees to "prevent crime and

protect the public"); §12-121(b) (burden of

proof now on individual when requesting

changes in conditions of a conditional

release).

10A

ex post facto clauses of the federal and

state constitutions. See Constitution of the

United States, Art. I, § 10, cl. 1; Maryland

Declaration of Rights, Art. 17. He contends

that, because the burden of proof provisions

for release were changed subsequent to his

Criminal activity, application of Ch. 50l's

new burden of proof provision to his

administrative release hearing would operate

to his disadvantage and, therefore, would

violate the federal and state constitutional

prohibitions against ex post facto laws. The

State, while not disputing that the change in

the burden of proof operates to Anderson's

disadvantage, contends that the ex post facto

prohibition is inapplicable because his

confinement in a mental hospital does not

constitute "punishment."

It has, of course, been settled since

the Supreme Court's decision in Calder v.

Bull, 3 Dall. 386, 1 L.Ed. 648 (1798), that

11A

the federal ex post facto prohibition relates

only to criminal or penal laws or the

consequences of an offense. See, €.g.,

Miller v. Florida, U. 8 , ter 6. Ct.

2446, 96 L<8G<8@ sae (1987); Weaver v.

Graham, 450 U.S. 24, 28-30, 101 S. Ct. 960,

964-965, 67 L.Ed.2d 17 (1981); Corley v.

Moore, 236 Md. 241, 243, 203 A.2d 697 (1964);

Lynn ve. State, 84 Md. 67, 78, 35 A. 21

(1896); Anaerson v. Baker, 23 Md. 531, 581-

582, 605-606, 624-625 (1865); Baugher v.

Nelson, 9 Gill. 299, 305 (1850). The same

is true of the ex post facto clause in the

Maryland Declaration of Rights, which has

been viewed as having the same meaning as the

federal prohibition. See, e.g., Spielman v.

State, 298 Md. 602, 608-609, 471 A.2d 730

(1984); Tichnell v. State, 287 Md. 695, 735-

736, 415 A.2d 830 (1980); Elliott v. Elliott,

38 Md. 357, 362 (1873); Baugher v. Nelson,

supra, 9 Gill. at 3064

12A

While the ex post facto prohibition

relates only to criminal offenses, the

Supreme Court has enunciated the principle

that the prohibition extends broadly to “any

law passed after the commission of an offense

which ... ' in relation to that offense, or

its consequences, alters the situation of a

party to his disadvantage.'" Kring v.

Missouri, 107 U.S. 221, 235, 2 S. Ct. 443,

455, 27 L.Ed. 506 (1883), quoting Justice

Washington in United States v. Hall, 2 Wash.

C.C. 366, 26 Fed. Cas. 84, 86 (Case No.

It is noteworthy that the Maryland

Declaration of Rights, in 1776, was the first

bill of rights to contain a constitutional

prohibition against ex post facto laws. H.H.

Walker Lewis, The Maryland Constitution --

1776, pe 45 (1976); Bernard Schwartz, The

Bill of Rights: A Documentary History, p.

279 (N.Y. 1971). The Maryland Constitution

of 1776 was initially drafted in August of

that year by a committee of seven men, one of

whom was Samuel Chase. Lewis, supra, at p.

37; Schwartz, supra, at p. 279. kite later

became a justice of the Supreme Court of the

United States, and was the author if the

principal opinion in Calder v. Bull, supra, 3

Dall. at 386-395.

13A

15,285) (1809) (emphasis added). The Supreme

Court has also pointed tos “the liberal

construction which this court ... [has given]

to the words ex post facto law, -- a

construct:ion in manifest accord with the

purpose of the constitutional convention to

protect the individual rights of life and

liberty against hostile retrospective

legislation." Kring v. Missouri, supra, 107

U.S. at 229, 2 S. Ct. at 450.

Under the pertinent provisions of

Maryland law as construed by this Court in

Pouncey v. State, 297 Md. 264, 465 A.2d 475

(1983), and Langworthy v. State, 284 Md. 588,

399 A.2d 578 (1979), it is clear that

Anderson's confinement in a state mental

institution is a direct conseguence of

adjudication at his criminal trial that he

was guilty of committing a crime but insane

at the time of the crime. Langworthy v.

State, Supra, 284 Md. at 594, 597-598, 399

———— _—

14A

A.2d 578. The commitment is not simply a

consequence of the insanity finding, as "a

person, whether sane or insane," may not be

committed for an offense of which he has been

acquitted. Id. at 593, 399 A.2d 578. In

such event, the accused ... walks out of the

courtroom a free man." Id. at 593-594, 399

A.2d 578. Instead, the commitment to the

mental hospital is the “disposition” portion

of the judgment in the tikes ene which

is “composed of the verdict that he committed

the criminal act charged and the disposition

of him, as a final judgment." Id. at 597,

399 A.2d 578. See also §§ 12-109 and 12-111

of the Health-General Article.

Moreover, the imposition upon the

criminal defendant of the burden of proof in

the administrative release proceeding, under

§ 12-113(d) of the Health-General Article as

enacted by Ch. 501 of the Acts of 1984, is

also a direct consequence of the judgment at

15A

the criminal trial that the defendant

committed the criminal act but was insane.

New § 12-113(d), imposing the burden of proof

upon the person seeking administrative

release, relates only to those who have been

found guilty of committing the criminal act

charged but insane. See § 12-109(c). Where

an individual, because of an alleged mental

disorder, has come into the custody of the

Department of Health and Mental Hygiene

through a different route than a judgment in

a criminal case, the burden of proof at his

administrative release hearing is upon the

Department. See § 10-806 of the Health-

General Article; COMAR 10.21.01.07H and

10.21.01.02B(7).

Furthermore, the fact that a particular

proceeding or matter is labelled "civil"

rather than "criminal" does not necessarily

remove it from the ambit of the ex post facto

prohibition. See, e.g., Burgess v. Salmon,

16A

97 U.S. (7 Otts) 381, 384-385, 24 L.Ed. 1104

(1878) ("the ex post facto effect of a law

Cannot be evaded by giving a civil form to

that which is essentially criminal");

Cummings v. The State of Missouri, 4 Wall.

277, 325, 327-329, 18 L.Ed. 356 (1867).

Similarly, a change in the law which is

deemed "procedural" is not necessarily exempt

from the ex post facto prohibition if the

change affects substantial rights. Kring v.

Missouri, supra, 107 U.S. at 232, 2 S.Ct. at

452 ("it is obvious that a law which is one

of procedure may be obnoxious as an ex post

facto law"). See, e.q., Weaver v. Graham,

supra 450 U.S. at 29 n. 12, 101 S. Ct. at 964

n. 12; Thompson v. Utah, 170 U.S. 343, 354-

355, 18.S. Cte. 620, 624, 42 L.Ed. 1061

(1898). A change in the law which imposes

the burden of proof upon the individual has

been held to be within the ex post facto

prohibition. See, e.g., Cummings v._ The

17A

State of Missouri, supra, 4 Wall. at 328;

United States v. Williams, 475 F.2d 355 (D.C.

Cir. 1973).

On the other hand, not every law passed

after the commission of an offense, which

Changes the consequences of that offense, is

barred by the ex post facto prohibition.

popbert v. Pliorida, 432 U.S. 262, 97 8S. Ct.

2290, 53 L.~Ed.2d 344 (1977); Malloy v. South

Carolina, 237 U.S. i180, 35 Ss. Ct. $87, $9

LeEd. 905 (1915). At times, the Supreme

Court has said that the change in

consequences must be penal or punitive or

must enhance the punishment for the ex post

facto prohibition to be implicated. See

e.g-, Harisiades_v. Shaughnessy, 342 U.S.

580, 594, 72 S. Ct. 512, 521, 96 L.Ed. 586

(1952) ("that which it [the ex post facto

prohibition) forbids is penal legislation

which imposes or increases criminal

punishment for conduct lawful previous to its

18A

enactment," and "[d] eportation, however

severe its consequences," does not fall

within the prohibition). More often,

however, the Court has emphasized that the

prohibition embraces consequences affecting

substantial rights if they "disadvantage the

offender" or are “more onerous." Miller v.

Florida, supra, U.S. at » 107 S. Ct.

at 2452 (retroactive change in sentencing

guidelines prohibited by ex post’ facto

clause); Weaver v. Graham, supra, 450 U.S. at

29, 33, 101 S. Ct. 964, 966-967 (statute

which "reduces the number of monthly gain-

time credits available to an inmate who

abides by prison rules" is "disadvantageous

to petitioner and other similarly situated

prisoners" and thus violates the ex post

facto clause); Lindsey v. Washington, 301

U.S. 397, 401-402, 57 S. Ct. 797, 799, 81

LeEd. 1182 (1937) ("We need not inquire

whether this is technically an increase in

19A

the punishment annexed to the crime .... It

is plainly to the substantial disadvantage of

petitioners ...); In re Medley, 134 U.S. 160,

171, 10 8. Ct. 384, 387, 33 L.Ed. 835 (1890)

("any law which was passed after the

commission of the offense ... is an ex post

facto law, when it inflicts a greater

punishment than the law annexed to the crime

at the time it was committed ... or which

alters the situation of the accused to his

disadvantage") (emphasis supplied).

In the present case, the State, relying

chiefly upon a series of decisions holding

that the ex post facto prohibition does not

preclude retroactive laws authorizing the

deportation of aliens who have committed

offenses,> argues that the ex post facto

> Marcello v. Bonds, 349 U.S. 302, 314, 75

S. Ct. 757, 764, 99 L.Ed. 1107 (1955); Galvan

¥.. Prees, 347 U8. 522,. 529-532, Fé Ss... Ct.

737, 742-743, 98 L.Ed. 911 (1954); Harisiades

v. Shaughnessy, 342 U.S. 580, 593-596, 72 S.

Ct. 512, 520-522, 96 L.Ed. 586 (1952).

20A

clauses are inapplicable to changes in the

law relating to the "civil" consequences of a

Criminal act or the consequences of a

criminal act which do not constitute

"yunishment.” (State's brief, pop. 8-10).

The State points out that the administrative

release proceeding Tie, eg t Pe and it

contends that the purpose of Anderson's

confinement is "clearly to provide treatment

not punishment.” (Id. at pp. 911i).

Nevertheless, as discussed above, Supreme

Court Opinions both before and after the

deportation cases have suggested that the

scope of the ex post facto prohibition is

broader than that urged by the State. These

6 It has been intimated that the Supreme

Court's ex post facto opinions do_ not

represent a model of consistency. See e.g.,

Lawrence H. Tribe, American Constitutional

Law § 10-3 (1978); Van Tine, Parole

Guidelines As Ex Post Facto Laws, 62 B.U.L.

Rev. 515, 530-535 (1982). See also United

States v. Kowal, 596 F.Supp. 375, 377

(D.Conn. 1984).

Probably the broadest view of the ex

post facto prohibition was set forth by Chief

(cont'd)

21A

Opinions indicate that a law passed after the

commission of a criminal act, affecting

substantial rights, and changing the

consequences of having committed the criminal

act in a way that is disadvantageous to the

defendant, falls within the ex post facto

prohibition.

Assuming, however, that the post trial

consequence of the criminal act must

constitute "punishment for the ex post facto

prohibition to be implicated, the concept of

punishment is broader than a prison sentence

or a fine. Recently this Court held that a

change in the law, expanding the class of

eligible recipients of restitution payments

awarded in criminal cases, is covered by the

ex post facto prohibition. Spielman v.

State, supra 298 Md. at 609-610, 471 A.2d

730. In Spielman we specifically rejected

Justice Marshall in Fletcher v. Peck 6 Cranch

es Lae, 3 tutes 362 CYST) «

22A

the State's contention that "the amended

statute does not violate the prohibitions

against ex post facto laws because

restitution is not punishment," id. at 609,

471 A.2d 730.

It is true that the General Assembly

does not deem commitment to a mental

hospital, as a result of a criminal case, to

be the imposition of "criminal

responsibility." In addition, the purposes

of the commitment are treatment and the

protection of society against dangerous

individuals. Nonetheless, these same

considerations are included among the

purposes for which convicted persons are

sentenced to correctional institutions.’

7 The constitutional justification for

commiting the criminal defendant found to

have been insane, without an initial hearing

on his dangerousness, is the adjudication

that he committed a criminal act. See Jones

v. United States, 463 U.S. 354, 364, 103 S.

Ct. 3043, 3049-3050, 77 L.Ed.2d 694 (1983)

("The fact that a person has been found,

beyond a reasonable doubt, to have committed

(cont'd)

23A

Also, as the Supreme Court pointed out in

Addington v. Texas, 441 U.S. 418, 425-426, 99

S. Ct. 1804, 1809, 60 L.Ed.2d 323 (1979):

"This Court repeatedly has

recognized that civil commitment for

any purpose constitutes a

Significant deprivation of liberty

that requires due process

protection. See, e.g., Jackson v.

Indiana, 406 U.S. 715, 932 Ss. Ct.

1845, 32 L.Ed.2d 435 (1972);

Humphrey v. Cady, 405 U.S. 504, 92

S. Ct. 1048, 31 L-Ed.2d 394 (1972);

In ce Gault, 387 U.S. 1, 87 S. Cte

1928, 18 L.Fd.2d 527 (1967); Specht

v. Patterson, 386 U.S. 605, 87 S.

Ct. i203, 19, Le€6.26 326 (3967).

Moreover, it is indisputable that

involuntary commitment to a mental

hospital after a finding of probable

dangerousness to self or others can

engender adverse social consequences

to the individual. Whether we label

this phenomena 'stigma' or choose to

call it~ something else is less

important than that we recognize

that it can occur and that it can

have a very significant impact on

the individual."

See also Breed v. Jones, 421 U.S. 519, 530,

95 S. Ct. 1779, 1786, 44 L.Ed.2d 346 (1975)

(""commitment is a deprivation of liberty.

a criminal act certainly indicates

dangerousness").

It is incarceration against one's will,

whether it is called "criminal" or “civil,"'"

quoting In re Gault, 387 U.S. 1, 50, 87 S.Ct.

1428, 1455, 18 L.Ed.2d 527 (1967)); State v.

Ewell, 234 Md. 56, 198 A.2d 275 (1964) (time

spent in mental institution should be

credited against sentence).

Finally, in assessing the nature of a

confinement like Anderson's to determine

whether it may be deemed "punishment" for

purposes of the ex post facto prohibition, it

is pertinent to note that a criminal

defendant committed to- the custody of the

Department of Health and Mental Hygiene,

based upon the criminal case judgment that he

was guilty of committing a criminal act but

was insane at the time, is confined at the

Clifton T. Perkins Hospital Center. MThis is

a maximum security hospital; its purpose is

to receive persons committed as a result of

Criminal prosecution or inmates from prisons

25A

who need psychiatric hospitalization. See

Ch. $14 of the Acts of 1959; Maryland Manual

1985-1986, p. 210.

No case has been called to our attention

involving the precise ex post facto issue

8 On a related issue, several

presented here.

cases have taken the position that a change

in the law imposing the burden of proof upon

the defendant, with regard to the insanity

issue at the criminal trial itself, cannot be

applied where the criminal act occurred

before the change in the -law. See United

States v. Williams, supra, 475 F.2d at 356-

357; United States v. Prickett, 604 F.Supp.

407, 410 (S.D. Ohio 1985); United States v.

Kowal, 596 F.Supp. 375, 378 (D.Conn. 1984);

People v. Hollins, 136 Ill.App.3d 1, 90 Ill.

See, however, People v. Juarez, 184 Cal.

App.2d 570, 229 Cal. Rptr. 145, 147-148

(1986), involving a different but perhaps

analogous matter, and containing language

arguably supporting the State's position in

the instant case.

26A

Dec. 770, 482 N.E.2d 1053, 1055 ne. 1

(1985). See _ also State v. Coconino Cty.

Superior Ct., 139 Ariz. 422, 678 P.2d 1386,

1390-1391 (1984) (agreeing with the result of

the previously cited cases which were deemed

"persuasive," but resting the decision on

nonconstitutional state law grounds).

Moreover, the federal Insanity Defense Reform

Act of 1984, 18 U.S.C.A. §§ 4241-4247, inter

alia, placed both the burden of proof on the

insanity issue at the criminal trial and the

burden of proof at a later administrative

relief hearing (18 U.S.C.A. § 4243(d) upon

the defendant, and "as a result of ex post

facto considerations," the United States

Department of Justice determined that

"prosecutors should not seek to apply the new

ee- burden of proof provisions to conduct

Occurring prior to the date of enactment

eS ts U.S. Department of Justice, Handbook

on the Comprehensive Crime Control Act of

27A ce.

1984 and Other Criminal Statutes Enacted by

the 98th Congress, p. 65 (1984).

As previously pointed out, the sole

reason advanced by the State and the Court of

Special Appeals for the inapplicability of

the ex post facto prohibition is’ that

Anderson's confinement in the Clifton T.

Perkins Hospital Center is not deemed

“criminal” and is for the purposes of

treatment and protection of society.

Considering the nature of that confinement

under Maryland law, and particularly the fact

that it represents the disposition portion of

an adverse judgment in a criminal case

(Langworthy v. State, supra), we believe that

the confinement does implicate the ex post

facto prohibition. Because the change in the

law concededly operates to Anderson's

disadvantage, it may not be applied to him

under the ex post facto clauses of the

federal and state constitutions.

28A

Consequently, the State shall have the burden

of proof, by clear and convincing evidence,

at Anderson's administrative release hearing.

JUDGMENT OF THE COURT OF SPECIAL APPEALS

REVERSED, AND CASE REMANDED TO THAT COURT

WITH DIRECTIONS TO REVERSE THE JUDGMENT OF

THE CIRCUIT COURT FOR BALTIMORE CITY AND TO

RFMAND THE CASE TO THE CIRCUIT COURT FOR

BALTIMORE CITY FOR FURTHER PROCEEDINGS

CONSISTENT WITH THIS OPINION RESPONDENTS TO

PAY COSTS.

MURPHY, C. J., and RODOWSKY J., dissent.

RODOWSKY, Judge, dissenting.

I respectfully dissent because I am in

substantial agreement with the analysis

presented by Judge Wilner for the Court of

Special Appeals in Anderson v. Department of

Health & Mental Hygiene, 64 Md. App. 674, 498

A.2d 679 (1985).

29A

The majority of this Court believes that

Anderson's confinement implicates ex post

- facto prohibitions based on “the nature of

that confinement under Maryland law, and

particularly the fact that it represents the

disposition portion of an adverse judgment in

a criminal case ...." For the latter

proposition, Langworthy v. State, 284 Md.

588, 399 A.2d 578 (1979) is cited. The

majority relies on that portion of Langworthy

which discussed whether an appeal would lie

to review the verdict of guilty of the crime

charged where the trier of fact had also

found the accused to have been insane. The

concern was whether there was ae final

judgment. In that contest this Court saic:

Despite the lack of a "sentence" in

the context of punishment inflicted,

the determination of the trial court

as to the disposition of the

defendant is as final a judgment

following the conviction as if a

sentence inflicting punishment had

been imposed. The general rule that

pronouncement of sentence or _ the

suspension of its imposition is

30A

required to comprise an appealable

judgment in a criminal cause does

not apply because punishment is

legislatively prohibited and

supplanted by the statutory

alternatives applicable upon the

successful interposition of the

defense of insanity. In

circumstances such as here exist,

the defendant may appeal from the

judgment, composed of the verdict

that he committed the criminal act

charged and the disposition of him,

as a final judgment in the

contemplation of the statutory

authority for direct appeal. [Id.

at 597, 399 A.2d at 583.] oa

This is simply a nuts-and-bolts, technical

discussion of a jurisdictional-procedural

issue, and not a characterization of the

confinement.

More appropriate, in my view, to the

nature of Anderson's confinement is’ the

characterization found in that portion of

Langworthy in which this Court rejects the

notion that the verdict of insane meant that

Langworthy was attempting, in effect, to

appeal from an acquittal. We said:

In short, the clear _ legislative

intent regarding the successful

31A

interposition of a plea of insanity

is not that an accused is to be

found not guilty of the criminal act

it was proved he committed, but that

he shall not be punished therefor.

Rather than be punished, he may go

free or, under prescribed

circumstances, be provided treatment

for his mental disorder. [Id. at

598, 399 A.2d at 584 (emphasis

added) .]

The difference under the present statute

from that involved in Langworthy is that

under new § 12-lll(a) “after a verdict of not

criminally responsible, the court immediately

shall commit the defendant to the Department

for institutional, inpatient care or

treatment." An administrative hearing must

be held within fifty days after that

commitment for the purpose of making

recommendations to the court concerning

eligibility for release. See Md. Code (1982,

1986 Cum.Supp.), § 12-114(a) of the Health-

General Article. Whether we deal with a

commitment for evaluation under the old

statute or a commitment for a maximum of

fifty days before an administrative hearing

under the new statute, the disposition of the

criminal case is "treatment for [the

defendant's) mental disorder." Langworthy

supra, 284 Md. at 598, 399 A.2d at 584. In

my Opinion, the prohibitions against ex post

facto laws are not implicated.

MURPHY, C.J., has authorized me to say that

he joins in this dissenting opinion.

33A

APPENDIX B:

DECISION OF THE

COURT OF SPECIAL APPEALS OF MARYLAND

DATED OCTOBER 9, 1985

498 A.2d 679

Charles ANDERSON

DEPARTMENT OF HEALTH AND MENTAL

HYGIENE, et al.

No. 544, Sept. Term, 1985.

Court of Special Appeals of Maryland.

Oct. 9, 1985.

34A

George E. Burns, Jr., Asst. Public Defender, Baltimore

(Alan H. Murrell, Public Defender and George Lipman,

Asst. Public Defender, Baltimore, on brief), for appellant.

Susan Sugar Nathan, Asst. Atty. Gen., Baltimore (Ste-

phen H. Sachs, Atty. Gen., Baltimore, and C. Frederick

Ryland, Special Counsel, Jessup, on brief), for appellees.

Argued before GILBERT, C.J., and WILNER, and AL-

PERT, JJ.

WILNER, Judge.

In 1984, the General Assembly rewrote the State insanity

law. In doing so, it changed some of the procedures by

which “insanity acquittees” (persons charged with crime

but excused from criminal responsibility by reason of insan-

ity) could seek and obtain release from judicially-ordered

commitment to the Department of Health and Mental Hy-

giene (DHMH). The questions before us in this appeal are

whether the Legislature intended those changes to apply to

persons who, like appellant, were committed prior to the

effective date of the new law, and, if so, whether such

application would run afoul of Constitutional prohibitions

against ex post facto laws.

At some point in “late 1980,” appellant shot and killed his

brother. On April 8, 1981, he was brought to trial in the

Circuit Court for Baltimore City on a charge of first degree

murder, to which he interposed a defense of insanity.

Under the law then in effect, once such a plea was filed

and sufficient evidence was admitted to raise a doubt as to

the defendant’s sanity, it was incumbent on the State to

prove beyond a reasonable doubt that the defendant was

sane, 1.¢., that he did not lack substantial capacity either to

appreciate the criminality of his conduct or to conform his

conduct to the requirements of law. See former Md.Code

35A

Ann. art. 59, § 25 (1979 Repl.Vol.);' Bradford v. State, 234

Md. 505, 200 A.2d 150 (1964); Bremer v. State, 18 Md.App.

291, 307 A.2d 503, cert. denied 269 Md. 755 (1973), cert.

denied 415 U.S. 930, 94 S.Ct. 1440, 39 L.Ed.2d 488 (1974).

The requisite doubt was raised by appellant and the State

apparently failed to meet its burden, for appellant was

found not guilty by reason of insanity.

As an “insanity acquittee,” appellant was then subject to

the provisions of §§ 27-27C, 14, and 15 of art. 59. The first

three of those sections, §§ 27-27B, dealt with the immediate

handling of an “insanity acquittee’—whether he should be

confined for treatment, released subject to certain con-

straining conditions, or released outright and unconditional-

ly. The last three (§§ 27C, 14, and 15) assumed an initial

confinement and dealt with how such a confined person

could subsequently obtain release.

Section 27 provided that, upon an adjudication of insanity,

the court would commit the defendant to DHMH for exami-

nation and evaluation. On completion of the evaluation, an

evidentiary hearing would be held before a DHMH hearing

officer. The purpose of the hearing, according to § 27A(a),

was to consider the evaluation and other relevant informa

tion “to enable the hearing officer to make recommenda-

tions to the court” as to whether the defendant met the

criteria for confinement—i.e., whether he had a mental

disorder and whether, by reason of that disorder, he would

be a danger to himself or to others if released either

outright or conditionally. At that hearing, the defendant

had the right to be present, to be represented by counsel, to

offer evidence, and to cross-examine adverse witnesses.

Upon completion of the hearing, the hearing officer would

prepare and send to the court a report summarizing the

evidence adduced at the hearing and containing the hearing

officer’s recommendations “as to each issue to be decided

1. Ali references in this Opinion to sections of art. 59 are to the

sections as they appeared in the 1979 Repl.Vol. and 1980 Supp.

36A

by the court.” Because the hearing officer was not called

upon to make specific findings, but only to summarize the

evidence and make recommendations, there was no prov’-

sion in § 27A for any burden or standard of proof at the

administrative proceeding.

Section 27B permitted the State’s Attorney and the de-

fendant to file exceptions to the hearing officer’s report. If

such exceptions were timely filed, or if the court on its own

initiative decided not to follow the hearing officer’s recom-

mendations, it was to conduct a hearing on the record made

before the hearing officer and enter an appropriate order.

Under § 27B(e) and (f), it is clear that the actual findings

with respect to whether the defendant met the criteria for

confinement were those of the court.? In that regard,

§ 27B(i) provided that “{a]ll findings by the court under

subsections (e) and (f) of this section shall be upon clear and

convincing evidence.”

In accordance with those provisions, appellant was evalu-

ated by DHMH; he had a hearing before a DHMH hearing

officer; the hearing officer made a report to the court

summarizing the evidence and recommending confinement

for institutional inpatient treatment; and the court, employ-

ing the clear and convincing standard, concurred in the

2. Section 27B(e) provided:

“If the court finds that the person has a mental disorder, and by

reason of that mental disorder would be a danger to himself, or the

person or property of others if not confined in an institution for

in-patient care or treatment, it shall enter an order committing the

person to the Department of Health and Mental Hygiene for institu-

tional in-patient care or treatment.” (Emphasis added.)

Subsection (f) contained a similar provision with respect to condition-

al release.

See also 3/14/79 Memorandum from Chairman of the Special

Legislative Committee on Mental Health Laws to Senate Judicial

Proceedings Committee with respect to 1979 Md.Laws, Ch. 701 (then

SB 870) by which §§ 27-27C were enacted, noting that under § 27B,

in contrast to the situation with respect to persons civilly committed,

“the hearing officer in this procedure will not control the disposition

of the case, but will advise the court by way of recommendation

only.”

hearing officer’s recommendation and ordered appellant’s

confinement.

Appellant’s rights thereafter, as noted, were governed by

§§ 14, 15, and 27C of art. 59.

Section 14 afforded appellant an opportunity to seek

release through habeas corpus. Subsection (a) provided

that “{a]t any time, any person admitted to any facility ™

... May apply to any appropriate court for a writ of habeas

corpus. Such proceeding shall be available to determine the

cause and the legality of his admission and continued deten-

tion.”

Section 15, captioned “Judicial Release,” provided for a

special “sanity hearing.” Subsection (a) permitted “any

patient ... at any time” to file a petition in the equity court

“for the purpose of securing his release.” The issues to be

determined in the proceeding were essentially the same as

under § 27A dealing with initial commitment—‘“(1) Does the

patient have any mental disorder; and (2) Is the disorder of

such a nature that for the protection of himself or others,

the patient needs inpatient medical care or treatment.”

§ 15(d). The petitioner could elect to have those issues

tried before a jury, “and thereafter, such trial] shall proceed

as in a civil action at law.” § 15(c). If the trier of fact—

court or jury—answered either question in the negative,

“the petitioner shall be released from the facility....”

Under either of these proceedings, as the petitioner, the

“insanity acquittee” necessarily bore the burden of proof; it

was incumbent upon him to establish his eligibility for

release by proving, by a preponderance of evidence, that he

either did not have a mental disorder or, if he did, that it did

not render him dangerous to himself or to others. See

zaplinski v. Warden, 196 Md. 654, 663-64, 75 A.2d 766

(1950), and Graham v. State of Maryland, 454 F.Supp. 643,

650 (D.Md.1978) with respect to a petitioner’s burden in a

3. The term “facility” was defined in § 3(e) of art. 59 as including any

hospital or other institution “which purports to or does provide

treatment or other services for persons having any mental disorder.”

38A

habeas corpus proceeding and Daniels v. Superintendent,

34 Md.App. 173, 366 A.2d 1064 (1976), and Dorsey v. Solo-

mon, 435 F.Supp. 725 (D.Md.1977), affd in part, remanded

in part, 604 F.2d 271 (4th Cir.1979) with respect to the

petitioner’s burden in a § 15 proceeding.

Section 27C, first enacted only two years before appel-

lant’s commitment, provided, as an alternative to the judi-

cial proceedings under §§ 14 and 15, the same kind of

hybrid, or bi-level, proceeding afforded under §§ 27A and

27B. After six months of post-commitment confinement, an

“insanity acquittee” could apply for release by “notifying

the court and the State’s attorney in writing of his request

for an administrative hearing and judicial determination.”

§ 27C(c\i). Upon receiving such a notice, said § 27C(d),

“the court shall notify [DHMH] to evaluate the person in

accordance with the issues set out in § 27(c) within 20 days

of the date of the notice. Upon completion-of that evalua-

tion, the persons shall have the rights enumerated in

§§ 27A and 27B.” Among other things, of course, that

cross-reference to §§ 27A and 27B meant that the evidentia-

ry hearing was before a DHMH hearing officer, that the

hearing officer made no findings as to the defendant’s

eligibility for release but only a recommendation, that the

court made the critical findings, and that a decision to

retain the defendant in confinement had to be based upon

clear and convincing evidence.’

4. When §§ 27-27C were first enacted in 1979, the standard of proof

required in a § 27B or § 27C hearing was preponderance of evidé/xe.

See 1979 Md.Laws, ch. 701. That followed a conclusion by the U.S.

District Court in Dorsey v. Solomon, supra, 435 F.Supp. 725, that no

higher standard was constitutionally required.

Within a week or two after passage of the 1979 law (SB 870),

however, the United States Supreme Court decided Addington v.

Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), in which it

held that, in a civil commitment proceeding, the preponderance of the

evidence standard was constitutionally inadequate; the State was

obliged to justify involuntary civil confinement by clear and convinc-

ing evidence. Early interpretations of Addington suggested that the

reasoning employed by the Supreme Court with respect to civil com-

mitment might apply equally to the commitment of defendants ex-

39A

In September, 1982, appellant unsuccessfully sought re-

lief through a § 27C bi-level proceeding. Although the

record in that proceeding is not now before us, it is implicit

from appellant’s lack of success that the court again deter-

mined upon clear and convincing evidence that, by reason of

mental disorder, he would, if released from confinement,

continue to be a danger to himself or to others.

Much of this procedure changed in 1984, with the enact-

ment of 1984 Md.Laws, ch. 501. In the aftermath of the

celebrated trial of John Hinckley, the Governor created a

Task Force to Review the Defense of Insanity. Ch. 501 is

largely the product of that Task Force.

Although the 1984 Act completely rewrote title 12 of the

Health-General article (which, by virtue of Code Revision

had supplanted former art. 59 in 1982), a great deal of the

existing law was unchanged. The insanity defense was

retained, as were the substantive tests or standards for

competence to stand trial, criminal responsibility, and eligi-

bility for release following an adjudication of insanity.

The major changes made by the new law seemed to flow

from the intervening pronouncements of the U.S. Supreme

Court in Jones v. United States, 463 U.S. 354, 103 S.Ct.

3043, 77 L.Ed.2d 694 (1983). There, a closely divided Court

cused from criminal responsibility by reason of insanity. See Opinion

of the Attorney General on SB 870 (5/25/79); Opinion of the U.S.

Court of Appeals for the Fourth Circuit in Dorsey v. Solomon, 604 F.2d

271 (4th Cir.1979); this Court's opinion in Williams v. Superintendent,

43 Md.App. 588, 406 A.2d 1302, cert. granted 286 Md. 754 (1979),

judgment vacated in light of Legislative enactment 288 Md. 523 (1980);

and Commitment Following An Insanity Acquittal, 94 Harv.L.R. 605,

615-17 (1981). Accordingly, at its next session, by 1980 Md.Laws, ch.

292, the Legislature amended § 27B(i) to require the court's findings

under § 27B(e) and (f) to be upon clear and convincing evidence. By

virtue of the cross-reference to those sections in § 27C(d), the same

increased standard was automatically made applicable to the post-

commitment administrative proceeding under § 27C. The 1980

amendment did not affect either the habeas corpus proceeding under

§ 14 or the “judicial release” proceeding under § 15, however. Thus,

if a committed defendant chose either of those remedies, he still had

the burden of establishing his eligibility for release by a preponder-

_ance of evidence.

40A

(5-4) found no constitutional deficiency in a District ‘of

Columbia law that (1) placed the burden on the defendant in

the criminal proceeding to establish his insanity by a pre-

ponderance of the evidence, (2) provided for automatic com-

mitment of the defendant to a mental hospital upon an

adjudication of insanity until he could establish his entitle-

ment to release, and (3) afforded him an opportunity within

50 days of commitment and at six-month intervals there-

after to establish in a judicial proceeding his entitlement to

release, by a preponderance of the evidence.

Though reaffirming the determination in Addington v.

Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979),

that a “commitment for any purpose constitutes a signifi-

cant deprivation of liberty that requires due process protec-

tion,” (Jones, supra, 463 U.S. at 361, 103 S.Ct. at 3048), the

Court concluded that “a finding of not guilty by reason of

insanity is a sufficient foundation for commitment of an

insanity acquittee for the purposes of treatment and the

protection of society.” Jd. at 366, 103 S.Ct. at 3050. Turn-

ing then to the question of who ought to bear the burden on

the issue of commitment and by what standard, the Court

expressly rejected an extension of the Addington holding to

the commitment of “insanity acquittees,” concluding that

there were “important differences between the-¢lass of

insanity acquittees that justify differing standards of

proof.” Jd. at 367, 103 S.Ct. at 3051. The fact that the

insanity acquittee “himself advances insanity as a defense

and proves that his criminal act was a product of his mental

illness ... is good reason for diminished concern as to the

risk of error.” Jd. (emphasis in original). Thus, “(t]he

preponderance of the evidence standard comports with due

process for commitment of insanity acquittees.” Jd. at 368,

103 S.Ct. at 3051 (footnote omitted).

In accordance with these holdings and upon the Task

Force’s recommendations, the Legislature did away with

the existing commitment and release procedures and

adopted in their stead much of the District of Columbia

approach sustained in Jones. Under prior caselaw, as not-

4lA

——" -

ed, once the defendant, at his criminal trial, offered suffi-

cient evidence of insanity to rebut the initial presumption of

sanity, the State was required to prove sanity (i.e., criminal

responsibility) beyond a reasonable doubt. New § 12-

109(b) changed that; it requires the defendant to prove

non-responsibility by a preponderance of evidence.

A similar shift in burden of proof was made with respect

to both the initial commitment proceeding and a subsequent

bi-level proceeding for release. Under new § 12-111, a

defendant found not criminally responsible is automatically

committed to DHMH for institutional inpatient treatment;

under § 12-113, he is eligible for release only if he would

not be a danger to himself or to the person or property of

others, and “{t]o be released, a committed individual has the

burden to establish by a preponderance of the evidence

eligibility for discharge or eligibility for conditional re-

lease.”

Section 12-114 requires that, within 50 days after initial

commitment, a hearing must be held before a DHMH

hearing officer, “to consider any relevant information that

will enable the hearing officer to make recommendations to

the court as to whether the committed individual is eligible

for release under § 12-113....” At the conclusion of the

hearing, the hearing officer prepares and sends to the court

a report containing (1) a summary of the evidence presented

at the hearing, (2) “{rJecommendations of the hearing offi-

cer as to whether the individual proved, by a preponderance

of the evidence, eligibility for conditional release, or eligibili-

ty for discharge,” and (3) if the hearing officer determines

that the defendant “proved eligibility for conditional re-

lease,” the recommended conditions of the release. Sve

§ 12-115.

As in the prior law, the court makes the actual decision.

It. may on its own initiative and must upon timely filed

exceptions hold a hearing, but, with or without a further

hearing, it must ultimately determine “whether the evi-

dence indicates that the committed individual proved by a

’ 42A

preponderance of the evidence eligibility for release, with or

without conditions, in accordance with § 12-113....” See

§ 12-117(a).

Subsequent release following this initial determination is

governed by § 12-118. At yearly intervals,® the defendant

may seek release through either a bi-level proceeding sim-

ilar to that conducted pursuant to §§ 12-114-12-117 or a

direct judicial proceeding, where the issue of his eligibility

for outright or conditional release can be tried before the

judge or a jury. Whichever route is chosen, the judicial

trier of fact ultimately must determine ‘whether the com-

mitted individual has proved eligibility for release by a

preponderance of the evidence....” See § 12-118(b)(2) and

(c)(4).

Ch. 501 took effect July 1, 1984.- In November, 1984,

appellant requested another hearing before a DHMH hear-

ing officer but urged that the proceeding—at least as to the

standard and burden of proof—be governed by the former

law. The State insisted, however, and on November 21,

1984, persuaded the Circuit Court for Baltimore City to

direct, that the proceeding be conducted under the new law.

An evidentiary hearing was held before a hearing officer

on March 21, 1985, at which only two people—appellant and

Dr. Brian Crowley, a psychiatrist on the staff of C.T.

Perkins State Hospital—testified. Appellant acknowledged

that he currently had “a mental health problem” and that

he was “sick.” If released, he said he would go home to

live with his mother, get a job, and accept outpatient

treatment. Dr. Crowley, expressing the unanimous view of

the C.T. Perkins staff conference, recommended retention.

He opined that appellant continued to suffer from a mental

disorder—schizophrenia, paranoid type—and that, if re-

5. Section 12-118(a)(2) permits an earlier application if the application

is accompanied by an affidavit of a physician or licensed psychologist

“that states an improvement in the mental condition of the committed

individual since the last hearing.” Except for the requirement that the

affidavit be of a physician or psychologist, that provision was also in

the earlier law. See former art. 59, § 27C(a).

43A

leased, he would present a danger to himself or others. Dr.

Crowley noted that appellant had “a long history of seridus

psychosis with paranoid features, with delusional symptoms

and feelings of being persecuted.” He stated further that

appellant “still is very guarded and suspicious, has really no

understanding of his mental disorder. And hence, I don't

think he can be reasonably expected to be able to cooperate

in an adequate treatment plan, if he were out on the

street.”

On March 29, the DHMH hinwing officer filed a report in

which he found that appellant “has failed to prove, by a

preponderance of the evidence, eligibility for conditional

release, or eligibility for discharge.” He therefore recom-

mended that appellant be retained at C.T. Perkins for

inpatient care and treatment. Appellant excepted to the

report, but the court, on June 4, 1985, concurred in the

hearing officer’s findings and ordered a continuation of

appellant’s confinement. We granted appellant’s timely

application for leave to appeal (see Health-Gen. art.,

§ 12-118(d)(2)) to consider whether,

“I. The circuit court’s order requiring appellant to estab-

lish his eligibility for release by a preponderance of the

evidence subjected appellant to an ex post facto law in

violation of the Maryland and U.S. Constitutions.

II.- The court below erroneously construed Section 4 of

Ch. [501] in giving retrospective effect to the burden of

proof provision codified as § 12-113(d).”

We shall consider these issues in inverse order; finding

no error, however, we shall affirm.

(1) Statutory Construction

Section 5 of ch. 501 provides that the Act “shall take

etfect on July 1, 1984.” Section 4 states:

“That the provisions of this Act shall be applicable to any

case filed on or after the effective date of this Act and to

any tndividual found not criminally responsible by

reason of insanity or determined to be incompetent to

stand trial who is. under commitment to the Depart-

44A

ment of Health and Mental Hygiene on or after the

effective date of this Act; except that the initial commit-

ment of an individual found to have been insane at the

time of the commission of a criminal act under the law in

effect before the effective date of this Act shall be

governed by former §§ 12-110 through and including

12-113 of the Health—General Article as those sections

applied on June 30, 1984.” (Emphasis added.)

{1,2} In the Circuit Court, appellant argued that because

his “case” had been “filed” before July,"1984, and because

the term “not criminally responsible by reason of insanity”

originated in the Act itself and had no significance before

July, 1984, § 4, by its very terms, precluded application of

the Act to him. Except for a passing reference in his brief

to memoranda of law that he filed in the Circuit Court,

however, appellant does not pursue that argument before

us, and we shall therefore not consider it.6 His argument

here is based on the “legal presumption” that “absent a

clear expression of contrary legislative intent,” an Act is

intended to have only prospective effect; section 4, he says,

does not clearly articulate such a contrary intent. We

disagree.

Ch. 501, as noted, rewrote a good bit of the State insanity

law and affects the entire spectrum of proceedings from the

criminal trial through post-adjudication commitment and

ultimate release from confinement. In using the language

it did, the Legislature clearly manifested an intent to have

those provisions affecting the tria] apply only to cases filed

on or after July 1, 1984, to have those provisions affecting

initial commitment apply only to commitments made on or

after that date, but to have those provisions governing

release from confinement apply to all persons who were in

6. An argument not presented in the appellant's brief will not be

considered on appeal. Jacober v. High Hill Realty, Inc., 22 Md.App.

115, 321 A.2d 838, cert. denied 272 Md. 743 (1974); a mere reference

to a trial memorandum does not suffice to present the argument.

Rosenberg v. Rosenberg, 64 Md.App. 487, 523, n. 10, 497 A.2d 485

(1985).

45A

fact “under commitment” on that day. There is no other

sensible way to read § 4.

(2) Ex Post Facto Considerations

The enactment of ex post facto legislation is prohibited by

both the Federal and the Maryland Constitutions. Art. 1,

§ 10, cl. 1 of the Federal Constitution states unequivocally

that “No State shall ... pass any ... ex post facto

Law....” Art. 17 of the Md.Decl. of Rts., which antedated

its Federal counterpart by 11 years, is a bit more verbose:

“That retrospective Laws, punishing acts committed before

the existence of such Laws, and by them only declared

criminal, are oppressive, unjust and incompatible with liber-

ty; wherefore, no ex post facto Law ought to be

wate...3""

{3] Notwithstanding the difference in language, these

provisions, as interpreted respectively by the U.S. Supreme

Court and the Maryland Court of Appeals, are essentially

the same in intent, scope, and effect. The Maryland provi-

sion “parallels the federal clause ... and the Supreme

Court’s interpretation of the federal ex post facto clause is

persuasive authority” in construing the State counterpart.

Tichnell v. State, 287 Md. 695, 736, 415 A.2d 830 (1980).

The seminal case interpreting the Federal provision was

Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648 (1798). At issue

there was whether an Act of the Connecticut legislature

that set aside a decree of a State probate court and granted

a new hearing in that court constituted a prohibited ex post

facto law. The Connecticut court had rejected the com-

plaint of the parties aggrieved by the legislative act; the

Supreme Court affirmed.

Three of the four Justices who sat in the case made clear

in their separate Opinions that the prohibition did not ex-

7. Art. 17 goes on to prohibit “any retrospective oath or restriction”

from being “imposed” or “required.” Appellant does not argue that

the challenged part of ch. 501 represents a “retrospective oath or

restriction,” and so we shall not give further consideration to that

aspect of Art. 17.

46A

tend to all retrospective iegisiation, but only that of a penal

nature. Justice Paterson opined that “ex post facto laws

have an appropriate signification; they extend to penal

statutes, and no further; they are restricted in legal estima-

tion to the creation, and, perhaps, enhancement of crimes,

pains and penalties.” 3 Dall. at 397. Justice Chase, in a

more frequently quoted passage, put it this way (at 390):

“I will state what laws I consider ex post facto laws,

within the words and intent of the prohibition. 1st.

Every law that makes an action done before the passing

of the law; and which was innocent when done, criminal;

and punishes such action. 2d. Every law that aggra-

vates a crime, or makes it greater than it was, when

committed. 3d. Every law that changes the punishment,

and inflicts a greater punishment, than the law annexed

to tue crime, when committed. 4th. Every law that

alters the legal rules of evidence, and receives less, or

different, testimony, than the law required at the time of

the commission of the offense, in order to convict the

offender.”

In the nearly 200 years since Calder v. Bull, the Supreme

Court has never departed from that basic analysis and

circumscription of the prohibition. As late as 1981, in

Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d

17 (1981), the Court regarded an er post facto analysis as

“concerned solely with whether a statute assigns more

disadvantageous criminal or penal consequences to an act

than did the law in place when the act occurred....” /d.,

30, n. 13, 101 S.Ct. at 965, n. 13. See also Dobbert v.

Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 2297, 53 L.Ed.2d

344 (1977), quoting from Beazell v. Ohio, 269 U.S. 167,

169-70, 46 S.Ct. 68, 68, 70 L.Ed. 216 (1925). The same type

of analysis and circumscription has found expression in the

Maryland cases construing Art. 17. See Spielman ». Slate,

298 Md. 602, 608, 471 A.2d 730 (1984); Village Books, Inc.

v. State, 22 Md. App. 274, 287, 323 A.2d 698 cert. denied 273

Md. 723 (1974); cf Beard v. State, 74 Md. 130, 132, 21 A.

700 (1891); Elliott v. Elliott, 38 Md. 357, 360 (1873); An-

47A

derson v. Baker, 23 Md. 531, 566 (Bartol, J., dissenting),

581, 582 (Cochran, J., concurring), and 605 (Weisel, J.,

concurring) (1865); Braverman v. Bar Ass'n of Balto., 209

Md. 328, 348, 121 A.2d 473, cert. denied 352 U.S. 830, 77

S.Ct. 44, 1 L.Ed.2d 51 (1956).

The threshold question, then—and the dispositive one, in

our view—is whether the challenged act, shifting the bur-

den of proof in a bi-level post-commitment release proceed-

ing, “assigns more disadvantageous criminal or penal

consequences’ to appellant’s “criminal” act than were as-

signed to it when the act was committed. Weaver v.

Graham, supra, 450 U.S. 24, 30, n. 13, 101 S.Ct. 960, 9635, n.

13, 67 L.Ed.2d 17 (emphasis added).

The question of whether, and when, a sanction or disabili-

ty imposed by statute is penal in nature was addressed in

Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630

(1958). At issue there was whether Congress could consti-

tutionally deprive a native-born American of his United

States citizenship, and thereby render him stateless, be-

cause of his conviction by court-martial of wartime deser-

tion. The Act—§ 401(g) of the Nationality Act of 1940—

was challenged as being both ultra vires and as imposing

cruel and unusual punishment; it was in the latter context

that the Court considered whether the deprivation of citi-

zenship was penal in nature. Speaking for himself and

Justices Black, Douglas, and Whittaker, Chief Justice War-

ren borrowed from the ex post facto cases in enunciating

the standards for deciding that issue. At 95-96, 78 S.Ct. at

595-596:

“This Court has been called upon to decide whether or

not various statutes were penal ever since 1798. Calder

v. Bull, 3 Dall. 386 [1 L.Ed. 648 (1798) ]. Each time a

Statute has been challenged as being in conflict with the

constitutional prohibitions against bills of attainder and

ex post facto laws, it has been necessary to determine

whether a penal law was involved, because these provi-

sions apply only to statutes imposing penalties. In decid-

ing whether or not a law is penal, this Court has general-

48A

ly based its determination upon the purpose of the stat-

ute. If the statute imposes a disability for the purposes

of punishment—that is, to reprimand the wrongdoer,

to deter others, etc.—it has been considered penal. But

a statute has been considered nonpenal if it imposes a

disability, not to punish, but to accomplish some other

legitimate governmental purpose. The Court has recog-

nized that any statute decreeing some adversity as a

consequence of certain conduct may have both a penal

and a nonpenal effect. The controlling nature of such

statutes normally depends on the evident purpose of the

legislature.” * (Footnotes omitted; emphasis added.)

Some further expression of these views was given five

years later in Kennedy v. Mendoza-Martinez, 372 U.S. 144,

83 S.Ct. 554, 9 L.Ed.2d 644 (1963), which involved another

section of the Nationality Act of 1940, purporting to strip

Americans of their citizenship automatically for leaving the

country in time of war in order to avoid military service.

Again, the question was raised of whether the sanction—ex-

patriation—was penal in nature. Justice Goldberg, writing

for the Court, noted in dicta that, absent “conclusive evi-

dence of congressional intent as to the penal nature of a

statute,” the following factors, which he acknowledged

“often point in differing directions,” were relevant to the

inquiry: *

8. The ultimate conclusion reached by the Chief Justice on this analysis

was that the Act was penal in nature and that it did constitute cruel

and unusual punishment. Justice Brennan concurred in the judgment

on the independent ground that the Act was ultra vires. Justices

Frankfurter, Burton, Clark, and Harlan dissented on the grounds that

the Act was not ultra vires, that it was not penal in nature but rather

was consistent with a “‘non-penal’ purpose to regulate the military

forces,” and that, even if penal in nature, it did not impose cruel or

unusual punishment. See also Perez v. Brownell, 356 U.S. 44, 78 S.Ct.

568, 2 L.Ed.2d 603 (1958).

9. These observations were dicta because the Court went on to hold

that “objective manifestations of congressional purpose indicate con-

clusively that the provisions in question can only be interpreted as

punitive.” /d. at 169, 83 S.Ct. at 568.

492A

‘Whether the sanction involves an affirmative disability

or restraint, whether it has, historicalfy been regarded as

a punishment, whether it comes into play only on a

finding of scienter, whether its operation will promote

the traditional aims of punishment—retribution and deter-

rence, whether the behavior to which it applies is already

a crime, whether an alternative purpose to which it may

rationally be connected is assignable for it, and whether it

appears excessive in relation to the alternative purpose

assigned....” ;

Id. at 168-69, 83 S.Ct. at 567-68 (footnotes omitted).

Justice Stewart, joined by Justice White, in dissent put it

more succinctly: “The question of whether or not a statute

is punitive ultimately depends upon whether the disability it

imposes is for the purpose of vengeance or deterrence, or

whether the disability is but an incident to some broader

regulatory objective.” Jd. at 208, 83 S.Ct. at 588.

It would be a most unproductive enterprise for us to

attempt to pick and choose among these various expressions

in order to discern any single authoritative articulation of

the proper standard. In essence, they express the same

thought: What was the paramount legislative intent; what

is its paramount effect? If retributive or deterrent, it is

most likely punitive or penal in nature; if it is to accomplish

“some other legitimate governmental purpose,” it is likely

not punitive or penal, despite the incidental imposition of

‘some disability.

Appellant’s analysis is fairly straightforward. Under

Addington v. Texas, he says, the State must bear the

burden of justifying a civil commitment by clear and con-

vineing evidence. Jones v. United States permits a differ-

ent rule for “insanity acquittees,’ he continues, only be-

cause of the judgment rendered in the criminal proceeding.

“rqo, the commitment of an “insanity acquittee” arising

lrom a criminal proceeding is necessarily criminal or puni-

tive in nature, and shifting the burden and standard from

50A

that required by Addington to that permitted by Jones is

also necessarily punitive in nature.'®

Although we do not concur in the ultimate validity of this

proffered syllogism, and indeed note that Jones itself re-

futes the argument, appellant is at least correct in analyz-

ing the challenged provision in context. Standards or bur-

10. At oral argument, appellant posited an additional theory in support

of his claim, one that does not appear to have been raised below or,

indeed, in his brief. He noted that, under ‘Md.Code Ann. art. 27,

§ 139, elopement from confinement by an “insanity acquittee” consti-

tutes criminal escape—a felony—whereas eclopement by a person

civilly committed does not constitute a crime. This, he says, is further

evidence of the punitive nature of his commitment.

Punishment for elopement from confinement does not necessarily

make the confinement itself penal or punitive in nature, any more

than punishment for desertion makes service in the armed forces

penal or punitive. Since 1969, elopement by a person civilly commit-

ted to a drug addiction rehabilitation center under the Comprehensive

Drug Abuse Control Act has been declared criminal under § 139. See

former Md.Code Ann. art. 43B, § 17, which was transferred to § 139

in 1982 as part of the enactment of the Health-General article (1982

Md.Laws, ch. 21). Inclusion within § 139 of elopement by an “insani-

ty acquittee” was effected in 1984 by ch. 501, which, we note, also

expressly added to § 139 elopement by persons committed to DHMH

following a finding of incompetence to stand trial. Cormpare Slagle v.

State, 243 Md. 435, 221 A.2d 641 (1966), holding that elopement by a

person transferred under the former “insanity” law to C.T. Perkins

State Hospital for evaluation as to his competence to stand trial

constituted criminal escape under § 139.

Persons civilly committed to DHMH can be released administrative-

ly by DHMH; indeed, absent the periodic execution of new certifi-

cates of the type required for an initial involuntary admission, such

persons must be released administratively. See Md.Code Ann.,

Health-Gen. art., § 10-806. “Insanity acquittces,” on the other hand,

cannot be released, cither conditionally or outright, administratively;

only the court can order their release. Unlike persons civilly commit-

ted, whose “dangerousness” -is often a matter merely of prediction,

“insanity acquittees” have demonstrated a level of dangerousness by

their past criminal behavior; indecd, it is that past demonstration,

coupled with a current diagnosis, that particularly justifies an en-

forced treatment. Jones v. United States, supra. Elopement from that

enforced treatment therefore carries with it more than the ordinary

problems that may arise from an elopement by a civilly committed

patient; it serves to frustrate the court's legislatively authorized con-

trol over the individual and provides a more significant potential

threat to public safety. Those are the considerations that justify

reinforcing the therapeutic commitment by punishing elopement.

51A

dens of proof, of themselves, are neither penal nor non-pe-

nal. They take their character as one or the other only

from the nature of the proceeding to which they relate.

Tae real issue, then, is whether the confinement of “insani-

ty acquittees” under Maryland law and against the stan-

dards enunciated by the Supreme Court, is penal or punitive

in nature.

In Langworthy v. State, 284 Md. 588, 399 A.2d 578

(1979), a unanimous Court of Appeals made clear its view

that the purpose and effect of such confinement was not

punitive. It said, at 598, 399 A.2d 578:

“In short, the clear legislative intent regarding the suc-

cessful interposition of a plea of insanity is not that an

accused is to be found not guilty of the criminal act it was

proved he committed, but that he shall not be punished

therefor. Rather than be punished, he may go free or,

under prescribed circumstances, be provided treatment

for his mental disorder.” (Emphasis added.)

See also Pouncey v. State, 297 Md. 264, 267-68, 465 A.2d

475 (1983); Johnson v. State, 292 Md. 405, 448, 439 A.2d

542 (Eldridge, J., dissenting), and 474 (Cole, J., dissenting)

(1982).

The Supreme Court expressed the same view in Jones v.

United States, supra, 463 U.S. 354, 103 S.Ct. 3043, 77

L.Ed.2d 694. At 368, 103 S.Ct. at 3051, it observed: ‘The

purpose of commitment following an insanity acquittal, like

that of civil commitment, is to treat the individual’s men-

tal illness and protect him and society from his potential

dangerousness. The committed acquittee is entitled to re-

lease when he has recovered his sanity or is no longer

dangerous.” (Emphasis added.) See also O’Connor v.

Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396

(1975).

These expressions are in full keeping with the plain

words of the Legislature. In former art. 59, §§ 27, 27B,

and 27C, the General Assembly carefully and consistently

made clear that post-adjudication confinement was solely

for “in-patient care or treatment,” and that same limitation

52A

appears in the current law. See Health-Gen. art., §§ 12-

11l(a), 12-113(b).. Indeed, the law requires that, once the

individual’s condition has improved to the point that institu-

tional confinement is no longer necessary, he must be

released from that confinement, either with or without

condition. See former art. 59, § 27B(f), (h); current Health-

Gen. art., § 12-113(b), (c).

[4] Thus, while, as appellant contends, institutional con-

finement is certainly a consequence of his criminal act (see

Pouncey v. State, supra, 297 Md. at 270, 465 A.2d 475), it is

not a penal or punitive consequence. Cf Monroe v. Di-

rector, 220 Md. 650, 653, 187 A.2d 873 (1963). Accordingly,

the shifting of the burden and standard of proof in the

bi-level release proceeding does not constitute a prohibited

ex post facto law under either the Federal or the Maryland

Constitution." a

JUDGMENT AFFIRMED; APPELLANT TO PAY THE

COSTS.

53A

APPENDIX C:

DECISION OF THE

CIRCUIT COURT FOR BALTIMORE CITY

DATED MARCH 7, 1985

STATE OF MARYLAND . IN THE

“ CIRCUIT COURT

V. . FOR

” BALTIMORE CITY

CHARLES ANDERSON ” IND: 18031909

REKKKEEEKEEKEKREEKEEEKKEEKKEKRKKKEKKKKKRKKEKKKKEKKKEEE

MEMORANDUM OPINION AND ORDER

Effective July 1, 1984, Title 12 of the

Health-General Article of the Maryland Code

"Incompetency and Insanity-in Criminal Cases"

(Old Law) was repealed and replaced by new

Title 12 "Incompetency and Criminal

Responsibility in Criminal Cases" (New

Law). The General Assembly adopted the New

Law based on recommendations of the

Governor's Task Force to Review the Defense

of Insanity (Task Force). The name of the

defense was changed to “not ' criminally

responsible by reason of insanity." See Task

Force Comment Md. Health Gen. Code Ann., 12-

108, 109 (1984).

54A

Under the Old Law, the burden of

persuasion to prove sanity at the criminal

trial had been on the State to prove beyond a

reasonable doubt. Bradford v. State, 234 Md.

503 (1964). Under the New Law, the defendant

must establish the defense of not criminally

responsible by reason of insanity by a

preponderence of the evidence. New Law, Sec.

2-109(b). Under the Old Law, the State had

the burden (after the criminal defendant was

successful in raising the insanity defense)

to seek commitment of the defendant by clear

and convincing evidence, Md. Ann. Code, Art.

50, Sec. 27B (1980), and if committed, the

State still had the later burden to prove by

clear and convincing evidence that’ the

Insanity Committee met the substantive

criteria for retention when he filed later

petitions for release. Under the New Law,

1 Mr. Anderson asserts that he no longer

suffers from a mental disorder, is not a

danger to himself or the persons or property

(cont'd)

55A

individuals found insane are now

automatically committed and the Insanity

Committee has the burden to prove release

eligibility by a preponderance of the

evidence.

The New Law provides in pertinent part,

[T]he provisions of this Act shall

be applicable to any case filed on

or after the effective date of this

Act (July 1, 1984) and to any

individual found not criminally

responsible by reason of insanity

~e- who is under commitment to the

Department of Health and Mental

Hygiene on or after the effective

date of this Act (July 1, 1984)

On April 8, 1981, Mr. Anderson was found

insane of first degree murder. The offense

occurred in late 1980. On April 8, 1981 this

Court committed him to the Department of

Health and Mental Hygiene (Department) for

examination and evaluation to determine

whether he met the standards for inpatient

treatment. After an administrative hearing

of others if not confined to an institution

56A

and in line with the recommendations of a

departmental hearing officer this Court

committed him for inpatient care on April 21,

1981. wes

He has remained confined to Clifton T.

Perkins Hospital Center, a facility of the

Department. He has unsuccessfully sought his

release by electing an administrative hearing

and judicial determination. On September 7,

1982, this Court ordered his continued

commitment. Since September 7, 1982, Mr.

Anderson has filed no applications’ for

release except for the instant application.

He now seeks his release and requests

that this Court assign the burden of

persuasion to the State to prove by clear and

convincing evidence that he meets7~ the

Standards for institutional inpatient care

and treatment. Further, he requests that

this Court order that the provisions of the

Old Law govern his application for release.

57A

The State argues that the New’ Law

applies, that is, that the Insanity

Committee, and not the State, has the burden

of proving release eligibility by a

preponderance of the evidence.

"PLAIN MEANING"

Mr. Anderson argues that before the New

Law there was no such verdict as "not

criminally responsible by reason of

insanity." It was only "guilty and insane"?

or "not guilty by reason of insanity" or

"insane." The New Law created the language

"not criminally responsible by reason of

insanity" because the Task Force felt that

such language was a “more accurate statement

of the defendant's status in criminal law”

and less stigmatizing as concerns the

mentally ill who had not committed crimes.

Or in-patient treatment.

Langworthy v. State, 284 Md. 583 (1979),

S8A

See the Report of the Task Force at 23

(Explanation).

The Insanity Committee argues that since

the New Law specifically gears applicability

to an individual found “not criminally

responsible by reason of insanity" and since

this verdict did not exist prior to the New

Law, the plain meaning rule precludes’ the

application of the New Law.

The State, however, asserts that "not

Criminally responsible by reason of insanity"

and "insanity" are interchangeable terms. It

points to cases such as Sherrill v. State, 14

Md. App. 146, 147 (1972), Young v. State, 14

Md. App. 538, 540-47 (1972) and Langworthy v.

State, supra at 593, fn. 7 (1979), which

equate "test for criminal responsibility,"

"defense of insanity" and "criminal

responsibility."

gert. denied, 450 U.S. 960 (1981).

~ The Report of the Task Force is attached

59A

Tt seems to me that the matter of

statutory labelling does not create any

roadblock to the application of the New

Law. It is a matter of form and 0of

definition. NO substantive change was

intended. If the legislature had said "not

criminally responsible" without any other

qualifying language, the Insanity Committee's

argument would be stronger. But when it tied

in "not criminally responsible" with "by

reason of insanity" it seems clear that the

basis of the verdict under both the Old Law

and the New Law is "insanity."

AMBIGUITY AND BURDEN SHIFTING

Mr. Anderson next argues that _ the

language “any case filed" is ambiguous.

He contends such ambiguity cannot be the

clear expression of restrospectivity needed

hereto and made a part hereof as "Exhibit 1."

Does it mean, he argues, the 1980 charging

60A

to rebut the prospective application of the

New Law. He asserts that the New Law's

burden of proof as to release eligibility

does not apply to him. Hence he contends

—that—the- Ord Law's burden of proof applies.

He asserts that any shift from the Old Law's

burden of clear and convincing evidence on

the part of the State to the New Law's

preponderance burden on his part is a

substantial and not a procedural, change. He

grounds his argument on lack 0of fair

warning. He says that his decision to plead

insane could well have been made because he

was entitled to feel that if his insanity

defense succeeded, the State would have to

prove (by clear and convincing evidence) his

continued need for inpatient treatment.

The State responds by saying that the

matter of ambiguity is irrelevant because Mr.

Anderson was "under commitment to the

Department" on July 1, 1984 and hence the New

61A

Law applies to his case.

Moreover the State calls the Insanity

Committee's burden of proof argument one that

seeks to make his insanity pleading decision

a “vested right" in the Old Law's burden of

proof. It rejects such vested right. It

points to the achievement of administrative

uniformity by making administrative hearings

the same as judicial release hearings, as

> tt

concerns burden and standard of proof.

states that the New Law is remedial, not

designed to impair vested rights, and points

to analogous situations where later changes

in remedial treatment committment statutes

have been upheld [see, e.g. defective

delinquency statutes, Monroe v. Dir., 230 Md.

document or the instant application for

release filed after July 1, 1984?

Under the Old Law, an Insanity Committee

could seek either an administrative

proceeding with judicial review or judicial

release in a civil proceeding in an equity

court, either with or without a jury. If he

chose judicial review, he had the burden of

62A

650, 652-53 (1963)]. It argues that the

change is procedural and not substantive. It

stresses the "positive benefits" of the

changes, in that the proof will reflect the

patient's positive achievement in controlling

mental illness and not require that the State

prove negative things about the Insanity

Committee.

The Insanity Committee position is

persuasive. He may well have asserted the

insanity defense hoping for the best of both

worlds, i.e., a verdict of "“insane" thus

escaping criminal responsibility, while at

the same time taking advantage of the heavy

clear and convincing burden that he expected

that the State would have to shoulder. The

change in the New Law is adverse to him.

The question is whether the positive

benefits of the New Law outweigh’ the

disadvantage to Insanity Committees such as

Mr. Anderson. It must be remembered that the

63A

New Law did not change the standard. It was,

and is:

Whether by reason of mental

disease, the Insanity Committee is

a danger to himself, to (the

person's) own safety, Or a merace

to the safety or the person or

property of other people if at

larqe.

Salinger v. Supt., 206 Md. 623, 632

(1955) Old Law, Sec. 12-113(b) (ii)

(1982) New Law, Section 12-113(b)

(1984).

If the Insanity Committee is correct, the

State will have to bear the administrative

burden of bifurcating release procedures for

different classes of Insanity Committees,

contingent only upon the date of original

commitment. The date of original commitment

has been termed “insignificant,” Sherrill v.

State, 14 Md. App. 146, 155 (1972), and while

Sherrill is not factually analogous ,°® it does

apply a later mental responsibility law to

proving fitness for release by a

preponderence of the evidence.

It involved one tried after a new law had

changed the test of mental responsibility for

64A

cases tried after the effective date of the

New Law, even if the criminal act happened

before the effective date of the New Law.

The Sherrill Court frowned upon the idea

of "two separate tests for criminal

responsibility in effect at the same time."

Sherrill at 155. The State uses the same

argument in this case. Sherrill noted that

the insanity defense becomes truly meaningful

when the case is tried and not when the crime

occurred, and that is why it concluded that

the legislature could not have meant to have

two tests (one to deal with mental condition

at the time of the commission of the criminal

act and one to deal with the trial time).

When one analyzes the matter of burden

of proof, one must ask what was- the

legitimate expectation of a person charged

with a crime who pled insane before the New

Law? When Mr. Anderson was found insane that

by itself did not determine the length of his

65A

commitment. Such length is determined by the

existence vel non of his mental illness and

by the \ nature and extent of his

dangerousness, if any. If he chose the

judicial release route, incidentally, under

the Old Law (and even the New Law) he knew he

had the burden ot proof (by a preponderance

of the evidence), but he also knew that he

had advantages too, such as to the right to a

trial by jury. See, Daniel v. Supt., 34 Md.

App. 173, 178-79 (1976). The New Law makes

administrative hearings consistent with

judicial release procedures. As I have said,

the standard remains the same.

But balancing all of the competing

factors, I conclude that the burden-shift is

substantive, adverse to the Insanity

Committee, and not outweighted by the

administrative convenience to the State.

Under the Old Law the Insanity Committee

could simply sit back and win if the State

66A

failed to prove its case by clear. and

convincing evidence. If there was a state of

even balance, the Insanity Committee won.

Under the New Law, the Insanity Committee

loses. These changes make a real and

significant difference.

But even assuring such adversity, the

question is whether such adversity is

allowable without violating statutory or

constitutional imperatives. The reasoning in

Sherrill inclines towards the allowance of

the burden-shift even though some adversity

may be encountered. As far as the New Law is

concerned, Mr. Anderson was found insane (the

equivalent of not criminally responsible by

reason of insanity) before the effective date

of the New Law and he was under commitment

"on" July 1, 1984. Hence his release is

subject to the burden of proof requirements

of the New Law. As to constitutional

considerations, let us now consider’ the

67A

matters of the ex post facts and due process

clauses.

IIlI.

EX POST FACTO CONSIDERATIONS

The final question, then, is whether

this adversity to the Insanity Committee,

violates the ex post facto clause of the

federal’ and/or state” constitutions.

In order for a law to be ex post facto,

it must be retrospective; that is, it must

apply to events occurring before the

enactment; and it must disadvantage the

offender affected by it. Weaver v. Graham,

450 U.S. 24, 29 (1981). At first blush, both

elements would seem to be present in the

instant case. The State seeks to apply the

New Law to the 1981 determination of insanity

a criminal act which occurred before the New

aw went into effect.

B.8.. Const., Art. i, Sec. 3, Chavpe 3,

Sec. 10, Clause l.

68A

of Mr. Anderson and it attaches a

significantly heavier burden of proof to his

disadvantage. This mix led New Hampshire to

rule that retroactive shifting of the burden

of proof violated its constitutional

prohibition against ex post facto laws.

State v. Ballou, 481 [N.E.] 2d 260 (N.H.

1984).

On the other hand, a law is only ex post

facto if its purpose is punishment. Spielman

ve. State, 298 Md. 602 (1984). The New Law

has treatment = as its objective. The

commitment order for Mr. Anderson

specifically states that its purpose is care

and treatment. While it is true that no one

wants to be confined against his’ will

anywhere,” it is also true that when one is

an Insanity Acquittee, society can both treat

him (against his will, if necessary) and

Nes OGCL. GE Rta... AFG. 17.

69A

protect him and society from his potential

dangerousness. Jones v. United States, 463

U.S. 354, 103 S. Ct. 3043, 3051-52 (1983).

In Jones, the Court held that an Insanity

Acquittee could be hospitalized for treatment

of his mental illness beyond the expiration

of time of his sentence. Treatment was the

paridigm even though incidental "punishment"

may be involved. If one is not criminally

convicted, he may not be criminally

punished. While related in certain

instances, punishment is different from

treatment, and the law clearly recognizes

this difference. Vitek v. Jones, 455 U.S.

480 (1980). Accord, Langworthy v. State, 284

Md. 588 (1979), cert denied; 450 U.S. 960

(1981), Pouncey v. State, 297 Md. 264 (1983).

There is a lot of language and holdings

in the cases which indicate that the ex post

facto prohibition is not violated because

commitment is not considered punishment. See

70A

People v. Buttes, 134 Cal. App. 3d 116, 184

Cal. Rptr. 497 (1982); People v. Valdez, 79

Ill. 2d 74, 402 N.E. 2d 187 (1980); People v.

Thiem, 82 Ill. App. 3d 956, 403 N.E. 2d 647

(1980); In Re Clark, 86 Kansas 539, 121 P.

492 (1912); In the Matter of Rogers, 63 N.C.

App. 705, 906 S.E. 2d 510 Appeal dismissed,

309 N.C. 622, 308 S.E. 2d 716 (1983); State

v. Jackson, 2 Ohio App. 3d 1l, 440 N.E. 2d

1199 (1981); Matter of Guardianship of

Nelson, 98 Wis. 2d 261, 296 N.W. 2d 736

(1980). The minority of Courts that have

found that changes in release/recommitment

statutes were ex post facto have done so on

the basis that these proceedings were

Criminal. Raimondo v. Pavkovic, 107 Ill.

App. 30d 226, 437 N.E. 2€ 712 (1982), and

People v. Tedford, 109 Illinois App. 3d 195,

440 N.E. rs a (1982); (holding of

intermediate appellate Court of Illinois

inconsistent with holding of Supreme Court of

71A

Tllinois in People v. Valdez, supra _ and

People v. Thiem, supra); State v. Ballou,

Supra.

If one construes "punishment" broadly,

it would encompass involuntary confinement in

a mental institution. If one construes

"punishment" narrowly, one would argue that

it is not an offense to be "dangerous" and

hence the "punishment" predicate for the

application of the ex post facto prohibition

would be lacking. The inquiry however, should

not be confined to consideration of the

positions of only two parties, i.e., the

Insanity Committee and theDepartment. It

————

should also consider the public. When one

considers the public, one must think about

the matter of dangerousness and the right of

the public to be protected against’ the

dangerousness of some of its members. As to

how best to so protect the public, the

legislative intent is clear -- when the

72A

verdict on the general plea was guilty and

the special verdict on the insanity plea was

that the accused was insane, the trial judge

had two courses under the Old _ Law: (a)

either to turn the Insane Acquittee loose (as

authorized by statute) or (6b) commit him to

the Department for examination and evaluate

[sic] to determine, by the standards

applicable to civil admission proceedings,

(as per statute) whether he would be a danger

to himself, or the safety of the person or

property of others. Langworthy v. State, 284

Md. 588, 594 (1979). On the basis of that

report (and other evidence) the Court may

direct confinement for treatment. Id at

594. The "statutory scheme" in the above

scenario deals with treatment as the sole

method of protecting the public (and

rehabilitating mental patients). This Court

defers to the statutory scheme and _ thus

concludes that the ex post facto Laws of the

73A

federal and state constitutions are not

violated. Committment on grounds of

dangerousness iS not punishment. — oe

imposed for the sake of safety, not for the

sake of penal policy.

IV.

DUE PROCESS CONSIDERATIONS

Mr. Anderson argues that in the context

of general civil commitment, due _ process

requires a higher burden of proof than the

preponderance standard, namely, the clear and

convincing standard, citing Addington vv.

Texas, 441 U.S. 418 (1979). This is true.

But in the case of Insanity Acquittees, they

may be indefinitely committed following

determination of insanity and it is not

violative of due process to make them prove

that they are no longer dangerous by a

preponderance of the evidence. Jones v.

United States, 462 U.S. 354, 103 S. Ct. 3043,

3051-52 (1983). In the process, Jones

74A

distinguished Addington, pointing out

important differences between civil

commitment candidates and Insane Acquittees,

which difference justifies different

Standards of proof (proof by an accused that

he committed a criminal act as a result of

mental illness eliminates the risk that he is

being committed for mere "idiosyncratic

behavior," Addington, 441 U.S., at 427).

Jones does not answer the instant

question. But if it does not violate due

process to:

a. Make a criminal accused

establish insanity instead of

requiring the government to

prove sanity,

b. Make him do so by a

preponderance of the evidence,

Ceo Confine an Insane Acquittee to

a mental hospital until he

regains his sanity or is no

longer dangerous to himself or

society. —

d. — Authorize confinement in a

mental hospital for a period

longer than he could have been

incarcerated

75A

then a strong argument can be made that due

process is not violated by Maryland's burden-

shifting New Law. Insane Acquittees do

"constitute a special class that should be

treated differently trom other candidates for

commbtmente:* Jones, 460 U.S. 354, 103 S. Ct.

at 3053. Legislatures should be allowed

leeway when dealing "with the special

problems raised by the insanity defense."

Id. at 3053.

To conclude, the burden-shifting New

Law, while affecting the Insanity Committee

adversely, does not affect him unfairly,

Since it seeks to afford him treatment for

his sake and for the sake of society. While

it may deprive him of liberty, it does so for

a legitimate purpose and hence does not

offend standards of fundamental fairness.

For the foregoing reasons, it is, on

this 7th day of March, 1985

ORDERED by the Circuit Court for

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Baltimore City, that Mr. Anderson “Motion to

Strike Consent is hereby denied, and it is

further

ORDERED, that Mr. Anderson's release be

governed by the burden of proof requirements

of the New Law.

Marshall A. Levin,

Judge

APPENDIX D:

ORDER OF THE

CIRCUIT COURT FOR BALTIMORE CITY

DATED JUNE 4, 1985

STATE OF MARYLAND * IN THE

* CIRCUIT COURT

v. * FOR

* BALTIMORE CITY

CHARLES ANDERSON ba IND: 18031909

ARAEAAAAAATAAAAAAAAAAAAAARAAARAEAAAAAREAAAAARARAAKE

ORDER OF CONTINUED COMMITMENT

After having been found not criminally

responsible on April 8, 1981 the defendant

was committed as a patient to the care and

custody of the Department of Health and

Mental Hygiene for an_ inpatient

evaluation and was subsequently committed to

the care or treatment of the Department.

An Administrative Hearing was conducted

on March 21, 1985 at Clifton T. Perkins

Hospital Center. The Hearing Examiner, Paul

Jacobs, Esquire, recommended to this Court on

March 29, 1985 that Charles Anderson be

retained at the hospital for further care and

treatment on the basis of the finding that

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the patient had not proven eligibility for

release by a preponderance of evidence.

Upon review of the recommendations of

the Hearing Examiner and the summary of

evidence and testimony provided therein,

exceptions having been filed by the patient

and after argument before this Court, the

Circuit Court for Balimore City, Maryland,

this 4th day of June , 1985:

FINDS, that Charles Anderson has not

proven eligibility for release; and it

further

FINDS, that by virtue of his mental

disorder, Charles Anderson requires continued

inpatient hospitalization in that he would be

a danger to himself or the person or property

of others if released; thus it is

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ORDERED, that in accordance with the

recommendation of the Hearing Officer, the

patient, Charles Anderson ~ shall remain

committed to the Department of Health and

Mental Hygiene until further order of court.

MARSHALL A. LEVIN

Circuit Court for

Baltimore City

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ltt Oe me: eo:

APPENDIX E:

APPLICATION

FOR LEAVE TO APPEAL

TO THE COURT OF SPECIAL APPEALS

FILED JUNE 29, 1985

STATE OF MARYLAND * IN THE

* CIRCUIT COURT

Ve ss FOR

* BALTIMORE CITY

CHARLES ANDERSON “ IND: 18031909

REKKEEEEAEEEEEKEKKEKKEKKEKRKKKKRKKEKKKKKKKKKEKKKKRKKE

APPLICATION FOR LEAVE TO APPEAL

TO THE COURT OF SPECIAL APPEALS

(Filed June 29, 1985)

I. Introduction

Charles Anderson, by his’~ attorneys,

George M. Lipman and Michael 0. Ramsey,

Assistant Public Defenders, pursuant to Md.

Health-General Code Ann. §12-113(e) (2)

(1982), and Md. Health-General Code Ann. §12-

113(e)(2) (Supp. 1984), requests leave to

appeal the order of continued commitment

entered by the Circuit Court for Baltimore

City on June 4, 1985. The issue presented is

the appropriate burden ef prest in an

administrative hearing and judicial review

proceeding for release from a state hospital

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initiated after July 1, 1984, by a person who

had been found insane prior to July 1,

1984. This issue effects (sic) not only Mr.

Anderson but sien over one hundred persons

found insane prior to July 1, 1984 and

currently confined in state mental hospitals.

kkk

IV. Concise Statement of the Reasons Why the

Lower Court's Judgment Should be Reversed.

Be. At was a constitutionally prohibited

application of ex post facto law for

the lower court to require Mr.

Anderson to prove his eligibility for

release by a preponderance of _ the

evidence.

The Court in Weaver v. Graham, 450

U.S. 24, 29 (1980) set forth the elements

which must be present “for a criminal or penal

law to be ex ~post_ facto; it must be

retrospective, that is it must apply to events

occurring before its enactment and it must

disadvantage the offender affected by it".

Md. Health-General Code Ann. §12-101 et seq.

(Supp. 1984) is a criminal or penal statute in

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that it provides for the criminal commitment

to a mental hosptial of an individual found

insane. oe @. eee, £63 U.S. 354, 163

S.Ct. 3043 (1983). Pouncey v. State, 207 Md.

264, 465 A.2d 475 (1983). Compare Addington

v. Texas, 441 U.S. 418 (1979) and Md. Health-

General Code Ann. §10-632 (Supp. 1984). The

application of the statute by the lower court

was retrospective in that it "substantially

altered the consequences attached to a crime

already completed". Weaver, 450 U.S. at 33.

The imposition of the burden of = proof

disadvantaged Mr. Anderson in that his path to

release was clearly made more difficult. See

State v. Ballou, 481 A.2d 260 (N.H. 1984).

kkk

Respectfully sumbitted,

/s/

George M. Lipman

/s/

Michael O. Ramsey

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APPENDIX F:

MARYLAND INSANITY

COMMITMENT STATUTES

MARYLAND INSANITY COMMITMENT STATUTES

Pre-Existing Laws

MD. Health-General Code Ann. §12-113(b) (1)

(1982)

(b) Committal. -- (1) The court shall

order commitment to the Department for

institutional, inpatient care or |

treatment if the court finds, on clear

and convincing evidence, that the

individual:

(i) Is mentally retarded or has a

mental disorder; and

(ii) Because of mental retardation

or a mental disorder, would be a danger

to the individual or the person or

property of another, if not confined.

MD. Health-General Code Ann. §12-114 (1982)

(a) Initial application. -- Six months

after a court commits an individual

under §12-113(b) of this title, the

individual may apply for release as

provided in subsection (b) or (c) of

this section. The individual may not

apply under both subsections.

(b) Administrative proceeding. -- (1)

To apply for release under this

subsection, the individual shall notify

the court—and State's attorney, in

writing, of a request for an examination

and evaluation to determine whether the

individual:

(i) Is mentally retarded or has a

mental disorder; and

(ii) Because of mental retardation

Or a mental disorder, would be a danger

to the individual or the person or

property of another, if a relased from

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confinement with or without condition.

(2) On receipt of the notice, the

court shall notify the Department to do

the examination and evaluation within 20

days after the notice date.

(3) After the evaluation is done,

the individual has the rights set forth

in §§12-111 through 12-113 of this

title.

for release under this subsection, the

individual shall file a petition for

release in an equity court in the county

where the individual was found not

guilty by reason of insanity.

(2) A copy of the petition shall be

sent to the State's attorney.

(3) If the individual requests trial

by jury, the trial shall be held with a

jury as in a civil action at law.

(4) The trier of fact shall:

(i) Consider whether the

individual:

1. Is mentally retarded or has a

mental disorder; and

2. Because of mental retardation

or a mental disorder, would be a danger

to the individual or the person or

property of another, if released from

confinement; and

(ii) Render a verdict for:

1. Continued confinement;

2. Conditional release; or

3. Unconditional release.

(5) Within 30 days after a verdict

for conditional relase is rendered, the

court shall release the individual on

appropriate conditions.

(d) Later review. -- (1) After review

under this section, an individual may

reapply for release only once in any 1l-

year period, unless the individual

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files, with the petition or request, an

affidavit that shows an improvement in

the mental condition of the individual

after the review.

(2) An affidavit that another

patient executes is not valid. (An. Code

1957, art. 59, §27C; 1982, ch. 21, §2.)

Post 1984 Statutes

MD. Health-General Code Ann. §12-101 Editor's

Note (Supp.) 1984

Sections 4 and 5 of 1984 Md. Laws Ch. ~501

Section 4 of Ch. 501 provides that "the

provisons of this act shall be applicable to

any case filed on or after the effective date

of this act (July 1, 1984) and to any

individual found not criminally responsible

by reason of insanity or determined to be

incompetent to stand trial who is under

commitment to the Department of Health and

Mental Hygiene on or after the effective date

of this act (July 1, 1984); except that the

initial commitment of an individual found to

have been insane at the time of the

commission of the criminal act under the law

in effect before the effective date of this

act (July 1, 1984) shall be governed by

former §§12-110 through and including 12-113

of the Health-General Article as _ those

sections applied on June 30, 1984.

Section 5 of Ch. 501 provides that the

act shall take effect July 1, 1984.

MD. Health-General Code Ann. §12-111

(a) Commitment. -- Except as provided

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in subsection (c) of this section, after

a verdict of not criminally responsible,

the court immediately shall commit the

defendant to the Department for

institutional, inpatient care or

treatment.

(b) Disposition of mentally retarded.

-- If the court commits a defendant who

was found not criminally responsible

primarily because of mental retardation,

the Department shall designate a

facility for mentally retarded

individuals for care and treatment of

the committed individual.

not criminally responsible, a court may

Order that an individual be released,

with or without conditions, instead of

committed to the Department, but only

if:

(1) The court thas available an

evaluation report within 90 days

preceding the verdict made by an

evaluating facility designated by the

Department;

(2) The report! indicates that the

individual would not be a danger as a

result of mental retardation or mental

disorder, to self or to the person or

property of others if released, with or

without condition; and

(3) The individual and the State's

Attorney agree to the release and to any

condi;tions for release that the court

imposes.

(d) Inclusion in central computer. --

The court shall notify the central

repository of the criminal justice

information system of each individual it

orders committed under this section. (HG

§12-110; 1984, ch. 501, §2, 1985, ch.

10, §3.)

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MD. Health-General Code Ann. §12-113 (Supp.

1984)

(a) In general. -- A committed

individual may be released under the

: provisions of this section and §§12-114

through 12-121 of this title.

(b) Eligibility -- Discharge. -- A

committed individual is eligible for

discharge from commitment only if that

individual would not be a danger, as a

result of mental disorder or mental

retardation, to self or to the person or

property of others if discharged.

committed individual is eligible for

y conditional release from commitment only

if that individual would not be a

Ganger, as a result of mental disorder

Or mental retardation, to self or to the

person or property of others if released

from confinement with conditions imposed

by the court.

(d) Burden of proof. -- To be

released, a committed individual has the

burden to establish by a preponderance

of the evidence eligibility for

discharge or eligiblity for conditional

release. (1984, ch. 501, §2.)

thee

MD. Health-General Code Ann. §12-118 (Supp.

1984)

88A

(a) Application -- Time. -- (1) Not

earlier than 1 year after the initial

release hearing ends or was waived, and

not more than once a year thereafter, a

committed individual may apply for

release under either subsection (b) or

(2) Notwithstanding the time

restrictions in paragraph (1) of this

subsection, a committed individual may

file an application for release at any

time if the application is accompanied

by an affidavit of a physician or

licensed psychologist that states an

improvement in the mental condition of

the committed individual since the last

hearing.

(b) Administrative proceeding. -- (1)

To apply for release under this

subsection, the committed indivdiual

shall file an application for release

with the Department and notify the court

and State's Attorney, in writing, of

this request.

(2) The provisions of this title

governing administrative hearing and

judicial determination of eligibility

for release apply to any application for

release under this subsection.

(c)_ Judicial review. -- (1) To apply

for release under this subsection, the

committed individual shall file a

petition for release with the court that

ordered commitment.

(2) The committed individual shall

send a copy of the petition for relase

to the Department and the State's

Attorney.

(3) If the committed individual

requests a trial by jury, the trial

shall be held in a circuit court with a

jury as in a civil action at law.

89A

he trier of fact shall:

(i) Determine whether the

committed individual has proved

eligibility for release by a

preponderance of the evidence; and

(ii) Render a vedict for:

1. Continued commitment;

2. Conditional release; or

3. Discharge from commitment.

(5) If the court renders a verdict

for conditional release, within 30 days

after the verdict the court” shall

release the committed individual under

conditions it imposes in accordance with

specific recommendations for conditions

under §12-115(b) of this title.

(d) Appeals. -- (1) An appeal from a

District Court order shall be on the

record in the circuit court.

(2) An appeal from a circuit court

order shall be by application for leave

to appeal to the Court of Special

Appeals. (HG §12-114; 1984, ch. S501,

§2.)

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.