# Petition for Writ of Certiorari — Maryland v. Anderson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1076%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 485 U.S. 913 ## Text 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 a a 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. ii 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 14 22 1A 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 iv 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 Vv WW 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 vi 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 V. 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. 10 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 n4 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. 11 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. 13 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 5 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 15 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. 16 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./ 7 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) 17 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. 8 is See also Weaver, 450 U.S. at 30 ("The ex post facto prohibition ... forbids the Teont'd) 18 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."). 19 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) 20 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. 21 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 22 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 23 ee Peal nigel os * ’ / go 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 V. 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. 1A I. 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). 2A 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 3A 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, 4A 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. SA 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 6A prove by clear and convincing evidence that the criminal defendant met the standards for indefinite commitment. See § 12-113(b) and (c) of the Health-General Article (1982); 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 7A 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) 8A 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 9A 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 eo 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 i? 498 A.2d 679 Charles ANDERSON v 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 a 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 1 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. I. "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 a] 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." II AMBIGUITY AND BURDEN SHIFTING Mr. Anderson next argues that _ the 4 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 8 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 76A 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 78A 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 79A 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 80A 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 81A 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 retrospec [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1076%3A1. Public record. Not legal advice.