# Appendix — Baxstrom v. Herold > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0218%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1966 - **Citation:** 383 U.S. 107 ## Text — HE Sie ER Na Ae ED AR a Supreme Court of the United States OCTOBER TERM, 1965 No. 219 JOHNNIE K. BAXSTROM, PETITIONER vs. R. E. HEROLD, DIRECTOR, DANNEMORA STATE HOSPITAL ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF THE STATE OF NEW YORK INDEX Original Print Record from the Surrogate’s Court, County of Clin- ton, New York Application of W. C. Johnston, M.D. for certi- fication of John K. Baxstrom, an alleged in- Sane person, dated November 22, 1961............ 1 1 pune 11 11 Decision of Court after hearing, December 6, RE REN REET et a= patent aeRO il 11 + Order of certification, December 6, 1961.......... — 12 Transcript of testimony of December 6, 1961 before Honvrable Robert S. Long.................... 14 14 a INDEX Origina! Print Record from the New York Supreme Court, shea of Clinton 21 19 Writ of habeas corpus issued March 16, 1962.... 21 19 Return to writ of habeas corpus, March 29, 1962 22 20 Transcript of testimony of April 10, 1962 be- fore Honorable Michael E. Sweeney................ 24 22 Transcript of testimony of May 3, 1962 before Honorable Michael E. Sweeney........................ 29 24 Order dismissing writ of habeas corpus, May 8, 1962 ...... 39 31 Petition for writ of habeas corpus, dated May 16, 1963 41 32 Writ of habeas corpus issued June 13, 1963...... 45 36 Return to writ of habeas corpus, June 30, 1963 46 37 Judgment of Monroe County, dated April 23, 1959 48 39 Transcript of testimony of July 26, 1963 before Honorable Harold R. Soden... 50 41 Order dismissing writ of habeas corpus, Au- gust 2, 1963. 59 45 Order No. 5682 of the Apneilate Division of the Supreme Court, State of New York, Third Judicial Department affirming denial of writ 61 46 Order of Court of Appea2is of the State of New York denying leave to apyveal to the Court of Ap- peals, dated October 8, 1964..2...2..2....0.....:cseceeeceeeee 62 48 Order granting motion for leave to proceed in forma pauperis and granting petition for writ of cer- tiorari STATE OF NEW YORK—DEPARTMENT OF CORRECTION DANNEMORA STATE HOSPITAL | -EIV 5 OFF icy ‘He FORM FOR THE CERTIFICATION OF INSANE PRISONERS AFTER THE EXPIRATION OF THEIR TERMS, PURSUANT TO ARTICLE 15, SECTION 384 OF THE CORRECTION LAW. 3( Section 384. “Certification of insane prisoners after the expiration of their terms. 1. Within thirty days prior to the expiration of the term of a prisoner confined in the Dannemora state hospital, when in the opinion of the director such prisoner continues insane, the director shall apply to a judge of a court of record for the certification of such person as provided in the mental hygiene jaw for the certification of a person not in con- finement on a criminal charge. The court in which such proceedings are instituted shall if satisfied that such person may require cere and treatment in an institution for the mentally ill, issue an order directing that such person be committed to the custody of the commissioner of mental hygiene to be placed in an appropriate state institution of the department of mental hygiene or of the department of correction as may be designated for the custody of such person by agreement between the heads of the two departments. The costs necessarily incurred in determining the question of insanity, including the fees of the medical examiners, shall be a charge upon the amount appropriated for the support and maintenance of the Dannemora state hospital, and be paid in the same manner as are other expenses of such hospital. “2. A patient committed to the custody of the commissioner of mental hygiene and placed in an appro- priate institution in the department of mental hygiene or the department of correction pursuant to the pro- visions of this section may at any time during the period of his commitment be transferred to an appropriate state institution in the department of mental hygiene or in the department of correction, which has been des- ignated for the custody of such patient by agreement between the heads of the two departments. “3. All persons retained in Dannemora state hospital pursuant to a valid order of retention issued in accordance with the provisions of this section prior to September first, nineteen hundred sixty-one shall be deemed to have been committed to the custody of the commissioner of mental hygiene pursuant to subdivision one of this section and shall be deemed to have been placed in the custody of Dannemora state hospital by designation of the commissioner of mental hygiene and the commissioner of correction pursuant to subdivision one of this section. Any such patient in the Dannemora state hospital may be transferred to any appropriate state institution of the department of mental hygiene or of the department of correction as may be designated for the custody of such patient by agreement between the heads of such departments.” — es 2 (fol. 2 | wanes PETITION STATE OF NEW YORK fe _SURROGATE'S COURT: CLINTON COUNTY IN THE MATTER OF THE APPLICATION OF ton, Me De. dais DIRECTOR OF DANNEMORA STATE HOSPITAL FOR THE CERTIFICATION OF { John K. Baxstrom #6887 AN ALLEGED INSANE PRISONER The Petition of ___W,_ ©, Johnston, M- D- respectfully shows to this Court (1) That he is the Director of Dannemora State Hospital, located in the Village of Dannemora, County of Clinton, tate of New York. (2) That the above named __ John K. Baxstrom — ; — term of imprisonment is about to expire and, in the risoner confined in said Dannemora State Hospital, that his pinion of your Petitioner, such prisoner continues insane. (3) That the facts upon which the application is based are as follows: The petition should state the facts observed by, or the information known to, the petitioner, which would tend to show he existence of mental illness, such as irrational acts or statements, attempts at suicide and attempts or threats to 4 in the behavior and charact of the patient.) on June 1, 1961 from Attica Prisone He is suffering from epilepsy and when having fits, he is violent “and dangerous. He has had several epileptic seimures since his as _ admission and is still in_ need _of medication and hospitalization. _His diagnosis “4s Psychosis due to Convulsive Disorder, Epileptic 3 (4) That he verily believes it to be for the best interest of the said person that an order be granted directing his 3 certification to the custody of the Commissioner of Mental Hygiene. names and addresses of living close relatives of the 4 (5) Upon information and belief that the following are the 5 patient: (All must be given.) 3 fol. 3] rip ‘Appross Name 7 Number sad street City, town or P.O. Willie Baxstron Deceased ¢ gsaran(Carr) Baxstrom Deceased "1th th. 2920 Westwood Ave. -Peltinore. Marylani Alberta Ceiley 42 |§19 Dracena St. Bakersfield, Calif. s ca] J ecco @ « Bixstron +g ¥ bd ; " {7 Tate? Be sisca 7 ed fe en ; : sheet if nypessery) " tr yeret aE h BOR STE OD ecical rtificate(s) of examining physicians hereto ahnexed, your petitioner that an order be granted certifying that the said person is in need of care and treatment and committing him to ustody of the Commissioner of Mental Hygiene. Wh. hina B= fer Directa Dannemora State Hosp., Dannemora, N.Y. (Petitioner's address) 4 _Movember 22, 1961,,_ MEDICAL CERTIFICATE(S) OF EXAMINING PHYSICIANS (Medicai certificate(s) shall be filled out only by two examining physicians) (a) ted LoL. by _——e ormation furnished P. > a / MBL. Hae a A hietin Y. sa 4 of the patient. ae Patient is at KS Ant ete county ot ——“4eatenn ~ y: state or country LA Kt. '; if foreign, date of arrival in U. 8. f entry ate or line nd place of meen 2 Gg! ja Ptaakese Is he @ citizen of the Y. 8. , legal resident of New York State? “If so, of what county, city or to == mg has be resided in New York State’. 2“He address of patient &/ / At. (No. street) (City or town) than five years in New York State, indicate number of years and States of p id 2; cotor Lue, pation nd La. WLS ewarrte, widowed, separated, diveseed. Religion. y a it pot required) ent a veteran? we a No—.——.. Which war? “A 1 of service ec trea eee — Service Serial No. A§sOZOS~ bs of discharge 4 A Compensation or Pension No. lity for which veteran is receiving compen- a or pension ——, Pek RMR RCRA MCE I REE eh a [fol. 4] | Birthplace of father Lge oe ae ¢ Legal residence of father, if living — $ Legal residence of mother, if living 4 Name and wen nearest known relative mae a 1 If so, state what relationship and whether paternal or § Have any of the relatives been in institutions for mental illness? 9 If so, state name and relationship and give name and location of institution ) | Has the patient been considered as of normal mental darat 4? } Institution or institutions where cared for in previous attacks, if afly (give dates) — : | Has patient been discharged from last institution? ; Has the patient bad treatment for syphilis? —AAL AMS “SS as a draget 20 ) When did present attack begin? | What is characterized by depression, excitement, untidiness, destructiveness, suicidal or homicidal tendencies, delusions, rn ) hallucinations, etc.? ) . j : What was first noticed? AF Siddha Aska } } | Past significant physical disease Eph jean ) j (b) Examination by Physician(s) hott ) Physical condition (including any special test report) —.. etal Math fcc } Mental condition: The conduct of the patient (including the statements made to us by others) has been ———— | fae a 2 @ eee eerste IR. w aan finaly 15 What dangerous tendencies does the patient show? 16 7 We er Jouwsex wrt at t Eta, te “Ne ( name plainly) 18 county of State of New York and LA 47 Kownuson ‘ (Print same plainly) ~ 4 19 » legal resident of county of - I aoa 4, do ¢ iy) certity 20 with the exceptions which are he: noted, as follows: S & I am & reputable physician, duly licensed to practice medicine in New York State, and have been in the actual 82 practice of my profession for at least three years. 3 6, I have with care and diligence personally observed dete of the cortjSente, namely, on the =) aa Lp _ 0h, Ee “SSE ee 2920 Westwood Avenue 190 whem be oes ides. 2. whose. bh Species énhr ils. eo n jmed) by 191 who resides in the city, teum-erauiliage of _Badtimer es Meer} iP sense 192 in the county of = Senne (fol. 8] Form 478a-).1.H—(May 1961) STATE OF NEW YORK—DEPARTMENT OF CORRECTION SERVICE OF NOTICE UPON THE ALLEGED MENTALLY ILL PERSON AND/OR OTHERS STATE OF NEW YORK SUBROGATE'S ss court, country or — CLINTON IN THE MATTER OF AN APPLICATION FOR THE CERTIFICATION or _ John K, Baxstrom #6887 AN ALLEGED MENTALLY ILL PERSON ro Miss Mary Smith, 2920 Westwood Avenue, Baltimore, Maryland (Name of person served) TAKE NOTICE that on the petition of and the certificate(s) of Doctors ____William W. Johnson ______Ira As Rowlson and Honorable -RObOTt Se Long + &0 application will be made before the » duatioe Sur éuige-ot the _Surrogate's court at ne —Surrogate's Off1Ce in (city,tewrwr-visiege) Plattsburgh, New York — 2020086 wm on the 6th day ot _Decembar ., 141, tor an order certifying said alleged mentally ill person to the custody of the Commissioner of Mental Hvgiene. a AFFID. IN THE MATTER OF ‘ AN APPLICATION FOR THE CERTIFICATI OF John K. Baxstrom #6887 AN ALLEGED MENTALLY ILL PERSON > STATE OF NEW YORK: ; county or —CLINTOW penser ab nite nn ene i > OF —— i ANY qseoog # 1-INSTRUCTIONS TO DELIVERING EMPLOYEE 1 ONLY to Show address where 0 ~ aA. delivered (Additional charges required for these services) RETURN RECEIPT * Received the numbered article described oa other side. >: CSGNATURE OR NAME OF ADDRESSEE (must-olways be filted in} wary dnt ADDRESS WHERE OFLIVERED (only f requested in item #1) 7, aa — jo i avetineediidll Ce ui. i ae Tee See held dake eee en ee 2 eee 2 we 2 Hesetgt iterated ‘i to parva nn iy shite in-dada Matha Rgsieteragy Return (State whether person served le the alleged mentally ill person. If not, state relationship) F 9 (fol. 9) fore (Tte-DILE.—(May 1961) STATE OF NEW YORK—DEPARTMENT OF CORRECTION SERVICE OF NOTICE UPON THE ALLEGED MENTALLY ILL PERSON AND/OR OTHERS STATE OF NEW YORK ___ SURROGATE’ SB _. court, counry or _CLINTON —_—_—_ IN THE MATTER OF AN APPLICATION FOR THE CERTIFICATION or John K, Baxstrom #6887 AN ALLEGED MENTALLY ILL PERSON » —Mrss Alberta Smith, 519 Dracena St., Bakersfield, California — (Name of person served) sa the certifeate(s) of Doctors ——William W. Johnson = ______I re. A. _Rowlson | an application will be made before the Robert &, Long plaction Surrogates Judge of the —Surrogate's tie ts ores papery tae FR Mew.York. 1020080 m. on me —Gith ay ot F #]- : — - eee — a Dw onere voms TO enue EMPLOYEE certifying : bd (Additonal charges required for thee services) RETURN RECEIPT Received the bered article describ SIGNATURE OR NAME OF ADDRESSEE (mat alway be Aliad la) arroavit of F-42024 a | Rg d on other side. * IN THE MATTER OF AN APPLICATION FOR THE CERTIFICATION or __John K, Baxstrom #6887 AN ALLEGED MENTALLY ILL PERSON STATE OF NEW YORK: courry or CLINTON = | aan Ae Teatro... sing auly cworn, cays that be to over cieieiciinies tahitian Aeinanat Bint De a cain that on the 24th _ aay « November______—, 19.61. at —Dannemora,_New-York be served & notice of application for an order adjudging such person to be mentally tll UpOM amen Wa. Alberta Smith, 519 Dracdna Street, Bakersfield, California of, said notice personaity PL BAGG EdD MeGa HPAL ARCA RAs Return Yecet pe hed quested. be Sige of alleged _nentell whether person served is the alleged UW) person. If mot, state relationship vor to betore me this 24th uy ot November ba ica ‘TEL. OZ. Za ——_huar- Public___ ys, HENRY vata poetic | i suatt A ia oe : NN vases MARCH 20, (Signature of wrver of notice) a AL, OTR I 10 (fol. 10] ” STATE OF NEW YORK—DEPARTMENT OF CORRECTION SERVICE OF NOTICE UPON THE ALLEGED MENTALLY ILL PERSON AND/OR OTHERS STATE OF NEW YORK 01 ", SURROGATE! 8. courr, country or — CLINTON oo 02 IN THE MATTER OF 03 AN APPLICATION FOR THE CERTIFICATION 04 OF o5 —_John K. Baxstrom #6887. _ = AN ALLEGED MENTALLY ILL PERSON ot To —-yQ0n_ Ka Baxstrom. #6887 ieelnbenismbaseneninncammsitie nas (Name of person served) 08 TAKE NOTICE that on the petition of —— ye D. caus 9 and the certificate of Doctors --. William W. Johnson. eine » Ira A. Rowlson , an application will be made before the 11 Honorable ~Rohert.&. Long Juatice Sur on Sudeeot the SuUrrogate's Court 12 @enx at the _Surrogate's Office in (city, togmcmwiiione) Plattsburgh, New York a i3 280200 2 an, on the — a ~@ay of _.._December _ > — 1961, for aa order 14 committing said alleged mentally {11 person to the custody of the Commissioner-of Mental Hygiene. 15 a Wincenty Natkanski, M. D. (Mame of server of notice) 6 AFFIDAVIT OF SERVICE 7 IN THE MATTER OF 18 AN APPLICATION FOR THE CERTIFICATION 9 GF ___ John K, Bexstrom #6887 i AN ALLEGED MENTALLY ILL PERSON 2 STATE OF NEW YORK s county or CLINTON... _} 4 —-Wincenty..Natkansk1,. Me...Do—......—, being duly sworn, says that he is over $21 years of age, and resides at —.Dannemora, New York... tnat on the 24th aay 4 ot —November.._.._..__.._, 19.61, at ... Dannemora, New. York... 1 he served notice of application for an order adjudging such person to be mentally tll UPON ~....mermmrnrnm ce A andi (Name of person served) 9 by delivering a true copy of said notice personally and leaving the same with him. He further says that he knew 0) the person served as aforesaid to be —... alleged mentaily 11]. person _ © wes (ftave whether person corved ls the alleged mentally Uli pereon. If not, etate relationship) ——————— Oe 0 OD eDOCS © REDS SUNS eee 2 Sworn to before me this —... At GES eh Fae eb) | Kir eaecMadtaceed Lb een ‘gnavare of server of notice) s —______Notary.. Py icironsguncompase (ome We) OREN F. HENRY wr: d Nein Hod Gosutt*of' ion LY COMMISSION PRPIRES MARCH 96, 184 2 —_—_— latter 11 (fol. 11] $ ORDER OF HEARING 1 (If a bearing before a judge or referee be granted upon the demand of « relative or near friend or upon the er aaa otherwise it should be omitted.) STATE OF NEW YORK SURROGATES couRT, county or —CLINTON | Before the a , Jaation Surrogate om dudge= oon ba AER] IN THE MATTER OF } AN APPLICATION FOR THE CERTIFICATION j OF ___ John Ke Baxstrom #6887 AN ALLEGED MENTALLY ILL PERSON . An application for an order’ of cértification of the above’ persdn, based upon the petition of __W. Cy ss Johnston, M.Deand upon » medical certificate dated November.24 ____, 19.61, naving been made, and (state name of relative and degree of relationship, or if none, name of near friend)" _W. C. Johnston, M.D. baving demanded a hearing uyon sich apyilication, it is hereby | ORDERED, That a hearing on such..application for an order of certification be had before the Honorable __Robert S, _ Se —— estlas. Surrogate arniadge of the — Surrogate's ___ court at the Surrogate's / in (city, sanpeoswtiace) —Plattsbur, County ot —-Clinton on tne 6th _ aay or __ December _ , 981, 10200 #> at, which time testimony shal! be heard touching the alleged mental illness of the aforesaid person, and if it be deemed advisable, said person may be examined either in or out of court. The judge may (or if a referee be appointed, the referee herein named shall) hear such testimony and make such examination and report the same at once with the decision (or opinion) as to the mental illness of such person. PTA IP SE Ie oral Lie RN oe Bierce , the petitioner, and the following named ohn K. Bexstr om #6887 tal ee at Witeesl Ines . Bettfnore, Neryiags , -Mrs, Alberta Smith; 519 Dracene Street — -—— > Ly pe aan a edie Pay £ amanecen DECISION OF COURT AFTER HEARING (Decision of court to be used only if a hearing is had) IN THE MATTER OF AN APPLICATION FOR THE CERTIFICATION Clodn Kk. Baxstrom, 6287 AN ALLEGED MENTALLY ILL PERSON A bearing having been bad upon the application of Ml (ttmater, 00040 . for an order certifying that the said person is in need of care and treatm and committing him to the custody of the Comvuissioner of Mental Hygiene to be placed in an appropriate state institution of the Department of Mental Hy- giene or of the Department of Correction as may be ted for the cusjedy of such person by agreement be- tween the heads of the two departments on the ee nda , 19.42, and testi- mony having been taken as required by law, I do hereby decide that the said alleged mentally il) of observation and a stat ution for the care and trea of the mentally ill. a 19.07 is in need dicen maces (\ 12 (fol. 12] 1 ORDER OF CERTIFICATION STATE OF NEW YORK m2 an court, county or taste oe 3S _A ange susie suronnte ae dataret at nome plete 285 Gawess county, ty eo ot Zielladecanghe oa tx LE ty ot Leonel 2aZ, 286 IN THE MATTER OF . AN APPLICATION FOR THE CERTIFICATION OF w chbe_k. Dena mm, GPR7__ AN ALLEGED MENTALLY ILL PERSON 291 Upon the petition of ME ahenaTox, 07 Aha dated Dept. of Mental Hygiene) Dannemora State Hospital, Date of order of certification Uq Po er pipe >, 3 wei rae ie se “ED Lest rpe = 4 y “ q Sut = ~~ Cy * haw aie ie a) a TE V6ieOk fy PUIG PECTED YOtats > & hoi tne © DR Gy (PO CUES DCee gets Being PO PH CULe oy IPH Oy: os ON DEM LTE (76 QRSGTOL 4 Pe OTT TEE OU eo TE OBS Be OF gi Fb OF STE G Wee ook, y;," GP a6r PL Teka ees POERGED [Ps POIGr OL ET. (29 qebsaquie sa e F SLIM IGN, Of POOF MATONE OL OF (fe PEdsILCHAOF OF COLL cfrow F+ WIR PS qeviruwleqd LoL {pe CMe)? Of eres bo Bly 10 ate OND TR O§ EFS COMmpea EOL OY 7", Hi ete (9 pw bret. Gg i va TDDiobriege atsi— ymerjergion og my ps 2a ONDEBED’ wat tps a> Cad ~ Nes MY Ptrector sp wen me, ex x PS comunisey Sng Poo ve WOE Come Piqes . cata pe ees r Sci that tp, @ doom State Woap! tay, nt t hn, sae seuacsieurs Yu's as fees werengios yor. on: dhe; ore! “Pfigae anette Ramat eH yy sonar rind. i] ead a yete! ebhowgeg pA re) Jug Pope wus. Pe blont: sab aes sos oy oop ay uy boapisay.”" “BE Lot ING a CP ILE Bie 7 gg OLOY WON ATear ee OPES Bre Fey WTULUTTTOU 9e tay’ FF. rs “ “ ~ “le. : sae E ¢ =~ ad - 5 * eas Pizeg —— —— BRIEF FOR PETITIONER Opinions Below No opinions were rendered by the courts below. Jurisdiction The jurisdiction of this Court is invoked under 28 U.S. C. §1257 (3). The writ of certiorari to the New York Court of Appeals was granted on June 7, 1969. Constitutional Provisions and Statutes Involved This case involves Section 1 of the Fourteenth Amend- ment to the Constitution of the United States and Sections 375, 383, 384 and 385 of the New York Correction Law. These provisions are reprinted as Appendix E, infra. Questions Presented I Whether due process of law requires a proposed patient be afforded the opportunity to obtain counsel to represent him at an insanity commitment hearing and whether the due process and equal protection clauses require the assign. ment of counsel to represent an unrepresented proposed patient in such a proceeding. at Whether a state which affords all proposed civil patients a jury trial upon the question of sanity may withhold this right from felons whose commitment is sought upon the ex. piration of sentence. Ii Whether a state may confine one class of civil patients ir an institution for the criminally insane without a particular. ized showing of need for such care and custody. Statement of the Case Petitioner was convicted in Rochester, New York, of As sault in the Second Degree and, on April 23, 1959, wa: sentenced to two and one-half to three years imprisonmen (R. 39). After serving two years and several months ir Attica State Prison, the Petitioner was “transferred” t Dannemora State Hospital pursuant to Section 383 of th Correction Law (R. 17). ees The Commitment In November 1961, the Director of Dannemora State Hos- pital filed a petition in the Surrogates’ Court of Clinton County stating that Petitioner’s penal sentence was about to terminate and requesting the certification and commit- ment of the Petitioner pursuant to Section 384 of the Cor- rection Law, alleging: “This patient was admitted here on June 1, 1961 from Attica Prison. He is suffering from epilepsy and when having fits, he is violent and dangerous. He has had several epileptic seizures since his admission and he is still in need of medication and hospitalization. His diagnosis is Psychosis due to convulsive disorder, Epi- leptic Deterioration” (R. 2). Annexed to the Petition was the joint certificate of two doctors, unconnected with Dannemora stating that Mr. Baxstrom lacked insight, “possibly” had a “tendency” to injure others (R. 5) and that following his epileptic convul- sions he was “irritable, confused [and] aggressive” (R. 4). Notice that a commitment proceeding was to be held on December 6, 1961 was served upon two relatives of the Petitioner who lived in Maryland (R. 8, 9) and upon the Petitioner himself (R. 10). It does not appear that the Petitioner or his relatives were served with a copy of the Director’s application for commitment. On December 6, 1961 Baxstrom appeared before the Sur- rogate of Clinton Cqunty. Present were Surrogate Long, Doctor Ross Herold then the Assistant Director of Danne- mora, and Assistanf Attorney General Lewis. i 4 The Court advised Mr. Baxstrom that it had read the certificates of the two independent doctors and that they were of the opinion that he was still mentally ill. The Court advised that it would hear the testimony of Dr. Herold and then would allow Baxstrom to question either the doc- tor, Mr. Lewis or make any statement he cared to regard- ing the matter. Mr. Lewis then interrogated Dr. Herold, eliciting the doctor’s qualifications and the opinion that the Petitioner was mentally ill and in need of institutional care with a diagnosis of psychosis due to epileptic deteriora- tion (R. 15-16). In response to questions from the Court, Dr. Herold stated that he would have no objection to the Petitioner’s transfer to a civil hospital if the Department of Mental Hygiene ordered it. The Court stated that it too had no objection to a transfer to a civil hospital and told Baxstrom that it hoped he would be transferred (R. 17, 18). Mr. Baxstrom was asked by Surrogate Long whether he had anything to say and the Petitioner replied: “T know that I am an epileptic, but I did not think that that is a form of insanity. I would like to recommend, Sir, that the staff at the hospital review my case” (R. 17). At no point in the hearing was the Petitioner advised that he could be represented by counsel, either retained or as- signed, or that he might subpoena or call witnesses on his own behalf. On December 6th, Surrogate Long signed an order com- mitting the Petitioner to the custody of the Commissioner of Mental Hygiene, a ee “ .. to be placed in an appropriate state institution of the Department of Mental Hygiene or of the Depart- ment of Correction as may be designated for the cus- tody of such person by agreement between the heads of the two departments” (R. 12). The First Writ Four months after this commitment the Petitioner sued out a writ of habeas corpus in Supreme Court, Clinton County (R. 19-32). The Director’s Return on the Writ recited the history of the prior proceedings and stated that Petitioner was then insane and had been examined on November 27, 1961 by an Assistant Commissioner for the Department of Mental Hygiene and “was not considered to be suitable for care in a Civil Hospital” (R. 21). At a pre- liminary hearing on the Writ, Justice Sweeney directed Peti- tioner be examined by an independent psychiatrist and the hearing was adjourned. On May 3, 1962 a hearing was held before Justice Sweeney. Dr. Ian Kerr testified that he had examined the Peti- tioner and found him suffering from psychosis with epilevsy and was of the opinion that there was some organic de- terioration of the brain. He testified that according to the hospital records, Mr. Baxstrom, “ becomes quite confused and quite aggressive and assaultive during the post-convulsive period, and this, of course, is not an uncommon happening in cases of epilepsy” (R. 27). The doctor found that the Petitioner’s epilepsy could have been caused either by malaria or a specific infection con- ae tracted by Petitioner in 1945 while in the Army and sta- tioned in the Pacific (R. 28). The doctor also related, but did not comment on the fact that Mr. Baxstrom had told him during the examination that the disturbances and irritations caused by the other inmates at Dannemora tended to bring on the epileptic attacks (R. 26, 28-29). At the conclusion of the hearing the doctor, in response to a question by the Court, stated that Mr. Baxstrom needed additional care but added, “ ... I would like to say that in my opinion there is no reason why he could not be treated in a civil mental hospital. I would simply like to say that for the record, sir” (R. 29). Assistant Attorney General Lewis then stated, “On behalf of the institution I would like to add that the people at Dannemora State Hospital have absolutely no objection to the transfer of any patient to a civil hospital once his term has expired. It is up, however, to the Department of Mental Hygiene to determine whether or not in fact these men will be transferred ** #9 (R. 30). The hearing concluded with the Court’s direction to Mr. Lewis that the authorities be advised of Dr. Kerr’s recom- mendation in which the Court joined (R. 30). On the following day (May 4, 1962), Judge Sweeney signed the order dismissing the Writ (R. 31-32). The Proceedings Below On May 16, 1963, one year after the dismissal by Judge Sweeney, Petitioner submitted to the Supreme Court of Clinton County an application for a new writ of habeas corpus claiming that he was then sane, or if insane should be transferred to a civil mental hospital and that his civil and constitutional rights had been violated. The Writ was issued and the Respondent, Dr. Herold, filed his return reciting the December 6, 1961 commitment, that Petitioner was still insane and in need of further hospital care and treatment and that Mr. Baxstrom had been examined on November 27, 1961 by an Assistant Commissioner of the Department of Mental Hygiene and “was not considered to be suitable for care in a Civil Hospital” (R. 38). A hearing was held before Justice Hareld Soden on July 26, 1963. At the hearing Assistant Attorney General Lewis opposed the appointment of a new independent psychiatrist claiming that the burden was on Petitioner to show that his condition had changed since Dr. Kerr’s testimony that Peti- tioner was in need of hospitalization and that until Peti- tioner made such a showing the Court could rely upon Dr. Kerr’s testimony on the prior Writ. Justice Soden asked Petitioner, “ .. do you have any other testimony, in the way of a psychiatrist, that would disprove the statements of Dr. Kerr in 1962?” “ |. . if you cannot produce or have no means of produc- ing to me at this time that there is any other psychiatric testimony that would differ from Dr. Kerr’s, under the law I am bound by his statement” (R. 42, 43). ia oo Petitioner indicated he had no additional testimony but claimed that Judge Sweeney, after hearing Dr. Kerr, had directed Mr. Lewis to have Petitioner transferred to a civil institution and that nothing had been done. Judge Soden said that this was an administrative matter and that there was nothing his court could do about it. The Writ was dis- missed by order dated August 2, 1963 (R. 45-46). Upon appeal to the Appellate Division of the Supreme Court, Third Judicial Department, the dismissal of the Writ was affirmed without opinion (21 A. D. 2d 754). A motion for leave to appeal to the Court of Appeals was denied with- out opinion (14 N. Y. 2d 490) and this Court granted leave to proceed in forma pauperis and the petition for a Writ of Certiorari (381 U.S. 949). Introduction New York State maintains twenty-one non-transient in- stitutions for the care of the mentally ill. These institu- tions are under the exclusive jurisdiction of the Department of Mental Hygiene and commitment to and matters con- nected with these hospitals are regulated by the Mental Hygiene Law. In addition the State maintains two other institutions: Matteawan State Hospital and Dannemora State Hospital. These institutions are under the jurisdiction of the Department of Correction, although individual patients may be in the custody of the Commissioner of Mental Hygiene. See, Mental Hygiene Law, §11. Admis- sion to these institutions is governed by various sections of the Correction Law, the Code of Criminal Procedure and the Mental Hygiene Law set forth below. Dannemora State Hospital Dannemora is a State hospital for the insane maintained at a penal institution. It is under the jurisdiction and control of the Department of Correction, subject to visita- tion and inspection by the Department of Mental Hygiene. Correction Law, §375. Its population is composed of three classes of individuals: 1. Male persons, in the custody of the Commissioner of Corrections, who were found to be insane while serving felony sentences and were committed or trans- ferred pursuant to Section 383 of the Correction Law. 2. Male persons, in the custody of the Commissioner of Corrections, who after having been adjudicated to be a javenile delinquent or having been convicted of any crime were found, while serving their sentences, to be “mental defectives” and transferred to the Eastern Correctional Institute and while there were found to be insane. Correction Law, §383 (see N. Y. Legislative Annual, 1950, p. 52). 3. Male persons transferred to Dannemora under either of the above classifications who upon expiration of sentence were committed to the custody of the Com- missioner of Mental Hygiene under Correction Law, §384. Matteawan State Hospital Like Dannemora, Matteawan is a mental institution under the jurisdiction and control of the Department of Correction and subject to visitation and inspection by the Department People ex rel. Brown v. Johnston, 9 N. Y. 2d 482 at 484 (1961) ; People ex rel. Kamisaroff v. Johnston, 13 N. Y. 2d 66, 68 (1963). 10 of Mental Hygiene. Basically its purpose is to hold in cus- tody and care for persons committed by other than civil process and certain civilly committed patients. Correction Law, §400. Its population is composed of five classes of per- sons: ) Persons charged with crime who have been judicially found to be mentally incapable of standing trial (Code of Criminal Procedure, §§662(b), 872 and 875). Prior to September 1, 1965 such persons were committed to the custody of the Commissioner of Corrections. All commi.ments after that date were to the Commissioner of Mental Hygiene. Laws of 1965, c. 540, §$1, 2, 3. Persons declared insane while serving a misdemeanor sentence or females declared insane while serving any sentence. Correction Law, §§400, 408. Persons acquitted by reason of insanity. Code of Criminal Procedure, §454. Persons who had previously been committed by civil process to a state mental hospital and while there have committed or are liable to commit acts which would constitute homicide or felonious assault; or a person so dangerously mentally ill that he is a danger to other inmates, officers of the hospital or the com- munity. Mental Hygiene Law, §85. Persons who were committed by civil process to a state mental hospital and who (1) had previously been sen- tenced to imprisonment and (2) still manifest criminal tendencies. Laws of 1904, ec. 525, §2 (Correction Law, §412). This law was repealed by Laws of 1965, ec. 105, $11; however, there apparently is no provision for the transfer out of those inmates previously com- mitted. 11 Under New York law, both at the time of Petitioner’s com- mitment and at present, all defendants in non-emergency commitment proceedings instituted under the Mental Hy- giene Law were at some point in the proceeding entitled to a jury trial on the issue of sanity. Laws of 1961, c. 504 as amended by Laws of 1964, ¢. 738, §6 (mfra, p. 67). This provision is inapplicable to commitments ‘o Dannemora State Hospital under Correction Law, §384 and to the trans- fers, listed above, of persons otherwise in custody to Danne- mora and Matteawan. See People ex rel. Kamisaroff v. Johnston, 13 N. Y. 2d 66 (1963). POINT I The commitment and continued detention of peti- tioner are in violation of his rights under the Fourteenth Amendment because of the failure to afford petitioner counsel at the hearing upon his sanity. A. The General Need for Counsel It is perhaps assumed that counsel at commitment pro- ceedings can perform no real function at the hearing, or at best, will perform only the therapeutic function of demon- strating to a patient that there was someone who is on his side. This assumption is based upon the further as- sumption that commitment proceedings, upon doctor’s cer- tificates of insanity, are instituted only against the “obvi- ously mad” and there is nothing further to be done except go through the formal gesture of getting some evidence upon the record and signing a commitment order. Both as- sumptions are demonstrably false. Random samplings of Legal Aid and Public Defender offices throughout the country dramatically illustrate how Es 12 defendants in commitment proceedings have successfully resisted commitment in almost 20% of the cases where counsel was assigned (see, Appendix B). Furthermore just as representation of a guilty defendant at sentence is required so that the court may make a just disposition of a criminal defendant (cf., Carter v. Illinois, 329 U. 8. 173, 178), so is representation at commitment of concededly insane persons required to enable the court to arrive at a just and proper commitment. Even if it may be assumed that there is no legal difference between commitment to one state mental institution or another, certainly there exist factual differences between certain institutions (see p. 23, infra) and counsel may perform the necessary and legitimate function of having the commitment reflect the need for a particular type of institutionalization or even out-patient care without confinement. This need is best reflected by the annexed report (Appendix C) of the Public Defender of Philadelphia who represents felony prisoners in post-sentence expiry commitment proceedings.? This need for counsel has been confirmed by the legis- latures of an overwhelming majority of the states by their enactment of statutes providing for representation at com- mitment hearings—in some cases the statutes even ante- dating the state’s guarantee of counsel in non. apital felony cases (see Appendix A). In the State of Ohio, Governor Di Salle reported in 1961 (Appendix D, p. 61, infra) that 25% of the patients in * This representation is financed by a grant from the National Legal Aid and Defender Association. It does not extend to rep- resentation of defendants in ordinary civil commitments. No provi- sion is made for the representation of such persons in Pennsylvania. (See Appendix A, p. 38 infra.) AACS SEEDS LEELA LAD: - SECC ——— 13 his state’s mental hospitals were persons over 65 years and that approximately one-half of these patients were not mentally ill in the commonly accepted sense. He stated that after his investigation 1,500 such patients were discharged and that the total discharges might reach 3,000. One may well wonder how these 3,000 persons initially came to be committed and how long they would have remained ‘n the asylums had not the Governor intervened in their behalf. We do not know how many of these persons had counsel at their commitments nor do we know how many of those per- sons with counsel who successfully resisted commitment would have been committed if unrepresented.* We offer these figures only to show that a substantial number of legally sane persons are in fact committed and that an even more sul stantial number find themselves as defen- dants in commitment proceedings. Apart from all this, however, the need for counsel in this type of proceeding is an obvious truth needing no docu- mentation. Putting aside the rare case of malicious com- mitment there will always be some kernel of truth to a claim that a particular respondent or defendan is “not normal.” The issue in almost every contested commitment is how close does the proposed patient come to the elusive line which divides the sane from the committable. Such a per- son, even if falling upon the “sane” side of the scale, is probably the one least capable of asserting his sanity. Cer- 8 Assignment of counsel in Ohio is discretionary. We are advised by the Legal Aid Society of Cincinnati that it appears “in very few commitment cases”; the Defender’s Office of the Cleveland Legal Aid Society handled five civil commitment cases in the first nine months of this year and the Legal Aid and Defender Society of Columbus appeared in ten such proceedings during this period. Of the fifteen persons represented by assigned counsel in Cleveland and Columbus, eight were committed, six were not and one escaped before disposition. — 14 tainly such a person is no match for an Assistant Attorney General who has probably handled hundreds of commitment proceedings and such a person could hardly be expected to effectively cross-examine a court-wise director of a large mental institution or to cross-examine absent certifying doctors. We may allow New York to continue its uniform policy of non-assignment of counsel only if we are prepared to assume the infallibility of the certifying doctors‘ and that the judicial process is merely a rubber stamp upon the ineffectually contested opinions of expert witnesses. Such assumption may be validly made only if the defendant’s sanity may be conclusively presumed from the mere fact that a commitment proceeding was instituted. Such as- sumptions and presumptions run counter to a thousand years of history. B. Petitioner’s Need for Counsel The proceedings had before the Surrogate of Clinton County clearly reflect the need for counsel, both as to the question of Petitioner’s sanity and the disposition to be made: *The notion that “insanity” is a determination solely for the doctors rests upon the false premise that mental illness may be scientifically measured and that the experts proceed upon uniform, precise standards which result in opinions equivalent in accuracy to the opinions of fingerprint experts. We need only look at the conflicting expert testimony in any criminal case where insanity is tendered as a defense to see the fallacy of this argument. The basic question in commitment proceedings is not whether a patient is insane (whatever that may mean) but is whether a per- son’s mental capacity is such that his continued liberty is a poten- tial danger to himself or the community. This is not a medical judgment. It is a social judgment based upon contemporary com- munity standards of what is or is not acceptable conduct. See, Is Counsel Needed at Commitment Hearings?—A Symposium, 23 Legal Aid Briefcase 13-18 (Oct. 1964). _ pcan New York law (Correction Law, §384) requires that the certification be upon the certificates of two doctors un- connected with the hospital. The certificates filed at the commitment proceeding before the Surrogate reflected that Mr. Baxstrom, as a “psychiatric sign and symptom”, lacked insight (R. 5, 1. 108); that following his epileptic seizures, he was “irritable, confused, [and] aggressive” (R. 4, 1. 104) and that he “possibly” showed a “tendency” to injure others (RB. 5, 1. 115). This diagnosis and prognosis of Mr. Baxstrom’s illness is equally applicable to the two million epileptics in the United States. Whether cross-examination of the certify- ing doctors would have shown the Petitioner “insane” or “sane” is a matter for conjecture. The fact remains that the doctors were not even present and there was no one in court who could have demanded their presence on Peti- tioner’s behalf.’ In this connection it is noteworthy that Dr. Kerr, the psychiatrist who examined Petitioner five months after the commitment, volunteered in his testimony at the first post-commitment habeas corpus hearing, that “there is no reason why he could not be treated in a civil mental hospital” (R. 29). Presumably such testimony was related to Petitioner’s alleged tendency to be possibly dan- gerous and is in direct conflict with the assumed adminis- trative finding by the Assistant Commissioner of Mental Hygiene that the Petitioner “was not suitable” for transfer to a civil hospital. 5 See, State ex rel. Anderson v. U. S. Veterans Hospital, 268 Minn. 213, 128 N. W. 2d 710 (1964); Denton v. Commonwealth, 383 S. W. 2d 681 (Ky., 1964) holding the reliance upon the cer- tificates of the absent doctors and the failure to allow for their eross-examination to be a denial of due process. Cf., Pointer v. Texas, 380 U.S. 163 (1965). — 16 Even if the Petitioner were in fact insane the Surro- gate, who concluded the hearing with the hope that Peti- tioner would be transferred to a civil hospital, could have refused to commit the Petitioner under Section 384 and required the State to proceed under the Mental Hygiene Law rather than the Correction Law. If such a procedure had been followed then the Petitioner at such a commit- ment proceeding would have been entitled to a jury trial on the question of his sanity and if committed could have been sent only to the civil hospital where everyone, except the Commissioner of Mental Hygiene, seemed to agree he belonged.* C. The Right to Counsel Every jurisdiction provides for some form of hearing and judicial review or determination of the sanity of those patients who wish to contest their commitment.’ The right to a hearing and the opportunity to be heard in a meaning- ful manner is a fundamental requirement of due process whether the case be civil, criminal or somewhere in between. Armstrong v. Manzo, 380 U. S. 545 (1965). Without coun- sel to implement this right the commitment hearing be- comes nothing more than a hollow gesture and the luck- * If the Petitioner had been so committed he could be transferred to Matteawan only upon showing that in addition to being insane, there was a particular danger to others if he was allowed to remain in a civil hospital. Mental Hygiene Law, §85; Correction Law, §412 (repealed). See Point III, infra. * We cannot help but note that in many jurisdictions this right is an illusory one for it depends upon someone, usually the doctors, advising a patient of his rights. See, Hearings before the Sub- committee on Constitutional Rights, Senate Judiciary Committee, Constitutional Rights of the Mentally Ill, Part I, Eighty-seventh Congress, First Session (1961) (hereafter Senate Hearings), Ross =v p. 185 ; Guttmacher testimony, p. 148 ; Chasan testimony, p. ' — ee os less defendant is packed away to custody “probably little | less punitive than a sentence of death.” Ex parte Perry, 137 N. J. Equity 161, 43 A. 2d 885, 886 (1945). It is one of the great anomalies of constitutional law that the arguments for the absolute right to counsel in criminal cases reach back for historic support to the much older right to counsel in civil litigations. Thus both Jus- tice Blackstone (4 Blackstone, Commentaries, *355) and this Court in Powell v. Alabama, 287 U. S. 45 (1932), relied upon the common law tradition of evil representation to support the claimed right to ass\g»ment in criminal cases. As Professor Maguire has pointed out the Year Books and the reports of the Selden Society are replete with nota- tions of the granting of in forma pauperis type relief and the assignment of counsel to represent indigent civil liti- gants in the Fourteenth and early Fifteenth Centuries. Maguire, Poverty and Civil Litigation, 36 Harv. L. Rev. 361 (1923). In 1495 the first extensive forma pauperis statute was passed. 11 Hen. VII, c. 12; 2 Stat. of the Realm, 578. It provided : “|. every pouer persone or persones which have & hereafter shall have cause of accion or accions ayenst any persone or persones within the realme shall have, by the discrecion of the Chauncellor of this realme, for the tyme being writte or writtes originall and writtes of Sub pena according to the nature of their cavses, therfor nothing paieng to youre Highnes for the seales of the same, nor to any persone for the making of the same writte & writtes to be hereafter used. And that the seid Chaunceller for the same tyme being shall assigne suche of the Clerkis whiche shall doo and use ——~ sag 18 the making and writing of the same writtes to write the same redy to be sealed, and also lerned Councel] and attorneyes for the same, without any rewarde taking therfor ...” See also, 3 Blackstone *400-401. The right to counsel in commitment proceedings is even more fundamental than the general right to counsel in other civil litigation.* As this Court noted in Minnesota ex rel. Pearson v. Probate Court, 309 U. S. 270, at 276-77: “We fully recognize the danger of a deprivation of due process in proceedings dealing with persons charged with insanity or, as here, with a psychopathic person- ality as defined in the statute, and the special impor- tance of maintaining the basic interests of liberty in a class of cases where the law though ‘fair on its face and impartial in appearance’ may be open to serious abuses in administration and courts may be imposed upon if the substantial rights of the persons charged are not adequately safeguarded at every stage of the proceedings.” The argument will undoubtedly be advanced that the State was acting for the benefit of Petitioner and other members of the community by placing him in a mental institution. Such a contention really only relates to the Government’s * Louisiana has made just such a distinction, but in reverse. In a proceeding to appoint an administrator of the property of a person alleged to be incapable of managing his affairs, the Supreme Court of Louisiana held that any judgment was void if counsel was not appointed. Interdiction of Scurto, 195 La. 747, 197 So. 417. However, eight years later the same court held that notice and hearing was not required in a commitment. In Re Bryant, 214 La. 573, 38 So. 2d 248 (1948). We reject as intolerable the dis- tinction which gives greater value to property rights than to liberty. 19 power to commit, not to the means by which the commit- ment is effectuated. The observation by Mr. Justice Brandeis that, “Experience should teach us to be most on our guard to protect liberty when the government’s pur- poses are beneficent”® is particularly appropriate here. At all of his hearings the Petitioner received sympathetic attention from the judges presiding and the other persons present. Concededly the State was acting out of motives which generally may be classified as parental or charitable. But this sympathy, courtesy and good intentions relate to the therapeutic aspect of the hearing and commitment, not to the legal question of whether an individual is com- mittable, This question is to be ultimately resolved in the same manner as are all other questions involving the liberty and property rights of persons. Whether the Petitioner’s conduct and condition fell outside those minimum standards of mental responsibility tolerable to society can be deter- mined with sympathy and understanding, but also with justice. The State of New York has labeled this commitment a “civil” proceeding and because of this characterization, denies Petitioner an attorney. We think the accuracy of this label is debatable in all civil commitments to any mental institutions; however, in terms of a commitment to Dannemora, the civil tag is utterly without basis. At Dan- nemora the Petitioner is mingled with convicted felons ° Olmstead v. United States, 277 U. 8S. 438, 479 (dissenting opinion). ; 1° The New York Attorney General, two months prior to Peti- tioner’s commitment, responded to an enquiry from one of the judges of Clinton County that a Section 384 commitment is a civil proceeding and, “.. . it is not necessary to so advise an inmate fof his right to retain counsel] but if that inmate indicates that he desires counsel an opportunity should be given to him to hire counsel.” 1961 Op. Atty. Gen. N. Y. 180, 181. — 20 serving out their sentence in a hospital located upon prison grounds and operated under prison discipline. And by virtue of his custody in Dannemora Petitioner must bear a stigma even more onerous than that of a criminal pris- oner. People ex rel. Brown v. Johnson, 9 N. Y. 2d 482. All that has happened to justify the civil label is that one day the Petitioner was taken from Dannemora and brought before a judge who returned him from whence he came, although now in some abstract sense, in the custody of the Commissioner of Mental Hygiene. Fundamental fairness as an aspect of due process of law is not limited to proceedings strictly called criminal. Smith v. Bennett, 365 U. S. 708 (1961) ; cf., One 1958 Plym- outh Sedan v. Pennsylvania, 380 U. S. 393 (1965). Those criminal cases involving the right to counsel which rest upon a fundamental fairness test are ample authority for the proposition that the due process requirement of a fair hearing in civil proceedings includes the right to ap- pear by counsel and to have counsel appointed in cases where personal liberty is at stake. 21 POINT I Section 384 of the Correction Law is unconstitutional in that it arbitrarily singles out one group of allegedly mentally ill persons and denies to that group the jury trial to which all other civilly committed patients are entitled. Under New York law” all proposed civil patients are entitled to a jury review of the question of their sanity. Only persons who allegedly became insane and whose in- sanity was discovered during service of a criminal sentence are refused a jury trial on this question. While New York may be under no constitutional obligation to provide a jury trial in any of its civil commitments, having made it gen- erally avaiiable to all it may not arbitrarily withhold it from some. Each year New York admits approximately 30,000 persons to its civil mental hospitals.’* However only the 487 inmates in Dannemora who are held under Section 384 commitments are never given the opportunity to demand the jury trial which all other civil patients could demand incident to their commitment. 4 Jury trials existed in pre-Revolutionary New York for the - purpose of “informing the conscience of the court.” By Chapter 135 of the Laws of 1842 a jury review was made a matter of right ‘n every civil commitment proceeding. Sporza v. German Savings Bank, 192 N. Y. 8 (1908). The substance of this statute has re- mained unchanged and at the time of Petitioner’s commitment appeared in Laws of 1961, c. 504 (McKinney’s Mental Hygienz Law, §76). At present the jury trial provision is a part of the Laws of 1964, c. 738, §6 (McKinney’s Mental Hygiene Law, §74). See Appendix E, p. 67 infra. 22 This figure includes temporary commitments, voluntary pa- tients, involuntary patients and transfers. Patients in Mental ~~ 1963, Public Health Sve. Pub. No. 1222, Part II, p. II-17. sees manera at — The sole factor which distinguishes Petitioner from the other civil patients for whom a jury trial is available is that Petitioner’s commitment follows the expiration of a criminal sentence and an administrative determination of insanity made during the service of that sentence. Neither of these factors is sufficient to warrant the discriminatory treatment afforded. Clearly New York could not withhold a jury trial on the issue of sanity only from ex-felons for that status bares no rational relationship to the question of sanity. Walters v. City of St. Louis, 347 U.S. 231, 237 (1954) ; Goesaert v. Cleary, 335 U. S. 464, 466 (1948). Indeed New York seems to have recognized this by not even including past criminal convictions in any of the stated criteria for the transfer of committed patients te Matteawan.* The fact that there has been prior administrative deter- mination that Petitioner was insane stands upon an even more tenuous footing as a basis for denying a jury trial. In every case where a jury trial is available there has been not only an administrative determination of insanity but there has also been a judicial determination. The New York jury trial is a de novo rehearing of a judicial certification of insanity, in most cases involving patients already being held by a mental hospital on a temporary or informal ad- mission. While we concede that there may be a legitimate basis for distinguishing between the “civilly insane” and the *8 Under former Section 412 of the Correction Law a prior con- viction plus manifestation of criminal tendencies would warrant a transfer of a civil patient to Matteawan. This Section was re- pealed in 1965. See, United States ex rel. Carroll v. McNeil, 294 F. 2d 117 (2nd Cir., 1961), probable jurisdiction noted, 368 U. 8. 951, vacated and dismissed as moot, 369 U. S. 149 (1962). a | “criminally insane” in determining the type of custodial or medical care to be ultimately given, no such distinction can be drawn when we are considering the procedure whereby the fact in issue, the sanity of the proposed patient, is to be determined. POINT Il Petitioner’s commitment and retention in Dannemora State Hospital under Section 384 of the Correction Law violates the equal protection and due process clauses of the Constitution in that the statute arbitrarily singles out one group of mentally ill persons and permits their confinement in an institution for the criminally insane without the necessity of a judicial finding that such con- finement is necessary. Dannewnore State Hospital is an institution maintained by the Department of Correction of the State of New York on the grounds of Clinton State Prison. Over one-half its inmates are prisoners serving felony sentences.” While in Dannemora the Petitioner is subject to the prison discipline which applies to all inmates whether serving a sentence or not, Even the social amenities granted to inmates in civil hospitals are denied to Petitioner. He may not wear his own clothes; he may not correspond freely with friends or persons not approved by the Commissioner of Correction (Correction Law, Section 388) ; his visitors must be finger- printed; and the prison number (#6887) given to Peti- tioner upon his transfer into Dannemora as a prisoner 14 As of September 1965 the population of Dannemora was: 1. Held under section 383 560 2. Held under section 384 487 3. Transfers from Eastern Corr. Inst... 13 ~ boo A RE em OP — 24 remains his number which must appear upon all his cor- respondence as a civil patient. If the Petitioner is no longer a “prisoner” in Dannemora the State has done little to make Petitioner aware of this fact. Indeed the Legislature of the State of New York has by deliberate act set Danne- mora and Matteawan apart from all other mental hospitals in the state system. See, United States ex rel. Carroll vy. McNeil, 294 F. 2d 117 (2nd Cir.), probable jurisdiction noted, 368 U. S. 951, appeal dismissed as moot, 369 U. §S. 149 (1962). It has done this by placing these institutions under the jurisdiction of the Department of Correction and, in the act creating Dannemora designated it as a place “ .. used for the purpose of confining and caring for such male prisoners as are declared insane while confined in a state prison...” (Correction Law, Section 375). We have acknowledged that a state may discriminate in the kinds of care and custody afforded to individual in- mates. Particularly, a state may segregate within its hospital system those persons whose mental illness poses an especial danger to the hospital staff, fellow patients, or to the person’s own well being and safety. However the State has, in the instance of Section 384 patients, gone too far. Not only has New York provided for confinement outside of its hospital system but it has done so at the expense of the procedural safeguards discussed in Point II and without establishing any criteria or standards which would distinguish Petitioner’s class from other proposed civil patients. Under New York law only three classes of civil patients are amenable to confinement in the institutions maintained by the Department of Correction: (1) the patient already 25 committed by civil process to a civil hospital who after a separate judicial proceeding is found to be homicidal or liable to commit acts which would constitute felonious as- sault or who is so mentally ill that he is a danger to others (Mental Hygiene Law, Section 85); (2) those patients already committed by civil process who are ex-felons and who continue to exhibit criminal propensities (former Correction Law, Section 412; see, United States ex rel. Carroll v. McNeil, supra, holding part of this statute to be unconstitutional); and lastly, those persons situated as was Petitioner.” In each instance where the transfer of a civil patient to an institution of the Department of Correction is sought, the State has the burden of showing that the inmate, in addition to his insanity, belongs to a class of mentally ill persons for whom stricter security is necessary. However when the post sentence expiry commitment of a Dannemora prisoner is sought, no finding need be made other than that the prisoner-patient is insane. It even appears that a Sec- tion 384 commitment may be made in spite of the fact that the evidence adduced shows “... there was no reason why [Petitioner] could not be treated in a civil hospital” (supra, p. 6). The statute under which the Petitioner was committed and is confined sets him apart from all other civil patients in both a physical sense and a procedural sense. Because of this classification which is neither rationally based nor uniformly applied, Petitioner has been deprived of rights 18 We may exclude from consideration those commitments to Matteawan which flow from the criminal process as different con- siderations of policy may be involved (see, Lynch v. Overholser, 369 U. S. 705, 715-717). In any event, such persons must have counsel. Gideon v. Wainwright, 372 U. S. 335 (1963). ' 26 upon which all others have a claim. The statute challenged here is subject to every vice found present in the steriliza- tion statute considered by this Court in Skinner v. Okla- homa, 316 U. S. 534 (1942) and is deserving of the same fate. CONCLUSION For the foregoing reasons the orders appealed from should be vacated and the case remitted with directions to sustain the writ of habeas corpus. Respectfully submitted, Lzon B. Potsky The Legal Aid Society Counsel for Petitioner 100 Centre Street New York City, New York 27 APPENDIX A State Law Relating to the Right to Counsel at Commitment Hearings AtapamMa—Code of Ala., Tit. 21, $10: “Tf, on the hearing of such inquisition, the person alleged to be of unsound mind is not represented by counsel the court shall appoint a guardian ad litem to represent and defend for him.” See, Smith v. Smith, 254 Ala. 404, 48 So. 2d 546 (1950). See also, Title 21, $15. Ataska—Alaska Statutes, Title 47, Chapter 30, Section 070 (h) [47.30.070h] : “An opportunity to be represented by counsel or ad- visor shall be given to the proposed patient, and if neither he nor others provide counsel or advisor, the superior court shall appoint a counsel or advisor * * * ” Arizona—Title 36 Revised Statutes, §514A: “At the time of apprehension or during detention, ee but before the hearing, the proposed patient appre- hended shall be permitted to consult an attorney to represent him at the hearing. If he is not represented by an attorney, the court shall, before the hearing, ap- point an attorney to represent him.” ARKANSAS— No provision relating to counsel. 28 Catirornia—Welfare and Institutions Code, §5054: “The alleged mentally ill person shall be present a the hearing, and if he has no attorney, the judge ma; appoint an attorney to represent him, or if a request i: made for an attorney by the alleged mentally ill person the judge shall appoint an attorney to represent hin .” See, In re People for Best Interest and Protec tion of Campbell, 12 Cal. Rptr. 60, 190 C. A. 2d 253. Cotorapo—Colorado Revised Statutes, 1963. Chapter 71 Article 1, §8: “The court shall appoint an attorney at law who shal represent the respondent as his guardian ad litem in al proceedings thereunder. The guardian ad litem shal be given at least two days notice of the time and plac of the first meeting of the medical commission and shal attend all meetings of the medical commission... ” Connecticut—General Statutes (Revision of 1958), Titl 17, Section 178, as amended by Public Ac 199 (1963) : “Upon such complaint being filed in the probate court such court shall assign a time, not later than ten day: thereafter, and place for hearing such complaint, anc shall cause reasonable notice thereof to be given to the person alleged to be mentaliy il]... If such court i: satisfied that such person is a dangerous person to be at large, it may make such orcer for his restraint anc custody while the proceedings are pending as it deem: advisable; but such person shall not be prevented fron having all reasonable opportunities to consult counse and friends and to prepare and make his defense t such application * * * ” 29 DeLawaRE—Revised Code, 1953, Chapter 51; 16 Delaware Code Annotated, 5101-5523. See also, Chancery Court Rules, 100-108: No provision relating to counsel. See, Senate Hearings, Testimony of Hon. John Biggs, Jr., pp. 127-129. District or CotumBia—78 Stat. 944, §7 (d); D. C. Code, §21-356 (d): “The allegedly mentally ill person shall be repre- sented by counsel ... and if he fails or refuses to obtain counsel, the court shall appoint counsel to represent him.” Frormwa—tTitle 27, Chapter 394, §22 (4), 394.24 (4), Florida Statutes: « * * * The hearings shall be conducted in as informal a manner as may be consistent with orderly procedure and in a physical setting not likely to have a harmful effect on the mental health of the proposed patient. The court shall receive all relevant and material evidence which may be offered and shall not be bound by the rules of evidence. An opportunity to be represented by counsel shall be afforded to every proposed patient, and if neither he nor others provide counsel, the court may appoint counsel.” Title 27, Chapter 394, §22 (7): “bh. At any stage of the proceeding the judge may, upon the application of any alleged incompetent who is indigent, appoint an attornce” to represent said per- wes." = eno some — 30 Grorcia—Georgia Health Code, Acts of 1964, pp. 449, 534; Code of Georgia Annotated, Chapter 88, Section 506 (1964 Supp.) : “(d) * * * Provided, however, that in the event the allegedly mentally ill person shall be financially un- able to employ counsel to represent said person in said hearing, then the [court of] ordinary shall appoint an attorney to represent said person * * * ” Hawat—Revised Laws of Hawaii, 1955 (1963 Supp.), Chap- ter 81, §19-21: No provision relating to counsel in ihe original court commitment. However upon what is apparently a de novo review by an “appeals commission,” “The appeals commission shall hear and determine all cases brought before it on appeal. Upon such appeal the appellant shall have the right to be represented by counsel and to produce witnesses and to offer appro- priate evidence for the person on whose behalf the ap- peal is prosecuted.” Ch. 81, §40. See also, Ch. 14A, §§32, 34. IpanHo—Idaho Code, 66-329 (g) : “ * * * An opportunity to be represented by counsel shall be afforded to every proposed patient, and if neither he nor others provide counsel, the court shall appoint counsel and authorize a proper fee to be paid such counsel from the county funds.” 31 Intinors—Chapter 91-14, Section 8-22.1, Illinois Revised Statutes (as amended by Laws of 1965, June 9): “(a) If the court determines that the person alleged to be mentally retarded or to be in need cf medical treatment is indigent, the court shall appoint as counsel the public defender .. . ” Chapter 91-14, Section 7-2 (as amended by Laws of 1965) : “The magistrate or judicial officer shall identify him- self and his official position and in simple, non-technical language and in a language known to the patient, shall explain to the patient the patient’s rights under this Act, including that the patient shall have a hearing on the question of his need for medical treatment if he shall indicate his desire for a hearing and that at such hearing the patient will be represented by counsel and shall have the right to present evidence and cross-ex- amine witnesses.” Inprawa—Acts of 1957, Chapter 359, Section 602 p. 1046; Burns Indiana Stat. Anno., §22-1216: « * * * [Unless the individual whose mental status is being inquired into has employed other counsel, the prosecuting attorney of the county of the allegedly mentally ill person’s residence shall appear and rep- resent such person in said proceedings.” lowa—Acts cf 1959 (G. A.) Ch. 152, §98; Iowa Code An- notated, Title 11, Ch. 229.5: “Appearance on behalf of such alleged mentally ill person may be made by any citizen of the county, or by any relative, either in person or by counsel. —_— a If at said hearing such person appears without coun- sel or appearance is made in his behalf without coun- sel, the commission, before proceeding further, shall inform such person or persons appearing for him of his right to legal counsel, then if no counsel is employed, the district court shall assign him counsel.” See also, 1948 Op. Atty. Gen. 67. e Kansas—Laws of 1965, Ch. 348, Section 14: “Mandatory preliminary orders; procedure. Upon the filing of the application provided for in section 13, the probate court shall issue the following: aa. G34" (C) An order appointing an attorney to represent the ‘proposed patient’ at all stages of the proceedings * * * The ‘proposed patient’ shall have the right to engage an attorney of his own choice and, in such event, the attorney appointed herein shall be relieved of all duties by the court.” Kentucky—Kentucky Revised Stat. (1959) §202.050: “Tn each inquest the court shall appoint a member of the bar to represent the interests of the defendant, and the attorney for the Commonwealth also shall prevent the finding of any person to be of unsound mind who, in his opinion, is not such.” Lovistana—Revised Statutes of 1950, Title 28, Sections 53- 62: No provision relating to counsel in sections relating to commitment. However Section 141, relating to the costs of the commitment provides: sonitieahiiasliensammnsiniuemmaneniemmenammetia — 33 “Tf financially able, the patient or his legally respon- sible relative shall pay the costs of commitment, includ- ing examination fees, expenses incurred in calling wit- nesses, fees of counsel for the patient, and fees of the commission, otherwise the parish of domicile in the ease of a resident or the department in the case of a non-resident shall pay these ccsts.” Marwe—Revised Statutes, 1964, Title 34, §2334: « * * * An opportunity to be represented by counsel shall be afforded to every proposed patient, and if neither he nor others provide counsel, the court shall appoint couns. * * * ” MaryLanp—Code of Maryland, Article 59: No specific statutory provision. See, State ex rel. Adams v. May, 196 Md. 152, 75 A. 2d 839, at 842: « * * * The Attorney General informs us that in at least one county the court appoints counsel for the alleged insane person and has the testimony reported by a court stenographer. We think the statute at least au- thorizes this procedure.” Massacuusetts—General Laws, Chapter 123, §51: « * * * Upon receipt of an application for commit- ment the court shall cause written notice to be per- sonally served upon the person named therein, inform- ing the said person of the application for commitment and of his right to a hearing at which he can be present and be represented by counsel * * * ” — Micuican—Compiled Laws of Michigan, 1948, $330.21: “« * * * The court to whom the petition is directed may dispense with such personal service or may direct substituted service to be made upon some persona to be designated by it * * * In such cases the court shall appoint a guardian ad litem to represent such mentally diseased person upon such hearing, and in other cases it may appoint a guardian ad litem * * * ” See, In re Wojtasiak, 375 Mich. 540, 1384 N. W. 2d 741 (1965) which seems to hold that there is a constitu- tional right to counsel in proceedings to recommit a felon in a post-sentence expiry case. Minnesota—Laws of 1963, ch. 258, §2; M.S. A., §525.751 (4): “* ** Tf the patient so requests or is held for observa- tion under order of the court, the court shall appoint counsel for him, if he is financially unable to obtain counsel. In all other cases the court may appoint coun- sel for the patient if it determines the interests of the patient requires counsel.” See, State ex rel. Anderson v. U. S. Veterans Hos- pital, 268 Minn. 213, 128 N. W. 2d 710 (1964). MississrppI—Miss. Code Anno., §6909-07, 08: No provision relating to counsel. Missovri—Vernon’s Annotated Missouri Statutes, §202.807 (4): “The hearings shall be conducted in as informal a manner as may be consistent with orderly proce- dure ...An opportunity to be represented by counsel — ears 35 shall be afforded to every proposed patient, and if neither he nor others provide counsel, the court shall appoint counsel.” Montana—No provision relating to counsel. Nepraska—Laws of 1947, c. 335, §16, p. 1061; Rev'd. Stat- utes of 1943, §83-325: «*** Any citizen of the county or any relative of the person alleged to be mentally ill, may appear and resist the application; the parties may appear by counsel.” See Senate Hearings, Testimony of Dr. C. H. Far- rell, p. 163 to the effect that the Public Defender represents all defendants requesting counsel. Session Laws of 1963, ch. 524: “Medical Care for Drug Users (2) The alleged drug-using person, referred to in sub-section (1) of this section shall be represented by counsel. If the court determines that he is financially unable to obtain counsel, it shall appoint counsel for him ** #)» Nevapa—Revised Statutes §433.200: “(1) * * * The judge may direct the clerk of the court to issue subpoenas for the attendance of wit- nesses at the examination of the person, assign counsel to defend such person... and enter such other orders as he may consider necessary to permit a proper de- termination concerning the mental condition of, and to protect the rights of the person alleged to be men- tally ill.” 36 New HampsHire—See generally N. H. Rev’d. Stat. (1964), Chapter 135. No provision relating to counsel. New Jersey—-Laws of 1919, c. 97, $20, p. 234; N. J. S. A. 30 :4-41: “Tn all cases where the patient is confined in an in- stitution before the final hearing, the county adjuster shall serve or cause to be served personally upon the patient a written notice of the time and place of final hearing and shall give notice to the plaintiff and the patient’s nearest relative. The chief executive officer [of the institution] shall afford the patient every op- portunity to appear personally or by attorney at the hearing, and assist him in communicating with his friends, relatives or attorney * * *” See Senate Hearings, Testimony Chasen, at pp. 226- 27: “* * * T assume that he [the proposed patient] would probably find the bar in our State responsive were a request made for counsel. * * * But I have never, in over 30 years of practice, heard of an application being made . . . except where large amounts of money are involved . . . very rarely is there an actual adversary proceeding.” New Mexico—Laws of 1953, ch. 182, §5; N. Mex. Stats. Anno., §34-2-5: “f, *** An opportunity to be represented by coun- sel shall be afforded to every proposed patient, and if neither he nor others provide counsel, the court shall appoint counsel.” — AIO TCO AT IES | 37 NortH Carotina—See generally, General Stats., §122-64 and 65: No statutory provision relating to coun- sel, Cf., In re Wilson, 257 N. C. 593, 126 S. E. 2d 489 (1962). Norra Daxota—S. L. 1957, ch. 196, §3; R. C. 1943, 1957 Supp., §25-0311 (6); N. D. Century Code, §25-03-11 (6): «*** An opportunity to be represented by counsel shall be afforded to every proposed patient, and if neither he nor others provide counsel, the mental health board, upon request of the proposed patient, shall appoint counsel. If it is determined that the proposed patient is unable to pay for such counsel, the attorney [sic] fees, upon approval of the mental health board shall be paid by the county.” Oxn1o—Baldwin’s Ohio Revised Code, $5122.15 (1964) : «* * * The individual named [as defendant] in the affidavit shall be notified by the court of his right to secure counsel. The court may appoint, at any time in the proceedings, an attorney to represent a person who is alleged to be mentally ill* * *” Oxtanoma—See generally, Laws of 1953, §55, p. 163, as amended; 43A Okla. St. Ann., $55: No provision relating to counsel. Orrcon—O. R. S. 426.100: “Tf the allegedly mentally ill person, when brought before the court, requests the assistance of counsel to — 38 represent him at the proceedings provided for by O. R. S. 426.070 to 426.150, the court shall give such person opportunity to obtain such legal counsel. If no such request is made by the allegedly mentally ill person, his legal guardian, relative or friend may, in the order named, request assistance of legal counsel. If no request for legal counsel is made by any party, the court may, at its discretion, appoint legal counsel. In all cases such legal counsel shall be present at the hearing and examination and may examine all wit- nesses offering testimony, and otherwise represent such person.” PennsyLvanta—See generally, P. L. 533, art. III, §327 (June 12, 1951) as amended; 50 P. §S. §$1201-1208 : No provision relating to counsel other than 50 P. S. 1202 (ce) which provides: + “The commission shall hear such evidence as may be offered or they may require, relating to the mental condition of the person sought to be committed, as well as, his or his counsel’s statement * * * ” Ruove Istanp—Gen. Laws 1956, 26-2-13; G. L. 1938, ch. 71, §7; General Laws of Rhode Island, Anno- tated (1956), §26-2-13: “Tn all cases, whenever a person is apprehended and held for examination upon the question of his or her sanity before any court or commission authorized by ' this chapter to hear such question, and such person is by reason of poverty unable to employ counsel . . ¢ 39 The court or commission before whom any such hear- ing shall be had shall forthwith, upon the apprehen- sion of such person, appoint counsel to make the defense provided for in §26-2-11 * * *” SourH Carotina—Code of Laws, 1962, §32-962: «*** An opportunity to be represented by counsel shall he afforded to every proposed patient, and if neither he nor others provide counsel, the court shall appoint counsel for him.” Sourn Daxota—Laws of 1953, ch. 178; Laws of 1959, ch. 174; Code of 1939, §30.0107 : «“* ** Tn its examination, it [the board] shall hear the testimony for and against such application, if any is offered ... The person charged with being men- tally ill or any citizens of the county or any relative of the person alleged to be mentally ill may appear and resist the application, and any person authorized to appear may appear with counsel * nas TennessEE—Acts of 1919, ch. 17, §10; T. C. A., §33-508: “The county judge or chairman shall proceed with the hearing to determine whether the person in ques- tion is insane or not. Before proceeding, however, the court shall appoint a guardian ad litem to look after the interest of the person in question, but said guardian ad litem need not be, but may be, an attorney at law, but he shall be present at the hearing and manage the case in behalf of the person suspected.” — 40 Texas—Acts of 1957, ch. 243, §43; Vernon’s Annotated Texas Statutes, 5547-43: “When a Petition and the required Certificate of Medical Examination for Mental Illness are filed, the county judge shall set a date for a hearing to be held within thirty (30) days of the filing of the Petition, and shall appoint an attorney ad litem to represent the proposed patient.” Uran—Laws of 1963, ch. 160, §1; Utah Code Anno., 464- 7-364: “* * * An opportunity to be represented by counsel shall be afforded to every proposed patient, and if neither he nor others provide counsel the court shall appoint counsel.” Vuermont—Laws of 1959, No. 185; 18 Vt. Stat. Anno., 42602: “In any proceeding before a county, municipal or probate court involving the involuntary commitment of an alleged insane person to a mental institution, such person, or any resident or non-resident guardian or next friend or relative of such person, acting for such person, shall be afforded counsel, and if the al- leged insane person is unable to pay for same, com- pensation shall be paid by the state to counsel assigned by the court...” Vincinta—Laws of 1958, c. 595; Code of Virginia, 437-62: “In any proceeding for commitment under this title, the judge upon whose warrant such proceeding is being held shall ascertain if the person whose commitment is sought is represented by counsel. If such person is 41 not represented by counsel such judge shall appoint an attorney at law to represent such person in such proceeding * * *” Wasnincton—Laws of 1959, ch. 25; RCWA, §70.02.190: “If no guardian of the person has been appointed, the court may appoint a guardian ad litem to repre- sent the patient during proceedings. The person filed against shall have the right to be represented by an attorney if requested.” See, State ex rel. Richey v. Superior Court, 59 Wash. 872, 371 P. 2d 51 (1962). West Vircrnra—Acts of 1965, ch. 98; W. Va. Code of 1961 (1965 Supp.), §2661: «“* * ®* The mental hygiene commission shall appoint a guardian ad litem who shall be a competent attorney, for the individual, and said guardian shall be present at the hearing and protect the interests of the indi- vidual «een Wisconstn—West’s Wisconsin Statutes Annotated, Title 7, §51.02 (4): “At any stage in the proceedings, the court may, if it determines that the best interest of the patient re- quires it, appoint a guardian ad litem for him.” Wyrominc—Laws of 1963, ch. 188, §12; Wyoming Stat., §25-60 (d): “ .. Tf the court has reason to believe that notice would be likely to be injurious to the proposed patient, and so finds in its order for notice, notice to him may Ae naam mec — 42 be omitted, but in such case notice shall be given to legal counsel appointed by the court to represent the proposed patient if no relatives, spouse or guardian reside within the county * * * In addition the notice shall apprise the person of the purpose of the pro- ceeding . . . the identity of legal counsel appointed by the court to represent the proposed patient and the latter’s right to counsel of his own selection...” 43 APPENDIX B Cases HanpLep By LEGAL Arp orn DEFENDER AGENCIES Period Cases Com- jae Agency Covered Handled mitted mitted Mass. Defender’s Committee, Worcester County 7/1/63- 6/30/65 6 5 1 Public Defender, San Francisco 7/1/64- 6/30/65 101 61 40 Atlanta Legal Aid Society ? 10 M7) 7 Public Defender Cook County, Il. 12/1/63- 11/30/64 6,174 5,223 951 Legal Aid Agency, D. Col. 1964 639 416 223 Public Defender, Benton County, Wash. 2/1/65- 9/15/65 7 7 0 44 APPENDIX C DEFENDER ASSOCIATION OF PHILADELPHIA STIITE 800 DEWEY BUILDING PBiLADELPHIA, PENNSYLVANIA DEFENDER’S REPORT FOR THE MONTH OF MAY June 4, 1965 Lunacy Commission HEARINGS Aided by the grant from the National Defender Project, the Association is supplying counsel to sentenced clients whom the prison authorities claim are mentally ill and committable to a state hospital for mental diseases. Rep- resentation follows the filing of a petition for a lunacy commission and the appointment of such a commission to examine the prisoner and report whether the prisoner is mentally ill or mentally defective and, if so, whether he is of criminal tendency. If a prisoner is found to be mentally ill or defective and of criminal tendency, the commission recommends commitment to Farview State Hospital for the Criminally Insane. On the other hand, if the prisoner is found to be mentally ill or defective without criminal tendency, the commission recommends that he be committed to an ordinary state mental hospital. Our attorneys have appeared at lunacy commission hear- ings for the last six months. During that period, it has become increasingly clear that our services in this area are vitally needed for the protection of clients who become the subject of lunacy proceedings. The scope, nature and value of our services are illustrated in the following re- ports submitted by Association lawyers who appeared at lunacy hearings: — ee 45 1. November 30, 1964 Lunacy Commission Hearing: Frank W On November 24, 1964, a lunacy commission was convened to examine Frank W, an inmate at the State Correctional Institution, 21st and Fairmount Avenue, Philadelphia. The Commission, which met at the prison where the inmate was incarcerated, was composed of Frank A. Bove, M.D.; Horace J. Prescod, M.D.; and Richard H. Knox, Esq. Following is a report of the proceedings : Prior to meeting with the Commission, I interviewed the inmate for an hour and a half. He was suspicious of me because he felt everyone was attempting to send him to Farview. He realized that his sentence would be served in a year and he felt that the officials were attempting to detain him in any way possible. I showed him my creden- tials and assured him that I was there to protect his rights before the Commission. Having won his confidence, I pro- ceeded to get him to tell me his story, all of which he would retell to the Commission later that day. The Commission met at 1:30 P.M. It commenced the pro- ceedings by questioning the prison psychiatrist who had examined the inmate and whose report on the mental con- dition of the inmate is part of the findings submitted to the Court. This report was made on the basis of one in- terview of an houi’s duration and was admittedly very inconclusive because of lack of observation of the inmate. The discussion with the psychiatrist preceded the inter- view of the inmate by the Commission and was held out of the presence of the inmate. The interview with the inmate lasted over two hours, the inmate doing over 95 percent of the talking. He retold the story of his trial and of how his lawyer did a very 46 poor job (his major complaint was that the woman he was accused of raping had lived with him for ten years and that he-had photographie proof of this, in addition to witnesses to testify to this, but that the lawyer proceeded to trial without the witnesses and photographs. This is borne out by the record but the defendant agreed at the commencement of his trial, according to the record, to proceed without this testimony necessary to his defense.) He related that he had been promoted in almost all his work assignments in prison and cited all his skills and accomplishments while working in prison. At almost all points of his narration however, he inrplied he was per- secuted by others and this is how he accounts for serving over nine years of a four to ten-year sentence. He concluded his interview by telling the Commission of his recent invention which would allow an airplane to land safely if it lost all of its power while in flight. He noted he did not have a working model of this device for lack of equipment. He refused to give details of this device to the Commission, except for a drawing of an airplane with numbers placed at various spots around the plane. This refusal stemmed from his feeling that if he gives in- formation to anyone except a potential investor, he will be left out of the development of the device. He wrote a letter to the F. B. I. to inform them of this invention, and in censoring the mail, the prison authorities came across the letter. This letter was apparently one of the prime reasons motivating prison officials to initiate proceedings to determine whether the inmate needed treatment at a mental institution. After the Commission concluded its interview, the prisoner left and I reiterated to him how the decision of the Com- 47 mission is reached. I then went before the Commission and advanced my opinion to them, namely, that I felt the inmate was in need of medical treatment but that he was not a violent person and definitely would be harmed by an institution like Farview. I recommended that he be sent to an institution which does not have maximum security, like Norristown. At this time, I requested a copy of the Commission report which will be filed with the Court. It seems to me that our vital service in this area is coun- selling the Commission in the different natures of the in- stitutions to which an inmate can be committed. To do this well, we must be familiar with the institutions themselves, their facilities and what type of persons they will accept. At the same time, it is necessary to interview the inmate before the hearing to apprise him of the nature of the proceedings, to calm his anxieties about being “sent away”, and to aid him in communicating his story to the Com- mission. Martin K. MILLER 2. December 9, 1964 Lunacy Commission Hearing: William R Commission consisting of Manuel Sall, M.D., psychiatrist, Richard J. Chodoff, M.D., and John A. Geisz, Esq., met at 1:10 PM, this day, at the Eastern State Penitentiary with a prison psychologist, Mr. Wadell, and the Defender present and interviewed the prisoner, William R, for about 40 minutes, and as a result of the interview, recommended that the prisoner required psychiatric treatment, was a prime object for treatment at a mental hospital, and did not require incarceration at a maximum security institu- tion, such as Farview, and that he was not dangerous to society but only to himself. a — 48 As Defender, I asked Dr. Sall, psychiatrist to explain the commission proceedings to the prisoner and then I intro- duced myself as the defender and determined that he un- derstood the proceedings and that he desired the presence of the counsel of the Defender, and that he desired to be sent to a mental hospital for treatment. At that point, I stood mute and allowed two or three questions at the close, and remarking after the prisoner left, that hopefully he could be transferred to a luw security mental institution, since that was his desire. The prisoner appeared to this defender to merit the diag- nosis and recommendations of the commission. He was guilt ridden, talked about hearing his deceased father’s voice suggesting suicide to him, about being uninterested in social contact or activities, admitted hating the voice and figure of authority, ie., cops, guards, which the good doctor diagnosed as an identification with his hatred of his father. The doctor said he was not having a true hal- lucination but relating his own thoughts through this medium. Since psychiatric questioning is a method of carefully suggesting answers and attempting to elicit the prisoner’s true behavior, the only way we can serve the defendant’s wishes, is to be qualified in the same methods. I feel that when the commission is not agreeable to the prisoner’s desires for or against transfer, I would have been at a loss to either intelligently cross-examine in order to demon- strate more or less of the prisoner’s behavior or to argue psychologic theory calculated to persuade the commission with the prisoner’s desires. MicHaeEL HiueGass 3, December 16, 1964 Lunacy Cominission Hearing: Michael C On December 2, 1964, a lunacy commission was convened to examine Michael C, an inmate at Holmesburg Prison, serving a sentence for burglary, larceny, and receiving stolen goods (1114 to 23 months.) C had 70 days time until the expiration of the minimum sentence. The commission was composed of Laurent B. Houle, M.D., Thomas B. Force, M.D., and John B. Hannum, Esquire, and had been ap- pointed by Judge Griffiths upon petition of the prison war- den (the prison psychiatrist had made the recommendation.) Prior to the hearing, I spoke with C. I informed him of the nature of the hearing and the power of the commission. I stated that he could confide any special concerns or feel- ings in me. Speaking coherently, though nervously, he said that he knew he needed some mental treatment; he had had treatment in a Kentucky hospital for the use of drugs and had found it helpful; he had rejected the suggestion of our office at the time of trial in June 1964 that he be committed to a mental institution in lieu of sentence and now thought he had been unwise; he was concerned, however, that he not be sent to Farview because he knew of two persons who had returned from Farview with obvious welts and bruises from beatings; he would accept a commitment beyond the 70 days remaining time for his minimum sentence at Holmesburg. Questioned about his prison experience, he stated that he preferred to be in “OBS” which he explained was “observation” because it was quiet, and when he had been returned to the cell block, [another prisoner] beat him up; therefore, to escape the harassment on the cell block, he slit his wrists for the sole purpose of being re- turned to OBS. 50 The commission met at 6:15 p.m. at the prison. The prison psychiatrist was not called (as in the case of Frank W), the commission relying solely on written reports. Further- more, the hearing—which lasted about a half hour—con- sisted simply of a talk with the defendant. After members of the commission had finished questioning the defendant, I elicited the information he had confided to me because ] felt it would help him. In particular, I had him tell the commission of his fear of Farview and preference of By- berry or Norristown hospitals. After the interview with C, I simply stated to the commission that I felt it would be inappropriate to find C had criminal tendencies (which would result in his commitment to Farview.) Although neither of the two doctors on the commission were psy- chiatrists, I felt that any objection of a legal nature should not be made in the presence of C and I made none. The commission submitted its report to Judge Griffiths (Form MH 46-3-63) containing the following: 1) finding that C ts in need of care in a mental in- stitution for the following reason: “that he is in such condition as to require observation, diagnosis and treat- ment” (as opposed to finding him either mentally “ill” or mentally “defective”) ; & 2) opinion that C is not of criminal tendency. On December 7, 1964, Judge Griffiths approved the report and signed an order committing C to Philadelphia State Hospital at Byberry until further order of court or until otherwise dischargeable under the provisions of section 348(b) of the Mental Health Act of 1951, as amended. This office was given the statutory ten days to object. 51 4, January 14, 1965 Lunacy Commission Hearing: Thomas A. C On January 14, 1965 at 8:30 AM at the County Prison, Holmesburg, Pa. a lunacy commission was convened to ex- amine and evaluate Thomas Augustus C. Present were the following: James P. Ramsey, M.D. Paul Sloane, M.D. Hardy Williams, Esq. Eugene V. Alessandroni, II, Esq. Defender Association of Phila. Before the inmate was brought into the room, Dr. Sloane read the reports prepared by the prison psychiatrist and the prison warden. These reports stated the inmate’s prison behavior. In essence they were as follows: The inmate was a model prisoner for the first two years of his incarceration. His trouble began approxi- mately seven months ago. Since then he has been in and out of the OBS and maximum supervision blocks. He set fire to bedding, destroyed furniture, threatened the Prison nurse and guards with violence, assaulted fel- low inmates, slashed the outer portion of his arm, and had a hypodermic needle and syringe in his possession. He has been on medication and was on medication at the tie of the Commission’s meeting. Parole was denied in April 1965. This decision is to be recon- sidered in 1965. Inmate was then brought into the room. He appeared to be calm and collected and gave no outward signs of insanity or mental problems. He was introduced to all the Board 52 members and I explained the purpose of my being at the meeting. The members of the board then took over and asked the in- mate many questions about his prior behavior. C answered all the questions and was quite polite and well aware of what was going on. . He stated that he would have moods and that he was capable of violence at these times. He does not want to hurt anyone and does not want to be hurt himself. He stated that most of his misbehavior was planned and that he did these acts so that he would be transferred to a State Penitentiary. He explained that he had applied for a transfer on at least two prior occasions and that he had been turned down without a reason being given. He feels that he would be happier in the penitentiary. His knowledge of the penitentiary has been gathered from talking with other inmates. He was asked if he would want to go to a hos,ital and he said that it might not be a bad idea because he would like to find out why he has the moods which seem to cause some of his problems. ~~ After the inmate left the room, we all discussed the case and it was decided that this man should be sent to Norris- town State Hospital and that on his release he could be sent to the penitentiary if that was desirable in light of any findings at Norristown. KucEene V. ALESSANDRONI 5. January 15,1965 Lunacy Commission Hearing: Carmen S This took place at Graterford in the presence of Lewis S. Cali, Esquire and Drs. William A. Harvey and John B. MeNally. 53 Dr. Harvey conducted most of the hearing. The defendant presented a very pitiful appearance. He had been, since the middle of November, in a state of mental stress con- sisting of delusions and hallucinations. He had broken win- dows in his cell, flooded it, torn sheets and blankets. He inflicted superficial wounds on himself, has refused to eat, speaks of hearing voices. Had taken some medication and refused others and from time to time refused to eat, stating that this was dictated to him by voices he heard. Dr. Harvey and Mr. Cali had prior to the hearing interviewed the step-mother of the defendant in the waiting room and she stated that she wanted no part of him. However, after the hearing she spoke to me and intimated that she was suspicious of star chamber proceedings. I tried to assure her of the fact that I had been present to protect his in- terest but I am afraid I did not succeed too well. At the eonclusion-of the hearing I suggested to Dr. Harvey that I did not like some of the wording of the findings, particu- larly that the defendant was of criminal tendencies. He agreed with me that the findings should indicate that the defendant, if well, would not be inherently criminal or of criminal tendencies but that his illness made him so. I sug- gested that such a finding be incorporated in the form that was furnished by the Quarter Sessions Court. In my own mind there is no question but that this man is at the present time incapable of normal action. His thinking is discon- nected, his memory poor and con:ased and he has unques- tionable persecutory and depressed hallucinations. He spoke constantly of hearing voices which dictated actions that were harmful to him, such as not eating in order to starve to death, pour cold water over himself in order to freeze himself to death and hot water in order to scald himself. Isaac Pepe 6. January 28, 1965 Lunacy Commission Hearing: Robert, J Held at State Correctional Institution at Philadelphia Present: Mr. DiCintio and Dr. Lehman of Commission Dr. Cole of Commission not present Mr. Woodell of Prison Mr. Isaac Pepp for Defendant Mr. Woodell of prison gave history of defendant’s behavior. He was persecuted by all actions of prison authorities. All rules were directed against him personally, would not eat at times—suspicious that food was not proper on religious grounds (Defendant is a Muslim). Defendant will not talk to white persons and only to such negroes as are Muslims. Defendant was placed in “Hole” for talking in ugly manner to the Warden regarding his food. Defendant refused to appear before Commission. We ad- journed to before the cell of defendant. He refused to talk to anyone. I tried to introduce myself to defendant as representing him. He imperiously ordered me to leave. Nore: This defendant incarcerated for parole violation Basis: refused to work Isaac Prepp 7. February 16, 1965 Lunacy Commission Hearing: Earl X. B On January 6, 1965 a Lunacy Commission was convened to examine Earl B, an inmate at Holmesburg Prison, who had 55 been under observation there since shortly after his arrest for vagrancy, disorderly conduct and resisting arrest. The Commission was composed of Kenneth K. Kool, M.D., a psychiatrist, Myron A. Zacks, M.D. whom I learned spe- cialized in ear, nose and throat medicine and Edward Dicker, Esq. Before the hearing I had interviewed Mr. B at his cell at Holmesburg Prison. It seems that he had been taken to the Detention Center where he had immediately gone on a fast im accordance with his beliefs as a member of the Black Muslim movement. He was transferred to Holmesburg for observation and had been lying in his cell with a shirt over his head for hours at a time. He hated white men and was being handled only by Negro personnel. For this rea- son, the authorities would only let me talk to him in his cell. At his cell I had a stormy interview with Mr. B who kept reiterating his Muslim beliefs and arguing that he had done nothing and ought to he let out. I somehow managed to get through to him the fact that the lunacy commission was about to sit to consider his mental competency. The interview ended inclusively when I was informed that the Commission had called for Mr. B’s appearance before it. When I next saw Mr. B he was escorted to the hearing room by two Negro prison guards who remained outside within view of the chair in which Mr. B was seated. He had changed from the ranting vindictive man I had met at the cell into a quite, reasonable person who responded very well to the questions of the commission, Dr. Kool, the psychiatrist, did most of the questioning. It appeared that the defendant aged 30 had become a Muslim about 5 years earlier. He had only completed eight grades of education and had spent most of his boyhood working on truck farms in New Jersey. He had served 56 satisfactorily in the army for three years, and worked steadily as a construction worker or window washer. He does not know the whereabouts of his parents or his broth. ers of sisters, and is, in every sense, a “loner” except for his fanatical attachment to the Muslim movement. Before his arrest, he had crossed Market Street at 30th. A white man, whom defendant apparently knew, had called him back on the theory, as defendant put it, that he was afraid to come back and face him. Defendant went back at which point he claimed the white man hit him with a club in the head. Defendant hit the man only after being struck himself in the head. His defense to the resisting-arrest charge was that he had not done it because he had been arrested by a Negro officer and that one of the tenets of his faith was that he will ac- cept any authority imposed upon him by a “Black Brother”. Defendant stated that he would only use force in self de- fense, and that he had no fear of death. Although he has spent a good deal of time proselytizing on behalf of the Muslim movement, including selling the newspapers of Elijah Muhammid, he stated that he realized that beliefs could not be forced upon people. Defendant testified that he had no visions or hallucinations and, in response to my question on “cross examination”, brought out the fact that the man that he follows on earth is Elijah Muhammid, a living person, who resides in Chi- cago and occasionally visits Philadelphia. I stressed this for the reason that I thought at least two members of the panel might think that the mention of the name Elijah in- dicated that defendant was speaking of a supernatural per- son. I also brought out the fact that defendant had only one prior arrest for resisting arrest so as to dispel any possi- bility of the commission’s finding that the defendant’s 57 mental state resulted in criminal tendencies so as to cause him to be sent to Farview Hospital for treatment. In response to the question of another member of the panel, defendant answered perfectly the question of what he would do with an envelope that he found on the street ad- dressed to someone else in which he could see a $10 bill. Although I had fears of the hostility of at least two mem- bers of the panel to the Muslim views asserted by the de- fendant, I was pleased to learn from the head of the panel that the group unanimously voted in favor of reporting to the Quarter Sessions’ Court that Mr. B was not in need of any treatment. Samvue., T. Swansen 8. March 5, 1965 Lunacy Commission Hearing: Alvey Edward C L attended hearing during my weekly visit to Graterford on March 5, 1965. Interviewed defendant before hearing. Attended briefing by Clayton of Prison concerning actions of defendant that led to their asking for a commission. He indicated that at present time the defendant seemed to be in remission and did not appear to be psychotic. I gave the Commission my impression of the defendant and hastily reviewed the cause of his incarceration, The defendant was brought in and questioned. He gave good account of himself, was lucid, coherent and precise in his language. He expressed contrition of his acts and hoped to be able to make a go of things. The Commission came to the conclusion that defendant was not committable and should “be kept under observation and treatment”. Such a finding will be filed. There will be no finding of “criminal tendencies”. Concern of possible re- —— 58 mission was expressed. Possibility of better treatment at 21st Street was suggested as a result of prodding by me but was only mentioned as it was “an administrative deci- sion” and not the proper subject of a finding by the com. mission. I had in the file a report from Norristown on this defendant and Mr. Clayton referred to the possibility of the defendant being there but that he did not have any confirmation or repe from that institution. I had gone over this report with .ne defendant earlier and made it available to the Comzaission. Query: Should I have done this? Forgot the most important part: The defendant was very happy to know his interests would be looked after. Isaac Prpp 9. May 7, 1965 Lunacy Commission Hearing: Larry M The Commission consisted of Laurent B. Houle, M.D., Ed- ward B. Polin, M.D., and Raymond L. McConemy, Jr., Esq. Also present were Dr. Harvey Levine, Resident Psychia- trist of Philadelphia General Hospital, and Miss Ellen Rice, Staff nurse. The hearing was heard on the eighth floor of Miils Building of Philadelphia General Hospital. I arrived an hour and one half before the scheduled hearing and conferred with Dr. Levine and the defendant. Dr. Levine informed me that I would be able to get little help from Mr. M, hereafter referred to as the “patient”. The patient was apparently born retarded and when younger suffered a form of epilepsy which subsequently produced some brain damage. The patient is approximately twenty-eight years of age, but his actual birth date is un- ——_— a 59 known because of his inability to answer questions. He was apparently sentenced on a charge of indecent exposure from a 1962 bill of indictment and has been in several prisons since that time. The patient was unable to furnish any information as to where he has been or as to the de- tails of his crime. He was brought to Philadelphia Gen- eral Hospital from Holmesburg Prison on March 27, 1965 with a statement from the prison that he was confused, un- controllable and severely psychotic.. Dr. Levine informed me that he was unable to establish communication with the patient, whose brain damage is apparently permanent, but that he did not think the patient had either violent or crimi- nal tendencies. [ attempted to speak with the patient who presented a very pitiful sight. He sat in achair mumbling, apparently under- stood some of my questions, but his answers were not very lucid. The patient appeared before the Commission and in answer to questions of the doctors, convinced them that he was nonviolent and did not harbor criminal tendencies. The patient sat quietly in a chair, mumbling, and made little sense other than to state that he had no hallucinations, liked everybody and was happy where he was. The patient’s parents also appeared and expressed an in- terest in seeing their boy frequently. The parents are very slow, and are apparently unaware that their boy was, as a youth, mentally retarded. Dr. Levine stated to the Commission that the patient fre- quently had his fly unzipped at Philadelphia General Hos- pital, and he assumes that it is because the patient knows no better. It is probable that this was how his “crime” was committed. — 60 It was apparent to the doctors on the Commission that the patient was not a criminal. They felt he was mentally deficient and functioning at the lowest possible level of a human being. There is no hope for his recovery as the brain damage appears permanent. However, he seems to be well adjusted to Philadelphia General Hospital, and the Com. mission felt that since he is not violent, has no criminal tendencies, and that his parents wish to visit him often, that the best interest of the patient and the Commonwealth would be served by committing him to Byberry. It is my opinion that the Defender’s Office does a great service to patients or prisoners who are the subject of a Lunacy Com- mission Hearing. In this instance, I was able to explain to the Commission that Farview would not be the place for this unfortunate man, and the Commission readily and eagerly accepted my advice. I feel that it is very likely that the patient would have been committed to Farview had a representative of the Voluntary Defender’s Office not been there to represent his interests. I also feel the Commission was not fully aware of the difference between Farview, Byberry, Norristown, ete. Rosert L. Bennett STATISTICAL SUMMARY In the month of April, the Association served 1139 per- sons: 85 in bail cases, 296 in prison cases, 33 in the Fed- eral Court, 577 in Magistrates’ Courts, 111 having post- conviction problems and 37 through special and advisory services. During the month there were 368 interviews held at the Philadelphia Prisons and 774 Defender cases listed for trial. Respectfully submitted, Herman I. Poiiock 61 APPENDIX D . Letter From Hon. Michael Di Salle to Hon. Sam Ervin Ap- pearing in Hearings Before the Subcommittee on Consti- tutional Rights of the Committee on the Judiciary, United States Senate, Highty-seventh Congress, First Session (1961) at pp. 123-124. The State of Ohio, Office of the Governor, Columbus, March 20, 1961. Hon. Sam J. Ervin, Jr., U.S. Senator Senate Office Building, Washington, D.C. Dear Senator: Thank you very much for your very kind inquiry of March 16. I appreciate Senator Lausche’s suggestion that you write to me. Two years ago, I began a hospital-by-hospital visit in Ohio. We have 25 mental institutions. In my visits I was quite struck by the number of people over the age of 65 who had been committed to our institutions. Upon inquiry from the central office and an inventory and diagnosis of the patients, we found that 25 percent of our patients were over the age of 65—9,000 in number—and of this number, approximately half, or 4,500 were not psychotic or mentally ill in the commonly accepted sense. These people were there as a result of someone refusing to accept the responsibility of their care or not being able to assume the responsibility. In many cases local subdivi- sions found that committing these people to mental institu- 62 tions would eliminate a local financial burden and they were perfectly willing to have the State assume it. We have now begun a program of releasing these people to nursing or rest homes, transferring them to the welfare program where they rightfully belong. To date, we have transferred 1,500, and we may very well reach a iotal of 3,000 before we complete this project. The significant thing to me was that, under the State commitment law, this was possible. We are recommending to this session of the legislature a change in commitment laws in order that the State mental health department may have a chance to observe the potential patient for a period of 30 to 60 days before commitment. If we do not take this step, we will be having admitted almost automatically the same number of people who do not belong in our in- stitutions. This is harmful in many respects. It takes our limited facilities and divides them among people who are in need of treatment and people who are not. This increases the cost of the program, for these people are chronically ill, being senile, or, if they are not at the time of admission, many of them become greatly disturbed by their surround- ings. We know how difficult it is for a well person to meet the contingencies of today. Just think how difficult it is for an older person to be put into an institution with mentally ill persons. How long can they withstand the disturbances that are bound to occur? I feel that this is a problem which the States must meet in order to protect the constitutional rights of individuals who are in many cases wrongfully placed in mental insti- tutions. I think that you will find that the most advanced e- recone 63 in the programs are arranging for voluntary and tentative commitments pending observation. This I think will go a jong ways toward resolving the problem, but it has to be a 50-State effort and, consequently, any direction or educa- tion on this subject that would emanate on the Federal jevel would be extremely helpful. You certainly are free to use my statement in any way you deem best. Sincerely, Micuazt V. Dr Satie, Governor. P.S.—Another phase that we are examining is the resto- ration of civil rights during a period of trial visit. 64 APPENDIX E New York Laws Relating to Commitment in Force on December 6, 1961 1. Laws of 1950, ¢. 229, §2 [McKinney’s N.Y. Correction Law, §375] The grounds and property located at Dannemora, in the County of Clinton, and the buildings erected thereon, shall continue. to be known as Dannemora state hospital. Such hospital shall be used for the purpose of confining and caring for such male prisoners as are declared insane while confined in a state prison, reformatory, penitentiary or institution for male defective delinquents, who have been sentenced or committed thereto for a felony and others provided for under section three hundred eighty-three. The department of correction shall have jurisdiction and control of such hospital; but it shall be subject to visita- tion and inspection by the head of the department of mental hygiene, by himself and his authorized representatives from the department of mental hygiene. 2. Laws of 1950, c. 229, §1 [McKinney’s N.Y. Correction Law, §383] Whenever the physician or the psychiatrist of any one of the state prisons, reformatories or penitentiaries or of the institution for male defective delinquents shall certify to the warden or superintendent thereof, that a male pris- oner confined therein and sentenced or committed thereto for a felony or committed to or retained by the institution for male defective delinquents pursuant to the provisions of sections 338, 338-a, 438-b, and section 440, is, in his opin- 65 ion insane, such warden or superintendent shall cause such prisoner to be transferred to the Dannemora state hospital and delivered to the medical superintendent thereof. Such superintendent shall receive the prisoner into such hospital, and retain him there until legally discharged. The warden or superintendent, before transferring such insane pris- oner, shall see that he is in a state of bodily cleanliness. At the time of such transfer there shall be transmitted to the superintendent of such hospital the original certificate of conviction and the certificate of insanity executed by the physician or psychiatrist, which shall be filed in the office of such superintendent who shall file a notice of such trans- fer in the office of the department of correction. 3. Laws of 1961, c. 429 [McKinney’s N.Y. Correction Law, §§384, 385 ] Section 1. Section three hundred eighty-four of the cor- rection law, as amended by chapter three hundred seventy- seven of the laws of nineteen hundred forty-eight, is hereby amended to read as follows: §384. Certification of insane prisoners after the expira- tion of their terms: 1. Within thirty days prior to the expiration of the term of a prisoner confined in the Dannemora state hospital, when in the opinion of the director such prisoner continues insane, the director shall apply to a judge of a court of record for the certification of such person as provided in the mental hygiene law for the certification of a person not in confinement on a criminal charge. The court in which such proceedings are instituted shall if satisfied that such person may require care and treatment in an institution for the ~ illy ill, issue an order directing that such per- son be .wummitted to the custody of the commissioner of 66 mental hygiene to be placed in an appropriate state insti- tution of the department of mental hygiene or of the de- partment of correction as may be designated for the eustody of such person by agreement between the heads of the two departments. The costs necessarily incurred in determining the question of insanity, including the fees of the medical examiners, shall be a charge upon the amount appropriated for the support and maintenance of the Dan- nemora state hospital, and be paid in the same manner as are other expenses of such hospital. 2. A patient committed to the custody of the commis- sioner of mental hygiene and placed in an appropriate in- stitution in the department of mental hygiene or the department of correction pursuant to the provisions of this section may at any time during the period of his commit- ment be transferred to an appropriate state institution in the department of mental hygiene or in the department of correction, which has been designated for the custody of such patient by agreement between the heads of the two departments. 3. All persons retained in Dannemora state hospital pur- suant to a valid order of retention issued in accordance with the provisions of this section prior to September first, nineteen hundred sixty-one shall be deemed to have been committed to the custody of the commissioner of mental hygiene pursuant to subdivision one of this section and shall be deemed to have been placed in the custody of Dan- nemora state hospital by designation of the commissioner of mental hygiene and the commissioner of correction pur- suant to subdivision one of this section. Any such patient in the Dannemora state hospital may be transferred to any appropriate state institution of the department of mental hygiene or of the department of correction as may be desig- 67 nated for the custody of such patient by agreement between the heads of such departments. 4, §2. Section three hundred eighty-five of such law, as amended by chapter three hundred fifty-four of the laws of nineteen hundred fifty-nine, is hereby amended to read as follows: 4385. Discharge of msane prisoners at expiration of terms : Notwithstanding any other provisions of law to the con- trary, the director of the Dannemora state hospital may discharge prisoner at the expiration of his sentence, and who is still insane, but who has not been committed to the custody of the commissioner of mental hygiene and, in the opinion of the director, is reasonably safe to be at large. Such discharged prisoner shall be entitled to fifty dollars in money and suitable clothing adapted to the season in which he is discharged. 5. Laws of 1961, c. 504 [McKinney’s New York Mental Hygiene Law, Section 76 as amended by, Laws of 1964, c. 738, Section 6 [Renumbered McKinney’s Mental Hygiene Law, Sec- tion 74] Note: Material in brackets appeared in the 1961 law and was deleted by the 1964 amendment. Italicized material was added by the 1964 amendment. §6. Section seventy-six of such law, as last amended by chapter five hundred four of the laws of nineteen hundred sixty-one, is hereby renumbered section seventy-four of 68 such law and as so renumbered is hereby amended to read as follows: §[76] 74. Review of [proceedings and] court authorize- tion [order of certification] to retain a patient. If a person [certified to the jurisdiction of the department or an insti- tution,] whose retention, continued retention or transfer and continued retention has been authorized pursuant to this [chapter] article, or any relative or friend in his be- half, be dissatisfied with [the final] any suc [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_IA40386411_0218%3A1. Public record. Not legal advice.