# McNeil v. Patuxent Institution/Concurrence Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Douglas
[p252] MR. JUSTICE DOUGLAS, concurring.
This is an action in the Maryland courts for post-conviction relief which was denied, with no court making a report of its decision. The case is here on a petition for writ of certiorari, which we granted. 404 U.S. 999. I concur in reversing the judgment below.
McNeil was tried and convicted in a Maryland court for assault on a public officer and for assault with intent to rape. He took the stand and denied he had committed the offenses. He had had no prior criminal record. The sentencing judge asked for a psychiatric evaluation of the accused, though neither side at the trial had raised or suggested any psychiatric issues. A medical officer examined him and recommended that he be considered for evaluation and treatment at Patuxent Institution, a state psychiatric agency.
The court sentenced McNeil to "not more than five years" to prison in Hagerstown and, without modifying [p253] or suspending that sentence, ordered him referred to Patuxent. Under Maryland law a defendant convicted of any felony or certain misdemeanors may be referred to Patuxent for determination whether he is a "defective delinquent." Md. Ann. Code, Art. 31B (1971). A "defective delinquent" is defined in Art. 31B, § 5, as "an individual who, by the demonstration of persistent aggravated antisocial or criminal behavior, evidences a propensity toward criminal activity, and who is found to have either such intellectual deficiency or emotional unbalance, or both, as to clearly demonstrate an actual danger to society so as to require such confinement and treatment, when appropriate, as may make it reasonably safe for society to terminate the confinement and treatment."
Under Art. 31B, the staff—which includes a psychiatrist, a psychologist, and a physician—shall examine the person and "state their findings" as to defective delinquency in a written report to the court. Art. 31B, § 7 (a). And it is provided that once transferred to Patuxent, the person in question shall remain there "until such time as the procedures... for the determination of whether or not said person is a defective delinquent have been completed, without regard to whether or not the criminal sentence to which he was last sentenced has expired." Art. 31B, § 6 (e) (Supp. 1971).
The examination normally entails psychiatric interviews and evaluation, psychological tests, sociological and [p254] social work studies, and review of past history and records, including police, juvenile, penal, and hospital records. Personal interviews include a series of questions to elicit and to determine the past criminal record, and antisocial and criminal behavior of the individual.
If the report shows that he should not be classified as a defective delinquent, he is retained in custody under his original sentence with full credit given for the time confined at Patuxent. Art. 31B, § 7 (a) (Supp. 1971). If the report says that he should be classified as a defective delinquent, a hearing is held, at which the defendant is entitled to counsel and a trial by jury. Art. 31B, § 8.
McNeil, though confined at Patuxent beyond the term of five years for which he was sentenced, has never had such a hearing, for he has never been declared a "defective delinquent." He has not been so declared and on the other hand has not been cleared, because he has refused on at least 15 separate occasions to submit to the psychiatric tests and questions. Nor has he received in the interim any rehabilitative treatment or training. The State, indeed, intends to keep him there indefinitely, as long as he refuses to submit to psychiatric or psychological examinations.
McNeil's refusal to submit to that questioning is not quixotic; it is based on his Fifth Amendment right to be [p255] silent. McNeil remains confined without any hearing whatsoever as to whether he has a propensity toward criminal activity and without any hope of having a hearing unless he surrenders the right against self-incrimination.
The Fifth Amendment prohibition against compulsory self-incrimination is applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1. The protection extends to refusal to answer questions [p256] where the person "has reasonable cause to apprehend danger from a direct answer." Hoffman v. United States, 341 U.S. 479, 486; see Spevack v. Klein, 385 U.S. 511. The questioning of McNeil in a setting and has a goal pregnant with both potential and immediate danger. To be labeled a "defective delinquent," McNeil must have demonstrated a "persistent aggravated antisocial or criminal behavior" and "a propensity toward criminal activity." Art. 31B, § 5.
McNeil was repeatedly interrogated not only about the crime for which he was convicted but for many other alleged antisocial incidents back to his sophomore year in high school. One staff member after interviewing McNeil reported: "He adamantly and vehemently denies, despite the police reports, that he was involved in the offense"; "Further questioning revealed that he had stolen some shoes but he insisted that he did not know that they were stolen..."; "but in the tenth grade he was caught taking some milk and cookies from the cafeteria"; "He consistently denies his guilt in all these offenses"; "He insisted that he was not present at the purse snatching"; "He was adamant in insisting on this version of the offense despite the police report which was in the brief and which I had available and discussed with him"; "He continued his denial into a consideration of a juvenile offense..."; "He denies the use of all drugs and narcotics"; "...I explained to him that it might be of some help to him if we could understand why he did such a thing but this was to no avail." Brief for Petitioner 36 n. 43.
Some of the questioning of McNeil was at a time when his conviction was on direct appeal or when he was seeking post-conviction relief. Concessions or confessions obtained might be useful to the State on a retrial or might vitiate post-conviction relief. Moreover, the privilege extends to every "link in a. chain of evidence [p257] sufficient to connect" the person with a crime. Malloy v. Hogan, 378 U.S., at 13. Whether or not a grant of immunity would give the needed protection in this context is irrelevant, because we are advised that there is no such immunity under state laws.
Finally, the refusal to answer results in severe sanctions, contrary to the constitutional guarantee.
First, the staff refuses to diagnose him, no matter how much information they may have, unless he talks. The result is that he never receives a hearing and remains at Patuxent indefinitely.
Second, if there is no report on him, he remains on the receiving tier indefinitely and receives no treatment.
Third, if he talks and a report is made and he is committed as a "defective delinquent," he is no longer confined for any portion of the original sentence. Art. 31B, § 9 (b). If he does not talk, McNeil's sentence continues to run until it expires and yet he is kept at Patuxent indefinitely. We are indeed advised by the record in the Murel case that 20% of Patuxent inmates at that time were serving beyond their expired sentences and of those paroled between 1955 and 1965, 46% had served beyond their expired sentences.
Whatever the Patuxent procedures may be called—whether civil or criminal—the result under the Self-Incrimination Clause of the Fifth Amendment is the same. As we said in In re Gault, 387 U.S. 1, 49-50, there is the threat of self-incrimination whenever there is "a deprivation of liberty;" and there is such a deprivation whatever the name of the institution, if a person is held against his will.
It is elementary that there is a denial of due process when a person is committed or, as here, held without a hearing and opportunity to be heard. Specht v. Patterson, 386 U.S. 605; Humphrey v. Cady, 405 U.S. 504.
McNeil must be discharged forthwith.

## Notes

* ↑ Under Maryland law that sentence was subject to statutory reductions for good behavior, industrial or agricultural work, and satisfactory progress in education and vocational courses. Md. Ann. Code, Art. 27, § 700 (1971). McNeil would have been eligible for parole after one-fourth of the term or a little over one year.
* ↑ At the time of McNeil's referral, the Act required that the report be filed no later than six months from the date he was transferred to Patuxent or before expiration of his sentence, whichever last occurred. Md. Ann. Code, Art. 31B, § 7 (a). (1957 ed., Supp. 1966). An amendment effective July 1, 1971, required that the report be filed no later than six months from the date he was transferred to Patuxent or three months before expiration of his sentence, whichever occurs first. Art. 31B, § 7 (a) (Supp. 1971).
* ↑ Detention beyond the expiration of court-imposed sentences occurs in Communist China where "public security organs [have] the authority to impose as well as administer punishment" and "the discretionary power to extend the duration of imprisonment beyond the original sentences." Shao-chuan Leng, Justice in Communist China 34 (1967).
* ↑ In the District Court proceedings in Murel v. Baltimore City Criminal Court, post, p. 355, Dr. Boslow, the Director of Patuxent, testified: "[The Court]... Take the case of a person who is referred for diagnosis and he fails, let us, say, 100 per cent, to cooperate; he won't talk to anybody, he won't undergo any tests, he won't participate, though I don't think he gets group therapy. "[Dr. Boslow] No, sir. "[The Court] But he will do absolutely nothing and will take no advantage of whatever opportunity if any there may be. "He, therefore, assuming that the law is valid, and assuming that the administration in that respect is supportable, could he remain there indefinitely unclassified? Is that correct? "[Dr. Boslow] Under the present state of things, yes."
* ↑ As stated in a provocative and searching study in Virginia: "Certainly, a prisoner is not entitled to all the constitutional rights enjoyed by free citizens, but the burden of showing what restrictions are necessary for the preservation of prison order should fall upon prison officials. Widespread, sweeping denials of freedom should not be tolerated. Ideally, the legislative and executive branches of government should decide the.extent to which liberty must be denied. No organ of government is better suited than the legislature to consider the penological developments of the last few decades in order to determine the extent to which restrictive practices are warranted. But after legislative command or in its absence, the courts must decide whether the balance of competing interests effected, by legislative compromise or, executive fiat comports with specific constitutional guarantees and traditional notions of due process. In this context the 'hands-off doctrine' has no place. The judiciary functions as more than a final arbiter; 'it has a responsibility for educating the public and, where it fails to act, it functions to legitimize the status quo. The simple failure of the. courts to review prison conditions blunts the success of important constitutional inquiries, impedes the flow of information and encourages abuse." Hirschkop & Millemann, The Unconstitutionality of Prison Life, 55 Va. L. Rev. 795, 835--937 (1969).