Earl Warren: Number 831, Francis Eddie Specht, Petitioner, versus Wayne T. Patterson, Warden, et al. Mr. Williams, you may proceed with your argument.
Michael A. Williams: Mr. Chief Justice and may it please the Court. Francis Eddie Specht was convicted in Colorado in 1959 of the crime of indecent liberties and the statute prescribes the punishment of 10 years for that crime. He was not sentenced under that statute. He was sentenced under the Sex Offender statute to the only sentence allowed by that statute, an indeterminate sentence of one day to life. That statute allows a trial judge to sentence people convicted of the crime of indecent liberties and other crimes. If they fit into a certain classification, the class is a threat to the public if at large or an habitual offender and mentally ill. The issue which Francis Eddie Specht presents to this Court is whether he is entitled to participate by reason of the Fourteenth Amendment. In the process by which the trial judges reaches the conclusion that he is in the class eligible for a different sentence, under the Sex Offender statute that is whether he is a threat to the public if at large or an habitual offender and mentally ill. Just a word about the statute, there are certain enumerated offenses, indecent liberties, incest, they're all sex offenses. The statute says that if a person is convicted of one of those offenses then the district judge, and this is in Section 1 of the statutes in the appendix of the brief, if he has of the -- opinion that such a person is a threat to the public if at large or an habitual offender and mentally ill, may in lieu of the sentence provided by the statute defining the crime sentence him under the Sex Offender statute. The Act goes on then to require that the judge have the person psychiatrically examined. It allows him to incarcerate him for a period of time after conviction necessary to have the psychiatric examination conducted --
Potter Stewart: I think I misunderstood then. First of all, it has to be a conviction of one of the speci --enumerated specified offenses --
Michael A. Williams: That's correct, Your Honor.
Potter Stewart: -- that were all some kind of sex offense that vary.
Michael A. Williams: Yes, Your Honor.
Potter Stewart: Then the trial judge has discretion. He --
Michael A. Williams: What?
Potter Stewart: He can -- he could in this case and he can under the laws if we go ahead and sentence him to whatever sentence the law says shall be -- may be imposed for each one --
Michael A. Williams: To this case?
Potter Stewart: -- for each specified offenses.
Michael A. Williams: Yes, Your Honor.
Potter Stewart: But if he'd -- and he has the discretion do that. But otherwise, he doesn't want to do that, what does he do? Does he then have the man examined by a psychiatrist?
Michael A. Williams: Yes. Then he has the discretion to initiate the inquiry. That is the way I would say it. He has the discretion to have the man examined psychiatrically. He elects to proceed under this Act is one way to say it --
Potter Stewart: Yes.
Michael A. Williams: -- but that doesn't commit him to giving this sentence under this Act. It's my reading of the Act. Now, that's a different reading in the Third Circuit makes it a Pennsylvania statute which is identical. But he begins to inquire and the Act provides that an information gathering mechanism and that is the psychiatric report and since 1957 but not before 1957, it makes it clear that he gets also a pre-sentence report from the probation department. From 1953 to 1957, the Act did require that and I frankly, I don't know what the practice was.
Potter Stewart: So -- and then -- so this -- before he can sentence the man under this Act, he has to have that kind of a psychiatric report?
Michael A. Williams: Yes.
Potter Stewart: But on the other hand, even after getting that kind of report, he can decide to sentence him under the original criminal statute, is that right?
Michael A. Williams: That's the way I read --
Potter Stewart: Or is the facts so clear --
Michael A. Williams: -- the Act, Your Honor.
Potter Stewart: -- under the law?
Michael A. Williams: I don't think that there's a Supreme Court case in Colorado saying that because I don't think there's a case that's exactly raised that. But referring, and this is in our brief on page -- begins on page 28 and over the top of 29, Section 5 of the Act, it says, “Whenever a District Court after a psychiatric examination of and report on a person convicted of any one or more of the crimes shall be of the opinion that it would be to the best interest of justice to sentence such a person under the provisions of this Article. He shall cause such person to be arraigned before him and sentenced”. Now, I believe that if you're going to give meaning to that you have to say that after the examination, after this information gathering procedure has occurred, he can then decide that he does not want to sentence him under the Sex Offender statutes. And that emphasizes, Your Honor, the critical aspect that we say that this information gathering process is. The determination whether the man fits this classification and is eligible for this sentencing.
Abe Fortas: But, let me see if I understand it. He can be sentenced under the statute applicable to the particular offense without the psychiatric examination having been ordered.
Michael A. Williams: That's correct. I believe that the pre-sentence investigation report is in every case required by statute. But the psychiatric examination is peculiar to this and this emphasizes in our view, this -- the fact that the statute provides this classification, these standards which this man has to meet before he can be sentenced and provide an information gathering process emphasizes that the legislature meant that these statutes were important and they have to be met and they gave a mechanism to be sure that they were met. And what they didn't do and what the statute doesn't do as construed by the Courts in Colorado was give the person who is convicted a right to participate in that information gathering process by which the judge makes the decision. Now, whether you call it discretion, whether you say he -- that he must be of the opinion, he has to reach a state of mind that that man is in that classification. And we say, let us at least know what information you are facing that up. And if it's wrong, give us a chance to contradict it. And we say that the Fourteenth Amendment entitles us to do this, to participate in this process and to correct errors in information upon which the judge relies.
Tom C. Clark: Are these separate statutes?
Michael A. Williams: The criminal statute in this case, indecent liberties is -- yes. Its 40-2-32 of the Colorado statutes and the Sex Offenders statute is 39-19-1 through 10.
Speaker: What if they are all the same statutes?
Michael A. Williams: Not if they were in the same statute and the same words, no. In other words, if that statute says you can give him 10 years or if you find he's in this class, then you can give him one day to life. My position would be the same because it seems to me that what the legislature has done and the Colorado Supreme Court said this too. As -- they have said they're only certain people you can do this too, threats to the public or habitual offenders and mentally ill. In the Vanderhoof case, citing Colorado and that cited in our brief, the -- that -- that those -- the objection made by Mr. Vanderhoof, he said, "This Act is unconstitutional because it just gives the judge carte blanche to do what he wants". And the Colorado Supreme Court said, “Oh, no, it doesn't. He merely finds a fact. The legislature has made the classification”. And so we say that because that fact -- well, in one of the phrase of this Court is of critical importance. He is entitled to participate in the decision-making process. In another line of authority in this Court, the recidivist cases it's essentially independent of the fact of conviction. The fact that he is a threat to the public or an habitual offender and mentally ill. And this Court has said that in those cases, the person is entitled to participate because of the due process requirements of the Fourteenth Amendment in the decision-making process.
Potter Stewart: In this case, was it found that he -- which was it found, that he was --constituted as threat or bodily harm to the members of the public or that he was a habitual offender and mentally ill?
Michael A. Williams: Nobody knows, Your Honor, because the Act doesn't require the judge to say so and there's no indication.
Potter Stewart: That's -- strikes makes me about this case is something which I suppose -- which I understand you haven't raised in your certiorari petition and that is the constitutionality of sentencing a person to the Colorado State Penitentiary because that vary your sentence under the statute, isn't it?
Michael A. Williams: Well, yes it is, where he sentence immediately Your Honor but in fairness --
Potter Stewart: If he -- on a finding that he's mentally ill?
Michael A. Williams: -- he's not -- well, I think that I -- it's a real problem if he's not treatable because then there's just -- you're putting him in -- you're imprisoning him with no hope of --
Potter Stewart: For mental illness?
Michael A. Williams: Right.
William J. Brennan, Jr.: Yes, but that's not the (Voice Overlap) --
Potter Stewart: (Voice Overlap)
Byron R. White: -- of the matter, you're going to --
Michael A. Williams: That's right. The statute goes on. However, Your Honor, it says really what it did -- adminis -- it used to be before 1957 that the trial court said which date -- institution the man went to and he could send to a hospital or the appropriate institution. In 1957, when they amended the statute, they say you can send them to the penitentiary but the Parole Board must within six months review the case and decide on an appropriate institution. As a matter of fact, however, Your Honor, we don't know why Francis Eddie Specht was sent and the record does show that he was sent in November of 1959 to the penitentiary and he was there until the record shows 1964. But we didn't raise that on our petition for certiorari and I don't --
Byron R. White: Yes.
Michael A. Williams: -- think that's proper for me to argue it here.
Potter Stewart: He is -- the Court is required to send him initially at least to the Colorado State Penitentiary, isn't it?
Michael A. Williams: Yes.
Potter Stewart: I'm reading the top of page 29.
Michael A. Williams: That's exactly right, Your Honor.
Byron R. White: Well, they send him there while they're making the examination, don't they?
Michael A. Williams: No. No, what -- no, aft -- just after his sentence --
Potter Stewart: After the examination?
Byron R. White: Well, where did they send them while they're making (Voice Overlap)?
Michael A. Williams: Colorado State Psychopathic Hospital, Your Honor.
Byron R. White: Where is that?
Michael A. Williams: I guess in (Inaudible).
Byron R. White: Alright.
Michael A. Williams: They -- it's clear. They incarcerated him and keep him incarcerated between the period of his conviction and the sentencing. And after the sentencing, it's clear that he goes down to the penitentiary.
Potter Stewart: That's in Canyon City?
Michael A. Williams: Yes, Your Honor. The Colorado statute is identical in all material respects I think to the Pennsylvania statute, the Barr-Walker Act. The Barr-Walker Act was enacted in 1951; the Colorado statute in 1953. And I think the copy -- the Third Circuit considered the Barr-Walker Act in the case of United States against Maroney, which is cited in our brief, and they said that this process, this Act, wherein when a man is convicted of a crime, then an inquiry is made whether he has some additional characteristics, some additional attributes, maybe he has them, he gets a much more severe punishment. They said that would define a new criminal status. And because it's a new criminal status, he has to have the entire -- the full panoply of procedural rights consistent with that then they argued about the question of whether the Fourteenth Amendment incorporates the right to jury trial and they didn't agree on that but they agreed on everything else. And if that's correct, this is the same case. As I indicated, the recidivist cases are relevant, pertinent that it -- this is an -- as punishment at the very least. Well, I won't say it the very least because I've got another position at the very least and that's the Kent case. And this is at least a decision of critical importance to the man whether he's going to be a definite sentence. Ten years, and all he has to do is wait and he's out or whether its one day and life and under this statute, he can't be free. No absolute release unless in the words of the statute, “The interest of society and the welfare” -- the dictates of justice in a welfare society dictate it that he be free otherwise the best he can get is parole, supervised freedom. Its --
Speaker: This cannot go to (Inaudible)?
Michael A. Williams: That's correct. Interesting -- interestingly enough however, the Colorado Supreme Court has said he has not bound by that psychiatrist's opinion. And that's that the case of Trueblood against Tinsley, the first Colorado case in which the constitutionality of this statute was before the Colorado Court and in that case, the psychiatrist report said this man is not mentally ill and it didn't say that he was a threat to the public. Now, it was somewhat ambiguous I think on whether it was enough of a basis to -- well, whether it was required, it affirmatively said that he's a threat to the public. But the Colorado Supreme Court said, “We're going to accept your argument, Mr. Trueblood that this psychiatrist report doesn't -- really affirmatively support the judge's action but the judge isn't bound by it.” Actually, I think they were saying the same thing here that the same instruction we give to juries in Colorado every time there's an expert witness. Say, you're the trier of fact and you can hear all the facts and you can accept that expert's opinion as it appeals to your reason and intellect. And I think they were saying the same thing here to the judge or that -- to Mr. Trueblood, they're saying the judge can decide the facts on the basis of his and the rest. And as far as I know, the rest was as a pre-sentence investigation report. The authority that has been -- I won't say, consistently say that against us because the first time that was decided against us, it -- is in the Tenth Circuit by Judge Murray is the case of Williams against New York in which this Court said that -- I think that was a pretty narrow holding. It was the question in -- the holding in that case that the judge can't consider information developed out of court. That he is not limited to listening to information developed in court with cross-examination. But that holding has been expanded by the Tenth Circuit and is argued before this Court in a greatly expanded sense to justify a procedure where not only is the judge considered the information developed out of court but he doesn't tell you what it is? You can't see it if you asked so there's no way of knowing it if it's wrong. Now --
Speaker: Well, if you regard (Inaudible)?
Michael A. Williams: It would have bearing in this sense, Your Honor. It would certainly authorize the judge to consider as an initial matter the pre-sentence investigation report and the psychiatrist report. It would say, yes, you can look at it and there's nothing wrong with you looking at it but if it doesn't say, you can keep it to yourself. You can keep your cards in your chest here and he'll never know why you're doing what you did.
Potter Stewart: But the federal rules of the -- kind of procedure permit does that, the ones recently authorized by this Court, can't they? If what we're dealing with here is a sentencing procedure.
Michael A. Williams: That's right and I don't concede that at all.
Potter Stewart: Don't the federal rules authorize the district -- the sentencing judge in the federal system to keep the information contained in the pre-sentence investigation for himself that he wishes --
Michael A. Williams: Yes.
Potter Stewart: -- in his discretion?
Michael A. Williams: Yes.
Potter Stewart: But the rules recently (Inaudible) --
Michael A. Williams: I can't say anything else but yes, they do.
Potter Stewart: Alright, approves and its promulgated by this Court and by the Congress last summer?
Michael A. Williams: With some comments that might indicate --
Potter Stewart: With some comments --
Michael A. Williams: -- some members of the Court think --
Potter Stewart: -- from the (Voice Overlap) --
Michael A. Williams: -- there ought to be a disclosure.
Potter Stewart: Or from the plaintiff's view.
Byron R. White: That's if it is only a sentencing procedure.
Michael A. Williams: That's right and if you're talking only about working within the statutory limits --
Byron R. White: Yes.
Michael A. Williams: -- of discretion that the legislature put on that judge.
Byron R. White: But what is incomparable situations where sentence might be enhanced to -- based on some ancillary finding of fact?
Michael A. Williams: Habitual criminal is a -- is the most common one. In Colorado --
Byron R. White: Is that here?
Michael A. Williams: -- if you're an habitual criminal, you're entitled to be charged in the indictment and the jury has to find it after the conviction of the (Voice Overlap).
Byron R. White: Then the characteristically would be entitled to a hearing and the counsel of that hearing? I mean, to a hearing on the question of him being a habitual criminal?
Michael A. Williams: Yes, Your Honor.
Byron R. White: Normally across the country?
Michael A. Williams: Well, I would cite to it -- to you the two cases by this Court, Oyler against Boles and Chandler-Fretag --
Byron R. White: Yes.
Michael A. Williams: -- and frankly, I haven't -- I don't know whether that -- you're characteristically entitled to a prospect here, I don't know the answer.
Speaker: But assuming (Voice Overlap) --
Michael A. Williams: But I would say that it would be pretty risky to have a procedure where you didn't in view of what this Court has said in Chandler and Fretag and Oyler against Boles that where a -- where you're considering this enhanced punishment and it depends on the factor that it's essentially independent of the conviction.
Byron R. White: That it must be found and it must be found and by the -- expressly by the Court?
Michael A. Williams: Or by the trier of fact, its written by the jury.
Byron R. White: By the judge, may be?
Michael A. Williams: Right. I think if but -- I think it was a judge in Oregon.
Byron R. White: On a direct appeal on Colorado, is this subject to review?
Michael A. Williams: Which? The question about --
Byron R. White: The determination.
Michael A. Williams: I think, Your Honor, that --
Byron R. White: The determination of this --
Michael A. Williams: It is.
Byron R. White: -- of this factual -- of this facts, which put him in a different category.
Michael A. Williams: Well, we don't have a case that says so but I think -- I would think I would expect the Colorado Court to obtain it but I'd like -- I don't know how that correct it because the judge doesn't have to say, why? He decided what convinced them, what persuaded them.
Byron R. White: Well, doesn't mean that -- isn't -- doesn't -- he has to have had the examination.
Michael A. Williams: Yes. Well, and as a matter of fact, Your Honor, if you read the Colorado cases that go at the constitutionality. They say two or three times where we've looked at this record and we think there is enough to justify the judge making the decision.
Byron R. White: But what if the report says one thing, the judge decides it to reverse? The Court says he is not dangerous. And the judge says, the psychiatrist doesn't know what he's talking about but I do. He is a danger to the community and makes the finding.
Michael A. Williams: Well, I would say that he better have something else beside the psychiatrist report that the Supreme Court concede because in the case of Trueblood against Tinsley, they say -- they said, and I think all they had there was a psychiatrist report and the pre-sentence investigation report and they said we have looked at this record and there is sufficient in here to justify the judge reaching this conclusion in spite of some of this language of the psychiatrist. But well, there's that case and then there's the -- there's the Ray case where it's clear that the Court does look at this and I think in the Sutton case and they do look for those are all habeas corpus not on direct appeal; they are all Rule 35 motions to modify, vacate or amend the sentence. But they looked at it. But I -- as I read the Colorado cases, Your Honor, if -- the judge went against here -- there was no indication in any of that then I'd say, yes, he'd -- he would have trouble of it. But I would still object. I still object to the procedure because that doesn't really give you the -- at the proper level the right to intervene. And the man can ever wrong name on a psychiatrist report for all we know. We tried to see it.
Speaker: (Inaudible)
Michael A. Williams: Well, (Voice Overlap) --
Speaker: (Inaudible)
Michael A. Williams: Yes, the Parole Board, Your Honor, is required to review his case initially within six months of his being incarcerated and then annually. They must review and there is language in the statute which indicates, although, not very precisely that the authorities who have the custody this man must make reports and information available to the Parole Board. The Parole Board then has almost plenary authority to commit or to parole and to recommit and its clear that that's the primary vehicle of letting him walk around anyway. Although, parole is -- the state in Colorado be nothing but jail outside of the walls and they could (Voice Overlap) any time.
Speaker: At that stage with the Parole Board (Inaudible)?
Michael A. Williams: No. I don't -- well, I --
Speaker: (Inaudible)
Michael A. Williams: I think he gets to appear before the board say,” Oh, I think he ought to be out, Your Honor. I don't think that's in the statute but both Mr. Bush and Mr. Moore served on that Parole Board from time to time so I'm sure they could tell you. I think he does but I don't know whether they say -- whether they lay their cards on the table and say, “Look, here's why you're still here and here's why were not going to let you out and what have you got to say --
Speaker: (Inaudible)
Michael A. Williams: Well, it's a pretty far out theory, Your Honor, because --
Speaker: He could get out in six months?
Michael A. Williams: Well, on parole. That isn't -- well, I don't think that's more lenient.
Speaker: (Inaudible)
Michael A. Williams: Yes. If the interest to society, if -- and -- the welfare society and interest of justice dictate it, it must affirmatively appear. That's, Your Honor, he get an absolute release and it's our position that -- oh, that doesn't approach that -- you can get out and walk around and may be you get -- but that's not a more lenient sentence you can be out to jail may be but there's quite a difference between being out, free to come and go as you please, than in reporting to a supervisor.
Speaker: Do you prevail that the habeas could not be available?
Michael A. Williams: He is already -- you mean to stay put?
Speaker: You have a habeas (Inaudible)?
Michael A. Williams: You mean, habeas available?
Speaker: After he's been there after the --
Michael A. Williams: Absolutely clear, Your Honor. One of the Colorado case --
Speaker: Habeas is not available?
Michael A. Williams: That's right. They say habeas corpus is not available to test the question as Trueblood against Tinsley in the state court where they specifically said that he can have habeas corpus and make the Parole Board do their duty and let him out. I reserve the rest of my time --
Speaker: Is there any other case that is in Colorado and Pennsylvania against this statute?
Michael A. Williams: Well, not in this form. I think those are the only two to have it just in his form. Do you -- I think there about 30 states that have got some kind of a sexual psychopath statute. And I might just say, there's one more remark that the Tenth Circuit relied on two state court case, one was Wisconsin and one was in Oregon case, is -- its sort of similar. The Wisconsin case, you cant' keep him pass. Under the Wisconsin statute, pass the maximum term without giving him the very hearing we say should have here. And in Oregon, the case was whether he's entitled to jury trial I suppose. So that neither one of those are picked -- be relevant here. Thank you.
Earl Warren: Mr. Bush.
John E. Bush: Mr. Chief Justice and may it please the Court. The Colorado sentencing of Sex Offenders Act is a statute which provides solely and simply for imposition of an indeterminate sentence. It is our position that this indeterminate sentence stands on the same basis as any other indeterminate sentence, a matter which has become common place, a common place practice throughout the country, in particular the federal system. The indeterminate sentence provided is one which we consider to be responsive to the -- in liking the approach to sentencing. We can compare this form of sentence with the older form of sentence and find that this is a sentence which rejects the concept of punishment and retribution and substitutes in its place that control and discipline. It's a plan's rigidity with flexibility. The discretionary decision to impose the sentence under the Sex Offender Act is measured by specific standard set forth in the Act which is in contrast to the orthodox Colorado sentence where the fixing of the indeterminate sentence is within the plenary control of complainery -- discretionary control of the trial court. We therefore offer --
Byron R. White: Excuse me Mr. Bush, what kind of the hearing do you have in Colorado when the person has not been convicted at the time that someone wants to put him in an institution. Do you have some kind of a due process hearing for him?
John E. Bush: Mr. Justice White, are you referring to the --
Byron R. White: Well, any kind of commitment proceeding.
John E. Bush: A civil commitment for insanity to the mental health statutes? There would be. Yes, Your Honor, a hearing. It is generally -- the general procedure is defined by commission and then within five days, a request for jury trial for person deals/agree by the client.
Byron R. White: But why shouldn't we look at this case as a -- just enough for the State to commit a person and wholly divorce it from the prior criminal conviction?
John E. Bush: Well, Your Honor, I think we must make immediately the distinction. We are not committing a defendant for their mental state of mind. We are committing a man because of the commission of a crime. He has been tried and convicted of the commission of an overt Act which has been defined as a crime.
Byron R. White: You're committing him for this particular reason because he is a danger to the community.
John E. Bush: We are determining, Your Honor, the nature of the sentence based upon his past record and his behavioral characteristics which are the standard guides for determining sentence.
Byron R. White: You wouldn't commit him for this period or under these circumstances. That if only you had done and all you had found and all those stated found was that he committed this particular crime.
John E. Bush: This is correct, Your Honor. We would have --
Byron R. White: Would (Inaudible) proceed to find another fact and they based their commitment on other considerations before you may put him in the hands of -- of the -- well, before you could commit him for this purpose.
John E. Bush: This is correct, Your Honor. And we suggest, Your Honor, that this is a sounder approach. Then the ordinary indeterminate sentence which permits the trial court to fix the indeterminate sentence without standards and classifications and this is in response to what most responsible psychiatrist, penologist, criminologist are asking for and that is the determination -- that the determination of whether a lesser or greater sentence be imposed under the indeterminate sentence have classifications and standards set forth.
Potter Stewart: Mr. Bush, General Bush, upon conviction of -- upon the charge here of -- what was it indecent liberties?
John E. Bush: Indecent liberties. Yes, Your Honor.
Potter Stewart: The judge, absent this Colorado Sex Offender Sentencing Act, could have, in his discretion, sentence the petitioner to anything up to 10 years.
John E. Bush: Yes, Your Honor, as --
Potter Stewart: Could he have under Colorado law impose an indeterminate sentence of one to ten years?
John E. Bush: Your Honor, the sentence provided in the indecent liberty law is an indeterminate sentence. Most all of ours are the indeterminate type sentence. It is a minimum of no less than one year and a maximum of no more than 10 years.
Potter Stewart: And that was in the sentence of the Court, correct?
John E. Bush: This is correct.
Potter Stewart: Rather than a fix term of five years for instance?
John E. Bush: Oh! We must have a minimum -- maximum in all sentences except life.
Potter Stewart: Well, but I'm familiar with that in Ohio and I'm asking you here. What -- absent this Sex Offenders Act? What would -- what could the sentence and what normally would the sentence of the Court have been --
John E. Bush: Well, Your Honor, I can't say because it would have been discretionary decision. It could have been one year -- a minimum of one year and maximum of 10. It could have been a minimum of nine and a half and a maximum of 10. It could have been a minimum of one and the maximum of one and a half.
Potter Stewart: So, it could have been five years period?
John E. Bush: Yes, sir. No, it could not. You have to have a minimum, Your Honor. It could have been a minimum of one year and a maximum of five. Yes, Your Honor.
Byron R. White: It could have been a minimum of five and a minimum maximum of five and one day.
John E. Bush: This is correct, Your Honor, any combination.
Potter Stewart: The sentencing judge is required to set a minimum and maximum within the one to ten years back spectrum. Is that right?
John E. Bush: That's correct. Within the limits of the minimum, maximum specified.
Potter Stewart: Of the statutory spectrum?
John E. Bush: This is correct, Your Honor.
Potter Stewart: And the issues, of course, upon the -- and which were decided in the matter he's convicted was whether he did it and did he have any validly the defenses. And that's the result against him. And that would have been empowered the judge to impose a sentence you referred to.
John E. Bush: Well, but, Your Honor, let's go back if I may please. At the time the man committed the over react which gave rise to the charge of which he was convicted, there wasn't one permissible sentence. There were two permissible sentences. Two alternative sentences. One being a minimum of one year and a maximum of ten years and the other being the sentence provided under the Sex Offenders law.
Potter Stewart: Which the minimum of one day and a maximum of its natural life. And as I understand, that sentence, it is not -- the judge does not have discretion within the spectrum imposed by the statute --
John E. Bush: That's correct.
Potter Stewart: Wasn't it? Am I correct?
John E. Bush: That's correct, Your Honor.
Potter Stewart: He couldn't have under the Sex Offenders Act said. “I am sentencing you to a sentence of -- from one, one to twelve years.”
John E. Bush: Precisely.
Potter Stewart: Am I right about that?
John E. Bush: Precisely.
Potter Stewart: And in order for us to sentence him at all under the Sex Offenders Act, he had to make additional factual findings that is additional to what was necessary to be found to support his guilt on the indecent liberties charge. Am I right?
John E. Bush: This is correct. You are correct. This -- we say, is the same process that any courts goes through in determining sentence whether facts and circumstances as related to ones past record as related to ones behavioral characteristics justify the imposition of either a lesser or greater sentence. Otherwise, we would say the imposition of a sentence would be capricious. The -- this is the -- it has the same legal operative effect. It's the federal sentencing statute, 18 U.S.C. 4208.
Byron R. White: Does the Colorado Appellate Courts have found or advise sentences?
John E. Bush: They do not, Your Honor. One other additional benefit which accrues under this type of sentence is that referred to by opposing counsel and this we submit is a decision. The decision imposed sentence is one which is reviewable by the Supreme Court in the sense of any fact finding process or decision-making process, discretionary of the trial court. Whereas, other sentences, the classic sentence or the Orthodox sentence in Colorado is not reviewable. And is -- the Court well knows this controversy is now going on the federal system as to whether they should or should not.
William O. Douglas: But if the Court --
Potter Stewart: This I don't want to worry this no respondent that -- but if the Court does in its discretion decide to proceed under the Sex Offenders Act. It is mandatory upon the Court, and tell me if I'm mistaken, to impose a sentence of a minimum of one day and a maximum of his natural life.
John E. Bush: This is incorrect, Your Honor. He commences the proceedings. The examination is conducted and it is principally at the Colorado Psychopathic Hospital in Denver, to the medical school but the Court can commit him any other place or private psychiatric institution or any place else. Pre-sentence Report is prepared in the meantime by the Probation Department. Both reports are filed in the Court. Hearing is set for imposition of sentencing and at that point in time, the Court has three alternatives to sentence him under the -- which is 40 days, 2 days, 30 -- to the Indecent Liberty Statute, grant probation or sentence him under the Act of sentencing those sex offenders.
Potter Stewart: And if he does the latter, the third alternative, what may or must his sentence be?
John E. Bush: His sentence must be one day, a minimum of one day and a maximum of one life. Or excuse me, two half life.
Potter Stewart: But that's not my question.
John E. Bush: Yes, Your Honor.
Potter Stewart: If he does choose the third alternative, he has no discretion as to what sentence to impose?
John E. Bush: This is correct, Your Honor. The sentence speaks by statute. The question in our judgment presented is, does a sentencing statute re -- which responds to the enlighten approach to sentencing of undue process? In resolving this question, petitioner assumes the stance that most of the critics of this form of statute or of the other form, which is normally called the Sex Psychopath statute, assume and we think that the fundamental error of approach of this -- of the petitioner in this case is that he confused on statutory scheme with the statutory scheme provided by the statutes which are commonly known as the “Sex Psychopath Laws”. The Sex Psychopath Laws, however, are civil commitment proceedings. They are not sentencing statutes. These statutes provides for the basis for commitment. Under the Colorado law, the conviction provides the basis for commitment. Very obviously, in the petitioner's case, the panoply of civil rights -- of due process rights, attached to his trial. We submit that upon conviction, he has then subject to whatever sentence the legislature has in its discretion determined. Referring to the statutes which are generally talked about as Sex Psychopath Laws, one is a civil commitment proceeding similar to the type considered by the Court in Minnesota Ex-rail Pearson versus Probate Court. The basic scheme there provided is that a petition is filed and the petition is usually based upon the allegation of a criminal charge. And it's interesting to note that in these proceedings, no requirement has ever made that that charged be ever established. Yet, this can form a basis for a man's commitment. The second is a civil commitment procedure which operates ancillary to a criminal case. This letter form takes two shapes. One is set in motion by a petition prior to conviction; the other permits the filing of a petition to commit after conviction. Some provide that if commit -- civil commitment is ordered, the criminal charges are dismissed. However, the majority of states provide that when recovery is affected, the defendant is remanded to the trial court for either trial or execution of his sentence, a procedure, which in our judgment is, could be said and has been said by some to be self-defeating. In any event, this discussion in our judgment serves to show -- to establish only one thing and that is what procedure or what scheme the state adopts is a matter of wisdom of policy, one which should be addressed properly to the state legislature.
Byron R. White: Do you know how widespread the sex psychopaths that you just mentioned?
John E. Bush: Your Honor, this volume which I did not cite, and I apologize for not citing, by the American Bar Foundation. They mainly disabled law. I did not find in the law library. I found it in a medical school after -- library after I had filed my brief. But it seems to have the best summation of the sex psychopath laws throughout the country. They say, and this was published in 1961, that there are 27 states which have one form or another and they set forth --
Byron R. White: Either it was sex psychopath law or your type of law.
John E. Bush: Our type of law.
William J. Brennan, Jr.: How many -- do you know how many have your type of law?
John E. Bush: In looking at the chart, it appears there are four Utah, Oregon, Colorado, and Pennsylvania. And then Michigan has as counsel mentioned one similar to ours except that the longest period that it can be held is limited by the maximum allowable.
Speaker: (Inaudible)
John E. Bush: This is the mentally disabled in the law by Mr. Lindman and McEntire, the American bar Foundation.
Abe Fortas: Do I correct to read your statute as indicating that a person convicted or sentenced to under the Sex Offender Act can be placed in the hospital and then transferred by the Parole Board back from the hospital to prison where presumably the man might serve the rest of his life?
John E. Bush: Your Honor, the --
Abe Fortas: Would it work that way?
John E. Bush: Yes. It could work that way starting from a different point. The initial -- under the statute, the initial place of commitment is the State Penitentiary, the Parole Board then is charged with the duty to transfer or retransfer between any of the state or institution based upon the need for treatment, rehabilitation and control which gives rise to another very good point. And that is, that this statute permits the full range of state facilities to be available to this individual if it is a program necessary simply a vocational training in order to increase the one's maturation as some psychiatrist say it's the most pro -- it is the problem in many of the cases of sex offender -- purely and simply lack of maturation. And, vocational training will suffice as the necessary rehabilitation then the man may be transferred to the state reformatory and undertake a vocational training program. So it can be looked out mountain Golden Gate, the State Penitentiary, the State Hospital, the State Reformatory.
Abe Fortas: And it can also be put in whatever Colorado has equivalent on the dungeon cell for all these life?
John E. Bush: This is no question about it, Your Honor.
Abe Fortas: Even though --
John E. Bush: It is potentially possible.
Abe Fortas: Even though he is the only hearing he's ever had is for violation of the indecent liberty statute which itself provides for maximum sentence of 10 years?
John E. Bush: Well, Your Honor, that I think assumes the validity of their position that you have two sentence or two different separate sections which have some legal significance.
Abe Fortas: But if you read the indecent liberty statute, it says maximum sentence to 10 years.
John E. Bush: I understand that, Your Honor, but then that is not the sentence -- only sentence that he is subjected to at the time he commits the Act. This act was in enforced and effect at the time that he committed that Act.
Abe Fortas: No, you have to --
John E. Bush: He was subject to two sentences.
Abe Fortas: No, you have to -- a judge has to make a determinate or it has to be of the opinion as determinate to be of the opinion when it comes to extra the bodily harm to the public or is a habitual offender and mentally ill.
John E. Bush: This is correct, Your Honor.
Abe Fortas: In addition to a determination being made by the Court that he has committed an offense of indecent liberty.
John E. Bush: This is correct, Your Honor. It's the same process by which any sentence is imposed. It's the same process that a federal judge goes through in imposing sentence under 1842 (a) 08. Unless you say that a judge imposes a lesser or a greater sentences or sentence unrelated to any facts and circumstances and it is a capricious act of sentencing.
Byron R. White: Yes, but under 42 (a) 08, you can only -- all you can do is to keep, is to sentence him to a term within the maximum prescribed by the statute?
John E. Bush: No longer than a maximum. This is correct, Your Honor.
Byron R. White: That's right. And the -- they have -- the scheme is to sentence him to the maximum then you get him examined, you bring him back and you perhaps reduce the sentence or you don't.
John E. Bush: Alright, then let's --
Byron R. White: But he's -- but -- and then he's simply committed to the Attorney General whether who has a choice of setting him the one kind of a -- an institution or another.
John E. Bush: This is correct, Your Honor.
Byron R. White: But still is within the limits of this -- of the penalty prescribed by the statute.
John E. Bush: Well, in the concept of enhanced penalty, Your Honor, I submit is nothing noble in the concept to the law. It is no different then the situation that are -- that this Court considered in Wanes versus Oklahoma where the Decision based by the Court was life or death and the Court in that case chose death. And there certainly is no more critical decision to a defendant than the choice of death.
Earl Warren: Is this man subject to habeas corpus?
John E. Bush: He has not, Your Honor.
Earl Warren: At any time?
John E. Bush: At no time, Your Honor.
Earl Warren: Even after the 10 years had expired?
John E. Bush: He is not in the Colorado Courts. No and he is --
Earl Warren: That's what I mean.
John E. Bush: Yes. Well, he has exhausted those memories or remedies. Excuse me. There's no question here of failure to exhaust state remedies --
Earl Warren: No, but I'm just wondering--
John E. Bush: He has been to the Colorado Supreme Court twice.
Earl Warren: -- about to the -- about the extent to which it could be used. In other words, if he serves 15 years in such a hospital and is of the feeling that he is insane, he has no right to have a hearing on that in court?
John E. Bush: He has no absolute right, no. And he does have a right to a hearing before the Parole Board. But if the Parole Board would determine --
Earl Warren: I mean a judicial determination of his sanity and stability.
Abe Fortas: I don't understand your answer to that, sir. Suppose he says he has been unlawfully detained and both he says he has committed as mentally ill. Let's take that and he has completely recovered. Are you telling us that your statute don't permit the Courts to entertain that action?
John E. Bush: The mental health laws do, Your Honor, and likewise the criminal insanity laws do, Your Honor.
Abe Fortas: Well, here let's suppose that these are committed on the ground that he is a habitual sex offender and mentally ill. That's what you required, and mentally ill.
John E. Bush: Habitual offender and mentally ill, Your Honor.
Abe Fortas: Yes and mentally ill. Suppose he says, “I am now receiving excellent treatment. I'm no longer mentally ill”. And wouldn't habeas corpus lie to test that claim?
John E. Bush: No, Your Honor, it would not. We would submit that the only remedy it would have would be matter of certiorari to review the discretionary decision of the Parole Board in denying his release and subsequent discharge.
Speaker: (Inaudible)
John E. Bush: Yes, Your Honor.
Potter Stewart: Tell me, are there any other sexes psychopath to which, this procedure applies that carry less if the alternative is adopted and the maximum of 10 years involved here?
John E. Bush: Yes. The one cited here, Your Honor. Number 1, indecent liberties carries less --
Potter Stewart: How much does this carry? Now I thought this was 10 years?
John E. Bush: This is one -- Oh, you mean that are -- excuse me, I've misunderstood the question. I'm sorry, Your Honor.
Potter Stewart: Yes.
John E. Bush: Yes. Assault with intent to commit rape under 40 days, 2 days, 34 would be a minimum of one and maximum of 5. The only one that is in excess of the one provided is first degree rape, which is a minimum of 3 and a maximum of life. The others listed, incest is a maximum of 20 years. I think they're all these.
Potter Stewart: But applies maximum is below as maximum anyway, is it?
John E. Bush: Offhand, I would say yes.
Potter Stewart: Yes.
John E. Bush: I'm just looking at my notes, Your Honor.
Speaker: (Inaudible)
John E. Bush: The hearings are provided, Your Honor, under all of the states that have. What I -- what I discussed to as the sex psychopath type statute. These were all civil commitment statues and they operate the same manner as most of the mental health statutes.
Speaker: (Inaudible)
John E. Bush: To my knowledge, they do not. And, I'm referring to the American Bar Foundation. I know the Pennsylvania law does not and I am confident --
Byron R. White: I thought we were told that Third Circuit said that it was applied under that statute. I thought -- and so I misunderstood that.
John E. Bush: Well, yes this I would have thought just myself to what statute --
Byron R. White: Oh! I see. What's the Third Circuit -- is the Third Circuit a constitutional or --
John E. Bush: It's a consti -- yes, I think -- since my time is fleeing, if I may --
Earl Warren: Sure --
John E. Bush: -- clear up one point. We have always addressed ourselves to a question of substantive due process. Is the statute valid on its face unless it, by words and phrases, explicitly require a second trial? Now this has been the question that has been addressed to the Court. Now, apparently petitioner is benevolent in his attitude. First, we went to the benefit of the Pennsylvania Court which is a procedural due process question purely and simply. And then, we end up in our reply brief saying that all that is required is substantial justice. Well, we have never denied the sense of substantial justice should not be afforded. We should never deny the due process, should not afforded. We think due process should be afforded in each and every stage of the proceedings. The question is, what is the shape and form of due process which attaches to sentencing. I think the Court very clearly said what that is in Townson versus Berg and that is a question of fair play. The same questions here addressed to the Court, we think, were disposed of in Wanes versus New York and Wanes versus Oklahoma. We think that the Third Circuit draws a very insubstantial distinction to justify its finding or its determination that this is a separate trial. And of course, the Court does not tell us what is the quantity or quality or shape performed of due process which attaches to the second trial. So it's difficult for us to respond to it. In any event, the Court drew the analogy, the principal premise and their -- so logistic approach was that they drew analogy between this law and the habitual criminal law and relied on these Court's decisions in Oyler and Fretag, Chandler versus Fretag. We say number one, the Third Circuit misinterpreted the holdings in those two decisions. I think the only question addressed to the Court in both of those decisions was whether or not the defendant was entitled to counsel. And the Oyler case that went on that he was also entitled to reasonable notice which we would think would be obvious under any sentencing hearing in order to have effective assistance of counsel. Very obviously, he must have a reasonable notice of the hearing. Going to the procedurals, the third point, in any event as to habitual criminal act, why do we say that it is not analogous? We say that we would like to be unshackled from the habitual criminal law. This, the habitual criminal law has one purpose in mind and that is punishment alone. We submit that it represents the past. We have tried to reject the habitual criminal law. It has essentially become functus oficio in Colorado and we have gone almost entirely to the indeterminate type sentence. So if we're bound by, as the Third Circuit says the habitual criminal law, then we will be mired so to speak in the past and will be unable to progress to the future. The other is, there's a finding of fact and we say this is unsubstantial/insubstantial. If this is true, Colorado can overcome that point by the simple device of eliminating the statute. Well, it's a separate statutory section. Well, we can eliminate that objection too by a simple device of amending the indecent liberty statute and adding thereto most of our statute, statute providing or I won't say most but many of our statutes providing for sentencing or in separate sections.
Abe Fortas: What you are really suggesting to us may be that we have a choice between acquiring some people think should be done. That there be some kind of disclosure by the State and some sort of a hearing with respect to sentencing --
John E. Bush: Well, Your Honor, we have --
Abe Fortas: -- in all instances or that we can't touch this situation. Is that what you are saying?
John E. Bush: Well, Your Honor, what I'm saying is that this question is what occurred at this hearing for imposition of sentence is not before this Court. There is no official record of this kind. It has never been --
Abe Fortas: Now when the hearing --
John E. Bush: I'm sorry.
Abe Fortas: -- the basic contention is that it was in the hearing?
John E. Bush: Well, that's a generic word, Your Honor. And what type of hearing that we are talking about? In the classic -- oh, I'm discussing now on the classic sentence of a hearing to impose sentence, which very obviously he is entitled to counsel. He is entitled to notice. Very obviously, he has notice of the nature of the proceedings. Ordinarily, he is entitled to the information upon which sentencing will be imposed. Colorado has never denied that this information should be withheld from the defendant. And in practice, it is uniformly done throughout the state. We submit to the Court of the -- excuse me. The Decision of the Tenth Circuit should be affirmed.
Speaker: May I ask you one more question?
John E. Bush: Yes, Your Honor.
Speaker: Under your authority view (Inaudible)?
John E. Bush: Review of the imposition of sentence would be the soundness of the trial courts discretionary decision in imposing the sex offender stat -- or excuse me, sentence.
Speaker: (Inaudible)
John E. Bush: This is correct, Your Honor.
Speaker: On the basis of what?
John E. Bush: Of the record as disclosed. The pre-sentence report?
Speaker: (Inaudible)
John E. Bush: Well, it is not necessarily, Your Honor. I'd like to clear that up. It is not necessarily an ex parte record of the probation report. The pre-sentence report is designed to serve the purpose of the defendant and most defendants are satisfied with it. Now if the unusual circumstances arise where he wishes to correct or add to it, most courts will permit that. So it is not necess-- it is not an ex parte in that sense. Firstly, ordinarily, he has knowledge of all the information contained in that pre-sentence report. He makes known to the Probation Department what information he wishes to have here. It's the normal probation process. The Probation Department interviews his family, his employer and so forth and ordinarily, all of the information that he could have -- could cared to have in -- have before is contained in here the very limited circumstances he is dissatisfied. This I cannot represent that it is dissatisfied that he would be guaranteed the right to subpoena witnesses to correct. It is normal. He would normally do that.
Speaker: (Inaudible)
John E. Bush: This is the normal practice. It is not by specific rule. In Denver, where about 40% of the criminal cases arise at the State of Colorado, it's been in that practice for as long as the man can remember. There have been during practices in some counties, smaller counties, by verbal directive of the chief -- of then Chief Justice two years ago, they were directed as to all counties that they be made available. So it is essentially in practice the same as the Court Rule 32.
Earl Warren: I thought Mr. William said he didn't -- he never saw the report of the doctor. It couldn't have that there was one? Am I mistaken on that?
John E. Bush: Well, we must take, Your Honor, the allegation of the petitioner as true since it was dismissed on its face by the trial court, by Judge Ray and affirmed on that basis by the Tenth Circuit. His allegation in the complaint, Your Honor, is that the psychiatrist report was made available to his counsel but he did not see it.
Hugo L. Black: Was there any rule that he cannot see?
John E. Bush: Your Honor, it was not explicit in our rules and as I say, the custom in practice is that he -- this report be made available to defendant's defense counsel.
Earl Warren: But in this case, in this case, was it submitted to the counsel on an understanding that it would not be eventually defended?
John E. Bush: To the best, I have consulted with trial judge in this case. This is not a matter of record. The best of his recollection, he made this available to counsel with the stipulation that the conclusions in the report not be made known to the defendant for his own benefit. It was not a question of disclosing or keeping confidential the facts upon which these doctors conclusion rested. And if the counsel was free to make use to that report and the facts contained therein insofar as he saw fit to interrogate the defendant if this is true and so forth, was this done and on and could have tested in any manner the informational process to see if it was designed to elicit the truth as that principles expressed in the Townson case.
Earl Warren: Suppose the defendant had found some facts in there that he was satisfied were not true and he has some witnesses who could have disprove, could he – could he brought them in?
John E. Bush: Well this, Your Honor, I would say a matter of discretion in the trial court. I would submit that the Townson versus Berg decision is binding on the states and that it must be a process which is designed to elicit the truth and if there are sound basis upon which that informational process should be corrected or supplemented, then in my judgment be abuse it'd discretion to be denied this type of an evidentiary hearing. But again, it's a qualified right. We use -- the defendant would have to show a substantial basis for and not just waste the Court's time.
Earl Warren: Thank you. Mr. Williams.
Michael A. Williams: May I respond to that, Your Honor? The inference here is that he would have had the right that Colorado courts might let him see that psychiatrist report. In his petition, in this page 7 of the record, he says, “In Court, counsel for petitioner and the District Attorney were reading the hospital's report. The petitioner attempted to read the same over his counsel shoulder. The Court had much. Petitioner Mr. Specht, report is solely for your counsel and District Attorney. Behind this legal wire certain of secrecy. Petitioner was sentence”. That's what he says here. And as Mr. Bush says, there'd be no evidentiary hearing. When he responded to this in the federal court, he didn't say that so specifically or that is so specifically just said. Everything that isn't admitted is denied. And that was his response to their. And -- and if we're going to go, Your Honor, we have the Supreme Court record, that Francis Eddie Specht put before the Supreme Court of Colorado when he said this sentence is unconstitutional and one of the reasons that he said that's unconstitutional is because he says that he was not able to look at the psychiatrist report. That's in his brief. And Mr. Bush, well, I don't know if Mr. Bush or the Attorney General wrote the brief. Responding to that, and I said, on the petitioner's report, he alleges that the sentencing procedure denied him equal protection of laws and due process. This first phase is for this attack is that at the time of sentencing. He was not afforded due process. This assertion is apparently based on a false premise that the sentencing must be conducted in accordance with the requirements of the trial such as examination of the psychiatrist report and the right to cross-examining the expert's submitting a report. We know of no principle which requires an opportunity to be heard as to the information upon which the judge may properly rely or utilized in determining the proper sentence. That's what the Attorney General said in the Supreme Court of Colorado and the Supreme Court of Colorado in their opinion says, Mr. Specht several contentions as to the constitutionality of the statute are not properly founded. So, they clearly said and he has said consistently, “I ought to be able to look and I ought to know”. And the Supreme Court of Colorado said, “No, sir”. Our basic point is that --
Byron R. White: Would you leave that record with the Court?
Michael A. Williams: Yes, Your Honor. Is that the -- this may be an unlikely response to sentencing. The legislature has put some limits on the judge and he said if you're going to do this, we want to be sure we've got the right guys. We've expressed ourselves in general and we say 10 years of indecent liberties but we're going to give you the power to do more than that. There are some peop -- they've given standards. The Supreme Court of Colorado said those are legislative standards; it's a fact finding process and all we say is that important. We are getting to the Act. We don't have the right to help. Make sure that that information of which those findings are made is correct in a traditional way that we do these things in this country.