Director of Patuxent Institution v. DANIELS OF PATUXENT INSTITUTION

Hammond, J., delivered the opinion of the Court. Samuel Daniels, an appellee and cross-appellant, was found to be a defective delinquent in 1959 by the Circuit Court for Prince George’s County pursuant to the provisions of the Maryland Defective Delinquent Act, Code (1964 Supp.), Art. 31B (the Act), and was remanded to Patuxent Institution, the place of confinement, and treatment and rehabilitation if possible, established by the Act for those judicially determined to be de ²² fective delinquents. In 1964 he sought a redetermination of his status in the same trial court, as permitted by the Act, a jury again decided that he was a defective delinquent, and again he was remanded to Patuxent. He sought leave to appeal to this Court in accordance with the procedure provided by the Act.

In Daniels v. Director, 238 Md. 80 , we rejected all his contentions save the one that the trial court had denied him the right and opportunity to show that he was not being given treatment for the causes of his defective delinquency as contemplated by the Act, but rather was being punished by being confined indefinitely, probably for life, in a penal institution in violation of his constitutional rights. Leave to appeal was granted as to this claim and the case remanded for a determination of whether the continued detention of Daniels in Patuxent is a violation of his constitutional rights in light of the questions as to the constitutionality of the Act in operation posed by the United States Court of Appeals for the Fourth Circuit in Sas v. State of Maryland, 334 F. 2d 506 , in June 1964. The present appeal is essentially from the determination of the trial court on remand that the Act in operation and application is constitutional but it comes to us in an unusual posture which requires explanation. After the taking of extensive testimony and but a day or two before the opinion of the Circuit Court for Prince George’s County was to be filed, it was discovered for the first time that, contrary to what was indicated by the docket entries of his criminal trial in 1958, which showed a plea of guilty to storehouse breaking and larceny, Daniels had actually then entered a plea of guilty only of petty larceny and that it was on the conviction following this plea that he was sentenced to not more than three years in the Maryland State Reformatory for Males and subsequently referred to Patuxent for diagnosis as a possible defective delinquent, found to be one and committed to Patuxent.

After this discovery, it was realized that there was at least a strong probability that Daniels’ conviction of petty larceny was not, under § 6 of Art. 31B, one of the crimes which would serve as a basis for referral to and confinement in Patuxent and Daniels’ lawyer on behalf of Bradley Arlington Avey, then in Patuxent for diagnosis as a possible defective delinquent, concededly properly so under ²³ the Act, filed a bill for a declaratory judgment that Avey was being held in violation of his constitutional rights, assigning all of the general reasons that had been urged in behalf of Daniels and were under consideration in his case. The State answered the bill and the Avey case was consolidated with the Daniels case upon a stipulation that all of the testimony and exhibits in the Daniels case (except as applied to Daniels individually) “shall be accepted in evidence in this [the Avey] case and shall be considered by the court to the same extent as if the testimony had been testified to in this case and as if the exhibits had been produced in this case.” Thereupon on December 15, 1965, the court filed its opinion in the consolidated cases that the Act is constitutional and is being constitutionally applied, both generally and specifically as to Daniels and its order as to Avey adopting, to the extent of its general application, its opinion in Daniels “including the Findings of Fact and conclusions of law,” and ordering “that it is hereby declared that Article 31B of the Annotated Code of Maryland (1957) is constitutional * * * [and] that no constitutional rights of the plaintiff, Bradley Arlington Avey, are being violated by his confinement at Patuxent Institution * * *.” The court nevertheless ordered that Daniels be released forthwith for the reason that he had been improperly found to be a defective delinquent in that the supposed basis for his referral to Patuxent under § 6 of Art. 3IB did not exist and he had served all sentences imposed upon him. The court held that if legally necessary it would treat Daniels’ petition for redetermination as one for the writ of habeas corpus, and cast aside the arguments of the State (a) that the crime of petty larceny was a crime of violence (the commission of which would have justified referral to Patuxent under § 6 of Art. 31B, and (b) that the crime of escape from Patuxent for which he was convicted in Howard County, before he was determined originally to be a defective delinquent, constituted a second crime which was enough under § 6 of Art. 31B (“two or more convictions for any offenses or crimes punishable by imprisonment in a criminal court of this State”) to justify the determination that he was a defective delinquent. The State, through the Director of Patuxent Institution, appealed the order releasing Daniels, ²⁴ and Daniels cross-appealed the findings that the Act was constitutional and being constitutionally applied, and Avey also appealed the declaratory order of constitutionality. 1 We agree with the trial court that Daniels had to be released because under § 6 of Art. 31B there can be no referral to Patuxent for a diagnosis of possible defective delinquency until one or more of the five prerequisites of conviction for a specified crime therein set out exists and none did when Daniels was referred, and with its underlying views that the Circuit Court for Prince George’s County lacked power to make the referral and, that assuming the Circuit Court for Howard County (as the court which last sentenced the defendant and so under § 6 (e) of Art. 3IB the only court then with power to do so) could have made the referral after Daniels was convicted of escape, it did not do so.

We pass to further consideration of the merits and of the Sas case, which triggered the consideration of the constitutionality of the Act in actual operation. In Sas five inmates of Patuxent Institution, one of whom was John Sas, had filed petitions for writs of habeas corpus in the United States District Court in Baltimore, seeking their releases from Patuxent on the ground that the Act, under which they were confined, is unconstitutional, and had appealed when their petitions were denied. In its opinion in the consolidated appeals, the Circuit Court of Appeals found the Act and its statutory definition of a defective delinquent to be facially constitutional but, almost inexplicably, read the decision in Palmer v. State, 215 Md. 142 , 137 A. 2d 119 , to hold that this Court had implanted the term “psychopath” into the statutory definition as always synonymous with the term “emotionally unbalanced” and posed the question whether such an interpretation “has rendered the definition too vague to be constitutionally acceptable.” The Court went on to reject claims that the Act upon its face violated the equal protection clause of the four ²⁵ teenth amendment or denied procedural due process, saying on the latter point: “An examination of the trial and hearing provisions of the Act can leave no doubt that it places around the accused more procedural safeguards than any of the Acts of a similar nature which have been upheld by the courts against this attack.” Further on this point, the Court noted and answered the claims of John Sas and his confreres that the Act is unconstitutional because, first, it permits experts to testify over objection to an opinion as to defective delinquency based in part on background hearsay matters, in departure from common law rules of evidence; second, it improperly permits experts to express their opinions on the ultimate issue before the jury, that is, whether the inmate is a defective delinquent within the meaning of the Act; and third, it provides that the State must prove its case only by the civil measure of greater weight of the evidence and not by the criminal rule of beyond a reasonable doubt, saying: “The answer to all of these objections is that with respect to state action repeated decisions of the Supreme Court have put it beyond the range of further debate that the ‘due process’ clause of the fourteenth amendment has not the effect of imposing upon the states any particular form or mode of procedure, so long as the essential rights of notice and a hearing, or opportunity to be heard, before a competent tribunal are not interfered with.” The Sas appellate court thereupon had a further caveat, in spite of the facially adequate procedural safeguards of the Act which it had recognized, whether “in application these safeguards result in basic fairness of procedure imposed upon the state by the fourteenth amendment.” The Sas appellate court next chose to concern itself with two further facets of the actual working of the Act. Taking heed of the fact that the Act in basic concept and actual practice substitutes for the traditional view that every legally sane person has ²⁶ a free choice between doing right and doing wrong, the view that there is a determinable category of legally sane (but for practical purposes insane) persons who because of intellectual or emotional defects have demonstrated a propensity towards criminal behavior which they cannot control, the court said of the Act: “For those in the category who are treatable it would substitute psychiatric treatment for punishment in the conventional sense and would free them from confinement, not when they have ‘paid their debt to society,’ but when they have been sufficiently cured to make it reasonably safe to release them.

With this humanitarian and progressive approach to the problem no person who has deplored the inadequacies of conventional penological practices can complain. But a statute though ‘fair on its face and impartial in appearance’ may be fraught with the possibility of abuse in that if not administered in the spirit in which it is conceived it can become a mere devise for warehousing the obnoxious and antisocial elements of society.” Finally, the Sas opinion discussed those who are confined in Patuxent Institution by reason of offenses against property and suggested a final question to be answered on the facts at the trial level, saying: “Many jurists and laymen would seriously question the wisdom of the practice of indefinitely confining young men under these circumstances. Deficiencies in staff, facilities, and finances would undermine the efficacy of the Institution and the justification for the law, and ultimately the constitutionality of its application.” 2 ²⁷ In the Circuit Court for Prince George’s County, on remand, Chief Judge Digges and Judge Powers faithfully followed the mandate of this Court and made, in the words of Sas , “a critical analysis [of the Act] on the broadest of terms after a careful factual development of its present operation.” Eight days were devoted to the hearing of oral testimony from eminent experts such as Dr. Karl A. Menninger, Dr. Manfred Guttmacher, Dr. Philip Roche, and Dr. Jerome Frank, and from laymen skilled and experienced in the area (their testimony covers some eight hundred printed pages in the record), and the receipt of some sixty-four written or printed exhibits.I * 3 Judges Digges and Powers concluded that (a) the Act’s statutory definition of a defective delinquent as applied by the Maryland courts is sufficiently definite, precise and meaningful to permit its practical application within constitutional limitations; (b) the objectives of the Act are effectively implemented in practice to a degree sufficient to support its classification as a civil process and to justify the failure to provide in it all criminal procedural safeguards; (c) its statutory procedures, as written and applied, do not offend constitutional requirements of due process and confrontation; (d) the Act does not, as ²⁸ written and as applied, offend the prohibition against cruel and unusual punishment because it is construed to include those whose actual offenses have been only against property rights but who, on the basis of their defective delinquency, are likely to be a danger in the future to persons; (e) Patuxent Institution does in fact furnish effective treatment for treatable defective delinquents, as distinguished from other criminal lawbreakers, and this fact supports the Act against claims of violation of the equal protection clause of the fourteenth amendment. We have read the record with meticulous care and considered it at length with full deliberation, and we are convinced that the conclusions reached by the trial court rest on a foundation of sound law properly applied to proven justifying facts.

The careful and thorough opinion of Judges Digges and Powers and its Appendix A “Court’s Findings of Fact” and Appendix B “Trial Summary” are adopted as the expression of the reasons we agree with the conclusions of the trial court and are to be printed as part of the opinion herein of this Court, as follows: This matter is now before this Court by direction of the Court of Appeals in its opinion reported in 238 Md., page 80, whereby we are required to “determine whether his [Daniels’] continued detention at Patuxent [Institution], is a violation of his constitutional rights,” after full hearing and making provision for adequate record of the proceedings with an explicit finding of fact and express conclusions of law. 1 We are directed to do this in light of the decision of the Federal Fourth Circuit Court of Appeals in Sas v. Maryland, 334 F. 2d 506 (1964). The opinion in that case states that Maryland’s Defective Delinquent Statute [Code, (1957) Article 31B], “is so serious a departure from traditional concepts of justice that it deserves a critical analysis on the broadest of terms after a careful factual development of its present operation.” We, accordingly, construe the scope of the remand by the Court of Appeals to be as broad as the Fourth Circuit’s direction to the District Court in Sos, and a license from the Court ²⁹ of Appeals to this Court to reach appropriate conclusions of law based on factual findings even if, in view of U. S. Supreme Court decisions, the legal result may be inconsistent with previous State decisions. See Murel v. Director, 240 Md. 258 , 213 A. 2d 576 (1965). In August of 1958, after waiver of jurisdiction by the Juvenile Court, the petitioner (hereinafter referred to as either “petitioner” or “Daniels”) having been assigned counsel, entered a plea of guilty to larceny, and was sentenced to serve three years in the Maryland State Reformatory for Males. 2 Thereafter, following appropriate procedures, as directed by Article 31B of the Code, (the Act), a hearing was held on July 29, 1959, to determine whether or not Daniels was a Defective Delinquent under the definition in the Act.

He was represented by counsel, a jury determined that he was a Defective Delinquent, following which he was committed to Patuxent Institution. After the three year period provided in the statute had expired, Daniels petitioned for a determination as to whether he was still a Defective Delinquent. Counsel was assigned and on July 22, 1964, a hearing was held with the jury determining that he was still a Defective Delinquent. He then asked the Court of Appeals for leave to appeal from this decision, assigning five reasons.

This application was denied as to all contentions relating to the admission and sufficiency of evidence and to the qualification of the jurors, but was granted and the proceeding remanded to this Court solely for review of petitioner’s contention concerning the Constitutionality of the Defective Delinquent Law and its application to him. ³⁰ All questions raised by all parties can be decided by answering the following: I. Is the statutory definition of a Defective Delinquent as applied by the Maryland Courts sufficiently definitive to permit its practical application within Federal Constitutional limitations.

II

Are the objectives of the Act sufficiently implemented in its actual administration to support its categorization as a civil procedure, and to justify the elimination of conventional criminal procedural safeguards.

III

Are the procedures embodied in the statute and in Daniels’ trial applied in such a manner as to offend the due process requirements of the Fifth Amendment and Fourteenth Amendment and the confrontation requirements of the Sixth Amendment.

IV

Does the Act, as interpreted and applied, permitting a defective delinquent to be found to be an actual danger to society, offend the Eighth Amendment’s prohibition against cruel and unusual punishment when, as construed, it includes individuals whose conduct indicates a danger to property rights rather than violence to persons. V. Does Patuxent in fact furnish treatment for treatable defective delinquents, as distinguished from other lawbreakers, which would support the Act under the “equal protection” clause of the Fourteenth Amendment. A detailed finding of relevant facts is for convenience designated as Appendix “A”, though nonetheless a part of this opinion, and will be referred to when appropriate in our conclusions. I. Legal Sufficiency of the Statutory Definition General: Within the larger group of violators of the criminal law whose criminality is related to or results from mental abnormalities, it has long been recognized that there, in fact, exists a smaller group who are legally sane (under the M’Naghten, Durham or other accepted tests for sanity in criminal cases) and therefore responsible for their acts but who nevertheless persist in ³¹ antisocial behavior, have either deficient intellect or emotional unbalance, or both, and are lacking in control.

Those in this group demonstrate a persistent tendency to repeat their crimes and experience dictates that they are not usually influenced by conventional penological or reformative measures. For many years informed criminologists, penologists, jurists and psychiatrists have recognized that individuals falling within this category, while constituting an acute menace to society because of their criminal behavior, are in fact suffering from mental illness and should be dealt with in a manner other than are conventional criminals. Maryland, after considerable research and study by a number of commissions and committees, pioneered in this approach with the adoption in 1951 of what is generally referred to as the Defective Delinquent Law, Article 31B, Annotated Code (1957), Gee v. State, 239 Md. 604 at 609 , 212 A. 2d 269 (1965). The United States Court of Appeals for the Fourth Circuit in Sas v. Maryland, supra, said of this legislation: “. . . the statute rejects the age old concept that every legally sane person possesses in equal degree the free will to choose between doing right and doing wrong.

Instead it substitutes the concept that there is a category of legally sane persons who by reason of mental or emotional deficiencies ‘evidence a propensity toward criminal activity’, which they are incapable of controlling. For those in the category who are treatable it would substitute psychiatric treatment for punishment in the conventional sense and would free them from confinement, not when they have ‘paid their debt to society’, but when they have been sufficiently cured to make it reasonably safe to release them. With this humanitarian and progressive approach to the problem no person who has deplored the inadequacies of conventional penological practices can complain.” The legislative history leading to the enactment of the Defective Delinquent Law adequately supports this statement of the Sas court. It further equally supports the conclusion that of paramount concern and interest to the Maryland Legislature ³² was the welfare of the community which would best be protected by treatment rather than punishment, with confinement for that purpose for an indefinite period, and when there no longer reasonably appears to exist a danger to the community, release is permitted.

The Court of Appeals recognized the existence of this legislative purpose in a series of cases which have stated that the Act is for the protection of society from persons who evidence a propensity toward criminal activity, (Simmons v. Director, 227 Md. 661 , 177 A. 2d 409 (1962); McElroy v. State, 211 Md. 385 , 127 A. 2d 380 (1956)); that there is emphasis on confinement and treatment, rather than punishment and deterrence (Eggleston v. State, 209 Md. 504 , 121 A. 2d 698 (1956)) ; but that such confinement is preventive as well as therapeutic, (Simmons v. Director, 231 Md. 618 , 189 A. 2d 644 (1963)); and that the statute designed to implement this concept is civil in nature and not unlike a civil inquiry into the sanity of a person (Eggleston v. State, supra). Patuxent Institution was established and opened on January 1, 1955, and has been characterized by the Court of Appeals as “neither a prison, a hospital, nor an insane asylum, but an institution which exercises some of the functions of all three.” Eggleston v. State, supra, 513. That this state has the power to restrain the liberty of persons found to be dangerous to the health and safety of the community is clear if the restraint is founded upon a legislative enactment providing a definite and certain description of a recognized group of persons dangerous to the health and safety of the people which is susceptible of ascertainment by proof. Legislation meeting this test does not violate the “due process” and “equal protection” clauses of the Fourteenth Amendment of the Federal Constitution.

Jacobson v. Massachusetts, 197 U. S. 11 , 49 L. ed. 643, 25 S. Ct. 358 (1905); Buck v. Bell, 274 U. S. 200 , 71 L. ed. 1000, 47 S. Ct. 584 (1927) ; Eggleston v. State, supra. This was the conclusion also reached by the Fourth Circuit Court in Sas v. Maryland, supra, when Judge Bell stated at page 509: “. . . it is within the power of the state to segregate from among its lawbreakers a class or category ³³ which is dangerous to the public safety and to confine this group for the purpose of treatment or for the purpose of protecting the public from further depredations.” The Maryland Definition: This brings us to the question of whether or not the statutory definition of a defective delinquent as defined in Article 3IB and as applied by the Maryland courts is sufficiently definitive to permit its practical application within constitutional limitations. The Act, Section 5, defines a defective delinquent 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.” It was noted by the Sas Court that this definition “was carefully drawn to conform to the definition approved by the [Supreme] Court [of the United States] in the Minnesota case,” referring to Minnesota ex rel. Pearson v. Probate Court, 309 U. S. 270 , 84 L. ed. 744, 60 S. Ct. 523 (1940), wherein the Supreme Court upheld the constitutionality of Minnesota Sexual Psychopath Law.

From the voluminous testimony presented in this case we determine that the conclusion of the Fourth Circuit Court in Sas is justified when that court decided that the statutory definition was facially constitutional. We say this because the evidence before us clearly shows that there does in fact exist a class or group of persons falling within the definition, constituting a danger to the health and safety of people and who, with the aid of medical expert testimony, after appropriate examination, using recognized medical techniques, are discernible and recognizable by lay persons, including judge or jury. In fact, it is clear from the testimony of nearly all the eminent medical ex ³⁴ perts specializing in psychiatry testifying in this case that the defective delinquent definition as contained in the statute is no less vague and difficult of understanding or difficult of application to individual persons than are the M’Naghten or Durham rules used in testing criminal responsibility, or the civil insanity rule used in Maryland to determine the need for confinement in a mental hospital of persons suffering from mental disease sufficient to cause them to be “a danger to themselves or others”. These same eminent medical experts, however, agree that there in fact does exist a medically recognizable group falling clearly within the definition in the Act’s definition, and we so find.

The real problem in this case, posed by Sas, seems not to arise from the words of the statute but is created by the interpretation and application of the statute by our Court of Appeals in Palmer v. State, 215 Md. 142 , 137 A. 2d 119 (1957). Judge Bell in Sas poses a question requiring a decision as to whether the Court of Appeals in Palmer , by referring to the term “emotional unbalance” as meaning a “psychopath” or a person with a “psychopathic personality” has rendered the definition so vague and meaningless that it fails to meet the test for definiteness required by the Fourteenth Amendment. It is clear from the testimony before us in this case that the term “psychopath” has many meanings and has no universally accepted medical meaning. Because of this fact its use is troublesome.

It means different things to different people, including psychiatrists. For that reason it was dropped as a medical term from the “Diagnostic and Statistical Manual” of the American Psychiatric Association when its latest publication of acceptable psychiatric terms was adopted and published in 1952. (Exhibit No. 33). It has been suggested that the term “sociopath” has been substituted for the class of persons formerly referred to by many psychiatrists using the term “psychopath”.

However, even the term “sociopath” is, by many eminent psychiatrists, including Doctors Guttmacher and Menninger, rejected for the same reason that the term “psychopath” was discarded by the Psychiatric Society. These doctors say there is no need to equate the term “emotionally unbalanced persons” to “psychopaths” or “sociopaths”, because they say the Maryland definition is in ³⁵ itself sufficiently clear and does not need, medically speaking, the use of either of these terms as an aid for diagnostic or other purposes in identifying the group or in determining whether or not a given individual falls within the class the Legislature was attempting to describe or in communicating that finding to other professional or lay persons. We reach the conclusion from the testimony that if, in fact* the Maryland Court of Appeals had placed the word “psychopath” without further explanation of the use of the term into-the statutory definition that it then would be too indefinite to-meet the constitutional test. We conclude, however, that careful reading of the Palmer case does not dictate this result, first of all because the Palmer opinion merely stated that an emotionally unbalanced person, as that term was used in the statute, referred to that group of people generally known as “psychopaths” as described by Guttmacher and Weihofen in their book “Psychiatry and the Law”.

The Palmer opinion clearly defines psychopath as they used the term by quoting from this book to be a “group of mentally abnormal individuals who on clinical examination do not fit into the categories of psychoneurosis, psychosis, or intellectual deficiency. 3 These patients are generally without complaints; they do not exhibit abnormally pronounced mood disturbances, nor do they present the distortions of thought which become so manifestly evident in delusions and hallucinations. Furthermore, they are not intellectually retarded. Yet they are constantly in difficulty because of their abnormalities of behavior. They are unable to conform to the standards of their social group, and they are tragic failures in establishing lasting and satisfying interpersonal relationships . . . [The!] incapacity to conduct oneself 'with decency and propriety in the business of life’ is the outstanding characteristic of the true psychopath.” It seems clear to us, therefore, that the Court of Appeals was merely saying that the persons described by Guttmacher and Weihofen as above quoted are “unbalanced people” as that term is used in the Defective Delinquent Act.

The term “psycho ³⁶ path” as thus defined does have a definite meaning and describes a medically recognizable group of individuals. We conclude, therefore, that if the legislative enactment as interpreted by the Court of Appeals had defined an emotionally unbalanced person as being a psychopath with no further amplification of the meaning of the word “psychopath”, that its use in that manner would ■destroy its present acceptability as meeting the requirements of the Fourteenth Amendment. It seems clear to us that a reading of the Palmer case, in light of the testimony before us in this case, justifies the conclusion that the Court of Appeals was not in fact importing the term “psychopath” into the statutory definition but that they were merely incidentally seeking .another way of describing some emotionally unbalanced persons. In other words, its use in the opinion was merely an effort to seek a synonym for the term “emotional unbalance” and not, in fact, a positive holding that the term “psychopath”, minus a description of what was meant by the use of that term, was being engrafted into and made a part of the definition.

We believe, in view of the testimony, particularly of Doctors Menninger and Guttmacher, and the fact that the term is no longer .and was not at the time of the Palmer opinion, a part of the ■nomenclature recommended by the American Psychiatric Association, that it is unfortunate that the term was used by the Palmer court. Note is made of the fact that in spite of the great many cases before the Court of Appeals dealing with the Defective Delinquent Act and its statutory definition, the term “psychopath” has only been used by that Court one other time. See Cowman v. State, 220 Md. 207 , 151 A. 2d 903 (1959). 'Clearly, in Palmer the real issue decided by the Court of Appeals was not whether the term “emotional unbalance” meant “psychopath” but whether or not a group of people described by Guttmacher and Weihofen were those intended to be encompassed by the statutory definition. We conclude that in the light of the testimony in this case there is no need to give any further medical description to the nonmedical term “emotional unbalance” and that if the matter is ever squarely before the Court of Appeals that Court will conclude that the term “psychopath” is not a part of the definition, is not a synonym for •emotional unbalance, but that the term “emotional unbalance” ³⁷ as used in the Act refers to a medically recognized psychiatrically disordered person who demonstrates “persistent aggravated antisocial or criminal behavior”, and who exhibits a type of psychiatric disorder manifested by deep-seated emotional conflicts which distort the individual’s attitude toward society, and of society’s attitude toward him, resulting in an uncontrollable desire and need to create continual hostile acts toward society and which is uncontrollable by the individual.

It was in this context, we feel, that the doctors were describing a particular type individual when they used the term “psychopath” and it is in that context that the Court of Appeals used the term “psychopath” as defined by Guttmacher and Weihofen. With this description of the term “psychopath” we feel that the use of the term in the Palmer case does not destroy the validity of the statutory definition so as to cause it to become vague and meaningless, as was found to be a fact by the Ninth Federal Circuit Court of Appeals. In the statute involved in that case the term “psychopath” was used without further amplification or definition, hence its use compelled the holding of insufficient clarity to meet constitutional requirements. Fleuti v. Rosenberg, 302 F. 2d 652 (1962).

Accordingly, we hold that the attack on the legal sufficiency of the statutory definition as applied by the Maryland Courts is not sustained.

II

Civil Nature of the Act. The Maryland Court of Appeals in Eggleston v. State, supra, decided the Act was regulatory in character and therefore not penal but civil in nature. It becomes vital that there be a proper determination as to the correctness of this conclusion because only if the statute is regulatory can the precise criminal procedures required to uphold the constitutionality of a penal statute be dispensed with. If, on the other hand, the act is regulatory and therefore civil in nature, the Fourteenth Amendment of the Constitution’s requirement is met if there is provided reasonable safeguards under the circumstances which include consideration of the fact that persons may be deprived of their liberty for the good of society and themselves.

It seems clear that if there exists affirmative evidence that the act results from a legislative intent to regulate rather than punish, the law is ³⁸ •deemed to be civil in nature. Kennedy v. Mendoza-Martinez, 372 U. S. 144 , 9 L. ed. 2d 644, 83 S. Ct. 554 (1963). We conclude from the evidence before us that the legislative history ■of the Defective Delinquent Act 4 clearly demonstrates that its sole objective and purpose was not penal but an effort to segregate a known group of mentally disordered people who are found guilty of criminal acts, by confining them in an institution housing only members of their group in a sole effort to protect society and provide treatment to effect, if possible, a ■cure of the illness. From the history it is clear that the legislative imposition of sanctions by restraining the individual results from studies that indicate that such restraint is necessary both for the protection of society and to provide medical treatment to further curative measures.

In short, it is the State’s ■effort to determine the cause of a criminal’s acts and if associated with mental disorder to accomplish improvement under psychiatric supervision so that he may hopefully be released, no longer a danger to himself or society. This act now before the Court is so similar in design and has a legislative purpose so' similar to the act that was before the Supreme Court in Minnesota, ex rel. Pearson v. Probate Court, supra, that we believe the decision of that court upholding the constitutionality of the Minnesota Sexual Psychopath Law is direct authority for our conclusion that this act is civil in nature. We further point out that the purpose of this act is so closely akin to the so-called “Sexual Psychopath” laws enforced in some twenty (20) states and the District of Columbia, that the decisions of the Courts in those jurisdictions that each of their, laws is civil in nature is ample authority to conclude that the Maryland Act is regulatory.

State v. Madary, 178 Neb. 383 , 133 N. W. 2d 583 (1965) ; People v. Levy, 151 Cal. App. 2d 460 , 311 P. 2d 897 (1957) ; Miller v. Overholser, 92 U. S. App. D. C. 110, 206 F. 2d 415 (1953); In re Miller, 98 N. H. 107, 95 A. 2d 116 (1953). See also cases cited in annotation under “Sexual Psychopaths,” 24 A.L.R. 2d 350 . Assuming, however, that contrary to our finding here, there exists no conclusive evidence of legislative intent as to whether ³⁹ or not the act is penal or civil in nature, the answer to this question must be determined from the face of the Act after considering the following: “. . . whether the sanction involves an affirmative disability or restraint; whether it has historically been regarded as a punishment; whether it comes into play only on a finding of scienter; whether its operation will promote the traditional aims of punishment, that is, retribution and deterrence; whether the behavior to which it applies is already a crime; whether an alternative purpose to which it may rationally be connected is assignable for it; and whether it appears excessive in relation to the alternative purpose assigned.” Kennedy v. Mendoza-Martinez, supra.

After considering these factors, we conclude that the statute on its face supports the conclusion that the act is civil in nature. We find this for the following reasons: Even though the sanction does involve an affirmative restraint it is provided only because it is deemed best for the protection of society and best for the protection and treatment of the individual that he be placed in a maximum security institution maintained solely for defective delinquents and not for other members of the criminal element. Historically, this type of sanction or restraint to accomplish the purposes of the Act has not been regarded as punishment but regulatory and is more akin to those laws consistently held to be civil in nature applicable to the “sexual psychopaths.” Also this is true of laws involving loss of liberty by restraint of many mentally ill persons in mental hospitals in all of the states. The Maryland Act does not come into play on a finding of “scienter,” because the person involved must before referral for diagnosis, already have been convicted of at least one criminal act and can be determined to be a “defective delinquent” only after there has been an intensive mental examination.

The law on its face clearly shows that it was not enacted to promote the aims of punishment, retribution and deterrence, but its only purpose is for the protection of society, and the treatment of the individual to effectuate a cure if at all possible. The Act clearly demonstrates that “defective delin ⁴⁰ quency” is not a crime but is a mental condition that can only be diagnosed and determined to exist after a finding of guilt. There exist alternate purposes which are valid functions of the State as a part of its police power. They are the protection of society, coupled with a humanitarian attempt to treat, cure and rehabilitate those suffering from abnormal mental functioning.

The sanctions or incarceration provided by the Act are not excessive in relation to these alternative purposes since most reputable psychiatrists agree that treatment cannot be related to a fixed period of confinement, as the length of time necessary for treatment and cure, if it can be obtained, is uncertain. In addition, experience has demonstrated that the indeterminate confinement is itself therapeutic, as it has a tendency to generate and motivate the individual to participate in the institutional program in order to help himself. Based on the testimony, we fear that without the indeterminate provision in the Act, violence would be done to its basic concepts and purposes, and much of the good sought by this legislation would go for naught. The very qualities making up the nature of an individual at Patuxent, with his warped attitudes and distorted outlook, would dictate to him that he antisocially wait out his allotted time, resisting introspection and any kind of reappraisal of his makeup, and refusing to cooperate in receiving available therapy to any degree that would give promise of his ultimate rehabilitation.

We find that on the basis of present psychiatric and psychological knowledge, it can be accurately predicted that certain individuals will commit crimes. In cases where it is believed that a person at Patuxent still maintains his propensity for crime, it would be a tragic destruction of the purposes of this legislation, a disservice to society and not the least of the errors, a serious injustice to the individual to release him, uncured. We therefore conclude that the Maryland Defective Delinquent Act is civil in nature under either test; that is, such a conclusion results from the legislative history and also the Act on its face supports this finding after taking into account the tests laid down by the Supreme Court in Kennedy . The real question, however, Judge Bell asks in Sas, is “. . . whether the proposed objectives of the Act are sufficiently im ⁴¹ plemented in its actual administration to support its categorization as a civil procedure and justify the elimination of conventional criminal procedural safeguards . . .”.

We are persuaded that there is much force in the respondent’s argument that the answer to this question is a legislative rather than a judicial function. The Kennedy case seems to support the conclusion that the court’s sole concern in this area is to determine whether or not the act is reasonably calculated to achieve its legislative purpose, leaving for the legislative and executive branches of the government a determination of whether in fact it is accomplishing its legislative purpose. It would seem that the court’s further concern after concluding that the Act was reasonably calculated to achieve its legislative purpose, only exists if the other branches of the government fail to act after a clear showing that it is ineffectual in accomplishing its purpose. We are aware of no responsible opinion of any professional group, and certainly there is no opinion of any of the witnesses testifying in this case, that the Act is clearly ineffectual in accomplishing its legislative purpose.

On the contrary we conclude from the testimony by following the requirements of the Act, together with a utilization of medically accepted treatment techniques now being carried out at Patuxent, provides a procedure reasonably calculated to achieve the stated legislative purposes. The testimony, we believe, justifies our determining that this legislation has proven to be a benefit to society as well as the individual and is becoming more so as results of knowledge gained from experiences at Patuxent and developments in psychiatry are evaluated and utilized. Ten years is too short a time for anyone to know the extent of the ultimate accomplishments which may result from this vastly complex undertaking. Pioneering of necessity involves trial and error, but only in this way does civilization advance.

What has been done up to now has not been ineffective and augurs well for the future. All agree that the humane objectives, the protection of society and concern for the welfare of mentally ill persons are laudable. A benefit not to be overlooked is that the inmate while continuing to manifest pronounced symptoms of potentially dangerous ⁴² antisocial behavior is protected, while confined, from the consequences to him, which would likely result from his being at large. We conclude that the Court has no power to interfere until its ineffectiveness is clearly demonstrated and the other branches of the government fail to act.

The petitioner argues that only a small number of individuals have been paroled or released during the ten (10) years of Patuxent’s operation. Accepting this statement as true, we believe that such a result is understandable when it is considered that Patuxent was opened in 1955, that there necessarily ensued a period of nearly a year before there could be an adjudication after an examination that any individual was, in fact, a defective delinquent. The medical professional witnesses agreed that such a disorder is difficult of treatment and there exists no time table for cure. The illness does not await the discovery of a cure.

The Act and its operation is admittedly an experimental one but we find nothing in the evidence to justify any conclusion that as administered it is unworkable or that it is not achieving its stated objectives. This we find is the conclusion of responsible psychiatrists, physicians, criminologists, and jurists who have studied in depth Patuxent Institution as it is being operated under the Defective Delinquent Act. We further conclude from the evidence that the legislative and executive branches of the government are keeping abreast of and familiar with the operation of Patuxent Institution and the internal administration at Patuxent, in turn, is continually re-evaluating its treatment and release program in light of new developments in the psychiatric-medical field. See Research Report No. 29, Research Division of the Legislative Council of Maryland, December, 1959 (Ex.

No. 15) ; Report of Commission to Study and Re-Evaluate Patuxent Institution, Legislative Council of the General Assembly of Maryland, January 25, 1961, (Ex. No. 17); Interim Report of Commission to Study Changes and Basis of Selection for Patuxent Institution, December 15, 1964 (Ex. No. 21) ; Report of the Committee of the American Psychiatric Association on the Patuxent Institution, December 20, 1960 (Ex. No. 16).

We likewise conclude from all the evidence that the Act is not only intended to achieve its legislative purpose but the ad ⁴³ ministrative procedures pursuant thereto are in accordance with the latest medically accepted practices and as administered are reasonably calculated to accomplish the Act’s desired result— that is the protection of society, accompanied by an attempt to provide medical help for those unfortunate individuals who because of mental illness demonstrate a propensity to commit criminal acts. This is all the Federal Constitution requires. Kennedy v. Mendoza-Martinez, supra.

III

Application of Procedures in Relation to Due Process and Confrontation Procedural Requirements: The procedural requirements of the Act include these safeguards to the defendant: 1. He must be convicted and sentenced in a Maryland Court for a crime. 2. The crime must be of a particular category: (a) a felony or (b) a misdemeanor punishable by imprisonment in the penitentiary or (c) one of violence, or (d) a sex crime involving physical force, disparity of age, or of an uncontrolled or repetitive nature, or (e) two or more convictions for offenses punishable by imprisonment in a criminal court of this State. 3. There must be a request for examination by: (a) the Department of Correction, (b) the State’s Attorney’s office, (c) such person himself, (d) his attorney, or (e) the Court. 4.

The Court must order the examination. 5. A copy of the order for examination must be served on the person to be examined. 6. The person must still be confined. 7. The examination must be made by at least three persons, one of whom must be (a) a medical physician, one a (b) psychiatrist and one a (c) psychologist. 8.

A majority of the examiners must conclude that the person is a defective delinquent. 9. The person is entitled on request to be examined by a private psychiatrist of his own choice at the expense of the State unless he, himself, has asked for the original examination. ⁴⁴ 10. The person must, after the examination with an affirmative result, be brought before the Court and advised of the substance of the report and the pendency of the hearing. 11. He is entitled to counsel of his choice, or to competent counsel appointed by the Court. 12.

Counsel has access to all records, reports and papers of the institution relating to the person and to all papers in the possession of the Court bearing on his case. 13. The person has a choice of a court or jury trial. 14. He may make application for leave to appeal from the order holding him to be a defective delinquent, although such appeal does not lie as a matter of right. He, in addition to the specific statutory safeguards, has full opportunity to summon witnesses and to present evidence.

Also, he has available to him all discovery procedure permitted under the Maryland Rules in civil cases, which is much broader than in criminal cases, including the taking of depositions, the use of interrogatories and demands for admission of facts. . . An examination of the trial and hearing provisions of the Act can leave no doubt that it places around the accused more procedural safeguards than any of the Acts of a similar nature which have been upheld by the Courts against this attack.” Sa s v. Maryland, supra. Also see Minnesota, ex rel. Pearson v. Probate Court, supra and Buck v. Bell, supra.

We hold that the mandatory procedural safeguards were applied in the case before us and the safeguards not mandatory were available to Daniels and therefore that the language of the Act in general, and as applied here, adequately gratifies the requirements of due process. While acknowledging the existence of these statutory and procedural safeguards. Daniels nevertheless contends that he has not been accorded due process in several respects, as hereafter enumerated and discussed. Hearsay Bvidence: While hearsay evidence was received in Daniels’ hearing when the Institution’s report and finding were received in evidence, this was not violative of the Sixth Amendment because this was not a criminal prosecution, as heretofore discussed under heading II.

The evidence under attack is part of a history ⁴⁵ and can be refuted under the procedure, both by a denial by the defendant and by the testimony of any other witnesses he sees fit to call. .Moreover, there appears to be nothing sacrosanct about the use of hearsay evidence; the weight is determined by the trier of the issue, and there are numerous exceptions under which hearsay evidence is properly received. Kay v. U. S., 255 F. 2d 476 , cert. denied, 358 U. S. 825 , 3 L. ed 2d 65 (1958): “The power of the Congress and of a state legislature to provide for the admission of evidence is not subject to . . . arbitrary limitation . . . They may carve out a new exception to the hearsay rule, without violating constitutional rights, where there is reasonable necessity for it and where it is supported by an adequate basis for assurance that the evidence has those qualities of reliability and trustworthiness attributed to other evidence admissible under long established exceptions to the hearsay rule.”, citing Tot v. U. S., 319 U. S. 463 , 87 L. ed 1519, 63 S. Ct. 1241 (1943). It was said in Sas, supra, (footnote at page 516) : “. . .

An act, which deprives sane men of their liberty by confining them under severe discipline with or without treatment requires a basic fairness of procedure and substance—'implicit in the concept of ordered liberty’—to comport with the guaranties of our National Constitution. By these standards, the Supreme Court reviewed the Minnesota statute which concededly is as civil in nature as the Maryland statute.” We believe that even in a civil proceeding the Fourteenth Amendment’s guarantee of due process requires a test of whether lack of confrontation (or receiving hearsay evidence) may result in the denial of such basic rights as to offend the Constitution. The very recent case of Holm. v. Wyoming, 404 P. 2d 740 ⁴⁶ (1965), was relied on by Daniels in support of his position with respect to due process, particularly as to hearsay evidence. That case held that the part of a statute pertaining to mentally ill persons, which provides that the Court should not be bound by rules of evidence, would abolish court procedures and was therefore void.

We perceive of few things of less general interest or more inappropriateness than our comment on the correctness of that learned Court’s conclusion. However, we do readily distinguish that case from ours for the reason that contrary to the Wyoming law under attack here the rules of evidence and court procedures are not abolished but carefully preserved. The discovery and other procedures which, under the statute and within Maryland’s Rules, may be utilized by the defendant affords full protection against any possible damage resulting from the broadening of the hearsay rule in these hearings. We find no Supreme Court cases which we construe as overruling Jacobson, Bell or Pearson.

After exposing the litmus to the atmosphere of reasonable necessity, we conclude that the mandatory procedures and the safeguards available, provide basic fairness and did not violate Daniels’ right to due process. Appellate Restrictions: It is here contended that petitioner’s rights were further violated because the procedure does not permit an absolute right of appeal, nor does the appellate court in applications for appeal under the Act consider the question of weight and sufficiency of the evidence or in the case of a pauper, review a transcript of the proceedings below. There is no discrimination against indi gents in the appellate provisions of the act or the established practice. Leave to appeal is granted when the application appears to have merit.

Transcripts of the proceedings are not considered in such applications whether the applicant is rich or poor. When leave to appeal is granted, and only then, a transcript is required. If the applicant is without means to bear the cost, it is provided at public expense. Counsel is furnished to indigents at public expense. ⁴⁷ “It is true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all.

See, e.g. McKane v. Durston, 153 U. S. 684, 687, 688 , 38 L. ed 867-869, 14 S. Ct. 913 . But that is not to say that a State that does grant appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty.” Griffin v. Illinois, 351 U. S. 12 , 100 L. ed 891, 76 S. Ct. 585 (1956). We find that those found to be defective delinquents under the Act are not discriminated against in their applications to appeal and that the limitations on appeal are within the constitutionally allowable area.

We find that the limitations on the absolute right to appeal provided in the Act are not discriminative against any particular category of defective delinquents, and that special provisions concerning appeals in defective delinquent cases are within the proper prerogatives of the legislature and not offensive to the Federal Constitution under the decision in Griffin . Double Jeopardy: Daniels believes that because he is confined at Patuxent after the expiration of his original sentence, his Constitutional rights have been violated in that he has been twice placed in jeopardy for the same offense. It has been held in Moquin v. State, 216 Md. 524 , 140 A. 2d 914 (1958), that while the Maryland Constitution contains no guarantee against double jeopardy and the Fifth Amendment of the United States Constitution is not applicable to the state, 5 it is a well settled rule of the common law that one may not be subjected to double jeopardy. Also see Eggleston v. State, supra.

The short answer to the petitioner’s objection is that the commitment to Patuxent was a civil proceeding and does not involve his being placed in jeopardy for the commission of a crime. ⁴⁸ Ultimate Issue: Another point raised by petitioner in his claim that he has been denied due process is that in the proceedings resulting in his commitment as a defective delinquent, an expert was permitted to express an opinion on the ultimate issue, that is, whether or not he was a defective delinquent. Since the remand in this case the Court of Appeals has in three cases since Sas, upheld the validity of this procedure. Wames v. Director, 240 Md. 39 , 212 A. 2d 467 , Murel v. Director, 240 Md. 258 , 213 A. 2d 576 , and Alt v. Director, 240 Md. 262 , 213 A. 2d 746 (1965). Also see “Expert Opinion and the Ultimate Issue Doctrine”, M.L.R. XXII, 32, stating: “That an expert opinion may touch upon an ultimate issue apparently no longer matters.”, since the modern trend in Maryland and elsewhere is toward a liberalization of the opinion rule, to permit the reception of such evidence.

See Shivers v. Carnaggio, 223 Md. 585 , 165 A. 2d 898 (1960). We can see no Federal Constitutional impediment against a State regulating the admissibility of this type of evidence.

IV

Inclusion of Offenses Solely Agaimst Property 6 We must summarily reject Daniels’ contention that by his commitment to Patuxent, cruel and unusual punishment is being inflicted upon him, in violation of his rights under the Eighth Amendment. While it is true that the offense of which he was guilty and which became an