State v. McCray

Orth, J., delivered the opinion of the Court. Almost 2000 years ago Juvenal asked: “Sed quis custodiet ipsos custodes ?” 1 Who will watch the keepers themselves is still a question of critical importance, and the need of a proper solution is never more acute than when the rights of the individual are involved. A declared purpose of the federal constitution is to “secure the Blessings of Liberty” to the people and their posterity, 2 and under our philosophy of government the rights guaranteed by the constitution of the people are jealously guarded. Curtailment of them is to be permitted only to the extent necessary to maintain the fine balance between the rights of the individual and the rights of society.

I The appeal before us concerns persons from whom the demands of society have lawfully taken a fundamental right — freedom, or liberty from incarceration. Each of them through the due processes of the law has been found ¹¹⁵ guilty beyond a reasonable doubt of the commission of a crime and sentenced to imprisonment. However, none of them is incarcerated in a penal institution. The legislature has established a special category of criminal known as the defective delinquent. 3 Director v. Daniels, 243 Md. 16, 49 , 221 A. 2d 397 (1966).

The Maryland Defective Delinquents Act, Code, Art. 31B, provides that a person convicted of any felony, or certain misdemeanors, and sentenced in a court of this State, may be committed to the Patuxent Institution (Patuxent) for an indeterminate period, if it is judicially determined that he is a “defective delinquent”. McNeil v. Director, 407 U. S. 245 , 92 S. Ct. 2083 , 32 L.Ed.2d 719 (1972). We have stated that the legislative history of the Defective Delinquents Act “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.” Director v. Daniels, supra, at 38. We said: “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.” Idem.

The persons concerned in this appeal are inmates of Patuxent, either detained there for examination as possible defective delinquents, or confined there upon judicial determination that they are defective delinquents. Code, Art. 31B, §§ 6-9. See McNeil v. Director, supra; Murel et al. v. Baltimore City Criminal Court, 407 U. S. 355 , 92 S. Ct. 2091 , 32 L.Ed.2d 791 (1972). ¹¹⁶ II During the first six months of 1971 sixteen inmates of Patuxent filed fifteen actions in the Circuit Court for Montgomery County and six actions in the Circuit Court for Howard County. 4 Nine of the actions prayed for the issuance of a writ of habeas corpus and twelve of them sought an “ex parte injunction.” 5 See Appendix A. The habeas corpus actions sought relief from cruel and unusual punishment prohibited by the eighth amendment and denial of the due process of law guaranteed by the fourteenth amendment. The cruel and unusual punishment pertained to conditions and practices to which the inmates alleged they had been subjected, including extended confinement in disciplinary and administrative segregation units.

The procedures by which they were transferred to such segregation units were claimed to be lacking in due process of law. They sought declaratory and injunctive relief from censorship practices which they asserted were unconstitutional as violative of their rights under the first, fourth, sixth and fourteenth amendments. The cases were consolidated 6 and it was stipulated ¹¹⁷ that the consolidated cases constituted a class action within the contemplation of Maryland Rule 209 “for all persons within the Patuxent Institution who were in a similar position to these petitioners.” The cases were heard by Miller and Watts, JJ. 7 An evidentiary hearing of thirteen days was held at Patuxent during the period 22 July to 13 August 1971, followed by oral argument on 31 August. The opinion and order of the court dated 11 November was filed 18 November.

The court concluded that the three areas of complaint — “the alleged absence of procedural due process, cruel and unusual punishment and mail censorship” — could be “corrected by the adoption of certain prescribed rules and regulations to govern future conduct of the Patuxent Institution and by a change in some of the Institution’s present policies.” It appended the rules in these areas to its opinion and order. However, in addition to the three principal contentions of appellees, it discovered “other matters” which it felt required attention and it also appended rules and regulations in these areas “to correct practices and bring the Patuxent Institution within constitutional bounds.” It pointed out: “Except in a few places where drafted to implement constitutional guarantees covered in the opinion, the following rules [appended] were supplied by counsel for the petitioners, the Attorney General’s office and the Patuxent Institution. * * * Where there has been a conflict in the rules or proposals the Court has selected the rule which is most applicable according to the controlling case law.” The rules appended were under the following main headings: Violations, Punishment, Disciplinary Procedures, Disciplinary Segregation Regulations, Administrative ¹¹⁸ Segregation Regulations, Patient Correspondence Rules, Medical Facilities, Visiting Rules, Searches, Physical Force by Custodial Personnel, Dietary Regulations. The court ordered “the Board of Patuxent Institution to comply in all respects with the matters set forth in this opinion and to promptly adopt the rules and regulations appended hereto and to otherwise discontinue those practices and procedures which violate the inmates’ constitutional rights.” It reserved jurisdiction over the petitions and the subject matter thereof for one year “to see that its orders are complied with.” The rules and regulations were “to be published and furnished to each patient presently in or hereafter coming to the Patuxent Institution.” On 1 December appellees filed a petition for appellants to show cause why they should not be held in contempt for failure to comply with the order of 11 November. Upon hearing on 20 December the lower court rescinded its order filed 18 November and appellants dismissed without prejudice an appeal they had noted.

The order of 20 December directed that appellants “immediately make reasonable effort to adopt and implement procedures that are in substantial compliance with the rules and Court’s opinion, that the opinion of the Court of 11/18/71 is adopted as the Opinion of the Court and that the order of the Court is rescinded subject to the court entering a final order thereafter; that Respondents file with this Court within thirty (30) days from the date of this Order a comprehensive set of rules and regulations which are in substantial compliance with this Court’s opinion and rules appended thereto of November 18, 1971; that Petitioners shall note to this Court any objections to the rules and regulations filed by Respondents within thirty (30) days of the date the rules and regulations are filed with this Court; further, after consideration of the rules and regulations and any objections thereto filed with this Court, a hearing will be ordered at which time argument by counsel will be heard and a final order of this Court will be rendered subsequent to such hearing.” A hearing was held on 17 January 1972 fol ¹¹⁹ lowing a series of conferences in which counsel for all parties participated. Agreement was reached on over two hundred rules and regulations pertaining to the operation of Patuxent and the treatment of its inmates. 8 There was discord on only ten matters. It was agreed that the court would decide the constitutional sufficiency of appellants’ proposals on the disputed matters based on memoranda submitted and without further hearing. The court’s determination was set out in its order of 24 February 1972, filed the next day.

Appellants’ proposals as to four of the matters were found to be constitutionally sufficient and the court found no need for further action with regard to them. 9 The court found that there was constitutional deficiency in the failure to require: (1) an independent hearing officer on the institutional disciplinary committee; (2) an officer to be stationed full time to service disciplinary segregation areas; (3) daily visits to the disciplinary segregation areas by the institution’s physicians; (4) accelerated treatment and therapy for inmates in the administrative segregation unit; (5) nutritional substitutes to be provided for persons unable because of religious belief to eat the regular institutional fare. ¹²⁰ The sixth area of disagreement concerned censorship of inmates’ mail. The court ordered: (1) that appellants promptly implement those rules and regulations agreed to and found by the court to satisfy constitutional requirements in the areas covered; (2) that appellants file with the court new rules and regulations in those areas where ordered by this opinion within twenty days of the date of this Order and at the same time furnish copies to the attorneys for the petitioners; (3) that “the court shall retain jurisdiction of this case for a period of one year from the date of this Order to insure compliance not only with the rules consented to but to hear objections from the petitioners as to any of the new rules ordered to be submitted and further to prepare and implement its own rules and regulations in any area where the respondents fail to substantially comply with this Opinion and Order”; (4) that “all of the rules and regulations adopted now and hereafter shall be furnished in written form to each patient confined at the Patuxent Institution within twenty-four hours after his confinement there.” On 17 March 1972 appellants noted an appeal “from the Opinions and Orders entered in this action on the 11th day of November 1971 and the 24th day of February 1972.” 10 ¹²¹ On 12 April 1972 appellees filed a petition alleging non-compliance with the court’s orders and praying that the court “take necessary steps to enforce its Orders by requiring Respondents to SHOW CAUSE why this Court should not” hold all “who have failed or refused to comply with the Opinions and Orders of this Court of November 18, 1971, and February 24, 1972” in contempt, and why it should not issue seven designated orders 11 and “order any other relief necessary to insure compliance with the Opinions and Orders of this Court.” In the interim appellants had filed, on 23 March 1972, a ¹²² motion for stay of execution of the order of 24 February 1972. A hearing was held on 26 April 1972. The record before us contains a transcript of only that part of the hearing concerning the rules and regulations relating to the six matters in dispute. 12 It shows that appellants offered as compliance with the direction in the order of 24 February 1972 to file rules in the disputed areas as were appended to the order of 11 November 1971.

Appellants made clear, however, that they disagreed with the rules so offered. “We feel they are * * * not Constitutionally required; and for the purpose of the record, we cannot abide by the same. * * * And -that the State would submit that if required under the order of February 24 to submit rules in these areas in substantial compliance to the Court’s Opinion, it would have to submit these rules to the Court; and we further state that they cannot agree to them and feel they are not required and state to the Court that we would have to appeal from these rules, but that being required by the Order of February 24 to submit rules to the Court in conformity with its original Opinion, we proffer them as the rules we would submit with the obvious objection to them. * * * [We] feel that (a) they are not Constitutionally required; and (b) there was insufficient evidence in the record to support the implementation of these rules.” The court below “upon the joint oral motion by counsel for Petitioners and Respondents” made in open court on 26 April 1972: “ORDERED that the attached Rules and Regulations are received by this Court as the submission of Patuxent Institution pursuant to the Order of February 24, 1972; and IT IS FURTHER ORDERED that this Court accepts and adopts these Rules and Regulations nunc pro tunc as of February 24, 1972, without ¹²³ prejudice to the rights of Respondents to appeal or to any further rights of Respondents; and IT IS FURTHER ORDERED that Respondents implement the attached Rules and Regulations within a reasonable time; and IT IS, FURTHER ORDERED that the attached Rules and Regulations and the partial transcript be transmitted to the Court of Appeals of Maryland for inclusion in the Record on appeal without the necessity on the part of Respondents to file a further Notice of Appeal.” Appellants’ brief sets out: “Subsequent to the hearing of April 26, 1972, hearings were held at Patuxent Institution on June 2 and 5, 1972, on Appellants’ Motion for Stay of Execution of Order which was denied by the lower court on June 5, 1972. Hearings were further held at Patuxent Institution on June 5, 19 and 20, 1972, on Appellees’ Petition for Contempt. On June 20, 1972, the lower court denied Appellees’ first eight grounds for relief, but required Appellants to file affidavits of compliance with the Rules and Regulations previously agreed to by September 1, 1972, and following Appellees’ subsequent affidavits, the lower court will determine whether to hold further hearings on Appellees’ Petition for Contempt. The lower court further suggested that because of the stay granted by this Court of the six areas on appeal, that Appellants review the admission procedures for the administrative segregation unit with the purpose of revising the same.” We do not find in the record before us a transcript of any proceedings held after 26 April 1972, or any orders of the court below emanating therefrom.

The stay granted by this Court to which appellants refer was by order of ¹²⁴ 9 June 1972 “that the execution of the order of June 5, 1972, of the Circuit Courts for Montgomery and Howard Counties in Mise. Petition No. 4363 et seq., requiring the appellants to immediately implement certain rules and regulations in six disputed areas be, and the same is hereby, stayed until the further order or mandate of this Court, * * Ill Appellants challenge only two parts of the order of 24 February 1972 on this appeal: (1) the mandate that they file with the court new rules and regulations in the six areas in dispute; (2) the retention by the court for one year of its jurisdiction of the case. The challenge as to the first is on the basis that the rules and regulations proposed by them were constitutionally sufficient and that rules and regulations complying with the court’s order are not constitutionally mandated. As to the second, appellants assert that “once this Court rules, the work of the lower court in instituting broad changes in the Rules and Regulations at Patuxent Institution will have been completed.” They urge retention of jurisdiction by the court below places an undue burden on the court and appellants, for the effect would be that the lower court would be adjudicating “each and every complaint made by Appellees, including those things which do not raise themselves to the level of a constitutional deprivation,” in short taking control of and governing the day-to-day operations of Patuxent.

Appellants do not question the jurisdiction of the court below or the propriety of the power and authority it exercised. In fact all parties and the lower court itself are content because the jurisdiction of the court was stipulated. At the very beginning of the hearings the Assistant Attorney General, after noting that “there has been some basis in the case law that the Courts have had hands off on the administration, or running institutions,” ¹²⁵ said that he wanted “to state for the record at this point that the State of Maryland, the Director of Patuxent Institution, and the Patuxent Institution does not intend in these proceedings to raise any question as to the jurisdiction of this Court to hear the case, as to the venue of the case, or any of those questions that we recognize at this time. The time has come for their grievances to be held before a Court, and we will not raise any of those objections, and we feel the issue that lies before this Court, as set forth in the petition, really goes to the question, and we well realize, to administration.

We want to have an opportunity to have this heard out in a Court, and to have their grievances resolved. * * * The question here is not whether the defective delinquent law is constitutional or not, but whether it is being applied properly, whether these men in the institution are being given constitutional standards in the limits of the complaint, and we are willing to have this issue before the Court, and I understand the issues are quite clear. We will waive any jurisdiction so these men can have their day in Court and air their differences.” On 20 December 1971, at the hearing which resulted in the court rescinding its order filed 18 November, “all parties, by and through counsel” entered into a written stipulation, the first item of which was “that the Court has jurisdiction to hear and decide the issues in the above captioned matter.” By the second item appellants agreed during the pendency of the case to make “every effort to operate Patuxent Institution for Defective Delinquents in substantial compliance with the provisions of the November 18,1971 opinion and rules appended thereto.” In the third item appellants and appellees through their counsel agreed to consult with each other “as part of their effort to operate Patuxent Institution in substantial compliance with the provisions of the above mentioned opinion and rules appended thereto and as part of their duty to file with this Court a comprehensive set of rules and regulations which are in substantial compliance with said opinion and order.” The fourth and final item read: ¹²⁶ “Where parties are unable to agree upon the Constitutional sufficiency of any proposed rules and regulations, the court shall have jurisdiction to determine the minimum requisite standards which such rules and regulations must embody; if respondents [appellants] do not thereafter within a period of time to then be set by the Court, adopt and implement such rules and regulations, the Court shall have jurisdiction to order the adoption of such rules and regulations subject to all rights of appeal.” We first note that a question of the jurisdiction of the lower court, even though not tried and decided below and neither briefed nor argued, may be raised by this Court, sua sponte, as an exception to the general rule established by Maryland Rule 885. Stacy v. Burke, 259 Md. 390, 402-403 , 269 A. 2d 837 (1970) ; Tate v. State, 236 Md. 312, 316 , 203 A. 2d 882 (1964) ; Webb v. Oxley, 226 Md. 339, 343 , 173 A. 2d 358 (1961) ; Heath v. State, 198 Md. 455, 466 , 85 A. 2d 43 (1951) ; Berlinsky v. Eisenberg, 190 Md. 636, 640 , 59 A. 2d 327 (1948). Next, we observe that jurisdiction cannot be conferred on a court by waiver or consent of the parties.

Jones v. Jones, 259 Md. 336, 342 , 270 A. 2d 126 (1970) ; Killen v. American Casualty, 231 Md. 105, 109 , 189 A. 2d 103 (1963) ; Cook v. Aronheim, 186 Md. 138, 145 , 46 A. 2d 105 (1946) ; Park Land Corp. v. M. & C. C. of Balto., 128 Md. 611, 617 , 98 A. 153 (1916). Our initial inquiry, therefore, is whether the lower court had jurisdiction over the subject matter. IV The Department of Public Safety and Correctional Services (the Department) is a principal department of the State government, headed by the Secretary of Public Safety and Correctional Services (the Secretary). Code, Art. 41, § 204 (a).

The Secretary is directly responsible to the Governor and shall counsel and advise the Governor on all matters assigned to the Department. Among ¹²⁷ the areas in which he is responsible for carrying out the Governor’s policies is the treatment of defective delinquents, § 204 (b). The Patuxent operation is assigned to the Department. The Patuxent Institution, the Board of Patuxent Institution, the Advisory Board for Defective Delinquents, and Institutional Board of Review are within the Department, § 204A (a).

The Secretary shall appoint, with the approval of the Governor, a deputy secretary for correctional services who shall assist the Secretary with respect to and be primarily concerned with the operations, among others, of the Patuxent Institution, the Board of Patuxent Institution and the Institutional Board of Review, § 204B (a). The appointment or removal of personnel of any board, commission, division, or other agency within the jurisdiction of the Department is subject to the approval of the Secretary, § 204B (c). The Secretary is responsible for the budgets of the agencies within the jurisdiction of the Department, § 204C (a). He shall review and shall have the power to approve, disapprove or revise the rules and regulations of the agencies within the jurisdiction of the Department, § 204C (b).

The Patuxent Institution is established by law as part of the Department as an institution for defective delinquents with the powers and duties bestowed upon it by statute, Code, Art. 31B § 1 (a). The Board of Patuxent Institution (the Board) subject to the authority of the Secretary, possesses all of the powers bestowed upon Patuxent, § 1 (b) . 13 The Board has any and all incidental powers and authority appropriate and convenient to enable it to fully discharge the powers of management, control and supervision conferred upon them, § 1 (e). It has, subject to the review and power of approval, disapproval and revision of the Secretary as above noted, ¹²⁸ “full power and authority to make, repeal or amend such rules and regulations, not inconsistent with law or applicable rules and regulations of other State agencies, for the operation, discipline and conduct of the Institution, the inmates, staff and employees,” under its supervision and control, “as may be necessary or convenient for the proper administration of the power and discretion conferred upon it * * § 1 (f). The chief administrative officer of Patuxent is the Director, serving at the pleasure of the Secretary, and appointed by him from a list of three nominees proposed by a special committee, § 2.

The Director shall be “a trained, able and competent psychiatrist with at least five years experience in the practice or teaching of psychiatry,” idem. The advisory board for defective delinquents is a part of the Department. It shall confer with the staff of Patuxent and with the Board from time to time, and shall give to the Institution a general consultative and advisory service on problems and matters relating to its work, § 4 (a) . 14 It is the duty of the institutional board of review to review and thoroughly reexamine every person held in custodial care as a defective delinquent not less frequently than once in every calendar year to determine whether he shall remain classified as a defective delinquent. It shall make a recommendation for the future status and treatment of each person so reviewed and reexamined, in writing, and a copy of every such recom ¹²⁹ mendation shall be filed with the records of the Institution.

Code, Art. 31B, § 13 (b). See §§ 13 (a), (c), (d), (e) and (f) relating to duties of the institutional board of review. 15 By these statutory provisions the legislature has made pellucidly clear that the management, control, and supervision of Patuxent is the exclusive responsibility of the executive branch of the government. In so doing it has also recognized that the comprehensive scheme it has established for examination, commitment, treatment, and release of persons of a medically and legally recognizable class of persons, focusing on the mental and emotional condition of those thought to be members of this statutorily defined class, see Bailey v. State, 12 Md. App. 397 , 277 A. 2d 246 (1971), requires guidance and direction from professionals and experts in disciplines related thereto, 16 but without eroding the overall authority of the executive branch acting through the Board and director to the Secretary and Department. We do not believe that the judiciary may usurp this authority of the executive branch and assume its responsibilities.

The decisions of this Court have made clear our belief that it is not the function of the judiciary to superintend the treatment and discipline of prisoners in the State penal institutions and by analogy, in Patuxent. We consistently and firmly adhered to the position that “the courts have no function to superintend the treatment of prisoners in the penitentiary, but only to deliver from prison those who are illegally detained there.” State ¹³⁰ ex rel. Renner v. Wright, 188 Md. 189, 192 , 51 A. 2d 668 (1947). There came to us a spate of applications for leave to appeal from denial of petitions for writs of habeas corpus based on the complaints of prisoners with regard to their treatment by correctional authorities.

We denied them all with no attempt to consider the merits of the grievances, stating that such matters did not entitle the petitioner to relief under habeas corpus. There was a variety of complaints. Renner said he was suffering from stomach ulcers and was unable to obtain proper medical treatment. In State ex rel.

Jacobs v. Warden, 190 Md. 755 , 59 A. 2d 753 (1948), the allegations made by the prisoner were “ill health, a desire for medical treatment, inability to obtain proper treatment in the Penitentiary, failure or refusal of the prison authorities to deliver mail to him or to mail communications from him.” In State ex rel. Baldwin v. Superintendent, 192 Md. 712 , 63 A. 2d 323 (1949), the prisoner claimed he had tuberculosis but was denied proper treatment in the prison hospital by the doctor in charge and by the attendants, that proper food was lacking and that his complaints to the Superintendent had been ignored. In Edmondson v. Warden, 194 Md. 707 , 69 A. 2d 919 (1949), the prisoner requested the writ “to inquire into the legality” of the warden’s “not letting him write” to a named person “to get information on the writ of error coram nobis.” In State ex rel. Arnold v. Warden, 195 Md. 700 , 72 A. 2d 700 (1950), the complaint was that the prisoner was kept in solitary confinement and was denied the right to attend church and thus his right to worship God by the arbitrary action of the warden.

In Warfield v. Raymond, 195 Md. 711 , 71 A. 2d 870 (1950), the prisoner complained about the lack of medical treatment, and the quality of the food. He further asserted that the Superintendent of the institution in which he was incarcerated had orl previous occasions refused to forward petitions or restricted their size or content. The petitioner in Holliday v. Warden, 198 Md. 651 , 80 A. 2d 608 (1951), asserted that he was not able to use his own money to sup ¹³¹ port himself in the penitentiary or to write his family for support and that his important letters and applications for writs had been held up by the prison authorities. In Hirons v. Warden, 198 Md. 662 , 80 A. 2d 608 (1951), Bell v. Warden, 207 Md. 618 , 113 A. 2d 482 (1955), and Clay v. Warden, 207 Md. 631 , 114 A. 2d 893 (1955), the question was the propriety of a transfer by the Superintendent of Prisons from one penal institution to another.

In Randall v. Warden, 213 Md. 653 , 132 A. 2d 576 (1957), we emphasized the consistency of our position. “We have repeatedly held that complaints as to prison management cannot be considered on habeas corpus.” At 654. 17 The rationale of our holding is patent. Such matters are properly the responsibility of the executive branch of government. Time and again we pointed out that those types of complaints should be made to the proper executive authority. 18 “Complaints as to need for medical treatment ¹³² should be made to the Board of Correction.” Jacobs, at 756. Such complaints “should be addressed to the Board of Correction which is responsible for proper prison management.” Baldwin, at 713. “The Board of Correction has full power and control over the House of Correction. * * * Such complaints should be made to the Board of Correction.

It cannot be assumed that the Board will abuse or has abused its powers.” Edmondson , at 708. “If a prisoner serving a sentence in the Maryland Penitentiary is maltreated by the warden or other officials or employees of the institution, his remedy is to apply to the Board of Correction of the State, where his complaint will be heard, and if sustained, corrected.” Arnold, at 701. “The Board of Correction has full power and control over the Maryland Penitentiary. * * * Such complaints should be made to the Board of Correction. The Court of Appeals cannot assume that the Board has abused its powers.” Holliday , at 651-652. We made a similar statement in Krebs v. Warden, 199 Md. 688, 690 , 86 A. 2d 402 (1952). On several occasions we added a word of caution. “Of course, prison authorities must not in any way prevent freedom of communication with the courts, with executive authorities or with counsel.” Jacobs, at 757. “The petitioner has an absolute right to communicate with the courts, without interference by the prison authorities * * *.” Warfield , at 713.

That these warnings were directed to the Board of Correction seems clear. We indicated no sanction for failure to heed them. The advent of the Uniform Post Conviction Procedure Act, ch. 44, Acts 1958, brought no change in the declared philosophy. The Act established no new means for seeking redress for alleged wrongs to persons while lawfully incarcerated.

It empowered prisoners and defective delinquents to institute a collateral proceeding to set aside a sentence upon claim that the sentence or judg ¹³³ ment was in violation of the federal constitution or the constitution or laws of Maryland, or that the court was without jurisdiction to impose sentence, or that the sentence exceeded the maximum authorized by law, or that the sentence was “otherwise subject to collateral attack upon any ground of alleged error which would otherwise be available under a writ of habeas corpus, writ of coram nobis, or the common-law or statutory remedy.” Code, Art. 27, § 645A (a). 19 So in Knox v. Director, 1 Md. App. 678 , 232 A. 2d 824 (1967), when a detainee at Patuxent sought leave to appeal from a denial of relief prayed in a petition under post conviction procedures in which he alleged that he was “being denied his Fifth Amendment privilege against self-incrimination by the Director at Patuxent Institution” and was “being denied his right to counsel while at Patuxent for examination”, the Court of Special Appeals denied the application for the reason that such contentions were not cognizable under the Uniform Post Conviction Procedure Act because they did not “either directly or indirectly, challenge the legality of applicant’s judgment of conviction.” At 680. In Creswell v. Director, 2 Md. App. 142 , 233 A. 2d 375 (1967), that Court held that a complaint by a defective delinquent that, as applied to him, Patuxent did not “in fact furnish treatment which supports the Act under the equal protection clause of the Fourteenth Amendment,” was not properly cognizable under the Act. At 143-144. In Robinson v. Director, 3 Md. App. 222 , 238 A. 2d 124 (1968), it held that a contention that a Patuxent detainee was “not then taking treatment at Patuxent” may not be raised in a post conviction proceeding.

At 224. We observe that the Defective Delinquents Act, Code, Art. 31B, provides no procedure for judicial review of grievances made by detainees lawfully confined in Patuxent. The powers conferred by it upon the courts concern ¹³⁴ determination and redetermination of defective delinquency vel non and means of appeal therefrom, §§ 6-11 A. So in Barnes v. Director, 227 Md. 641, 643 , 175 A. 2d 20 (1961), we held that whether an inmate of Patuxent had been “denied proper medical treatment at Patuxent, is irrelevant to any cogent issue involved in a redetermination hearing.” We again so held in disposing of a claim of denial of proper medical treatment in Tippett v. Director, 233 Md. 647, 648 , 197 A. 2d 257 (1964), and in answering a claim of a Patuxent detainee that he had not received psychiatric treatment or therapy since his incarceration, in Dickerson v. Director, 235 Md. 668, 670-671 , 202 A. 2d 765 (1964). In the isolated cases in which the matter of medical treatment at Patuxent has been considered, see Robinson v. Director, supra, it has been with regard to the propriety in the constitutional sense of the treatment afforded inmates in that Institution as fulfilling the purpose contemplated by the Act.

Daniels v. Director, 238 Md. 80 , 206 A. 2d 726 (1965) ; Alt v. Director, 240 Md. 262 , 213 A. 2d 746 (1965). The Act in that context has been held to be constitutional on its face and in its interpretation, application, administration and results. Director v. Daniels, 243 Md. 16 , 221 A. 2d 397 (1966). The short of it is that in this State the courts have steadfastly refused to review the complaints of persons confined in Patuxent and the various penal institutions, for the reason that the redress of grievances of the inmates was for the executive branch of the government.

V The Maryland courts have not been alone in their reluctance to review the decisions and actions of prison administrators. A dogma labelled the “hands-off doctrine” 20 was established and followed as the unanimous ¹³⁵ precedent of a number of courts that “courts are without power to supervise prison administration or to interfere with the ordinary prison rules or regulations.” Banning v. Looney, 213 F. 2d 771 (10th cir. 1954), cert. denied, 348 U. S. 859 (1954). The position of those courts was flatly stated: “We think that it is well settled that it is not the function of the courts to superintend the treatment and discipline of prisoners in penitentiaries, but only to deliver from imprisonment those who are illegally confined.” Stroud v. Swope, 187 F. 2d 850, 851-852 (9th cir. 1951), cert. denied, 342 U. S. 829 (1951). The doctrine was justified by reference to the principle of separation of powers, the administration of prisons being deemed to be exclusively within the jurisdiction of the executive branch.

It was felt that since penal institutions were administered under authority of the executive branch of government, the judicial branch should not interfere. See Powell v. Hunter, 172 F. 2d 330 (10th cir. 1949). Another rationalization for noninvolvement by a court was its lack of expertise in penology with the fears that judicial intervention would subvert prison discipline and undermine the authority of prison officials. Gray v. Creamer, 329 F. Supp. 418 (W.D. Pa. 1971).

And when federal courts were faced with complaints from state prisoners another reason for adhering to the hands-off doctrine was interposed — the principle of federalism proscribing federal intervention in matters solely the concern of the state. See United States ex rel. Atterbury v. Ragen, 237 F. 2d 953 (7th cir. 1956) cert. denied, 353 U. S. 964 (1957). The uniformity with which the hands-off doctrine was followed by both federal and state courts is readily apparent from the expansive list of ¹³⁶ cases cited in footnote 12 of the Note in 72 Yale L. J., supra, at 508. 21 VI In deciding the cases which have come before us involving the treatment of incarcerated persons, we have never determined them in the frame of reference of the constitutional rights of the individual.

Before we can assess our position it is necessary that we consider such rights as they relate to a person lawfully detained at Patuxent. As pointed out herein in quoting Director v. Daniels, 243 Md. at 38 , we have found from the legislative history of the Defective Delinquents Act 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 measure.” Such restraint of a person does not mean that he is stripped bare of his rights. 22 But certain depriva ¹³⁷ tions are a necessary and expected result of being an inmate of Patuxent. “Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v.