Williams & Fulwood v. Director, Patuxent Institution

Smith, J., delivered the opinion of the Court. Digges, Levine and Eldridge, JJ., dissent and Eldridge, J., filed a dissenting opinion in which Digges and Levine, JJ., concur at page 314 infra. Appellants, Madison Fulwood (Fulwood) and Melvin Williams (Williams), were hAd in civil contempt of court by a Baltimore City trial judge when they refused to cooperate with the staff of Patuxent Institution in mental examinations to determine whether they were “defective delinquents” within the meaning of Maryland Code (1957) Art. 31B, § 5. In order that we might address ourselves to the propriety of the trial court’s action in holding them in contempt we granted the writ of certiorari prior to consideration of the appeals by Williams and Fulwood to the Court of Special Appeals, invoking the provisions of Code (1974) § 12-203 of the Courts and Judicial Proceedings Article.

We had previously granted certiorari to consider the ²⁷⁵ same issue after the decision of the Court of Special Appeals in Savage v. State, 19 Md. App. 1 , 308 A. 2d 701 (1973), but we dismissed that case as moot prior to argument in this Court when Savage agreed to submit himself to the ordered Patuxent examination. We here reach a conclusion similar to that of the Court of Special Appeals in Savage in that we are of the opinion that Williams and Fulwood were properly held in contempt and are not entitled to their liberty. Fulwood was convicted of arson and assault. Williams was convicted of storehouse breaking with intent to steal goods of the value of $100 or more.

In each instance the judge who signed the order referring them to Patuxent was informed by letter that the individuals had precluded the submission of a report within the six-month period specified by § 7 (a) of Art. 31B. Ultimately, written orders were passed on January 21, 1974, requiring each of them — on or before January 25 — to cooperate with the staff and to submit to the series of tests which the institution had long sought to administer. Each order also specified “that any information elicited . . . during the course of . . . examination and evaluation at Patuxent.. . sh[ould] not be used, directly or indirectly, as a basis for subsequent criminal prosecution. . . .” When these men still refused to comply, petitions were filed on January 31, 1974, asking that they be required to show cause why they should not be held in contempt. Orders to that effect were passed on the same day.

The trial court found in each instance after hearing that the January 21 orders requiring Williams and Fulwood to cooperate with the professional staff at Patuxent and to submit to certain testing procedures had been validly issued and that they had willfully disobeyed those orders. As a consequence, each of them was adjudged in contempt on February 20, 1974, and ordered transferred to the custody of the Commissioner of Corrections for confinement until such time as he signified his willingness to obey the January 21 order. The court further ordered that if either of them expressed his willingness to comply, he should be forthwith transferred to Patuxent for a period of 24 hours to be examined by the staff, and then returned to his place of ²⁷⁶ confinement within the Division of Corrections, subject to further order of court. Accordingly, they were transferred to the House of Correction on March 7, 1974, where both remain at this time.

These appeals are from the February 20 orders. The original sentences of Fulwood and Williams have expired. Thus, they would be entitled to their liberty but for the defective delinquency proceedings. They contend here, as they did in the trial court: (1) That Art. 31B does not confer jurisdiction upon the courts to compel submission to a personal examination at Patuxent; (2) That the contempt orders must be vacated because their original sentences have now expired; hence, they are no longer within the class of persons eligible for commitment as defective delinquents; (3) That if allowance of credit were to have been given for good behavior, the sentences would already have expired when the order requiring submission to the examinations was passed; hence, for this reason, Williams and Fulwood were then no longer within the class of persons eligible for commitment as defective delinquents; (4) That they were denied procedural due process because they had been confined at Patuxent for an unreasonable length of time — approximately 39 months — without a judicial determination that such confinement was “warranted”; (5) That the orders requiring submission to the examinations, and the resulting punishment for refusal to obey them, violate their Fifth Amendment privilege against self-incrimination.

Some of the contentions and some of the reasoning here may be better understood by reference to a table of events: January 15, 1970 — Williams sentenced to term of five years dating from October 16, 1969. On the same date he was ordered examined at Patuxent. February 5, 1970 — Fulwood sentenced to term of ²⁷⁷ five years dating from June 13,1969. On the same date he was ordered examined at Patuxent.

November 11, 1970 — letter forwarded from Patuxent to the trial court to the effect that Williams had refused to cooperate in the diagnostic examination thus precluding a report as to his status as a defective delinquent within six months as required by Code (1957) Art. 31B, § 7 (a). Specific reference was made to our holding in State v. Musgrove, 241 Md. 521, 532 , 217 A. 2d 247 (1966), that the time provision was directory rather than mandatory in a situation, as Patuxent put it, “where the delay was attributable to the refusal of the inmate to cooperate with the procedures.” The court was advised that Patuxent “w[ould] continue to take all allowable steps in Williams’ case in order to enable [its staff] to complete the evaluation.” January 19, 1971 — similar letter forwarded to the trial court relative to Fulwood. June 19, 1972 — decision of the Supreme Court in McNeil v. Director, Patuxent Institution, 407 U. S. 245 , 92 S. Ct. 2083 , 32 L.Ed.2d 719 (1972), holding it to be “a denial of due process to continue to hold [an individual] on the basis of an ex parte order committing him for observation.” Under the decision in McNeil an undiagnosed person would be released when his sentence expired, absent other grounds for detaining him. July 10, 1972 — Williams and Fulwood applied for the writ of habeas corpus to Judge Plummer Shearin in the Circuit Court for Montgomery County.

(They were among the litigants in Director v. Cash, 269 Md. 331 , 305 A. 2d 833 (1973), cert. denied, 414 U. S. 1136 (1974).) August 14, 1972 — diagnostic staff report was prepared and forwarded to the trial court on Williams which stated, in essence, that, because ²⁷⁸ of his refusal to cooperate, a diagnostic report as to his status as a defective delinquent could not be prepared. August 15, 1972 — similar diagnostic staff report as to Fulwood prepared and forwarded. August 24, 1972 — Fulwood was ordered to show cause on September 29, 1972, why he should not be held in contempt of court for his failure to cooperate with the Patuxent staff and to submit to a personal examination. September 5, 1972 — a similar order was passed relative to Williams and his hearing scheduled for September 20, 1972.

September 13, 1972 — Williams filed a motion in proper person to dismiss the contempt proceedings. September 19, 1972 — an Assistant Attorney General addressed a letter to the Criminal Court of Baltimore advising that the pending contempt citations of Williams and Fulwood would be postponed because of the pending litigation in Montgomery County. October 4, 1972 — Judge Shearin ordered that certain inmates of Patuxent, including Williams and Fulwood, be transferred to the jurisdiction of the Division of Corrections on the ground that the time requirement in Art. 31B, § 7 (a) is mandatory, notwithstanding the recalcitrance of an inmate. This was contrary to the holding of this Court in Musgrove that the language of § 7 (a) relative to findings was directory and not mandatory.

October 20, 1972 — Williams and Fulwood were transferred from Patuxent Institution to the Maryland House of Correction in accordance with the opinion and order of Judge Shearin. December 14, 1972 — Harlan Lee Savage, the litigant in the test case of Savage v. State, 19 Md. ²⁷⁹ App. 1 , supra, was held in contempt by the Circuit Court for Caroline County for his failure to obey an order of October 3,1972, requiring him to submit to the examinations at Patuxent. (He was also one of the litigants in Cash.) June 14, 1973 — our opinion in Cash was filed reversing Judge Shearin’s order of October 4, 1972. June 28, 1973 — Fulwood was returned from the House of Correction to Patuxent pursuant to our opinion and order in Cash .

July 2, 1973 — Williams was returned from the House of Correction to Patuxent Institution for the same reason. August 20, 1973 — opinion of the Court of Special Appeals filed in Savage upholding the circuit court’s adjudication of Savage as in contempt. September 18, 1973 — report relative to Fulwood forwarded by Patuxent to trial court indicating lack of cooperation by Fulwood. November 8, 1973 — similar report relative to Williams was forwarded to the trial court.

January 21, 1974 — hearing in the Criminal Court of Baltimore on the show cause orders relative to contempt previously mentioned. As it is put in the agreed statement of facts, Williams and Fulwood there contended, among other things, “that the original referral orders did not specifically require them to submit to any test, whereupon a written Order of Court was prepared and served upon each Appellant requiring him to submit to and cooperate with certain enumerated examinations on or before January 25, 1974.” January 31, 1974 — orders passed requiring Williams and Fulwood to show cause at a hearing to be held on February 13 why they should not be held in contempt for their refusal to comply by ²⁸⁰ January 25 with the orders of the trial court that they submit to examination. February 14, 1974 — hearing held relative to Williams. In the words of the agreed statement of facts: “...

Williams preliminarily challenged the jurisdiction of the lower court to issue an order directing him to cooperate with the Patuxent Institution staff and submit to a personal examination. Williams contended that the lower court lacked the power to punish him for noncompliance with said order. Evidence was introduced by the State that on January 22 and January 25, 1974, unsuccessful attempts were made to examine Williams. The lower court found as a fact ‘that contacts were made on those two days requesting that [Williams] submit to the examinations ordered [on January 21, 1974] and that he continued to refuse to cooperate.’ “Williams pointed to the fact that seventeen (17) months had elapsed between the original date set for the show cause hearing, and the instant hearing, informing the court that the September, 1972 hearing was postponed at the State’s request.

Williams contended that the commuted expiration date of his five (5) year sentence had expired in the interval time period. “The February 14 hearing recessed without a ruling on whether the court could exercise jurisdiction in view of the antecedent commuted expiration date. “On February 20,1974, Dr. Sigmund H. Manne, Chief Psychologist, Patuxent Institution, was called as a witness on behalf of the State of Maryland. Dr. Manne, using Williams’ Patuxent file, testified that nothing in the record would lead him to conclude that Williams was incapable ²⁸¹ because of his mental state from cooperating in any of the court ordered tests.... “After Dr. Manne testified, the jurisdictional question was again raised. Williams renewed his contention that his sentence had expired. The State responded that Williams was not entitled to the benefit of a commuted expiration date because he was transferred from Patuxent Institution to the Maryland House of Correction under an order which was later invalidated, and, therefore, he never left the jurisdiction of Patuxent Institution. “At the conclusion of the hearing, Judge Karwacki ruled that the January 21, 1974 order was validly issued by the lower court with jurisdiction, and found Williams in contempt of court for wilful noncompliance therewith.

Judge Karwacki ordered Williams committed to the jurisdiction of the Division of Correction, to be detained thereby until such time as he is willing to comply with the January 21, 1974 Order of Court and submit to a personal examination.” February 20, 1974 — hearing held relative to Fulwood. It is said in the agreed statement of facts: “He also preliminarily raised the contention that the commuted expiration date of his five (5) year sentence had expired on August 6, 1973. However, the court made no ruling on whether this fact divested it of jurisdiction over the contempt proceedings. “Dr. Manne also testified in this hearing on behalf of the State. On the basis of Fulwood’s Patuxent Institution file, Dr. Manne stated that on January 23 and January 25, 1974, two unsuccessful attempts were made to examine [Fulwood] as ordered.

A letter from Harold M. Boslow, Director, Patuxent Institution, to the ²⁸² lower court, dated January 26, 1974, was read into the record, confirming Fulwood’s refusal to be examined. The testimony continued as follows: (Dr. Manne): On the basis of the file alone I cannot state that the man, Mr. Fulwood, has either emotional instability or anything that would prevent him from cooperating with the examination. (Mr. Seidel): Is there anything in the file which would indicate to you that his refusal to cooperate in these tests is anything other than wilful? (Dr. Manne): No, there is nothing in the file that would suggest this to me, from which I could draw that conclusion. “On cross-examination, Dr. Manne stated that while Fulwood’s Patuxent record included reports of prior similar tests and examinations conducted at other state mental hospitals, the results did not refute his conclusion of wilful non-cooperation.. .. * * * “At the conclusion of the hearing, Judge Karwacki, basing his action on Savage v. State, supra, ruled that the January 21, 1974 order was validly issued by the lower court with jurisdiction, and found Fulwood in contempt of court for wilful noncompliance therewith.

Judge Karwacki ordered Fulwood committed to the jurisdiction of the Division of Correction, to be detained thereby, until such time as he is willing to comply with the January 21, 1974 Order of Court and submit to a personal examination.” March 7, 1974 — Williams and Fulwood were transferred to the House of Correction until they purge themselves of their contempt. July 5, 1974 — Williams and Fulwood filed their ²⁸³ petitions for the writ of certiorari pursuant to Code (1974) § 12-203, Courts and Judicial Proceedings Article, before the Court of Special Appeals rendered a decision in the appeals Williams and Fulwood had entered to that court. July 26,1974 — we granted the writ of certiorari. By way of further background we quote all of footnote 4 and a portion of footnote 5 in the State’s brief: “4.

Appellant Williams refused to participate in taking a social history on February 18, 1970, and similarly refused to take the Stanford Achievement Test, a school placement test, on June 12, 1970. He refused psychiatric examination on February 27, 1970, March 12, 1970, May 15, 1970, August 24, 1970, January 21, 1971, September 24, 1971, February 17, 1972, and May 25, 1972. He also refused psychological examination on February 19, 1970, May 18, 1970, January 27, 1971, August 24, 1971, and August 10, 1972. Similarly, Appellant Fullwood refused to participate in a social service history, refused a physical examination, refused psychiatric interviews on six occasions and refused psychological interviews on seven occasions prior to 1974 when he again refused to take the psychiatric and psychological tests.” “5. ... “Appellant Fullwood was found delinquent in 1963 and placed on probation.

In 1966 he was convicted of unauthorized use and sentenced to three months in the Baltimore City Jail. In 1970 he committed the current offenses of arson and assault and was sentenced to one year and five years, respectively, the sentences to run concurrently. Appellant Williams was found delinquent in 1952 and placed on probation. In 1953 he was once found delinquent and once ungovernable and placed in Boys Village.

In 1955 ²⁸⁴ he was found delinquent and committed to Boys Village, followed in 1956 by a subsequent finding of delinquency and commitment to Boys Village. In 1957, Appellant Williams was convicted of larceny from an auto and sentenced to sixty days in the Baltimore City Jail. In 1958 he was convicted of larceny and sentenced to six months in the Baltimore City Jail, and in that same year was convicted of two counts of robbery and sentenced to three years imprisonment. Subsequently, in 1962 he was convicted of assault and sentenced to one year imprisonment; in 1964 he was convicted of assault and burglary and sentenced to five years imprisonment; in 1966 he was convicted of unauthorized use and sentenced to three months imprisonment; in 1968 another conviction of unauthorized use and deadly weapon which resulted in one year imprisonment; and, finally, the current offense for which he received five years imprisonment.” I General Background A defective delinquent is defined in § 5 “as an individual who, by the demonstration of persistent aggravated antisocial or criminal behavior, evidences a propensity toward criminal activity, and who is found to have either such intellectual deficiency or emotional unbalance, or both, as to clearly demonstrate an actual danger to society so as to require such confinement and treatment, when appropriate, as may make it reasonably safe for society to terminate the confinement and treatment.” Maryland’s Defective Delinquent Act came into being in 1951 after extensive and very careful study.

Its basic framework was set forth in the report of the Commission to Study Medico-Legal Psychiatry appointed by Governor William Preston Lane, Jr., pursuant to Joint Resolution Number 16 of the 1947 session of the General Assembly of Maryland. The matter was further studied by the ²⁸⁵ Committee on Medico-Legal Procedure of the Legislative Council of Maryland. See Research Report No. 29, submitted December, 1950. The purpose of the proposal, as stated in the first paragraph devoted to that subject on page 2 of the report, was “to confine defective delinquents until, as a result of the special treatment which they need, it is safe to return them to the community.” It was pointed out that under the law as it existed at that time “our penal authorities are forced to release some men at the expiration of their sentences, who, there is every reason to believe, will upon their release, because of their defectiveness, constitute a grave menace to the lives or property of innocent Maryland citizens.” It was said that “[i]n one sense, the purpose of the proposed law [was] to expand, as a practical matter but not by actual definition, the concept of the area of insanity.” Incorporated in the report was information relative to two individuals with whom the Maryland courts had previously been concerned with the comment relative to them that “[t]here is no measurement of the cost and losses to society and to innocent families caused by preventable crimes, such as the James case, the Duker case, and other similar tragedies,” and that the recommendations made, “if enacted, would prevent at least some of these crimes in the future without the sacrifice of any basic individual rights.” The Honorable Reuben Oppenheimer, then Chairman of the Board of Correction of Maryland, presented a paper on “Criminal Defectives and the Maryland Law” to the Maryland State Bar Association in 1949. 1 See 54 Trans, of Md. St. B. Ass’n. 53 (1949).

He made the comment: “Medical authorities allege that our criminal law takes too little account of proved achievements of psychology and psychiatry, that our jurisprudence ignores the help which medical science stands ready to give to it.” Id. at 54. In light of the constant attack on Patuxent motivated by ²⁸⁶ dissatisfaction with the fact that there is no set limit on the stay at Patuxent, it is interesting to note that Judge Oppenheimer said: “It is suggested that under the proposed safeguards, every proper right of the individual would be protected. It may indeed be contended that the proposed legislation would be enacted, in part at least, to help defectives who cannot be helped under the present law. That consideration, however, would not be of material comfort to a person who, as a result of the commission of a comparatively minor offense, may be deprived of his liberty for his lifetime.

But such an individual may be found, as a matter of fact, to be as dangerous to the community if released as a wanton murderer. If that fact is established in a court of law like any other fact, tragic as his plight is, he can have no greater rights as against society than if he had been adjudicated a lunatic.” Id. at 62-68. (Emphasis added.) It no doubt was as a result of the discussion with Judge Oppenheimer following his address that the provision was written into the law permitting an inmate at Patuxent periodically to have a jury again determine whether he is a defective delinquent, since this was not a part of the original proposal and such right to determination was suggested in that discussion as an additional safeguard. In Director v. Daniels, 243 Md. 16 , 221 A. 2d 397 (1966), cert. denied, 385 U. S. 940 (1966), this Court adopted the opinion of the Circuit Court for Prince George’s County (Digges, C.J.

(now a member of this Court) and Powers, J.) which had considered at great length an attack on the defective delinquency statute. A list of the expert witnesses who testified in that case together with their impressive credentials appears as an appendix to their opinion at pages 66-68 of 243 Md. The findings of fact by the trial court in Daniels included the statement: ²⁸⁷ “The advocates of this approach are cognizant of the fact that mental illness suffered by these offenders often is exceedingly difficult of cure, and will usually require confinement for considerable duration in order effectively to complete the treatment process. They recommend the use of an indeterminate sentence to an institution such as described above so that the offender’s release will be related to a cure of the illness, and not merely to the passage of time. This concept recognizes, also, that some offenders may never be cured, and hence the indeterminate sentence would accomplish the protection of society but result in their confinement for life.” Id. at 51 .

Statutes having concerns similar to that of the Maryland statute are generally referred to as pertaining to “sexual psychopaths.” H. Weihofen, Mental Disorder as a Criminal Defense 195-206 (1954). Our research discloses approximately 25 states with such statutes. Many of these statutes are listed by Weihofen, op. cit, 196. The Maryland statute appears to be unique in the proper use of that much misused word.

Unlike the situation prevailing in many states, conviction of a crime, not mere accusation, is a necessary prerequisite to use of our statute. Another point of difference between the Maryland act and others is that in the interest of protecting society the period of confinement under our statute may extend beyond the original prison sentence. Code (1957, 1971 Repl. Vol., 1974 Cum.

Supp.) Art. 31B, § 6 (a) provides that “request may be made that a person be examined for possible defective delinquency if he has been convicted and sentenced in a court of this State for a crime or offense committed on or after June 1, 1954, coming under one or more of the following categories: (1) a felony; (2) a misdemeanor punishable by imprisonment in the penitentiary; (3) a crime of violence; (4) a sex crime involving: (a) physical force or violence, (b) disparity of age between an adult and a person under eighteen years of age, ²⁸⁸ or (c) a sexual act of an uncontrolled and/or repetitive nature; (5) two or more convictions for any offenses or crimes punishable by imprisonment, in a criminal court of this State.” Such requests under § 6 (b) “may be made by the Department of Correction or by the State’s attorney or assistant State’s attorney who prosecuted the person for a crime or offense specified ... in [§ 6 (a)], on any knowledge or suspicion of the presence of defective delinquency in such person. Such person himself, or his attorney in his behalf, may make such a request of the court. Whenever a request for examination comes from any such source the court may order such person to be examined by the institution for defective delinquents to ascertain if he or she is a defective delinquent. The court also may make such an order on its own initiative.” By § 6 (c) an examination may be requested “at any time after the person has been convicted and sentenced for a crime or offense specified [in § 6 (a)], provided that the said person has been sentenced to a period of confinement in a penal institution or is then serving such a sentence.” A limitation is imposed in that an examination may not “be ordered or made if the said person has been released from confinement for the particular crime or offense of which he was convicted or . . . within six months of the expiration of his sentence.” Section 6 (d) provides that a request for an examination “shall be by petition filed with the court having custody of or jurisdiction over the said person ....” The court shall then pass a formal written order directed to Patuxent Institution ordering such examination.

If “the person to be examined is in the custody of the Department of Correction, such order shall also be directed to [it], which shall forthwith cause the transfer of the person to the custody of Patuxent Institution.” Section 6 (e) states that after an examination has been ordered the person “shall be retained in custody, initially of the Department of Correction until his transfer to Patuxent Institution and thereafter in the custody of Patuxent Institution, until such time as the procedures of [Art. 31B, §§ 5-11, inclusive] have been completed, without regard to whether or not the criminal sentence to which he was last ²⁸⁹ sentenced has expired.” That section further provides that, with the exception of certain instances not here pertinent, “[t]he court which last sentenced the defendant, whether or not the term of court in which he was sentenced has expired shall retain jurisdiction of the defendant for the purpose of any of the procedures specified in §§ 6, 7, 8 or 9” of Art. 31B. The examination is to “be made by at least three persons on behalf of the institution for defective delinquents, one of whom shall be a medical physician, one a psychiatrist, and one a psychologist.” Under § 7 (a) they are required to “assemble all pertinent information about the person to be examined, before proceeding therewith, including a complete statement of the crime for which he has been sentenced, the circumstances of such crime, the court in which he was sentenced, the nature of the sentence, copies of any probation or other reports which may have been made about him, and reports as to his social, physical, mental, and psychiatric condition and history.” On the basis of that information “plus their own personal examination and study of the said person, they [are to] determine whether in their opinion, or in the opinion of a majority of them, the said person is or is not a defective delinquent,” stating “their findings in a written report addressed to the court . . . .” If they conclude that he is not a defective delinquent, then § 7 (a) requires that he “be retained in the custody of the Department of Correction under his original sentence as if he had not been examined for possible defective delinquency,” with the provision that when returned to the custody of the Department of Correction he must receive full credit for the time he spent at Patuxent Institution. Under § 7 (b) the person so examined is entitled, upon his request, to an examination by a private psychiatrist of his choice at the expense of the State except in the instance where he or his attorney initially requested that he be examined as a defective delinquent. If the examiners conclude that the individual is a defective delinquent, then § 8 (a) requires that such person be forthwith summoned before the court, advised of the ²⁹⁰ substance of the report and of the pendency of the hearing provided in § 8 (c), and that he has a “right to be represented at said hearing by counsel of his choice, or if he has no choice, by competent counsel appointed by the court.” Provision is made in § 8 (b) for appointment of counsel if an appearance is not made on behalf of such person “within twenty days following the proceedings set forth in subsection (a) ....” The time for hearing for the determination of whether an individual is a defective delinquent is set forth in § 8 (c).

It is there specified that upon the trial court’s own motion or at the request of either the State or the person allegedly defectively delinquent the issues shall be tried before a jury and that “[t]he court shall direct such jury after hearing to find specially, by its verdict, whether the person is a defective delinquent as defined in § 5.” If a person is determined by a court or a jury not to/ be a defective delinquent, then < § 9 (a) provides that “the court shall order him returned, to the custody of the Department of Correction, and he shall begin or resume his period of confinement on said conviction as if he had not been examined for possible defective delinquency,” with provision that when he is so returned he must receive full credit for such time as has been spent by him “in the institution for defective delinquents or within the custody of the Department of Correction . ...” Section 9 (b) provides: “If the court or the jury, as the case may be, shall find and determine that the said defendant is a defective delinquent, the court shall so inform the defendant, and shall order him to be committed or returned to the institution for confinement as a defective delinquent, for an indeterminate period without either maximum or minimum limits. In such event, the sentence for the original criminal conviction* or any unexpired portion thereof, shall be and remain suspended, and the defendant shall 'no longer be confined for any portion of said original sentence, except as otherwise provided herein. Instead, the defendant shall thenceforth remain in the custody of the institution for ²⁹¹ defective delinquents, subject to the provisions of this article.” A person adjudged a defective delinquent may periodically request further hearing to ascertain whether he is still a defective delinquent. § 10. The mechanism for release from Patuxent is contained in § 13.

By § 12 an institutional board of review is created “consisting] of the director, the three associate directors, the professor of the University of Maryland School of Law who is a member of the advisory board, both members of the Maryland bar who are members of the advisory board and a sociologist to be appointed by the board of Patuxent Institution from the faculty of an accredited institution of higher education in Maryland.” 2 A quorum consists of “[f]ive members, including either the professor of law or one of the members of the bar who is a member of the advisory board . . . .” Provision is made in § 13 (b) for this board 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 such person shall remain classified as a defective delinquent . ...” By § 13 (d) if the board of review as a result of its review and reexamination of any person “believes that it may be for his benefit and for the benefit of society to grant him a leave of absence or parole from the institution . . ., it may proceed to arrange for such leave or parole .... for a period not to exceed one year.” Provision is then made for further review during such period “in order to make further or alternate determination.” Conditions may be attached to such release. “The board may at any time revoke a leave or parole, or change the conditions and arrangements therefor.” Also, it “may . . . request the court which imposed upon the person the original sentence resulting in his being ²⁹² subsequently classified as a defective delinquent, to reinstate the said original sentence; and the said court is authorized and empowered following such a request to reinstate and reimpose the said original sentence, and to cause the said person to be held in custody therefor ... Under § 13 (e) provision is made for leaves of absence “limited to hours during which a person is suitably employed outside' the Institution on such terms as are deemed fair and reasonable by the said board.” If the board of review concludes that a person “has sufficiently improved to warrant his unconditional release from custody as a defective delinquent, it shall so inform whatever court has jurisdiction over the person.” § 13 (f). The court then on the basis of “reports [to it,] study and possible hearing, . . . shall determine whether the person before it shall be released unconditionally from custody as a defective delinquent, released conditionally on a leave of absence or parole, returned to the custody of the Institution as a defective delinquent, or returned to the Department of Correction, to serve the original sentence upon which he was committed prior to being classified as a defective delinquent.” “Maryland’s Defective Delinquent Statute — A Progress Report” prepared by Patuxent under date of January 9, 1973, makes interesting reading. In Table 1, appearing at page 3, it reports the national recidivism rate “most frequently quoted for adult offenders” is 65%.

It then reports as follows relative to patients during the first ten years of operation of Patuxent: Number Recidivism Rate 1. Patients recommended for commitment but not committed by the Courts (not treated, subjected to regular correctional system programs) 156 81% 2. Patients released at rehearing against staff advice, in-house treatment only 186 46% 3. Patients released at rehearing against staff advice, in-house treat ²⁹³ ment plus conditional release experience Number Recidivism Rate 100 39% 4.

Patients released at recommendation of staff and Institutional Board of Review, in-house and continued treatment for three years on parole 135 7% At page 23 the report states that “only 22 (3%) of the first 638 committed patients had not experienced complete or conditional release. Thus, the expressed fear of life confinement as the routine outcome of an indeterminate sentence voiced by certain groups, is not supported by the evidence.” The therapeutic milieu employed, called at Patuxent “The Graded Tier System,” is described at pages 18 and 19 of the report. The intent of the statute is to require confinement and treatment of those individuals who have been convicted of crime and who constitute an actual danger to society, a point well illustrated in the discussion for the Court by Chief Judge Brune in Palmer v. State, 215 Md. 142, 148-152 , 137 A. 2d 119 (1957). It also must be borne in mind, as Judge Henderson put it for the Court in Eggleston v. State, 209 Md. 504, 513-515 , 121 A. 2d 698 (1956), that “[t]he statutory emphasis is on confinement and treatment of these persons rather than on punishment or deterrence.

The statute represents the legislative adoption of concepts that have long been recommended by leading psychiatrists and penologists. See Guttmacher and Weihofen, Psychiatry and the Law, pp. 444-446. . . . The detention is not by way of punishment for a crime, but is preventive and therapeutic.” II Fifth Amendment We first address ourselves to the issue of the Fifth Amendment because if that point were to be decided adversely to the State it would be dispositive of the case. Williams and Fulwood contend that their Fifth ²⁹⁴ Amendment privilege against self-incrimination gives them the right to refuse to cooperate in their court ordered Patuxent examinations.

The Fifth Amendment to the Constitution of the United States is applicable to the states through the due process clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U. S. 1 , 84 S. Ct. 1489 , 12 L.Ed.2d 653 (1964). It provides, in pertinent part, that “[n]o person ... shall be compelled in any criminal case to be a witness against himself .. ..” (Emphasis added.) The key phrase is “criminal case.” There is no constitutional prohibition against compelling testimony in a civil case so long as the information thus obtained cannot be used in a future criminal case or cannot be used as a lead to other evidence that might be so used. Thus, if compelled information could not be used in a criminal prosecution or used to discover other evidence that might be so used, there is no risk of self-incrimination and the Fifth Amendment privilege is not applicable.

In Kastigar v. United States, 406 U. S. 441 , 92 S. Ct. 1653 , 32 L.Ed.2d 212 (1972), cited and discussed in Maryland St. Bar Ass’n v. Sugarman, 273 Md. 306, 309-10 , 329 A. 2d 1 (1974), the Supreme Court held that the Fifth Amendment did not require “transactional immunity,” but only “use and derivative use immunity,” which was granted in that instance by statute. In other words, if an individual persists in refusing to disclose requested information after a grant of “use and derivative use immunity,” he may be held in contempt and confined as was done in Kastigar . In this case the trial judge provided in his order to cooperate “that any information elicited ... during the course of .. . examination and evaluation at Patuxent .. . shfould] not be used, directly or indirectly, as a basis for subsequent criminal prosecution ....” Williams and Fulwood in their brief contend that “ [i]n the absence of statutory authority, which does not exist in Maryland, the lower court had no power to grant [Williams and Fulwood] immunity, -and therefore the State could not compel [their] testimony over a claim of the Fifth Amendment privilege during an examination at Patuxent Institution.” As we see ²⁹⁵ it, the statute by providing for court ordered examinations and, also, by necessary implication, bestows upon a trial court power to grant a recalcitrant individual “use and derivative use immunity.” This is so because to hold otherwise would mean that the order for examination and Rule 420 relative to mental examination, which we\shall discuss in part III of this opinion, would be unconstitutional in their application to that portion of a defective delinquency examination which relates to crimes for which an individual has not been prosecuted on which limitations have not run. We have said that where a statute is subject to two constructions, one of which will result in the legality and effectiveness of the statutory provision being construed and the other of which will make it illegal and nugatory, courts will prefer the construction which will result in its legality and effectiveness.

District Land v. Wash. S. S. C., 266 Md. 301, 312 , 292 A. 2d 695 (1972). We also have held that a statute will be construed so as to avoid a conflict with the Constitution whenever that course is reasonably possible. Deems v. Western Md. Ry., 247 Md. 95, 113 , 231 A. 2d 514 (1967).

This reasoning would be equally applicable to a rule or order of court. Cf. Acting Dir., Dep’t of F. & P. v. Walker, 271 Md. 711, 719, 720 , 319 A. 2d 806 (1974), relative to th€ interpretation to be placed upon acts of state officials. Williams and Fulwood also contend that “ [t]he Fifth Amendment privilege also is available to a defendant to guarantee that he does not provide" the State with testimony that will be used to commit him to an indeterminate sentence at Patuxent Institution,” This contention turns on whether a defective delinquency proceeding is a criminal or a civil proceeding.

If it is a criminal case within the ambit of the Fifth Amendment, then the State is constitutionally barred from using any information given under compulsion of the court order because to do so would be requiring these persons to incriminate themselves. This Court on a number of occasions has answered identical and similar contentions by asserting that defective delinquency proceedings are civil as opposed to criminal. See e.g. McDonough v. State, 253 Md. 547 , 253 A. 2d 517 (1969); ²⁹⁶ Hall v. Director, 245 Md. 687, 691 , 226 A. 2d 669 (1967) (State not required to prove defective delinquency beyond a reasonable doubt and jury not judge of law and fact); Wood v. Director, 243 Md. 731, 733 , 223 A. 2d 175 (1966) (no privilege against self-incrimination; constitutional right to speedy trial not applicable; double jeopardy not applicable; and no right to counsel during examination); West v. Director, 243 Md. 715, 717 , 222 A. 2d 639 (1966) (constitutional right to speedy trial not applicable); Mastromarino v. Director, 243 Md. 704 , 221 A. 2d 910 (1966) (no privilege against self-incrimination; double jeopardy not applicable; and Sixth Amendment right to be confronted with witnesses not applicable); Dickerson v. Director, 235 Md. 668, 670 , 202 A. 2d 765 (1964) (burden of proof is not beyond a reasonable doubt); Blann v. Director, 235 Md. 661, 662 , 202 A. 2d 722 (1964), cert. denied, 380 U. S. 955 (1965) (no right to counsel during examination); Williams v. Director, 232 Md. 632 , 192 A. 2d 785 (1963) (no double jeopardy); Hoverter v. Director, 231 Md. 608, 609 , 188 A. 2d 696 (1963) (“The short answer to the contention that the comment violated a constitutional right against self-incrimination is, again, the fact that this was a civil proceeding.”); Monroe v. Director, 230 Md. 650, 653 , 187 A. 2d 873 (1963) (amendment to statute made subsequent to defendant’s confinement did not constitute an ex post facto law); McCloskey v. Director, 230 Md. 635, 637 , 187 A. 2d 833 (1963), cert. denied, 374 U. S. 851 (1963) (Sixth Amendment right to speedy trial not applicable); Herrman v. Director, 229 Md. 613 , 182 A. 2d 351 (1962) (privilege against self-incrimination not applicable; no double jeopardy; and not an ex post facto law); Simmons v. Director, 227 Md. 661, 663 , 177 A. 2d 409 (1962) (no double jeopardy and not a penal statute so not violative of prohibition against ex post facto laws); Meredith v. Director, 226 Md. 653, 656 , 172 A. 2d 501 (1961) (“In Eggleston v. State, 209 Md. 504 , 121 A. 2d 698 , [(1956)], we held that this law was civil, not criminal, in nature and violated no provisions of the State or Federal Constitutions.”); Purks v. State, 226 Md. 43, 46 , 171 A. 2d 726 (1961) (“Thus, while the burden of persuasion is on the State, a fair preponderance of evidence — and not proof beyond a ²⁹⁷ reasonable doubt — is all that is required to sustain a finding of defective delinquency.”); and Blizzard v. State, 218 Md. 384, 386 , 147 A. 2d 227 (1958) (“We . . . think that it is now quite clear that it is the intention of the General Assembly that such proceedings be regarded as civil in nature as to procedural matters as well [as in substantive matters].”).

In McDonough Judge Finan quoted for the Court from the opinion of the Court of Special Appeals in Wise v. Director, 1 Md. App. 418 , 230 A. 2d 692 (1967). In the latter case the Court of Special Appeals said: “The first two contentions endeavoring to invoke the protection of the Miranda decision must be denied for additional reasons. At the outset, it must be observed that the psychological and psychiatric examinations that are performed at Patuxent are not accusatorial stages of a criminal proceeding and do not constitute the type of ‘in-custody’ interrogation with which the Supreme Court was concerned in Miranda. Furthermore, the purpose of the stage of the defective delinquent proceeding that is being attacked herein is not to determine or to gain evidence to prove that the subject has committed a crime, but rather to discover the inmate’s mental and emotional condition.

Defective delinquency proceedings are civil in nature, Director v. Daniels, 243 Md. 16 (1966), and as the applicant’s statements did not subject him to criminal liability, there is no constitutional infirmity in the manner in which the examination at Patuxent was conducted, McCloskey v. Director, 245 Md. 497 . And a person undergoing examination at Patuxent has no absolute right to remain silent. State v. Musgrove, 241 Md. 521 .” Id. at 421-22. Perhaps the most comprehensive discussion of whether a defective delinquency proceeding is a civil proceeding or a criminal proceeding for the purposes of the Fifth and Sixth Amendments is in the opinion of Judges Digges and Powers in the Circuit Court for Prince George’s County adopted as ²⁹⁸ the opinion of the Court in Director v. Daniels, 243 Md. 16, 37-43 , supra.

They “conclude [d] that the Maryland Defective Delinquency Act is civil in nature .. ..” In Tippett v. State of Maryland, 436 F. 2d 1153 (4th Cir. 1971), cert. dismissed as improvidently granted, 407 U. S. 355 (1972), the court considered numerous constitutional challenges to Maryland’s defective delinquency proceedings, including the contention that they violated both the Fifth and Sixth Amendments to the United States Constitution. Chief Judge Haynsworth answered these contentions for the majority of the court as follows: “Critical to the appellants’ argument is the premise that, without regard to the terminology used, Patuxent is in fact a penal institution, and the proceedings for determination of defective delinquency are equivalent in practice to criminal prosecutions. Almost without exception, their various contentions rest on this foundation. The District Court’s rejection of this basic contention, which we affirm, of necessity defeats their arguments.

As written by the legislature, construed by the courts, and applied by the staff, the Act selects a medically and legally recognizable class of persons for special treatment. Although criminal conduct is necessarily bound up in every case, the inquiry does not focus on particular criminal acts but on the mental and emotional condition of the person thought to be a member of the statutorily defined class. It is that, and no other factor, which ultimately determines his classification and treatment. In this context, the denomination of the proceedings as civil rather than criminal is not a semantic exercise but a factual description of what occurs.

The procedural safeguards erected by the statute are adequate to meet present needs and to protect the petitioners’ constitutional rights. “In sum, the Act represents an enlightened and progressive experiment aimed at rehabilitating ²⁹⁹ persons whose anti-social activities are occasioned, at least in part, by mental disorders.” Id. at 1156-57. Judge Sobeloff, although dissenting in part from that opinion, concurred in the view that the privilege against self-incrimination was not applicable under In re Gault, 387 U. S. 1 , 87 S. Ct. 1428 , 18 L.Ed.2d 527 (1967), stating: “With the continuing reservation that this issue is open to further consideration, I agree, for the present, that the right against self-incrimination cannot be rigidly applied in Patuxent proceeding. I rest, however, not on the asserted ground that the Act is ‘civil’ but that, because of the unusual nature of the necessary inquiries, the legitimate objectives of the legislation would be frustrated were inmates permitted to refuse cooperation. Granting the inmate the right to silence would in many instances thwart the personal examinations and interviews considered indispensable in determining whether the prisoner is or is not a defective delinquent.7 “7.

Petitioners’ reliance on the Supreme Court’s decision in In re Gault, 387 U.S. 1 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967) is misplaced for at least two important reasons. The aim of the inquiry in the Gault hearings was not to ascertain the mental state of the juvenile, but whether he had committed the specific offense with which he stood charged. Here the inquiry is not intended primarily to prove past criminal conduct, but to assess the inmate’s emotional and mental state. Moreover, in Gault the Court discounted the state’s claim that the juvenile process ‘rehabilitated’ its clients.

By contrast, Patuxent, according to the District Court’s finding, does engage in a bona fide treatment program.” Id. at 1162. The privilege against self-incrimination has been held inapplicable to proceedings in other states under similar statutes aimed at sexual psychopaths pursuant to the ³⁰⁰ rationale that these proceedings are “civil” as opposed to “criminal” in nature. See Annot., 24 A.L.R.2d 350 , 362 (1952), relative to sexual psychopaths and § 4 thereof dealing with constitutional objections to those statutes, and Annot., 34 A.L.R.3d 652 (1970), dealing with sexual psychopaths and rights of accused. In § 14 [a] at page 700 of the latter annotation a number of cases are cited with the statement that in those situations the courts have reasoned “that a sexual psychopathy proceeding is civil in nature, as distinguished from a criminal prosecution, [and the courts in those] cases have sustained the compulsory medical examination of an accused sexual psychopath, as against the contention that it constituted a violation of the constitutional protection against self-incrimination.” Of course, after Gault the mere attachment of the label of “civil” to a proceeding does not resolve the question of whether the privilege against self-incrimination is applicable.

See, e.g., Breed v. Jones, 421 U. S. 519 , 95 S. Ct. 1779,1785-86 , 44 L.Ed.2d 346 (1975), and Matter of Spalding, 273 Md. 690, 702-05 , 332 A. 2d 246 (1975). Courts will look behind the label and ascertain whether the proceeding is essentially a criminal case within the ambit of the Fifth Amendment. As explained by Judge Levine for the Court in Spalding, the test to determine whether a proceeding is criminal is two-pronged. He pointed out at 703 that this is made clear by Gault and its progeny.

Under this two-pronged test a criminal case within the ambit of the Fifth Amendment is one where the State or Federal government seeks to impose a criminal or quasi-criminal sanction upon an individual for a violation of its law. In other words, a criminal case is one where the pertinent inquiry is into a violation of law and the consequence is a criminal or quasi-criminal sanction. In Gault and its progeny juvenile delinquency proceedings, even though labeled “civil,” were held to be “criminal” because the inquiry, as put in Spalding at 273 Md. 702 , was into whether the juvenile committed “an act which would be a crime if done by a person who [was] not a child,” and a possible consequence of an affirmative finding was ³⁰¹ deprivation of liberty. In essence, the Court held that a juvenile delinquency proceeding was basically a criminal trial provided for children.

A defective delinquency proceeding is not comparable to the provision in some states for a bifurcated trial where the jury first determines guilt or innocence and then, if the defendant is guilty, determines the sentence to be imposed, since under our statute an individual may not even be transferred to Patuxent for examination until after he has been convicted and