407 U.S.

245
92 S.Ct. 2083
32 L.Ed.2d 719

Edward Lee McNEIL, Petitioner,

v.
DIRECTOR, PATUXENT INSTITUTION.
No. 715144.
Argued April 20, 1972.
Decided June 19, 1972.

Syllabus
Petitioner, who was given a five-year sentence, was referred under an ex
parte order to the Patuxent Institution for examination to determine
whether he should be committed for an indefinite term as a defective
delinquent. In this proceeding for post-conviction relief he challenges his
confinement after expiration of that sentence as violative of due process.
Respondent contends that petitioner's continued confinement is justified
until petitioner cooperates with the examining psychiatrists and thus
facilitates an assessment of his condition. The trial court denied relief,
holding that a person confined under Maryland's Defective Delinquency
Law may be detained until the statutory procedures for examination and
report have been completed, regardless of whether or not the criminal
sentence has expired. Held: in the circumstances of this case, it is a denial
of due process to continue to hold petitioner on the basis of an ex parte
order committing him to observation without the procedural safeguards
commensurate with a long-term commitment, Jackson v. Indiana, 406
U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435; and without affording him those
safeguards his further detention cannot be justified as analogous to
confinement for civil contempt or for any other reason. Pp. 247252.
Reversed.
E. Barrett Prettyman, Jr., Washington, D.C., for petitioner.
Henry R. Lord, Baltimore, Md., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.

Edward McNeil was convicted of two assaults in 1966, and sentenced to five
years' imprisonment. Instead of committing him to prison, the sentencing court
referred him to the Patuxent Institution for examination, to determine whether
he should be committed to that institution for an indeterminate term under
Maryland's Defective Delinquency Law Md.Ann.Code, Art. 31B (1971). No
such determination has yet been made, his sentence has expired, and his
confinement continues. The State contends that he has refused to cooperate with
the examining psychiatrists, that they have been unable to make any valid
assessment of his condition, and that consequently he may be confined
indefinitely until he cooperates and the institution has succeeded in making its
evaluation. He claims that when his sentence expired, the State lost its power to
hold him, and that his continued detention violates his rights under the
Fourteenth Amendment. We agree.

* The Maryland Defective Delinquency Law provides that a person convicted

of any felony, or certain misdemeanors, may be committed to the Patuxent
Institution for an indeterminate period, if it is judicially determined that he is a
'defective delinquent.' A defective delinquent is defined 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.' Md.Ann.Code, Art.
31B, 5.

Defective-delinquency proceedings are ordinarily instituted immediately after

conviction and sentencing; they may also be instituted after the defendant has
served part of his prison term. 6(b), 6(c).1 In either event, the process begins
with a court order committing the prisoner to Patuxent for a psychiatric
examination. 6(b), 6(d). The institution is required to submit its report to the
court within a fixed period of time. 7(a).2 If the report recommends
commitment, then a hearing must be promptly held, with a jury trial if
requested by the prisoner, to determine whether he should be committed as a
defective delinquent. 8. If he is so committed, then the commitment operates
to suspend the prison sentence previously imposed. 9(b).

In Murel v. Baltimore City Criminal Court, 407 U.S. 355, 92 S.Ct. 2091, 32
L.Ed.2d 791, several prisoners who had been committed as defective

delinquents sought to challenge various aspects of the criteria and procedures

that resulted in their commitment; we granted certiorari in that case together
with this one, in order to consider together these challenges to the Maryland
statutory scheme. For various reasons we decline today to reach those
questions, see Murel, supra. But Edward McNeil presents a much more stark
and simple claim. He has never been committed as a defective delinquent, and
thus he has no cause to challenge the criteria and procedures that control a
defective-delinquency hearing. His confinement rests wholly on the order
committing him for examination, in preparation for such a commitment
hearing. That order was made, not on the basis of an adversary hearing, but on
the basis of an ex parte judicial determination that there was 'reasonable cause
to believe that the Department may be a Defective Delinquent.'3 Petitioner does
not challenge in this Court the power of the sentencing court to issue such an
order in the first instance, but he contends that the State's power to hold him on
the basis of that order has expired. He filed a petition for state post-conviction
relief on this ground, inter alia, pursuant to Md.Ann.Code, Art. 27, 645A. The
trial court denied relief, holding that '(a) person referred to Patuxent under
Section 6, Article 31B for the purpose of determining whether or not he is a
defective delinquent may be detained in Patuxent until the procedures for such
determination have been completed regardless of whether or not the criminal
sentence has expired.' App. 3536. The Court of Appeals of Maryland denied
leave to appeal. App. 3738. We granted certiorari, 404 U.S. 999, 92 S.Ct.
568, 30 L.Ed.2d 552 (1971).
II
6

The State of Maryland asserts the power to confine petitioner indefinitely,

without ever obtaining a judicial determination that such confinement is
warranted. Respondent advances several distinct arguments in support of that
claim.

A. First, Respondent contends that petitioner has been committed merely for
observation, and that a commitment for observation need not be surrounded by
the procedural safeguards (such as an adversary hearing) that are appropriate
for a final determination of defective delinquency. Were the commitment for
observation limited in duration to a brief period, the argument might have some
force. But petitioner has been committed 'for observation' for six years, and on
respondent's theory of his confinement there is no reason to believe it likely that
he will ever be released. A confinement that is in fact indeterminate cannot rest
on procedures designed to authorize a brief period of observation.

We recently rejected a similar argument in Jackson v. Indiana, 406 U.S. 715, 92

S.Ct. 1845, 32 L.Ed.2d 435 (1972), when the State sought to confine
indefinitely a defendant who was mentally incompetent to stand trial on his
criminal charges. The State sought to characterize the commitment as
temporary, and on that basis to justify reduced substantive and procedural
safeguards. We held that because the commitment was permanent in its
practical effect, it required safeguards commensurate with a long-term
commitment. Id., at 723730, 92 S.Ct., at 18501854. The other half of the
Jackson argument is equally relevant here. If the commitment is properly
regarded as a short-term confinement with a limited purpose, as the respondent
suggests, then lesser safeguards may be appropriate, but by the same token, the
duration of the confinement must be strictly limited. '(D)ue process requires
that the nature and duration of commitment bear some reasonable relation to
the purpose for which the individual is committed.' Id., at 738, 92 S.Ct., at
1858. Just as that principle limits the permissible length of a commitment on
account of incompetence to stand trial, so it also limits the permissible length of
a commitment 'for observation.' We need not set a precise time limit here; it is
noteworthy, however, that the Maryland statute itself limits the observation
period to a maximum of six months. While the state courts have apparently
construed the statute to permit extensions of time, see n. 2, supra, nevertheless
the initial legislative judgment provides a useful benchmark. In this case it is
sufficient to note that the petitioner has been confined for six years, and there is
no basis for anticipating that he will ever be easier to examine than he is today.
In these circumstances, it is a denial of due process to continue to hold him on
the basis of an ex parte order committing him for observation.
9

B. A second argument advanced by the respondent relies on the claim that

petitioner himself prevented the State from holding a hearing on his condition.
Respondent contends that, by refusing to talk to the psychiatrists, petitioner has
prevented them from evaluating him, and has made it impossible for the State
to go forward with evidence at a hearing. Thus, it is argued, his continued
confinement is analogous to civil contempt; he can terminate the confinement
and bring about a hearing at any time by talking to the examining psychiatrists,
and the State has the power to induce his cooperation by confining him.

10

Petitioner claims that he has a right under the Fifth Amendment to withhold
cooperation, a claim we need not consider here. But putting that claim to one
side, there is nevertheless a fatal flaw in respondent's argument. For if
confinement is to rest on a theory of civil contempt, then due process requires a
hearing to determine whether petitioner has in fact behaved in a manner that
amounts to contempt. At such a hearing it could be ascertained whether
petitioner's conduct is willful, or whether it is a manifestation of mental illness,
for which he cannot fairly be held responsible. Robinson v. California, 370

U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Civil contempt is coercive in
nature, and consequently there is no justification for confining on a civil
contempt theory a person who lacks the present ability to comply. Maggio v.
Zeitz, 333 U.S. 56, 68 S.Ct. 401, 92 L.Ed. 476 (1948). Moreover, a hearing
would provide the appropriate forum for resolution of petitioner's Fifth
Amendment claim. Finally, if the petitioner's confinement were explicitly
premised on a finding of contempt, then it would be appropriate to consider
what limitations the Due Process Clause places on the contempt power. The
precise contours of that power need not be traced here. It is enough to note that
petitioner has been confined, potentially for life, although he has never been
determined to be in contempt by a procedure that comports with due process.
The contempt analogy cannot justify the State's failure to provide a hearing of
any kind.
11

C. Finally, respondent suggests that petitioner is probably a defective

delinquent, because most noncooperators are. Hence, it is argued, his
confinement rests not only on the purposes of observation, and of penalizing
contempt, but also on the underlying purposes of the Defective Delinquency
Law. But that argument proves too much. For if the Patuxent staff members
were prepared to conclude, on the basis of petitioner's silence and their
observations of him over the years, that petitioner is a defective delinquent,
then it is not true that he has prevented them from evaluating him. On that
theory, they have long been ready to make their report to the court, and the
hearing on defective delinquency could have gone forward.

III
12

Petitioner is presently confined in Patuxent without any lawful authority to

support that confinement. His sentence having expired, he is no longer within
the class of persons eligible for commitment to the Institution as a defective
delinquent. Accordingly, he is entitled to be released. The judgment below is
reversed, and the mandate shall issue forthwith.

13

Reversed.

14

Mr. Justice DOUGLAS, concurring.

15

This is an action in the Maryland courts for post-conviction relief which was
denied, with no court making a report of its decision. The case is here on a
petition for writ of certiorari, which we granted. 404 U.S. 999, 92 S.Ct. 567, 30
L.Ed.2d 553. I concur in reversing the judgment below.

16

McNeil was tried and convicted in a Maryland court for assault on a public
officer and for assault with intent to rape. He took the stand and denied he had
committed the offenses. He had had no prior criminal record. The sentencing
judge asked for a psychiatric evaluation of the accused, though neither side at
the trial had raised or suggested any psychiatric issues. A medical officer
examined him and recommended that he be considered for evaluation and
treatment at Patuxent Institution, a state psychiatric agency.

17

The court sentenced McNeil to 'not more than five years' to prison in
Hagerstown1 and, without modifying or suspending that sentence, ordered him
referred to Patuxent. Under Maryland law a defendant convicted of any felony
or certain misdemeanors may be referred to Patuxent for determination whether
he is a 'defective delinquent.' Md.Ann.Code, Art. 31B (1971). A 'defective
delinquent' is defined in Art. 31B, 5, as 'an individual who, by the
demonstration of persistent aggravated antisocial or criminal behavior,
evidences a propensity toward criminal activity, and who is found to have either
such intellectual deficiency or emotional unbalance, or both, as to clearly
demonstrate an actual danger to society so as to require such confinement and
treatment, when appropriate, as may make it reasonably safe for society to
terminate the confinement and treatment.'

18

Under Art. 31B, the staffwhich includes a psychiatrist, a psychologist, and a

physicianshall examine the person and 'state their findings' as to defective
delinquency in a written report to the court. Art. 31B, 7(a). And it is provided
that one transferred to Patuxent, the person in question shall remain there 'until
such time as the procedures . . . for the determination of whether or not said
person is a defective delinquent have been completed, without regard to
whether or not the criminal sentence to which he was last sentenced has
expired.'2 Art. 31B, 6(e) (Supp.1971).

19

The examination normally entails psychiatric interviews and evaluation,

psychological tests, sociological and social work studies, and review of past
history and records, including police, juvenile, penal, and hospital records.
Personal interviews include a series of questions to elicit and to determine the
past criminal record, and antisocial and criminal behavior of the individual.

20

If the report shows that he should not be classified as a defective delinquent, he

is retained in custody under his original sentence with full credit given for the
time confined at Patuxent. Art. 31B, 7(a) (Supp.1971). If the report says that
he should be classified as a defective delinquent, a hearing is held, at which the
defendant is entitled to counsel and a trial by jury. Art. 31B, 8.

21

McNeil, though confined at Patuxent beyond the term of five years for which
he was sentenced, has never had such a hearing, for he has never been declared
a 'defective delinquent.'3 He has not been so declared and on the other hand has
not been cleared, because he has refused on at least 15 separate occasions to
submit to the psychiatric tests and questions. Nor has he received in the interim
any rehabilitative treatment or training. The State, indeed, intends to keep him
there indefinitely, as long as he refuses to submit to psychiatric or psychological
examinations.4

22

McNeil's refusal to submit to that questioning is not quixotic; it is based on his

Fifth Amendment right to be silent. McNeil remains confined without any
hearing whatsoever as to whether he has a propensity toward criminal activity
and without any hope of having a hearing unless he surrenders his right against
self-incrimination. 5

23

The Fifth Amendment prohibition against compulsory self-incrimination is

applicable to the States by reason of the Fourteenth Malloy v. Hogan, 378 U.S.
1, 84 S.Ct. 1489, 12 L.Ed.2d 653. The protection extends to refusal to answer
questions where the person 'has reasonable cause to apprehend danger from a
direct answer.' Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818,
95 L.Ed. 1118; see Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d
574. The questioning of McNeil is in a setting and has a goal pregnant with
both potential and immediate danger. To be labeled a 'defective delinquent,'
McNeil must have demonstrated a 'persistent aggravated antisocial or criminal
behavior' and 'a propensity toward criminal activity.' Art. 31B, 5.

24

McNeil was repeatedly interrogated not only about the crime for which he was
convicted but for many other alleged antisocial incidents going back to his
spohomore year in high school. One staff member after interviewing McNeil
reported: 'He adamantly and vehemently denies, despite the police reports, that
he was involved in the offense'; 'Further questioning revealed that he had stolen
some shoes but he insisted that he did not know that they were stolen . . .'; 'but
in the tenth grade he was caught taking some milk and cookies from the
cafeteria'; 'He consistently denies his guilt in all these offenses'; 'He insisted
that he was not present at the purse snatching'; 'He was adamant in insisting on
this version of the offense despite the police report which was in the brief and
which I had available and discussed with him'; 'He continued his denial into a
consideration of a juvenile offense . . .'; 'He denies the use of all drugs and
narcotics'; '. . . I explained to him that it might be of some help to him if we
could understand why he did such a thing but this was to no avail.' Brief for
Petitioner 36 n. 43.

25

Some of the questioning of McNeil was at a time when his conviction was on
direct appeal or when he was seeking post-conviction relief. Concessions or
confessions obtained might be useful to the State on a retrial or might vitiate
post-conviction relief. Moreover, the privilege extends to every 'link in a chain
of evidence sufficient to connect' the person with a crime. Malloy v. Hogan,
378 U.S., at 13, 84 S.Ct. at 1496. Whether or not a grant of immunity would
give the needed protection in this context is irrelevant, because we are advised
that there is no such immunity under state laws.

26

Finally, the refusal to answer results in severe sanctions, contrary to the

constitutional guarantee.

27

First, the staff refuses to diagnose him, no matter how much information they
may have, unless he talks. The result is that he never receives a hearing and
remains at Patuxent indefinitely.

28

Second, if there is no report on him, he remains on the receiving tier

indefinitely and receives no treatment.

29

Third, if he talks and a report is made and he is committed as a 'defective

delinquent,' he is no longer confined for any portion of the original sentence.
Art. 31B, 9(b). If he does not talk, McNeil's sentence continues to run until it
expires and yet he is kept at Patuxent indefinitely. We are indeed advised by
the record in the Murel case that 20% of Patuxent inmates at that time were
serving beyond their expired sentences and of those paroled between 1955 and
1965, 46% had served beyond their expired sentences.

30

Whatever the Patuxent procedures may be calledwhether civil or criminal

the result under the Self-Incrimination Clause of the Fifth Amendment is the
same. As we said in In re Gault, 387 U.S. 1, 4950, 87 S.Ct. 1428, 1455
1456, 18 L.Ed.2d 527 there is the threat of self-incrimination whenever there is
'a deprivation of liberty;' and there is such a deprivation whatever the name of
the institution, if a person is held against his will.

31

It is elementary that there is a denial of due process when a person is

committed or, as here, held without a hearing and opportunity to be heard.
Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326; Humphrey v.
Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394.

32

McNeil must be discharged forthwith.

But not after he has served all of it. The statute has always provided that no
examination may be ordered or held if the person has been released from
custody; since 1971 it has always prohibited the examination if the person is
within six months of the expiration of sentence. 6(c), as amended in 1971.
The State asserts that about 98% of the referrals to Patuxent are made
immediately after conviction. Tr. of Oral Arg. 27; see Respondent's Brief 82 n.
33.

The statute originally required the report to be submitted within six months, or
before expiration of sentence, whichever later occurs. Since 1971, it has
required a report within six months, or three months before expiration of
sentence, whichever first occurs. 7(a), as amended in 1971. The state courts
have construed the statute to permit extension of the allowable time, however,
in the case of a noncooperative defendant who resists examination. State v.
Musgrove, 241 Md. 521, 217 A.2d 247 (1966); Mullen v. Director, 6 Md.App.
120, 250 A.2d 281 (1969).

Brief for Petitioner 6 n. 5; see Art. 31B, 6(b): request for examination is made
to court 'on any knowledge or suspicion of the presence of defective
delinquency in such person.' It appears that in this case the trial court issued the
order sua sponte; prior to sentencing, the court ordered a psychiatric evaluation
by its own medical officer, who in turn recommended referral to Patuxent for
further evaluation and treatment.

Under Maryland law that sentence was subject to statutory reductions for good
behavior, industrial or agricultural work, and satisfactory progress in education
and vocational courses. Md.Ann.Code, Art. 27, 700 (1971).
MrNeil would have been eiglible for parole after one-fourth of the term or a
little over one year.

At the time of McNeil's referral, the Act required that the report be filed no later
than six months from the date he was transferred to Patuxent or before
expiration of his sentence, whichever last occurred. Md.Ann.Code, Art. 31B,
7(a) (1957 ed., Supp.1966). An amendment effective July 1, 1971, required that
the report be filed no later than six months from the date he was transferred to
Patuxent or three months before expiration of his sentence, whichever occurs
first. Art. 31B, 7(a) (Supp.1971).

Detention beyond the expiration of courtimposed sentences occurs in

Communist China where 'public security organs (have) the authority to impose
as well as administer punishment' and 'the discretionary power to extend the

duration of imprisonment beyond the original sentences.' Shao-chuan Leng,

Justice in Communist China 34 (1967).
4

In the District Court proceedings in Murel v. Baltimore City Criminal Court,

407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791, Dr. Boslow, the Director of
Patuxent, testified:
'(The Court) . . . Take the case of a person who is referred for diagnosis and he
fails, let us say, 100 per cent, to cooperate; he won't talk to anybody, he won't
undergo any tests, he won't participate, though I don't think he gets group
therapy.
'(Dr. Boslow) No. sir.
'(The Court) But he will do absolutely nothing and will take no advantage of
whatever opportunity if any there may be.
'He, therefore, assuming that the law is valid, and assuming that the
administration in that respect is supportable, could he remain there indefinitely
unclassified? Is that correct?
'(Dr. Boslow) Under the present state of things, yes.'

As stated in a provocative and searching study in Virginia,

'Certainly, a prisoner is not entitled to all the constitutional rights enjoyed by
free citizens, but the burden of showing what restrictions are necessary for the
preservation of prison order should fall upon prison officials. Widespread,
sweeping denials of freedom should not be tolerated. Ideally, the legislative and
executive branches of government should decided the extent to which liberty
must be denied. No organ of government is better suited than the legislature to
consider the penological developments of the last few decades in order to
determine the extent to which restrictive practices are warranted. But after
legislative command or in its absence, the courts must decide whether the
balance of competing interests effected by legislative compromise or executive
fiat comports with specific constitutional guarantees and traditional notions of
due process. In this context the 'hands-off doctrine' has no place. The judiciary
functions as more than a final arbiter; it has a responsibility for educating the
public and, where it fails to act, it functions to legitimize the status quo. The
simple failure of the courts to review prison conditions blunts the success of
important constitutional inquiries, impedes the flow of information and
encourages abuse.' Hirschkop & Millemann, The Unconstitutionality of Prison
Life, 55 Val.L.Rev. 795, 835837 (1969).