407 U.S.

355
92 S.Ct. 2091
32 L.Ed.2d 791

Albert Delanor MUREL et al., Petitioners,

v.
BALTIMORE CITY CRIMINAL COURT et al.
No. 705276.
Argued March 28 and 29, 1972.
Decided June 19, 1972.

Karl G. Feissner, Andrew E. Greenwald, Hyattsville, Md., for petitioners.

Henry R. Lord, Baltimore, Md., for respondents.
PER CURIAM.

Petitioners were convicted of various state crimes and sentenced to fixed terms
of imprisonment. They were then committed to the Patuxent Institution in lieu
of sentence, for an indeterminate period, pursuant to the Maryland Defective
Delinquency Law, Md.Ann.Code, Art. 31B. They sought federal habeas
corpus, challenging on constitutional grounds the criteria and procedures that
led to their commitment, and the conditions of their confinement. They
contend, inter alia, that the statutory standard for commitment is impermissibly
vague, that they are entitled to put the government to the burden of proof
beyond a reasonable doubt, that at the compulsory psychiatric examination
prescribed by the statute they were entitled to have the assistance of counsel
and to invoke the privilege against self-incrimination, and that they are being
denied a constitutional right to treatment. The District Court denied relief sub
nom. Sas v. Maryland, 295 F.Supp. 389 (Md.1969), and the Court of Appeals
affirmed sub nom. Tippett v. Maryland, 4 Cir., 436 F.2d 1153 (CA4 1971).1 We
granted certiorari, 404 U.S. 999, 92 S.Ct. 567, 30 L.Ed.2d 552 (1971), to
consider whether, and to what extent, the constitutional guarantees invoked by
petitioners apply to this kind of commitment process. After briefing and oral
argument, it now appears that this case does not present these issues in a
manner that warrants the exercise of the certiorari jurisdiction of this Court.

1. Of the four petitioners, one has been unconditionally released from

confinement, and the other three are subject to criminal sentences that have not
yet expired, and that would bar their release from custody even if their claims
were to prevail.2 This fact, while not necessarily dispositive of all the claims
presented by these petitioners, casts those claims in a different light, not
contemplated by our original grant of the writ.3 Cf. McNeil v. Director,
Patuxent Institution, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719.

2. Under our decisions in Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15
L.Ed.2d 620 (1966), Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31
L.Ed.2d 394 (1972), and Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32
L.Ed.2d 435 (1972), petitioners' challenge to the Maryland Defective
Delinquency Law should be considered in relation to the criteria, procedures,
and treatment that the State of Maryland makes available to other persons, not
'defective delinquents,' committed for compulsory psychiatric treatment. We
are informed that the statutes governing civil commitment in Maryland are
presently undergoing substantial revision, designed to provide greater
substantive and procedural safeguards to committed persons. Accordingly, it
seems a particularly inopportune time for this Court to consider a
comprehensive challenge to the Defective Delinquency Law.

In these circumstances, the writ of certionari is therefore dismissed as

improvidently granted.

It is so ordered.

Mr. Justice DOUGLAS, dissenting.

Patuxent Institution is a special prison used by the State of Maryland for the
incarceration of 'defective delinquents.' Individuals who have demonstrated
'persistent aggravated anti-social or criminal behavior,' who have 'a propensity
toward criminal activity,' and who have 'either such intellectual deficiency or
emotional unbalance' as to present 'an actual danger to society' may be confined
at Patuxent. Md.Ann.Code, Art. 31B, 5 (1971). The initial determination that
one is a defective delinquent is made judicially and, for those confined to
Patuxent after such a determination, there is the right to seek judicial
redetermination of their status at three-year intervals. Id., 6 et seq. One of the
objectives of Patuxent supposedly is to provide treatment for the inmates so
that they may be returned to society. Director of Patuxent Institution v. Daniels,
243 Md. 16, 3132, 221 A.2d 397, 406 (1966). Should a defective delinquent
not receive treatment, or should the treatment prove inadequate to return him to

society, the inmate might well remain in Patuxent for the remainder of his life.
See McNeil v. Director, Patuxent Institution, 407 U.S. 245, 92 S.Ct. 2083, 32
L.Ed.2d 719.
8

Petitioners brought this action in the District Court challenging various aspects
of their confinement at Patuxent. The District Court denied relief, Sas v.
Maryland, 295 F.Supp. 389 (Md.1969); the Court of Appeals affirmed, Tippett
v. Maryland, 436 F.2d 1153 (CA4 1974); and we granted the petition for a writ
of certiorari. 404 U.S. 999, 92 S.Ct. 567, 30 L.Ed.2d 552. Because I base my
decision on narrow grounds, I do not reach the broader issues tendred by
petitioners.

When a State moves to deprive an individual of his liberty, to incarcerate him

indefinitely, or to place him behind bars for what may be the rest of his life, the
Federal Constitution requires that it meet a more regorous burden of proof than
that employed by Maryland to commit defective delinquents. The Defective
Delinquency Law does not specify the burden of proof necessary to commit an
individual to Patuxent, but the Maryland Court of Appeals has determined that
the State need only prove its case by the 'fair preponderance of the evidence.'
E.g., Crews v. Director of Patuxent Institution, 245 Md. 174, 225 A.2d 436
(1967); Termin v. Director of Patuxent Institution, 243 Md. 689, 221 A.2d 658
(1966); Dickerson v. Director of Patuxent Institution, 235 Md. 668, 202 A.2d
765 (1964); Purks v. State, 226 Md. 43, 171 A.2d 726 (1961); Blizzard v. State,
218 Md. 384, 147 A.2d 227 (1958); and the Sas v. Maryland, 334 F.2d 506
(CA4 1964); Walker v. Director of Patuxent Institution, 6 Md.App. 206, 250
A.2d 900 (1969). Petitioners have thus been taken from their families and
deprived of their constitutionally protected liberty under the same standard of
proof applicable to run-of-the-mill automobile negligence actions.1

10

The Court of Appeals disapproved this standard but, because it felt it

insignificant, nonetheless held it to be consistent with the requirements of the
Due Process Clause:

11

'We might all be happier had (the burden of persuasion) been stated in terms of
clear and convincing proof rather than in terms of a preponderance of the
evidence. However meaningful the distinction may be to us as judges, however,
it is greatly to be doubted that a jury's verdict would ever be influenced by the
choice of one standard or the other. We all know that juries apply the
preponderance standard quite flexibly, depending upon the nature of the case.
In any event, in the present state of our knowledge, choice of the standard of
proof should be left to the state. A legislative (sic) choice of the proponderance
standard, the same standard governing civil commitments of mentally ill

persons who have no history of criminality, ought not to be held in violation of

due process requirements when we have no firm foundation for an evaluation
of the practical effects of the choice.' Tippett v. Maryland, supra, 436 F.2d, at
11581159.
12

Judge Sobeloff dissented in part and would have held the State to a more
stringent burden:

13

'The reasonable doubt standard is indispensable in both criminal and juvenile

proceedings . . . for 'it impresses on the trier of fact the necessity of reaching a
subjective state of certitude of the facts in issue.' . . .

14

'The objections to the preponderance standard apply with equal force in

defective delinquency hearingsindeed they are even more compelling in the
latter class of cases, since indefinite incarceration is at stake. Due process
commands that the jury must be satisfied beyond a reasonable doubt as to all
objective facts in dispute, including the truth of any alleged incidents relied
upon by the psychiatrists in reaching their recommendation.' Id., at 1165
(citations omitted).

15

In considering the constitutionally mandated burdens of proof applicable to

particular types of cases, our decisions have attached greater significance to the
varying standards than did the Court of Appeals below. In Speiser v. Randall,
357 U.S. 513, 520521, 78 S.Ct. 1332, 1339, 2 L.Ed.2d 1460 (1958), we said:

16

'To experienced lawyers it is commonplace that the outcome of a lawsuitand

hence the vindication of legal rightsdepends more often on how the
factfinder appraises the facts than on a disputed construction of a statute or
interpretation of a line of precedents. Thus the procedures by which the facts of
the case are determined assume an importance fully as great as the validity of
the substantive rule of law to be applied. And the more important the rights at
stake the more important must be the procedural safeguards surrounding those
rights.'

17

And see In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 1074, 25 L.Ed.2d 368
(1970) (Harlan, J., concurring).

18

The reason for our continued concern over the applicable burden of proof is
that a lawsuitlike any other factfinding processis necessarily susceptible of
error in the making of factual determinations. The nature of the rights
implicated in the lawsuit thus determines the allocation and degree of the

burden of proof and consequently the party upon whom the risk of errors in the
factfinding process will be placed. We applied this reasoning in Speiser, where
First Amendment rights were implicated:
19

'In all kinds of litigation it is plain that where the burden of proof lies may be
decisive of the outcome. There is always in litigation a margin of error,
representing error in factfinding, which both parties must take into account.
Where one party has at stake an interest of transcending valueas a criminal
defendant his libertythis margin of error is reduced as to him by the process
of placing on the other party the burden of producing a sufficiency of proof in
the first instance, and of persuading the factfinder at the conclusion of the trial
of his guilt beyond a reasonable doubt. Due process commands that no man
shall lose his liberty unless the Government has borne the burden of producing
the evidence and convincing the factfinder of his guilt.' 357 U.S., at 525526,
78 S.Ct., at 1342 (citations omitted).

20

In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d

296 (1971), Mr. Justice Brennan, in an opinion joined by The Chief Justice and
Mr. Justice Blackmun, again applied these principles and reasoned that the
important First Amendment interests present in defamation actions required
plaintiffs to meet an extraordinary burden of proof. Justice Brennan said, 'In
libel cases . . . an erroneous verdict for the plaintiff (is) most serious. . . . (T)he
possibility of such error . . . would create a strong impetus toward selfcensorship which the First Amendment cannot tolerate.' Id., at 50, 91 S.Ct., at
1823. Mr. Justice Brennan thus concluded that a more rigorous burden of proof
was necessary to safeguard the important First Amendment rights involved:

21

'We . . . hold that a libel action . . . by a private individual against a licensed

radio station for a defamatory falsehood in a newscast relating to his
involvement in an event of public or general concern may be sustained only
upon clear and convincing proof that the defamatory falsehood was published
with knowledge that it was false or with reckless disregard of whether it was
false or not.' Id., at 52, 91 S.Ct., at 1824.

22

In re Winship, supra, dealt with an individual's personal liberty which we had

characterized as 'an interest of transcending value' in Speiser, 357 U.S., at 525,
78 S.Ct., at 1342. There, we determined that 'proof beyond a reasonable doubt'
was constitutionally required 'because of the possibility that (an individual
might) lose his liberty' and because of the stigma of a criminal conviction. 397
U.S., at 363, 90 S.Ct., at 1072. And see Woodby v. Immigration and
Naturalization Service, 385 U.S. 276, 285, 87 S.Ct. 483, 487, 17 L.Ed.2d 362
(1966).

23

In the present case, petitioners were deprived of their most basic righttheir
personal libertyunder a burden of proof which was constitutionally
inadequate. The right to liberty is one of transcendent value. Without it, other
constitutionally protected rights such as the right of free expression and the
right of privacy become largely meaningless. Yet Maryland has deprived
petitioners of this right, using a burden of proof which fails to give sufficient
weight to the interests involved.

24

It is no answer to say that petitioners' commitments were in 'civil' proceedings

and that the requirement for proof beyond a reasonable doubt is required only in
'criminal' cases. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967),
and In re Winship, supra, specifically rejected this distinction and looked
instead at the interests involved and the actual nature of the proceedings. See
also Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966);
Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). Nor
would it be persuasive to argue that the difficulty in proving one's state of mind
requires that the State be afforded the benefit of a lesser burden of proof.
Proving a state of mind is no more difficult than many other issues with which
courts and juries grapple each day.2 An individual who is confronted with the
possibility of commitment, moreover, runs the risk of losing his most important
righthis liberty.

25

Speiser and Winship indicate that an individual's personal liberty is an interest

of transcending value for the deprivation of which the State must prove its case
beyond a reasonable doubt. I would follow established precedent and hold that a
State may not subject individuals to lengthyif not indefiniteincarceration
under a lesser burden of proof. Accordingly, I would reverse the judgment
below.

Petitioner Murel was originally committed as a defective delinquent in 1962

and Creswell in 1958; their separate petitions for federal habeas corpus were
denied without hearing in 1963. On appeal, the Court of Appeals consolidated
these and other similar cases, and remanded all of them for a hearing, sub nom.
Sas v. Maryland, 334 F.2d 506 (CA4 1964). The hearing was deferred, by
agreement of the parties, pending the outcome of related litigation in the state
courts, which culminated in the decision in Director of Patuxent Institution v.
Daniels, 243 Md. 16, 221 A.2d 397, cert. denied sub nom. Avey v. Boslow, 385
U.S. 940, 87 S.Ct. 307, 17 L.Ed.2d 219 (1966). The federal habeas hearing was
then held in the consolidated cases, which by this time also included that of
petitioners Hayes and Avey, who had been committed after the Court of

Appeals' remand order. The petitions were again denied, 295 F.Supp. 389
(Md.1969), and the Court of Appeals affirmed, 436 F.2d 1153 (CA4 1971).
2

At the start of this litigation nine years ago both Murel and Creswell were
subject to confinement that was wholly attributable to the Defective
Delinquency Law, their sentences having expired. This is no longer the case
because Murel was recently released, and Creswell was convicted and
sentenced on new charges. We therefore do not reach their claims.

We do not suggest that these claims are moot, or that a case or controversy is
lacking, or that habeas corpus is inappropriate to test the special incidents, if
any, of these defective-delinquency confinements. See Carafas v. LaVallee, 391
U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Jones v. Cunningham, 371
U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); North Carolina v. Rice, 404 U.S.
244, 248, 92 S.Ct. 402, 405, 30 L.Ed.2d 413 (1971).

In petitioner Murel's redetermination hearing on December 21, 1964, for

example, the trial court instructed the jury: 'The burden is on the State to prove
by a preponderance of evidence, as I have
stated to you, that the defendant does come within all phases of the definition of
a defective delinquent.' Trial Transcript 70.
The jury instructions in petitioner Creswell's December 20, 1961,
redetermination trial were similar:
'The burden of proof in this particular case is governed by our normal civil rules
of evidence. The burden of proof is on the State to satisfy you that this
defendant is a defective delinquent. If the State has not satisfied you by a fair
preponderance of the evidence that he is a defective delinquent, or if your
minds are in a state of equal balance, or even balance, after considering all the
evidence al to whether he is or is not a defective delinquent, then it is your duty
to find him to be not a defective delinquent.
'However, if you are satisfied by a fair preponderance of the evidence that he is
a defective delinquent, then it is your duty to so find him to be such defective
delinquent.' Trial Transcript 7576.
The record developed in the District Court also included the jury instructions in
the October 30, 1959, redetermination hearing of Charles Tippett, who was a
petitioner in the District Court:
'The Court informs you that having once been determined to be a defective
delinquent and now that he comes before you and asks to be released as cured

of whatever defect there was, the burden is on him to convince you by a fair
preponderance of the testimony that that is so.' Trial Transcript 40.
2

Bruce J. Ennis, Staff Attorney of the New York Civil Liberties Union and
Director of the Civil Liberties and Mental Illness Project, testified as follows
before the Subcommittee on Constitutional Rights of the Senate Committee on
the Judiciary, 91st Cong., 1st & 2d Sess., 277278 (1969 and 1970):
'As I mentioned earlier, the mentally ill are possibly less dangerous than the
mentally healthy. A five and a half year study of 5,000 patients discharged
from New York State mental hospitals showed that 'patients with no record of
prior arrest have a strikingly low rate of arrest after release. . . . Their over-all
rate of arrest is less than 1/12 that of the general population and the rate for
each separate offense is also far lower, especially for more serious charges.'
Another psychiatrist states that there is 'not a shred of evidence that the
mentally ill are any more dangerous than the mentally healthy.' A diagnosis of
mental illness tells us nothing about whether the person so diagnosed is or is
not dangerous. Some mental patients are dangerous, some are not. Perhaps the
psychiatrist is an expert at deciding whether a person is mentally ill, but is he
an expert at predicting which of the persons so diagnosed are dangerous? Sane
people, too, are dangerous, and it may legitimately be inquired whether there is
anything in the education, training or experience of psychiatrists which renders
them particularly adept at predicting dangerous behavior. Predictions of
dangerous behavior, no matter who makes them, are incredibly inaccurate, and
there is a growing concensus that psychiatrists are not uniquely qualified to
predict dangerous behavior and are, in fact, less accurate in their predictions
than other professionals.
'Because predictions of dangerous behavior are so grossly unreliable, we should
authorize confinement only if the predicted danger is proved 'beyond a
reasonable doubt' rather than by a mere preponderance of the evidence.'
(Footnotes omitted.)