482
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Conclusion
23 D.C. Code § 591 will now replace 18 U.S.C. § 3109 in
prescribing the manner in which local law enforcement officers may
enter homes and vehicles. Federal officers, when acting in the District of
Columbia, will remain under the control of 18 U.S.C. § 3109. Thus,
there will exist a dual standard for the manner of entry in the District of
Columbia, dependent upon whether it is a local or a federal officer who
is making the entry.
The authority of the local police is seemingly expanded by permitting
unannounced entries in more numerous situations on a lower standard
("probable cause" vs. "virtually certain") than was previously required
under 18 U.S.C. § 3109. Under the existing law, for example, local
officers could not enter unannounced simply because marijuana was
easily destroyed; it may be possible for them to do so under § 591.
The creation of the "no-knock" warrant, the provision for a standard
of probable cause, and the codification of additional exceptions to the
announcement requirement create the impression that the exceptions will
now engulf the common law rule that notice must be given prior to the
entry of a home. With the adoption of § 591, the philosophy underlying
18 U.S.C. § 3109 is no longer relied upon. The common law
requirements for a legal forcible entry are enlarged, thus resulting in an
expansion of the discretion and authority of local police officers in their
right to enter and manner of entering a private home to execute a
warrant or effect an arrest.
Irma S. Raker
Prisoners' Rights and Equal Protection
Imprisonment has carried with it the forfeiture of traditional rights
enjoyed by a civilian. However, the law in its humanity has allowed
retention of some of these rights.' Although courts are hesitant to
interfere with internal prison administration, 2 that hesitation has been
1. Ruffin v. Commonwealth, 62 Va. 790, 796 (1871). For a thorough discussion of
prisoners' rights, see Note, ConstitutionalRights of Prisoners:The Developing Law, It0
U. PA. L. REV. 985 (1962). See also Barkin, The Emergenceof CorrectionalLaw and the
A wareness of the Rights of the Convicted,45 NEB. L. REV. 669 (1966); Note, Beyond the
Ken of the Courts:A Critique ofJudicialRefusal to Review the Complaints of Convicts,
72 YALE L.J. 506 (1963) [hereinafter cited as Beyond the Ken of the Courts]; Note, The
Problem of Modern Penology: Prison Life and Prisoner'sRights, 53 IOWA L. REv. 671
(1967).
2. Banning v. Looney, 213 F.2d 771 (10th Cir. 1954), cert. denied, 348 U.S. 859
(1954).
1970-71I]
COMMENTS
overcome when in cases such as Johnson v. A very3 certain constitutional
4
rights of prisoners have been invaded.
The duty to define constitutional breaches for which prisoners can
seek redress falls squarely upon the judiciary.5 In Johnson 6 the court
stipulated that "discipline and administration of state detention facilities
are state functions and are subject to federal authority only when
paramount federal constitutional rights supervene . .
.
.
'7
Generally
speaking, there are three constitutional areas which courts have
considered significant enough to warrant interference with internal
prison administration. These three areas are as follows:
1. unreasonable obstruction of access to the courts;
2. infringement of certain first amendment freedoms;
3. violation of the eighth amendment's prohibition against cruel and
unusual punishment.'
There is emerging a fourth category which may prove most effective in
safeguarding the Constitutional rights of the prisoner. This is the
category of equal protection which is gaining recognition in the field of
prison-to-hospital transfers. It is the purpose of this comment to suggest
how equal protection arguments can be made applicable to all areas of
prisoners' rights.
Equal Protectionand Baxstrom v. Herold
Johnnie Baxstrom was certified insane by a prison doctor while
serving a three year sentence. Upon certification, he was transferred to
Dannemora, a hospital for the criminally insane. The Director of
Dannemora petitioned the county court, requesting that Baxstrom be
civilly committed at the expiration of his penal sentence. Under New
York law, commitment of prisoners at the expiration of their prison
3. 393 U.S. 483 (1969). In State ixrel. Tate v. Cubbage, 210 A.2d 555 (Sup. Ct. Del.
1965), evidence in a mandamus proceeding by Black Muslim inmates of a correctional
institution was sufficient to establish that the inmates had been denied equal protection
of the law in not being provided opportunities to "practice" their religious beliefs and as
to wearing of their religious symbols. In Cooper v. Pate, 382 F.2d 518 (7th Cir. 1967), a
categorical denial by state prison administrators of the right of a prisoner to attend
organized religious services conducted by a recognized minister of his faith while
granting the right to those of other religious faiths would be religious discrimination.
4. 393 U.S. at 483.
5. Beyond the Ken of the Courts,supra note 1, at 506-07.
6. 393 U.S. at483.
7. Id.
8. ConstitutionalRights of Prisoners: The Developing Law, 110 U. PA. L. REv.985
(1962).
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[Vol. 20
term differed from all other civil commitment in that those committed at
the end of their prison term were denied the right to demand a full review
by a jury of a determination of their mental illness, while the right to
demand such review was afforded all those civilly committed. In
addition, a non-prisoner could be committed to a hospital administered
by the Department of Correction only after ajudicial determination that
he was dangerously insane; whereas, the decision to confine a person who
was at the end of his prison term to a hospital for the criminally insane
was solely within the hands of administrative officials. The Supreme
Court held that Baxstrom, who was nearing the end of his prison term,
was entitled to the same treatment as those who were sought to be civilly
committed. 9 Chief Justice Warren stated for the Court:
Equal protection does not require that all persons be dealt with
identically, but it does require that a distinction made have some
relevance to the purpose for which the classification is made...
classification of mentally ill persons as either insane or dangerously
insane of course may be a reasonable distinction for purposes of
determining the type of custodial or medical care to be given, but it
has no relevance whatever in the context of the opportunity to show
whether a person is mentally ill at all. For purposes of granting
judicial review before a jury of the question whether a person is
mentally ill and in need of institutionalization, there is no
conceivable basis for distinguishing the committment of a person
who is nearing the end of a penal term from all other civil
committments. 10
Matthews v. Hardy
In October 1965, Roland E. Matthews began serving a sentence of
four to fourteen years for manslaughter. He was incarcerated at the
Lorton Reformatory until March 1967 when, pursuant to 24 D.C. Code
§ 302 (1967)," he was certified by a psychiatrist as mentally ill and
transferred to St. Elizabeth's Hospital. 12 24 D.C. Code § 302 provides
that if the Director of the Department of Correction believes a prisoner
9. Baxstrom v. Herold, 383 U.S. 107 (1966). For the impact of the Baxstrom decision
on prisoners' rights, see Morris, The Confusion of Confinement Syndrome: A n A nalysis
of the Confinement of Mentally Ill Criminals and Ex-Criminals by the Department of
Correctionof theState ofNew York, 17 BUFF. L. REV. 651 (1968).
10. 383 U.S. at 111-12.
11. 24 D.C. CODE § 302 (1967).
12. Matthews v. Hardy, 420 F.2d 607, 608 (D.C. Cir. 1969), cert. denied, 397 U.S.
1010 (1970).
1970-71]
COMMENTS
is mentally ill, he may refer the prisoner to a psychiatrist.' 3 If the
psychiatrist concurs in the belief, the Director can then transfer the
prisoner to St. Elizabeth's. This streamlined process is not hampered by
any requirement that the prisoner have a hearing.14 Appellant Matthews
alleged in his complaint that his transfer from Lorton to St. Elizabeth's
was violative of the fourteenth amendment's equal protection clause
because she was afforded no judicial hearing. 5
The 1964 Hospitalization of the Mentally Ill Act,16 provides for the
commitment of non-prisoners in the District of Columbia at St.
Elizabeth's. A person sought to be admitted under the 1964 Act 17 is
entitled to a judicial hearing, and if he requests it, a jury trial.' Unlike
Section 302,19 the 1964 Hospitalization of the Mentally Ill Act 2 provides
for detailed procedures protecting the patient's rights. A candidate for
commission under the 1964 Act 2' has a right to appointed counsel, 2 and
a committed civilian has the right to periodic review of his status while in
the hospital z3 If dissatisfied with the hospital's conclusion that he is still
mentally ill, he can have an independent psychiatrist examine him-at
no cost if he is an indigent.24 Where such periodic review results in
5
continued confinement, judicial relief is available?2
Counsel for appellees readily admitted that incarcerated persons were
treated differently than non-prisoners in commitment procedures, but
pointed out such was the legislative intent. 2 Appellees also argued that
since appellant was already in prison serving a sentence, transferring him
13. Under 24 D.C. CODE § 106 (1967), a psychiatrist is available to the Department
of Correction for these and other purposes.
14. In appellant's case the transfer to St. Elizabeth's was effected after a ten minute
interview with a psychiatrist. 420 F.2d at 609.
15. 420 F.2d at 608.
16. The 1964 Hospitalization of the Mentally Ill Act, 21 D.C. CODE §§ 501-03
(1967).
17. Id.
18. Matthews v. Hardy, 420 F.2d 607, 609 (D.C. Cir. 1969), cert. denied, 397 U.S.
1010 (1970).
19. 24 D.C. CODE § 302(1967).
20. The 1964 Hospitalization of the Mentally Ill Act, 21 D.C. CODE §§ 501-03
(1967).
21. Id.
22. Id. § 543.
23. Id. § 546.
24. Id.
25. Id. § 547.
26. 420 F.2d at 609.
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[Vol. 20
to St. Elizabeth's "is an administrative matter which rests within the
sound discretion of the prison authorities." z
The court rejected without comment the appellees' first argument,
that the different treatment of prisoners vis-a-vis non-prisoners in
commitment procedures, was a product of legislative intent.2 Appellees'
second argument, that the court was interfering in prison
administration, was the one upon which the decision was based.29
Relying on Johnson, the court, while conceding that prison
administrators possessed discretion in handling their wards, stated that
such discretion was not unlimited.30 The court held that where
"paramount federal constitutional or statutory rights" came into play,
the prison regulations must yield. 3' To preserve the constitutionality of
§ 302, the court construed it to require that a prisoner be given the same
32
rights as were provided in the District's civil commitment statute.
Statutory construction can be a flexible tool. Its limits were noted
by the Supreme Court in Scales v. United States, 367 U.S. 203
(1961), where the Court pointed out that, although a court "will
often strain to construe legislation so as to save it against
constitutional attack, it must not and will not carry this to the point
of perverting the purpose of a statute. Here we think that reading
the bulk of the 1969 Act's protection into Section 302 does not
pervert its purpose; such construction is consistent with its purpose
and imposes no undue burden on government."u
It is submitted that the court thus concluded the commitment procedures
afforded a prisoner had to be as adequate as those provided for a
civilian.
The Matthews court, aided by the decision in Schuster v. Herold,4
recognized that the stigma associated with being mentally ill was worse
than that associated with being a prisoner, and that for this reason a
prisoner transferred to St. Elizabeth's is twice cursed. 3 Also the court in
Matthews was concerned with the fact that prisoners transferred to a
27. Id. at 610.
28. Id.
29. Id.
30. Id.
31. Id.
32. The 1964 Hospitalization of the Mentally Ill Act, 21 D.C. CODE §§ 501-03
(1967).
33. 420 F.2d at611.
34. 410 F2d 1071, 1073 (2d Cir. 1969), cert. denied, 396 U.S. 847 (1969).
35. 420 F.2d at 611.
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COMMENTS
mental hospital would be subjected to "numerous restrictions and
routines in a mental hospital which differ significantly from those in a
prison." 36 The court stipulated that prisoners who do not have need of
such procedures, should not be subjected to them.37 The Court noted
that the most drastic consequence of placing a person in a mental
institution, who does not belong there, is the possibility that he might
suffer severe emotional and psychic harm.3S
United States ex rel. Schuster v. Herold
In UnitedStates ex rel. Schuster v. Herold,39 the United States Court
of Appeals for the Second Circuit held that a New York statute violated
the fourteenth amendment's equal protection clause because
substantially fewer procedural safeguards were provided for in cases of
transfer of prisoners to an institution for the criminally insane than for
non-prisoners facing involuntary commitment. 0 The court, realizing the
problem referred to above, stated:
In considering the problem posed we are faced with the obvious
but terrifying possibility that the transferred prisoner may not be
mentally ill at all. Yet . . .he will be exposed to physical,
emotional and general mental agony. Confined with those who are
insane, told repeatedly that he too is insane and indeed treated as
insane, it does not take much for a man to question his own sanity
and in the end to succumb to some mental aberation.... .1
In an analysis of the Herold decision, as was noted in 118 UNIV. OF
PA. L. REV. 410,412 (1970):
[B]ecause the court framed the issue in terms of an unreasonable
legislative classification rather than an assessment of due process
requirements of prison commitment proceedings, the decision suggests that an equal protection analysis can successfully be used to
challenge other unreasonable prison deprivations which do not
42
amount to infringement 6f other constitutional guarantees.
36.
37.
38.
39.
40.
Id.
Id.
Id.
410 F.2d at 1078.
Id.
41. Id.
42. Note, Equal Protection and Prison-To-HospitalTransfer: United States ex rel.
Schusterv. Herold, 118 UNIV. OF PA. L. REv.410,412 (1970).
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[Vol. 20
Equal Protection
The equal protection analyses utilized in both Schuster and Matthews
were supported by the Supreme Court's decision in Baxstrom v.
Herold,3 decided three years earlier.
In Schuster and Matthews, appellants were not nearing the end of
their prison terms. Since the holding in Baxstrom is limited to the restrictive facts of a prisoner nearing the end of his prison term, it is likely
that many would take issue with the stipulation that Baxstrom is sound
authority upon which to base equal protection arguments for prisoners.
It is submitted that such an argument misses the mark and misinterprets
Baxstrom. "The Supreme Court struck down the New York system not
because Baxstrom was reaching the end of his sentence, but because it
held dangerousness is not relevant to the procedures for determining
whether a 'person is-mentally ill at all.' "I' As was stated in Schuster:
Baxstrom clearly instructs that the procedures to be followed in
determining whether one is committable must be unaffected by the
irrelevant circumstance that one is or has recently been under sentence pursuant to a criminal conviction, although the fact that one
has committed a crime may be relevant to the substantive conclusion that he is mentally ill. 5
Of the cases citing "Baxstrom for authority, Mtthews and Schuster
seem to extend the equal protection rationale furthest.4" Whether
Schuster and Matthews will provide a solid basis for the equal protection
argument in prisoners' rights cases remains to be seen. Undeniably,
prisoner litigants may be hampered by the fact pattern in Baxstrom. If
Matthews and Schuster are to buttress the equal protection reasoning in
other than prison-to-hospital transfers, they must stand far enough apart
from Baxstrom to acquire an identity of their own.
43. 383 U.S. 107 (1966), noted in 12 VILL. L. REv. 178 (1966); see comment, Equal
Protection and the Commitment of the Insane in Wisconsin, 50 MARQ. L. Rev. 120
(1966).
44. Cameron v. Muller, 387 F.2d 193,201 (D.C. Cir. 1967).
45. 4.10 F.2d at 1081.
46. Bolton v. Harris, 395 F.2d 642 (D.C. Cir. 1968); Cameron v. Muller, 387 F.2d
193, 201 (D.C. Cir. 1967); and People v. Lally, 19 N.Y.2d 27, 224 N.E.2d 87, 277 N.Y.
S.2d 654 (1966), extended Baxstrom to those found guilty by reason of insanity.
Specht v. Patterson, 386 U.S. 605 (1967), held that a convicted sex offender was
entitled to a further hearing before he could be sentenced to an indefinite term as
dangerous or a "habitual offender-and mentally ill." Although Specht referred to
Baxstrom, the basis of decision was the due process clause and not the equal protection
clause as in Baxstrom.
1970-71]
COMMENTS
Conclusion
In Gulf & S.F. Ry. v. Ellis, it was held that a state legislative
classification does not violate the equal protection clause if it rests
"upon some difference which bears a reasonable and just relation to the
Act in respect to which the classification is proposed . . . . In
Matthews, it could be argued that a justification for the difference
between the 1964 Hospitalization of the Mentally Ill Act 48 and § 302 is
the fact that prisoners have committed crimes. In view of Baxstrom,
however, this argument has no validity. There, the court made clear that
prior criminal conduct did not justify substantial differences in the
procedures by which a person was committed to a mental hospital. It is
submitted that the equal protection analysis tendered in Matthews is
self-sustaining and needs no support from the Baxstrom decision. As the
Matthews court stated:
The point here is simply that the judicial procedures in the 1964 Act
were designed to afford the fullest possible ventilation of the
question whether a person is mentally ill. Unless we can say with
assurance that commission of a crime is a highly reliable indicator
of mental illness, prior criminal conduct cannot justify aborting the
full judiciary inquiry into the question of mental illness. Since we
have not been referred to any authority which indicates such a close
nexus between criminal conduct and mental illness, and since there
is no indication that Congress made such a determination when it
enacted 302, we think that to distinguish between criminals and
non-criminals, denying to the former the very important safeguards
which insure a full and fair hearing on the issue of mental illness,
would be arbitrary. 50
The Schuster decision is not self-sustaining.
Perhaps to avoid the appearance of fashioning new law, the Schuster
court based its decision solely on Baxstrom and later cases which
adopted Baxstrom's rationale. Although Schuster discussed some of
the relevant policy considerations, the court did not attempt a thorough
analysis of equal protection principles as applied to the Schuster facts.
47. 165 U.S. 150, 155 (1897).
48. The 1964 Hospitalization of the Mentally Ill Act, 21 D.C.
(1967).
49. 24 D.C.CODE§ 302 (1967).
50. 420 F.2d at610.
CODE
§§ 501-03