Petitioner was convicted of the crime of indecent liberties under a Colorado statute which provided a maximum sentence of 10 years but he was sentenced under the Sex Offenders Act for an indeterminate term of from one day to life imprisonment. The Act may be applied if the trial court believes that a person convicted of specified sex offenses " if at large, constitutes a threat of bodily harm to members of the public, or is an habitual offender and mentally ill." The requisite procedure, a complete psychiatric examination and a report thereof given to the trial judge before sentencing, was complied with in petitioner's case, but no hearing was held. The State Supreme Court approved the procedure, the Federal District Court dismissed a habeas corpus proceeding and the Court of Appeals affirmed. Held: The invocation of the Act, which entails the making of a new charge leading to criminal punishment, requires, under the Due Process Clause, that petitioner be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine and to offer evidence of his own, and that there be findings adequate to make meaningful any appeal that is allowed. Williams v. New York, 337 U.S. 241 , distinguished. Pp. 608-611.
357 F.2d 325, reversed.
Michael A. Williams, by appointment of the Court, 385 U.S. 997 , argued the cause for petitioner. With him on the brief was Hugh A. Burns.
John E. Bush, Assistant Attorney General of Colorado, argued the cause for respondents. With him on the brief were Duke W. Dunbar, Attorney General, Frank E. Hickey, Deputy Attorney General, and John P. Moore, Assistant Attorney General. [386 U.S. 605, 606]
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
We held in Williams v. New York, 337 U.S. 241 , that the Due Process Clause of the Fourteenth Amendment did not require a judge to have hearings and to give a convicted person an opportunity to participate in those hearings when he came to determine the sentence to be imposed. We said:
The question is whether the rule of the Williams case applies to this Colorado case where petitioner, having been convicted for indecent liberties under one Colorado statute that carries a maximum sentence of 10 years (Colo. Rev. Stat. Ann. 40-2-32 (1963)) but not sentenced under it, may be sentenced under the Sex Offenders Act, Colo. Rev. Stat. Ann. 39-19-1 to 10 (1963), for an indeterminate term of from one day to life without notice and full hearing. The Colorado Supreme Court approved the procedure, when it was challenged by habeas corpus (153 Colo. 235, 385 P.2d 423) and on motion to set aside the judgment. 156 Colo. 12, 396 P.2d 838. This federal habeas corpus proceeding resulted, the Court of Appeals affirming dismissal of the writ, 357 F.2d 325. The case is here on a petition for certiorari, 385 U.S. 968 .
The Sex Offenders Act may be brought into play if the trial court " is of the opinion that any . . . person [convicted of specified sex offenses], if at large, constitutes a threat of bodily harm to members of the public, or is an habitual offender and mentally ill." 1. He then becomes punishable for an indeterminate term of from one day to life on the following conditions as specified in 2:
Petitioner insists that this procedure does not satisfy due process because it allows the critical finding to be made under 1 of the Sex Offenders Act (1) without a hearing at which the person so convicted may confront and cross-examine adverse witnesses and present evidence of his own by use of compulsory process, if necessary; and (2) on the basis of hearsay evidence to which the person involved is not allowed access.
We adhere to Williams v. New York, supra; but we decline the invitation to extend it to this radically different situation. These commitment proceedings whether denominated civil or criminal are subject both to the Equal Protection Clause of the Fourteenth Amendment as we held in Baxstrom v. Herold, 383 U.S. 107 , and to the Due Process Clause. We hold that the requirements of due process were not satisfied here.
The Sex Offenders Act does not make the commission of a specified crime the basis for sentencing. It makes one conviction the basis for commencing another proceeding under another Act to determine whether a person constitutes a threat of bodily harm to the public, or is an habitual offender and mentally ill. That is a new finding of fact (Vanderhoof v. People, 152 Colo. 147, 149, 380 P.2d 903, 904) that was not an ingredient of the offense charged. The punishment under the second Act is criminal punishment even though it is designed [386 U.S. 605, 609] not so much as retribution as it is to keep individuals from inflicting future harm. 1 United States v. Brown, 381 U.S. 437, 458 .
The Court of Appeals for the Third Circuit in speaking of a comparable Pennsylvania statute 2 said:
[ Footnote 1 ] Provisions for probation are provided (Colo. Rev. Stat. Ann. 39-19-5-(3) (1963)); and the Board of Parole has broad powers over the person sentenced. (Colo. Rev. Stat. Ann. 39-19-6 to 10 (1963)).
[ Footnote 2 ] The Pennsylvania statute (Pa. Stat., Tit. 19, 1166-1174 (1964)) provides that if a court is of the opinion that a person convicted before it of certain sex offenses " if at large, constitutes a threat of bodily harm to members of the public, or is an habitual offender and mentally ill," it may, " in lieu of the sentence now provided by law," sentence the person to a state institution for an indeterminate period, from one day to life. Pa. Stat., Tit. 19, 1166 (1964). The sentence is imposed only after the defendant has undergone a psychiatric examination and the court has received a report containing all the facts necessary to determine whether it shall impose the sentence under the act. Pa. Stat., Tit. 19, 1167 (1964). If the court, after receiving the report, " shall be of the opinion that it would be to the best interests of justice to sentence such person under the provisions of [the] act, he shall cause such person to be arraigned before him and sentenced to" a state institution designated by the Department of Welfare. Pa. Stat., Tit. 19, 1170 (1964). After a person is sentenced under the act, the state Board of Parole has exclusive control over him. Pa. Stat., Tit. 19, 1173 (1964).
[ Footnote 3 ] The Minnesota statute (Chapter 369 of the Laws of Minnesota of 1939) provided that the laws relating to persons found to be insane were to apply to " persons having a psychopathic personality." It defined the term " psychopathic personality" as meaning the existence in a person of certain characteristics which rendered him " irresponsible for his conduct with respect to sexual matters and thereby dangerous to other persons." The statute was not criminal in nature, and was not triggered by a criminal conviction. A person found to have a " psychopathic personality" would be committed, just as a person found to be insane. See Mason's Minn. Stat. c. 74, 8992-176 (1938 Supp.). [386 U.S. 605, 612]