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IN RE: Charles Ray BYE on Habeas Corpus. (1974)

Court of Appeal, Fourth District, Division 2, California.

IN RE: Charles Ray BYE on Habeas Corpus.

Cr. 6100.

Decided: January 23, 1974

Evelle J. Younger, Atty. Gen., and Michael D. Wellington, Deputy Atty. Gen., for appellant. Rowan K. Klein, Beverly Hills, of American Civil Liberties Union of Southern Cal.For respondent.


Respondent is a patient committed to the California Civil Addict Program who, until March 14, 1973, was on conditional release to outpatient status. On March 14, he was taken into custody by his outpatient supervisor for a violation of the conditions of that outpatient status. On April 11, the Narcotic Addict Evaluation Authority ordered that his outpatient status be suspended and he was returned to the California Rehabilitation Center. He was not given written notice of the charges which led to his return nor was he given either of the revocation hearings described in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484.

The question is whether Morrissey applies to the suspension of outpatient status by the Narcotic Addict Evaluation Authority. We hold that it does not.

Morrissey held that due process necessitates a dual hearing before a prisoner's parole can be revoked—an in-community prerevocation hearing and an in-prison revocation hearing.

The first is to be a reasonably prompt informal inquiry conducted by an impartial hearing officer near the place of the alleged parole violation or arrest to determine if there are reasonable grounds to believe that the arrested parolee has violated a parole condition. For the purpose of this in-community prerevocation hearing, the parolee is to be given prior notice of the inquiry, its purpose and of the alleged violation. At this hearing, the parolee may present relevant information and question adverse witnesses. The hearing officer is to digest the evidence on probable cause and state the reasons for holding the parolee for the Parole Board's decision.

The in-prison revocation hearing is to be conducted reasonably soon after the parolee's arrest. The minimum due process requirements are: (1) written notice of claimed violations of parole; (2) disclosure to the parolee of evidence against him; (3) the opportunity to be heard in person, to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses; (5) a neutral and detached hearing body, such as a traditional parole board; and (6) a written statement by the fact finders as to the evidence relied on and the reasons for revoking parole.1

We think that due process concepts do not demand such highly formalized procedures for the termination of the conditional release of patients on the Civil Addict Program.

Morrissey made clear that the essence of a due process analysis is a balancing of interests. ‘[D]ue process is flexible and calls for such procedural protections as the particular situation demands. ‘[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.’ (Citation omitted.)' (Morrissey, supra, 408 U.S. at p. 481, 92 S.Ct. at p. 2600.)2

As the result of this balancing analysis in the parole and probation revocation situations, the Supreme Court has concluded that the individual's interest was high enough and the governmental interest flexible enough that specified notice and hearings were required.

The questions thus presented are:

(1) Are there significant, relevant differences between parole and probation revocation and the suspension of outpatient status? We hold that there are.

(2) As the result of these differences is the due process balancing analysis called for in Morrissey altered? We hold that it is.

(3) With these differences plugged into the analysis does due process require the application of Morrissey to the outpatient situation? We hold that it does not.

Respondent contends that Morrissey applies since the termination of a conditional release from the Civil Addict Program involves ‘a deprivation of liberty’ for the person involved. He further contends that the status of the individual, i. e., his outpatient status in a treatment program, is not significantly distinguishable from that of a parolee or probationer to remove the conditional release situation from that of the paroled convict or criminal defendant on probation insofar as Morrissey standards are concerned. We disagree with both contentions. The first is too simplistic. The second fails to approach the true concept of the Civil Addict Program.

In In re Marks, 71 Cal.2d 31, 77 Cal.Rptr. 1, 453 P.2d 441, the Supreme Court of this state examined the requirements of procedural due process in suspensions of outpatient status. The court's conclusion in that case was that due process requires neither notice nor hearings prior to the suspension of the outpatient status. Since Marks was decided before the United States Supreme Court's decision in Morrissey, Marks is obviously not direct authority on the present issue. Marks does, however, present a significant analysis by the Supreme Court of this state of the functions and goals of the Civil Addict Program. That case compared the outpatient program with the Adult Authority's parole program and concluded that there were ‘significant differences.’ (Marks, supra, p. 50, 77 Cal.Rptr. 1, 453 P.2d 441.) Even though the holding of Marks is not definitive in the face of Morrissey, the Supreme Court's interpretation of the outpatient program is still accurate.

Having examined the ‘elaborate statutory safeguards' surrounding an inmate's original commitment to the Civil Addict Program, the court in Marks observed that:

‘When at some later date the NAEA in its discretion grants such a person a conditional release, ‘its action, in the very nature of things, is tentative and may be changed for cause. Such procedure presents no federal question.’ (Citation omitted.)' (Marks, supra, at p. 47, 77 Cal.Rptr. at p. 12, 453 P.2d at p. 452.)

Addressing itself to the requirements of due process in suspensions of outpatient status, the court offered the following analysis:

‘Whether any particular rule of criminal practice should be applied in a narcotics addict commitment proceeding depends, rather, ‘upon consideration of the relationship of the policy underlying the rule to the proceeding.’ (Citation omitted.) Two principal policies are served by the rule authorizing revocation of conditional release without notice and hearing. First, it permits the authorities to promptly return the releasee to custody, thus minimizing the danger that he will further relapse or will go into hiding. (Citation omitted.) Second, to hold such a hearing every time a releasee is suspended, for whatever cause, would impose an excessive burden on the machinery of the administration of justice, far outweighing any speculative benefit.

‘Similar policies are vital to the operation of the narcotics addict commitment program. We have recognized that ‘the physical and psychological grip of narcotics addiction is so strong that at some point in the treatment process many addicts will tend to rebel and turn uncooperative, preferring in effect the known consolations they find in drug use to the unknown problems they fear having to face upon rehabilitation’ (citation omitted). When such a person fails on outpatient status, his reversion to illegal narcotics proceeds swiftly. Unless the rehabilitation authorities are empowered to act with equal swiftness to remove him from the contaminating environment and provide him with the necessary physiological and psychological support, the timetable of his recovery may be severely set back. It is for this reason that in In re Trummer, (1964) supra, 60 Cal.2d 658, 661, 36 Cal.Rptr. 281, 388 P.2d 177, we characterized this aspect of the outpatient program as the ‘immediate return for further treatment if a relaspe should occur.’ (Italics added.)

‘Secondly, the practical difficulties entailed in giving every CRC releasee a full-dress hearing on suspension are even greater than in the case of Adult Authority parolees, for the proportion of persons affected is much higher. During the most recent period for which statistics are available (1967), 55.2 percent of the men and 54.8 percent of the women released on outpatient status were suspended again in the same year. (Citation omitted.) These figures should be read in the light of the view of the CRC administrators that suspension and return of an outpatient, usually for a brief period, does not denote ultimate failure, and should be considered rather as a step in the total process of rehabilitation. (Citations omitted.) Indeed, the Legislature appears to have contemplated such a sequence, declaring its intent (Welf. & Inst.Code, § 3000) that outpatient status be granted to persons who show signs of progress ‘after an initial or subsequent periods of treatment and observation’ (italics added). Yet in any program in which one out of every two persons conditionally released is likely to be brought back for further treatment several times before final discharge, it is obvious that to require a high degree of formality in processing each return would render the whole operation unworkable.' (Marks, supra, 71 Cal.2d at pp. 48–49, 77 Cal.Rptr. at p. 12, 453 P.2d at p. 452, fns. omitted.)

In the recent case of People v. Myers, 6 Cal.3d 811, 100 Cal.Rptr. 612, 494 P.2d 684 (a search and seizure case involving an outpatient), the court again recognized the distinction between the outpatient and the parolee.

‘However, as an outpatient is neither a parolee nor a probationer, analogies with the status of such persons is an unsatisfactory approach in determining whether outpatients can be subjected to searches by reason of their status alone. Rather, we must look to the particular policy which the commitment program serves. In a similar situation we have said: ‘As a further ground of distinction, petitioner stresses that conviction is ‘criminal’ and parole is a matter of ‘grace,’ while commitment is ‘civil’ and outpatient release is a matter of ‘discretion.’ Little is gained by the use of such labels. Whether any particular rule of criminal practice should be applied in a narcotics addict commitment proceeding depends, rather, ‘upon consideration of the relationship of the policy underlying the rule to the proceeding.’'' (People v. Myers, supra, 6 Cal.3d at pp. 816–817, 100 Cal.Rptr. at p. 615, 494 P.2d at p. 687.)

The Supreme Court then quoted section 3000 of the Welfare and Institutions Code, which establishes the policy for the commitment program and said: ‘It is readily apparent that the Legislature intended to treat an outpatient as someone who is recovering from an illness.’ (Myers, supra, 6 Cal.3d, at p. 817, 100 Cal.Rptr. at p. 616, 494 P.2d at p. 688.)

If the treatment concept of the Civil Addict Program is to be given reasonable consideration, certain flexibility must be afforded in that treatment. The courts have long recognized that when involved in a treatment program, the courts must rely on the judgment of the professional experts. Thus, in People v. Hakeem, 268 Cal.App.2d 877, 74 Cal.Rptr. 511, in discussing the determination of eligibility to the Civil Addict Program, the court said: “But whether or not any given defendant can be treated with success is a fact which, in the last analysis, must be determined not by judges but by people trained in that field and actually engaged in the treatment process. Hence, out of practical necessity, the statute leaves to the professional experts the final decision on whether or not treatment should be begun or continued.” (Hakeem, supra, at p. 882, 74 Cal.Rptr. at p. 513.)

Subjecting all suspensions of outpatient status to the double-barrelled Morrissey formula simply is not workable. Admittedly, many patients are returned because of the commission of new crimes or the resumption of the use of illegal narcotics. However, situations often arise in which the professional expert—the outpatient supervisor—notices disturbing change in the personality of the released patient, changes not visible to the untrained eve. Based on his expertise, the outpatient supervisor decides that the patient must be immediately returned to the institution for further treatment. Such was the instant case. Respondent had committed no new crime and there was not indication that he had resumed his use of narcotics. Nevertheless, because of his bizarre and irrational behavior, his outpatient supervisor determined that he was in immediate need of further treatment in a closed setting.3

The treatment aspect of the Civil Addict Program makes the release to outpatient status very tentative. The obvious aim of the program is to teach the addict to deal with his problem in the community environment.4 Therefore, it is reasonable and proper that the authorities move the inmate quickly into the outpatient phase of his treatment. Just as obviously, the result is that many return. This early release aspect of the treatment program results in a disproportionate percentage of returns. For a parolee it is obviously easier not to rob a bank than it is for a narcotics addict, burdened with the crushing problem of addiction, not to get a fix.5 Thus, the court in Morrissey estimated that 35 to 45 percent of all parolees are subject to revocation and are returned to prison. According to the record in this case, the Civil Addict procedures record of suspension of outpatient status ranges closer to 70 percent and up to 75 percent. Many, if not most, patients are released over and over again. On December 31, 1972, 42.4 percent of males and 39 percent of females on outpatient status were on that status for the second or more times. Thus a very high percentage of addicts require several releases before success is achieved. There are many stumbling falls before the patient walks.

It should also be kept in mind that while the consequences of a return from outpatient status are a loss of liberty, it is a loss of liberty which is substantially less grievous than that of the parolee or the probationer. For a violation of parole, the parolee faces a return to prison for the balance of his sentence, a period of time usually measured in units of years. The probationer faces a prison sentence and again we measure the time in years. On the other hand, the return to the Civil Addict Program is brief with two to three months being the median time. Morrissey stated that its prescribed procedures were not time consuming and estimated that two months was a proper period to be allowed for conducting the hearings. (Morrissey, supra, 408 U.S., at p. 488, 92 S.Ct. 2593, 33 L.Ed.2d 484.) If that period or something akin thereto is realistic,6 we then face a bleak situation for the outpatient where the patient's loss of liberty would be doubled in order to afford him due process before his treatment program begins anew. Or if the determination of the propriety of the suspension is made concurrently with the treatment program, his normal release to outpatient status occurs approximately the same time the determination is made as to whether or not he should have been returned in the first place. Neither of these makes any sense.7

Again, while we face up to the fact that many, if not most participants in the Civil Addict Program, are unwilling patients, nevertheless, applying the Morrissey system of notice and hearing threatens to impose an undesirable adversary atmosphere which would further jeopardize the treatment program—which should be a cooperative effort. Realistically and candidly, we recognize that the cooperative effort is usually rather one-sided, nevertheless, it is a treatment program and should be treated as such before being carelessly discarded or crushed under the wheels of Morrissey.

To summarize: The Civil Addict Program is a noncriminal program of therapy for those with a diagnosed physical and psychological illness—narcotic addiction. This addiction is usually superimposed on underlying instability which makes any treatment difficult. The initial phase of this treatment program is a comparatively brief period of institutionalization with traditional exposure to psychiatrists, psychologists and group oriented therapy. However, an essential and proven part of the program is early release from the institutionalized safety of the hospital in order the the patient may have an opportunity to deal with his problem in the community environment. Hospital care without community adjustment is a proven failure. However, because of the very nature of the addict's illness, any earlier release is fraught with danger. Thus in a very high percentage of cases, the early release results in failure or, to put it more accurately, set back. This necessitates an immediate return for a brief period of hospitalization. This, in turn, is only a step toward another early release. Thus releases are an essential part of the treatment process and not to be construed in any way as early termination of the program. Release and return. Release and return. These are an essential part of a proven program of therapy. Thus, ‘. . . to require a high degree of formality in processing each return would render the whole operation unworkable,’ and to afford each returned patient a full blown Morrissey hearing on each of his numerous returns ‘would . . . impose an excessive burden on the machinery of the administration of justice, far outweighing any speculative benefit.’ (Marks, supra, 71 Cal.2d at pp. 48–49, 77 Cal.Rptr. at p. 13, 453 P.2d at p. 453.)

Basic social interests of the People of the State of California are threatened in a significant way by the proposed application of Morrissey to the Civil Addict Program. The application of Morrissey to this program would mean either a total loss of an essential narcotic treatment program or a great reduction in its efficiency, coupled with an extremely high cost burden. At the same time it offers benefits to the individual patient which are frankly doubtful. It threatens to reduce the individual's chance of receiving effective treatment for his drug addiction. On balance, it would appear that both the state and the individual have much to lose and little to gain by the application of Morrissey to the outpatient. Careful analysis is called for before the program goes out the window and we return to the hopeless revolving door practice of throwing the narcotics addict into jail over and over again with meticulous attention to his constitutional rights but with no measurable benefit either to him or to society.

The analysis and rationale of the Civil Addict Program made by Marks is as valid today as when that opinion was first published (1969). The intervention of Morrisey has not changed that analysis or that rationale. They afford ample ground for a valid distinction between a parolee or probationer and one who enjoys the status of an outpatient in the Civil Addict Program. This distinction is such that lavish adherence to the procedures outlined in Morrissey is not necessary in order to comply with basic principles of due process.8

The order granting the respondent's petition for writ of habeas corpus is reversed.


1.  In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, the Morrissey standards were applied to a revocation of probation. (See also People v. Vickers, 8 Cal.3d 451, 457, 105 Cal.Rptr. 305, 503 P.2d 1313; People v. Youngs, 23 Cal.App.3d 180, 99 Cal.Rptr. 901.)

2.  In another context the Supreme Court had referred to due process as an ‘elusive concept’ and stated that its content may vary with circumstances and the necessities of the situation. (Moyer v. Peabody, 212 U.S. 78, 84, 29 S.Ct. 235, 53 L.Ed. 410.)

3.  A quick review of respondent's file shows far better than reams of legalistic argument the stark need for more flexibility in the outpatient release program than would be offered by strict compliance with Morrissey demands.The respondent is a deeply disturbed person with an acute and long-lasting narcotics problem. His is a tragic history of society's efforts to be of aid to him and his own efforts to fight his addiction.He was originally admitted to the California Rehabilitation Center in 1962 as a voluntary admittee for the use of narcotics.Then in 1968, he was convicted of the sale of narcotics and in that same year was committed to CRC as a narcotics addict. The chronology of his case between that date and the present is as follows:In 1969, he was released to outpatient status and five months later his outpatient status was suspended and he was returned to CRC.Twice in 1970 he had temporary releases and was returned.Later in 1970, he was again released on outpatient status and seven months later his outpatient status was suspended and he was returned.In 1971, he was again released on outpatient status until 1973 when that status was again suspended and he was again returned to CRC. This is the present situation of which he now complains.The record shows that he was returned in the instant case not because of any new criminal offense (in the interim after his 1971 releases he had four drunk arrests and a voluntary commitment to an alcoholic rehabilitation program none of which resulted in a suspension of his outpatient status), but because of bizarre, erratic and irrational behavior showing definite signs of mental instability. He had apparently become infatuated with a neighbor and began annoying her, threatened her husband, beating on their door, any yelling obscenities. He began a series of bizarre phone calls to his supervisor, became erratic in his conversation, claimed his apartment was bugged, talked about buried microfilms and buried stocks and bonds and began a seige of letter writing and phone calls. To his supervisor, ‘he sounded as if he needed hospitalization’ so he was taken into custody. He received an emergency psychiatric evaluation. The diagnosis was that he had a probable paranoid personality. It was recommended that he have further inpatient psychiatric analysis and treatment. A month later another psychiatric diagnosis was schizophrenia, paranoid type, with a recommendation for close psychiatric supervision. A month later, after further study and evaluation, the recommendation was that he receive an early release because further stay as an inpatient would probably be counterproductive and damaging to him. From this, we may infer that he had responded to treatment. We are advised that he has now been released to outpatient status in spite of an order of this court staying the superior court's granting of his writ of habeas corpus—all of which indicates that the treatment authorities at the CRC are more interested in treating respondent for his problems than they are in the intricate legalisms involved in his present case.

4.  The failure of the Federal Narcotics Addict Program at the Hospitals of Lexington and Fort Worth—one closed, the other closing—has established that pure hospital treatment is unsuccessful. The patient must be exposed to and treated in the community.

5.  While a parolee or a probationer may suffer from a plethora of mental and psychological maladies, he is not on parole or probation because of them. He is on parole or probation as part of the sanctions imposed by society because of the commission of a criminal act, not by reason of his mental or psychological status.On the other hand, one is an outpatient from the Civil Addict Program because of a status—a diagnosed mental, psychological and physiological illness, narcotic addiction. This is usually superimposed on an underlying instability which makes the treatment process even more difficult. Few ‘stable’ people become narcotic addicts.

6.  The Adult Authority has established an elaborate procedure for implementing Morrissey. This involves a prerevocation hearing within 21 days of booking and a revocation hearing which must take place within 60 days of booking. (See State of Corrections Memorandum—‘Revised Procedures for Implementing the Supreme Court's Decision (Morrissey)—California Parole Violation Process' (8/14/72)).

7.  Again, returning to the facts of this case, we have a dramatic example of the impact of a Morrissey type procedure on the outpatient status.For an in-community hearing, the hearing officer would have had to explore the erratic behavior which had caused respondent's supervisor to return him to custody. This would involve his supervisor, the lady being annoyed by the patient and her husband.Respondent's institution hearing would have been even more complex. This would involve not only a supervisor who took him into custody but the following: (1) Dr. Drucker, the psychiatrist who gave him an emergency psychiatric examination at the Los Angeles County Jail 13 days after his arrest; (2) Dr. Buehler, the psychiatrist who examined him at CRC 27 days later (it would appear from Dr. Buehler's report that the patient had also been seen by Dr. Johnson in the meantime); (3) Dr. Fischmann, the psychologist who examined the respondent as a part of Dr. Buehler's diagnosis; (4) Dr. Marks, a psychologist who examined the respondent 16 days later. Of course, this whole procedure becomes ludicrous because 5 days after Dr. Marks saw the respondent, Dr. Johnson as Chief Psychiatrist, Dr. Buehler as Senior Psychiatrist, Dr. Marks as Consulting Psychologist, and Dr. Fischmann as Staff Psychologist, all joined in a report recommending the respondent's immediate release. In other words, in order to comply with Morrissey, the respondent would have had to stay in the hospital additional time to complete his rather elaborate hearings. In the meantime, it was the considered opinion of the experts that further time in the institution was counterproductive and that he should be released. The idea of Morrissey type hearings under these conditions verges on the ridiculous.

8.  We recognize that In re Ricks, 31 Cal.App.3d 1006, 107 Cal.Rptr. 786, applied Morrissey to a 90 day commitment to the Narcotic Treatment Control Unit under Health and Safety Code section 11751 (now § 11561). However, the NTCU is administered directly by the Adult Authority which already is well equipped to handle Morrissey hearings and the application of Morrissey there would not cause nearly the burden it would obtain here. The Narcotic Addict Evaluation Authority consists of only four, part-time board members with neither budget nor facilities to hold such meetings, whereas the Narcotic Treatment Control Unit had only to avail itself of existing machinery of the Adult Authority. The Narcotic Addict Evaluation Authority would be required to start from scratch and create a new system to hold such hearings. Approximately 2,000 individuals receive releases per year from the CRC. With over 2,000 patients being released to outpatient status, the problem facing the Narcotics Addict Evaluation Authority becomes clear.

GARDNER, Presiding Justice.

TAMURA and GABBERT, JJ., concur.

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IN RE: Charles Ray BYE on Habeas Corpus. (1974)

Docket No: Cr. 6100.

Decided: January 23, 1974

Court: Court of Appeal, Fourth District, Division 2, California.

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