McLaughlin, Staley and Freedman, Circuit Judges. Staley, Circuit Judge (concurring). McLaughlin, Circuit Judge (concurring).
This appeal from the denial of a petition for a writ of habeas corpus raises grave constitutional problems regarding Pennsylvania's so-called Barr-Walker Act of January 8, 1952, P.L.1851, 19 Purdon's Pa.Stat.Annot. §§ 1166-1174.
The Act provides that if the court is of the opinion that a person who has been convicted before it of indecent assault, incest, assault with intent to commit sodomy, solicitation to commit sodomy, sodomy, assault with intent to ravish or rape, would, "if at large, constitute 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 such person to a state institution for an indeterminate term, from one day to life. No such sentence shall be imposed until a complete psychiatric examination has been made of the defendant by or on behalf of the State Department of Welfare (now known as the Department of Public Welfare: See Act of April 9, 1929, P.L. 177, § 201, as amended, 71 Purdon's Pa.Stat.Annot. § 61), and a complete written report thereof has been submitted to the court. The court is authorized to postpone sentence and order the defendant to be temporarily confined so that the examination and report may be made. The report is required to include "all facts and findings necessary to assist the court in determining whether it shall impose sentence under the provisions" of the Act. If the court after receiving the report finds the convicted defendant to be in the specified category and is "of the opinion that it would be to the best interests of justice to sentence such person under the provisions" of the Act, it "shall cause such person to be arraigned * * and sentenced to such State institution as shall have been designated by the Department of [Public] Welfare in its report to the court".
Unlike the Barr-Walker Act, the Pennsylvania Habitual Offenders Act, which was already in force when the Barr-Walker Act was adopted, carefully delineates the rights of the accused and the duty of the court. The Habitual Offenders Act provides for greatly increased punishment, culminating in life imprisonment, for the repeated commission of certain specified crimes, including sodomy and incest,*fn1 and where life imprisonment is involved requires that the District Attorney file a formal complaint against the defendant. It imposes on the court the duty to inform the defendant of the allegations of the complaint and prescribes that a jury shall be empanelled to determine the issue of fact as to the defendant's identity.*fn2
After a defendant is sentenced under the Barr-Walker Act the exclusive control over him rests with the Pennsylvania Board of Parole. "The Board is * * * authorized and empowered to parole and reparole, and commit and recommit for violation of parole, any person sentenced under the provisions of this act, at such time and under such conditions as the interest of justice may dictate." In determining on parole or reparole the Board is required to "give serious consideration to the original report and subsequent reports of the psychiatric and psychological examination of the person so sentenced, the recommendations contained in such reports, and the view of the committing court." While the defendant is confined the Board of Parole is required within three months after his sentence and at least every six months thereafter to have brought before it all reports, records and information concerning the defendant in order to determine whether he should be paroled and to make its ruling and to notify the defendant.
The Department of Public Welfare is required to provide psychiatric and psychological services to the Pennsylvania Board of Parole "in the further examination, diagnosis and treatment of persons sentenced under the provisions of [the] act, during their confinement and parole as hereinafter provided for."
In the present case petitioner pleaded guilty on August 29, 1962 in the Court of Oyer and Terminer for Beaver County, Commonwealth of Pennsylvania, to an indictment containing separate counts charging assault with intent to ravish, indecent assault, aggravated assault and battery, and assault and battery.*fn3 At the time he pleaded guilty and throughout the proceeding, the petitioner was represented by counsel of his own choice.
The circumstances of the crime were pitiable and shocking. Petitioner by subterfuge attracted a retarded young woman into his automobile. He then drove her to a wood and when she refused to respond to his advances struck her in the face, tore off her clothing and tied her to a tree. He bit her breasts and branded the letter "k" on one of them with his penknife or a piece of broken glass. He then left her, but feeling repentant, returned about an hour later, untied her and gave her his shirt to wear. He buried her torn clothes and belongings in the ground and drove her back to town, warning her to say nothing about what had occurred.
At the time fixed for sentencing, October 10, 1962, a county detective testified to petitioner's confession and described his interviews with petitioner, the victim, and their families. Petitioner presented a psychiatrist who testified that he had been treating petitioner weekly for two months, and that petitioner suffered from "depressive character" and had been on the brink of psychosis when the crime was committed, but that his "propensity to do wrong is much less than it was" before the crime was committed, because the impulse was no longer secret. He recommended continued weekly or biweekly visits to a psychiatrist of petitioner's choice. At the conclusion of the psychiatrist's testimony petitioner's counsel suggested that because of petitioner's mental condition the judge should conduct a further presentence investigation. The judge announced that he would invoke the Barr-Walker procedure, and a formal order was accordingly filed. It recited that the court had decided to avail itself of the Barr-Walker Act, postponed the imposition of sentence until the court had received the statutory reports, which it ordered made, and ordered petitioner confined meanwhile.
Two months later, on December 14, 1962, the parties appeared before the court once more. The judge had received the report of the Department of Public Welfare, which consisted of a letter signed by the Department's Commissioner of Mental Health, accompanied by a psychiatric report for the court's "confidential use", and a report on the presentence investigation. The transcript records what transpired.
"The Court: Mr. Critchfield, I suppose you do not know what the report actually is which I have from the Department. The pertinent part is this: 'Pursuant to your Order of October 10, 1962, the Defendant was examined. After fully considering all the available material in respect to this case, [the Department] finds that the above Defendant is not mentally ill and could, therefore, not profit by being committed to a mental institution. The Department further finds that the Defendant comes within the purview of the Barr-Walker Act, inasmuch as he constitutes a threat of bodily harm to members of the public if at large. We therefore respectfully recommend that Carl G. Gerchman be confined in a correctional institution after classification at the Western Correctional Diagnostic and Classification Center.' That is the pertinent part of the report. Do you have any comment? Is there anything you wish to say?
"Mr. Critchfield [Petitioner's Counsel]: No, I don't wish to add anything to that. I am sure Your Honor has considered everything.
"The Court: We have." The court then stated that it had carefully examined the psychiatric report and the presentence investigation, which included the results of investigations of the families of the victim and the defendant.
"Mr. Critchfield: I am sure the Court is aware of all the circumstances under which this crime was committed, and the man had been drinking, and the personality of the victim, and so forth.
"The Court: Now, Mr. Gerchman, do you have anything you wish to say to the Court why sentence should not be imposed in this case? Is there anything you want to say? Is there anything you want to say, Mr. Gerchman, why sentence should not be imposed, or anything you want to say in connection with this case? (No response.) He did not testify, Mr. Critchfield, so you had better make it amply clear to him that this is his day in Court and he may take the stand and testify if he wishes.
"Mr. Critchfield: Carl, you understand this is the day you are to be sentenced. If you have anything to say in regard to the crime itself or in regard to your sentence, this is your time to say it, and the Court wants to know whether you have anything to say at this time. You have the opportunity now to take the stand under ...