CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT.
Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Fortas
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:
"Under the practice of individualizing punishments, investigational techniques have been given an important role. Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders. Their reports have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guesswork and inadequate information. To deprive sentencing judges of this kind of information would undermine modern penological procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation. We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination. And the modern probation report draws on information concerning every aspect of a defendant's life. The type and extent of this information make totally impractical if not impossible open court testimony with cross-examination. Such a procedure could endlessly delay criminal administration in a retrial of collateral issues." Id., 249-250.
That was a case where at the end of the trial and in the same proceeding the fixing of the penalty for first
degree murder was involved -- whether life imprisonment or death.
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:
"(2) A complete psychiatric examination shall have been made of him by the psychiatrists of the Colorado psychopathic hospital or by psychiatrists designated by the district court; and
"(3) A complete written report thereof submitted to the district court. Such report shall contain all facts and findings, together with recommendations as to whether or not the person is treatable under the provisions of this article; ...