The state's criminal courts could make direct commitments to the IDD upon certification of mental defect by two qualified examiners or a qualified examiner and a qualified psychologist. Transfers could be made by the Department of Correction from prisons (except of first degree murderers) using the same certification procedure. In addition, the state schools could certify a retarded patient as criminal and transfer him to the IDD.

Direct commitments were indefinite (of no specified minimum or maximum duration--one day to life). Parole was at the discretion of the superintendent. In the case of transfer from a prison of a person with a definite sentence, release at the expiration of sentence was also discretionary with the superintendent. If the superintendent did not believe an inmate was fit for release at the end of his sentence, he could apply to the courts for an order of retention. The court would appoint two qualified examiners; if the examiners certified mental defect, the order of retention would be issued, and the order thereafter had the same effect as an original indefinite commitment.

The law defined mental defect as "afflicted ... from birth or from an early age to such an extent that he is incapable of managing himself and his affairs, who for his own welfare or the welfare of others or of the community requires supervision, control or care." But the law did not offer an objective measurement (a specific IQ point, for example), nor did it specify any tests or other means to deten-nine its existence: determination of mental defect was subjective with the examiner.

The mental defect law was similar to laws regarding the mentally ill: both groups -- the retarded and the insane -- could be committed involuntarily and retained until the person was no longer dangerous. For the mentally ill, criminal charges could be held in abeyance (incapable of aiding in their own defense) or dismissed (not guilty by reason of insanity), with hospitalization in lieu of incarceration. For the retarded under the new law, questions of guilt could simply be by-passed with an indefinite commitment as a "defective delinquent." (The law was amended in 1931, through the efforts of Dr. Thayer, to require conviction of a crime.)