*1 their June, 1948, filed schedules of were just reasonable. This renders it to decide whether the unnecessary respondent held correctly Railroads failed to answer sufficiently the 13 addressed to them interrogatories intervenors the 1950 during proceedings.
Por the reasons above stated the order of the Board of Public Utility Commissioners, Department Public Util- ities, of New filed Jersey, 30, 1951, December affirmed. For Justice Vanderbilt, and Justices affirmance —Chief
Heher, Oliphant, Burling, Jacobs and Brennan —6.
For reversal—Justice Wacheneeld —1. MAHONEY, APPELLANT,
GRAFTON v. THE PAROLE BOARD JERSEY, OF THE STATE OF NEW RESPONDENT. Argued March 1952 Decided June *2 Mr. Bar, Kagle, Samuel Pennsylvania argued *3 Bash, cause for the appellant Ivan O. (Mr. attorney). Eugene Urbaniak,
Mr. T. Attorney-General, Deputy argued Parsons, the cause for the At- respondent Theodore D. (Mr. torney-General of New Jersey, attorney).
The opinion the court was delivered J. This is an appeal Court, to the Superior Burling, Appellate Division, under Buie 3 :81-8 lieu of the (in pre- Board, writ of rogative from an order of certiorari) the Parole of the State of New was Jersey. proceeding brought a obtain declaration the and effect of constitutionality of section 12 of L. paragraph (c) 1948, c. 84 (the Parole Act; N. J. A. 8. el 30:4^123.1 and the seq.) of a validity of the Parole Board ruling New State of Jersey (here- inafter called the Parole contained in Board) a letter from the chairman of the Parole Board dated January deny- the ing appellant, Grafton Mahoney called (hereinafter consideration Mahoney) for release on parole. this Although was described in proceeding the as pleadings briefs petition declaratory :81-10, under Buie 3 judgment adjee- tively speaking appears inasmuch review improper no of an sought administrative rule by a state promulgated the Appel- before to hearing Prior
administrative agency. this court pursuant was brought this action Division late motion. our own allowed on to certification the notice must first we of this case study the In provision: the following contained of 1844 Constitution administering government, chan- governor, person the the “The or appeals, judges or a cellor, the of errors six court and the adminstering person governor, them, major part the whom forfeitures, one, may government, fines and remit shall be the except impeachment.” conviction, grant pardons, all cases after V, par. N. J. Const. Art. 10. subject 1947, the Constitution of general Whereas under the with as follows: dealt may reprieves grant pardons in all cases “1. The Governor may suspend treason, impeachment and remit than other body may A be estab- or other fines and forfeitures. commission the to aid and advise the Governor exercise lished law clemency. executive system A law.” shall be V, II, pars. N. J. Art. seo. 1 and 2. Const. Pursuant an authority to that enacted act Legislature in 1948 which took effect 1948. This established May as distinct parole system from pardoning power. Act must be observed that the power Parole gives to and the Parole Board to imposes duty upon classify upon entry offenders confinement into so as to formulate time table for consideration for of each inmate. No classification; fact, is made for provision hearing upon *4 it 1948, 84, expressly contrary. sec. 17; N. J. A. 30:4-123.17. The wisdom of such a policy is for the and is anot constitutional Legislature requirement. facts, statement of filed pursuant to Rules agreed 1:2-22 to the (applicable Division under Rule Appellate and 3:81-10 shows: that was 4:2-6) committed Mahoney to the 21, New State Prison Trenton Jersey 1937, at on April from criminal court appropriate that County; in.Essex he on that date was given sentences, same five consecutive and of of a maximum years four which had minimum three enter- five of and of on conviction of years charges breaking and a and the fifth a minimum of two years ing, having of maximum of three years pos- on conviction charge tools; of Mahoney by session of that interrogation burglar authorities, his record and examination of prison fingerprint them of sirbmitted to Eederal Bureau Investigation Justice in Department United States of Washington, criminal C.,D. disclosed that he had the following previous record convictions and sentences: Mahoney A-11391, appellant As Grafton No. was convicted of the escape Pittsburgh, crime of and sentenced to the Prison Pennsylvania, May years. 11, 1921, on term 11050, appellant As Earl Comer No. was convicted the crime breaking entering 1927, 4, and sentenced on November years Jersey of 4 term to the New Prison at Trenton. Mahoney 62797, appellant As Grafton No. was convicted burglary dwelling by night 1930, crime of in a on November given years a sentence of from to 30 in the State Prison at Columbus, Ohio. Mahoney admits he is the individual so convicted on the dates above specified and was sentenced to confined in the respective State Prisons at Pittsburgh, Pennsylvania; Trenton, Yew Columbus, Jersey; Ohio, all being prior now sentences served him at State being Prison Trenton. The statement of facts also shows that he was not indicted, tried, convicted or sentenced as an habitual offender at time his in Essex sentencing County April Burns, 1937. See State v. N. J. L. & A. (E. 1948).
The Parole Board, a consideration upon of the foregoing prior convictions of the and the fact appellant of his con finement the aforementioned State Prisons Pennsyl vania, Yew Jersey Ohio, admitted but not appellant formally proved at a before respondent, hearing determined that he was a fourth offender within contemplation of Sec tion L. 1948 chapter J. S. A. 30:4-123.12) further determined that was respondent from precluded con *5 to on prior release
sidering appellant eligible sentence upon máximum of the imposed the of the expiration him. the to a letter addressed 2, 1952, Mahoney
On January The Parole his case. of requesting Parole Board consideration Principal 4, 1952, addressed Board, by January letter Prison, as follows: of the State replied Keeper possession in- Parole Board information in the of the “The contemplation Mahoney is a fourth offender that Grafton dicates judgment 12, Chapter 84, is L. it the P. said Section considering precluded him as that it is from this board he maximum of sentence until has served the release upon performed. imposed him less credits work sentences Mahoney understanding not does further our that Grafton is deny individualy prior but on the occasions that he was the convicted position insufficient rather that his admission thereof is takes classify permit to him as such under to this board fourth offender (cid:127) Section 12 aforesaid. Mahoney inform decision the Parole Please Grafton Board.” thereafter, Shortly instituted the Mahoney present pro- Court, Division. Prior to ceeding Superior Appellate there, certification was allowed on this court’s own hearing motion, as hereinbefore stated. whether involved,
The asserted are by Mahoney, questions due he laws and has been denied of the protection equal law, of the under the 14th Amendment to United process Constitution, c. 84 J. A. 30 :4-123.1 States L. S. (N. These construction of various necessarily
et involve seq.). sec- of that enactment portions including paragraph (c) Board was tion under which the action of the Parole effectuated. is, he terms of
Mahoney’s first is that objection under statute, of the laws deprived equal protection the 14th Amendment Constitution United in this States. of' contention gist Mahoney’s respect c, J. A. 30:4r- par. Sec. uniformly offenders, fourth applicable not 123.12(c)) *6 in that some fourth at an offenders are for parole eligible earlier period their confinement than is during Mahoney. To his support contentions he that fourth offenders argues sentenced to life under the imprisonment habitual criminals act (B. 3; S. 2:103-10 as 1940, 219, amended L. sec. see also N. 2A J. 8. are for :85-12) parole under eligible section 11 of the Parole Act A. J. 8. after (N. 30:4-123.11) serving years and (less conduct work and good credits), those confined in county penitentiaries terms serving greater than one year are after at eligible least serving one year of such term. The State with agrees Mahoney the limitations contained in section 12 have no reference to section and that those argues life sentences are in serving a different class because have no they determinable maximum sentence and if released remain on life, whereas those released under section 12 are freed of at the of the time expiration of their maximum sentence. As for section 35 of the same statute J. 8. A. (N. 30:4r-123.35), the State contends that prisoners a county penitentiary constitute a different class from those confined in a state for the prison reason that their crimes are serious, less and that in event any there is no provision section 35 releasing county from the restrictions of section 12. In these resolving conflicting arguments the con reaching struction of the enactment the court is to read the required used terms so as Legislature, to reach an understand intent and ing legislative define the same in such a way as to effect to give every word and of phrase the statute. Hock, N. J. ; 409 (1952) Lynch v. Hoffman Borough Edgewater, N. J. 286 (1951). To do this, it seems to set necessary forth in full the language of pertinent portions c. 84 J. S. A. 30 (N. :4- 123.1 et to which our seq.) attention has been drawn. They are as follows: :4r-123.11) Section 11 J. S. A. 30 : “Any prisoner serving a sentence of life shall be for con- having
sideration
twenty-five years
for release on
after
served
good
time
behavior
sentence,
time for
commutation
less
of his
application
diligent
work
reason
allowed
credits earned
assignments.”
30:4-123.12,
(o)) :
par.
{par. (c) )
A.
J. S.
Section
{N.
herein,
shall be limited
parole,
as
“The
:
follows
any penal
Any
this State
person
institution of
“(c)
sentenced
imprisonment
part
previously
of three terms
all or
served
has
who
any penal
institution
any
States,
other
State,
State
(1)
or
United
Of this
State, or
than this
State,
States,
(2)
of this
United
or
and the
Of this State
any
any
State,
other
or of
State
other
States
United
States, or
or
any
States,
or
(3)
other State
States
Of the United
*7
State,
a
to be
shall be deemed
than
than this
more
one State other
upon
later
for such fourth or
and
his incarceration
fourth offender
parole
ineligible
until
the board
consideration
shall
for
offense
be
imposed upon
for
him
he
the maximum sentence
shall have served
any
diligent per-
for
less
time earned
such fourth or later offense
provisions
subject, however,
assignments;
to the
formance of work
repealed
(Note
this act.
13 was
of section thirteen of
—section
3).
see.
‘penal
the
As used in this
institution’ means and includes
section
Jersey
any
penal
New
and
other State
or correctional
State.Prison
in
which offenders
sentenced for fixed
institution
this State to
are
terms
minimum
maximum terms and
or fixed
and
other institutions
jurisdiction
character under
of the
or of a
like
the
United States
State or
than this State.”
States other
30:4^123.35)
(A.
:
Section
“Notwithstanding any
J. 8. A.
act, any
provisions
prisoner
in
this
county penitentiary serving
having
greater
a
a
term
a maximum
year
year
than a
and who has
at least one
of such term shall
served
permitted
application
parole.
ap-
be
plication
the
to make
to
board for
prescribed
shall be
to
on forms
be
and furnished
the
county
through
board
the warden or chief executive officer of such
penitentiary upon
prisoner desiring
certification that
the
make
to
application
eligible
receipt
upon
therefor. The
board
of such
application may,
warrant, grant
if the circumstances of the
case
parole
ject
any
prisoner
provided
herein,
to
such
in the manner
for
sub-
terms,
may pre-
such
to
conditions and limitations as the board
scribe,
.prisoner
super-
and such
while on
shall be
the
under
probation
county
vision of
officer
from which committed
expired.”
until the maximum term of his sentence has
It is also
note the
important to
of section
portion
following
J. A.
30:4-123.17)
:
he,
solely upon
prisoner
on
shall
initia-
“The release of
application
pan-ole
hy
prisoner,
no
made
tive
the hoard and
for
hy
hehalf,
warden,
shall he
the hoard. The
or
his
considered
any penal
keeper or chief
officer
or
institu-
executive
correctional
permit
prisoners
all
tion referred to in this act shall
to forward
duty
mail
board.
uncensored
to the
It shall be the
of the board to
upon
prisoner
maintain a
which
record of
dates
each
shall first
be
consideration
in
section nine hereof.
date,
prisoner,
or
On
before such
the case of each
it shall further
duty
prisoner
be the
the board
consider
the case of each such
brought
cause to
be
before it all
information
*”
*
*
regarding
(Italics
referred
to herein.
supplied.)
are
Recidivists
treated
differently
jurisdic
various
tions
country
Three
have
abroad.
theories
been
suggested by text
writers
authorities elsewhere as the
foundation
for these
concepts
variant practices, namely (a)
punishment
for a
imposed
subsequent offense on
con
sideration of the
persistence
the defendant in his criminal
course,
(b) warning
offenders,
deterrent
to first
preventive detention
(e)
or
security
the public against
the propensities of criminals with repetitive tendencies. See
Jur.,
25 Am.
Criminals,
Habitual
Sec.
260 and
p.
Sec.
261;
p.
Morris,
Norval
The Habitual Criminal
(1951).
Punishment
deterrents,
whether imposed as civil penal
ties
as sentences
conviction,
criminal
are
following
de
end
will
signed
offenders
learn that
it does not
to invade the
pay
rights of
others.
habitual crimi
.With
*8
nal
police power is exerted primarily to
protect
of
of
persons
property
citizens
the state because the
has
prisoner’s conduct
already demonstrated his inability to
learn to
social and
accept
civil
is
responsibility.
within
the power of the
to
him
of
deprive
parole. Ughbanks
481,
v.
208 U.
Armstrong,
S.
With these observations 84 12 L. c. section of contention that Mahoney’s of to recidi- is not supra, applicable J. S. A. 30:4-123.12) (2V. contends, are sentence, who, eligible he vists a life serving 84 under for section parole consideration However, since 30:4^-123.11), supra. J. A. 12 is not 11 and section between section conflict specific not one sentence was last involved in this appeal (Mahoney’s to resolve unnecessary is deemed life it imprisonment) the same at time. this is, raised the case as on
The real issue this phase is12 that section (on assumption whether by Mahoney, and therefore a life sentence one serving to inapplicable he, as fourth offender 11) under section eligible dis is unreasonably imprisonment, not to life sentenced Parole section 12 of-the the terms of against by criminated life any under section Mahoney’s theory Act. sentence) life a fourth offender serving prisoner (including life sentence of his serving years after all commutation confinement legal net period if (the he, whereas earned and section 11 applied), credits were total years (his serve a minimum of Mahoney, must time, earned) less commutation credits years, maximum for consideration parole. before becoming eligible in classification is reasonable that the difference State argues remains to life imprisonment sentenced person because his for the remainder conditions release after subject at time for violation life, may be incarcerated any his to life imprisonment whereas one not sentenced parole, risk of conditions (and will'remain subject after his release only for violation of parole) reincarceration of time which constitutes the for that balance period him. the sentence or sentences imposed upon maximum of basis for the difference classification This is a reasonable and it is unnecessary presented appeal, asserted section 12 to a recidivist applies to decide whether for us to confinement for life. whose last sentence was *9 With there is no merit in respect to section supra, assertion The entire statute Mahoney’s of discrimination. be read of this must tó reach a section. proper construction where Section limits the to paroles applications grant “in “the circumstances of the case the manner warrant” These herein.” invoke section 12 provisions under preclude parole section 35 limited except 12. Further, the obvious of section 35 is purpose section to in a solely permit to prisoners county penitentiary apply a denied parole, State Prison privilege and other correctional institutions section of the same act (quoted ante). second
Mahoney’s question involved is that he was due denied the law process reason of the Parole Board’s a refusal to accord him hearing upon question of his convictions. The Parole prior Board’s refusal to accord him such was pursuant effected hearing statutory direction of c. 84, contained section 17 L. 1948 J. 8. A. 30:A- (IV. that release 123.17), supra, shall namely be solely the initiative on * of the Parole Board and “no application * * * * * aby shall prisoner be considered” (except act, under section 35 same of the Paroles are supra). favors State to convicted granted criminals it may attach such conditions to the application for or the of the as it deem may favor proper, may deny favor com to ascertain pletely. procedure the fact as well as the kind of evidence which to base upon its determination on advisability is matter of state policy exclusively State to decide. “It is not bound to give the convict conviction, hearing upon question prior and a failure it violates no provision Federal give Constitution.” Ughbanks Armstrong, supra U. 28 S. Ct. [208 ; J., White v. Parole Board State N. supra. 374] stated, For reasons we do find and declare that L. Sec. J. par. (IV. 8. A. (c) 30:123.12(c)), does not 14th
violate the Amendment to the Federal Constitution and the action of the Parole Board of the State of New *10 as a fourth offender Mahoney Grafton Jersey classifying there- and the time his application for at parole ineligible affirmed. hereby be and is for was and should proper of a direction to relief in the nature for Mahoney’s prayer the of New Jersey the Parole Board of the require State denied. him is latter a on parole eligibility to give hearing be the Costs shall not taxed appellant. against 1947 Hehbk, The Constitution of J. (dissenting). in all reprieves pardons the Governor to empowers grant treason, and to impeachment suspend eases other than forfeitures, a commission or remit fines and and to establish in the exercise of other to aid and advise the Governor body executive, “A the system and directs that for clemency, Y, law.” Article provided by shall be parole II, Section paragraphs this constitutional direction for is of essence of a that exercise of system
establishment free from invidious discriminations. power unjust be The the laws is equal protection implicit principle There can be no arbitrary classification provision. for The Constitution contem prisoners parole eligibility. a fair and reasonable exercise of the in the plates power The service of the neces general parole policy. Legislature has a latitude of discretion in sarily great classifying prison absolute, ers But the consideration. not power its exercise contained dictates of fairness and and the equality reasonableness right privilege—the action' —that antithesis of is basic our constitu arbitrary Finley California, tional system. Compare U. S. 56 L. 32 S. Ct. Ed. 75 Carlesi v. New (1911); York, 233 51, 34 Ct. Ed. U. S. S. 843 (1914).
Here, the statute makes an arbitrary distinction between life fourth offenders who are and those who are not no relation bears reasonable the law. policy of offender fourth sentence life undergoing imprison- in the ment, whether murder first or as an habitual degree also, criminal under R. 2:103-10, (see, as amended N. J. S. becomes consideration 24:85-12) when he has served 25 of his j^ears sentence less commutation time for behavior and good credits, work making possible reduction the minimum 7 months years, period and 23 while a days, fourth offender not under a life sen- tence is to serve his obliged full maximum even sentence, it far exceeds the minimum although which period qualifies fourth offender under life sentence for con- sideration. In the case now before us the maximum sentence *11 less earned commutation time is 23 in some years; cases fourth offender’s maximum sentence the normal beyond goes life span.
It has been said that release on is a matter of grace. It is rather discretionary function well- controlled defined considerations concerned with the welfare of society and the interest of the which need not be elaborated prisoner here. Certainly, consideration is not to eligibility be arbitrarily one case and refused in another in granted like circumstances. Unequal the law would run operation counter to the genius spirit of Constitution. The Constitution is not to be read as absolute power— conferring discretion that wholly unregulated would admit of par in the tiality inequality extension of The state paroles. ment of the affirmative of this proposition carries its own refutation. The use of the term “system” in the grant its essential power bespeaks quality limitations. The finds principle expression the Fourteenth Amendment York, the Federal Constitution. Carlesi v. New cited supra. Examiners, It is expounded Smith Board v. 85 N. J. L. 46 Ct. 1913). (Sup. is not an answer to that the released life say prisoner subject lasts, so supervision life unless long extended, be while a fourth clemency offender discharged from imprisonment upon completion of his maximum sen- tence is This I not. consider an artificial and dis- illusory tinction that does not take into account the policy purpose
282 before e., from law, imprisonment release i. is in mitigation Parole maximum sentence served. laws more that retroactive much so so punishment, ex post are not prisoner terms to favorable parole facto. 797, 81 Ct. S. S. U. Lindsey Washington, v. Adams, 274 N. Y. People L. Ed. 1182 (1937); 21 Fed. McCauley, Andrus v. App. 1937); N. E. 2d (Ct. The continuous 1926). quest C. Wash. (D. Supp. date of advancement of the parole eligibility for the the fact. is a demonstration practical reverse the judgment. I would Vanderbilt, Justice Justices For affirmance —Chief Wacheneeld, Burling, Jacobs and Brennan Olibiiant, —6. Hbher —1.
For reversal—Justice DePUY, AN ATTORNEY THE MATTER OF WALLACE IN *12 AND COUNSELLOR-AT-LAW. Argued June June 1952 Decided