*1 Justices For Chief Justice Weintbaub affirmance— Francis, Hall and Haneman —4. Jacobs, Proctob and Schettino— For reversal—Justices 3. PLAINTIFF-RESPONDENT, JERSEY, NEW OF
STATE LAVELLE, DEFENDANT-APPELLANT. BRIAN February 4, Argued 1969. June 196 9 Decided *2 Javerbaum, Mr. Kenneth Assistant Public Deputy S. Boiler, defender, the cause for argued Carl B. appellant (Mr. Ness, brief; on the Mr. C. Van Stanley Defender, Public at . torney) Timins,
Mr. Arthur J. Prosecutor, Assistant argued the cause Leo respondent (Mr. Kaplowitz, Union County Prosecutor, attorney).
The of the court opinion by was delivered J. On this defendant Lavelle attacks appeal Francis, excessive him of imposed years sentence three to five in $1,000. State Prison and a fine of With to the respect fine the trial direction court’s was that stand committed until it was He paid. also the challenges ruling State Parole Board him street until he denying $1,000 either fine or worked it off in paid continued a$5 confinement at the rate of Division day. Appellate affirmed the sentence Parole Board unanimously order a divided would Judge vote.1 Conford his dissent remand part hearing of the case to the trial court for on the if view, In his such prisoner’s indigency. hearing resulted in a Parole Board should finding indigency, be directed Lavelle on conditions appropriate payment the fine in was taken to Appeal installments. this Court on the of the dissent. R. R. 1:2-l basis (b).
On 30, 1966 September defendant pleaded guilty Union County Court to an indictment charging possession of in violation N. J. A. 24:18-4. marijuana offense is high misdemeanor the ease punishable of a first not by mandatory $2,000, offender exceeding for a labor, with hard term of not imprisonment, less than years two nor more than 15 N. S. A. years. *3 21, On October 1966 when 24:18-47(c) (1). Lavelle ap sentence, for peared he made personal plea leniency, that he saying had “kicked” the habit of smoking marijuana, and if another chance he would find given employ regular ment and rehabilitate himself. court impressed the Being a sentence of imposed two three years prison fine of but $250 the sentence and suspended placed on probation three which he was years, during period fine $5 at the rate week.
Less than two months later Lavelle was convicted in Elizabeth of unlawful use of He Municipal Court heroin. was sentenced to the county jail months, six shortly thereafter was able to again persuade he to be court lenient. Consequently the sentence was suspended was In year’s probation ordered. granting probation him an magistrate gave opportunity to rehabilitate himself a course of treatment at St. by undergoing Dismas Center Paterson, Addiction in F. J. He was Drug ordered remain until on discharged. Instead, there June 1967 19, involving argued 1This and State v. Allen case similar issues were together day. reported and decided the same State v. Allen is in 104 Super. (App. 1969). per N. opinion Div. The short curiam unreported. State v. Lavelle is based on Allen and is The Direc- discharge. and before he left without permission Wall, county judge William advised tor, Monsignor rehabilitation,” and that toward defendant made “little effort problem.” he “a the seriousness needed shock to realize was defendant instructed After St. Dismas leaving County Narcotics at Union take treatment out-patient 12, Director advised that in On 1967 its Clinic. September * * * is evident effort toward rehabilitation spite “every of' treatment,” type motivated toward any Lavelle is not 14, 1967, Lavelle was later, on November Just two months He court. was municipal of fraud in the same convicted restitution, and $100, again put to make fined ordered year. for one probation had failed to make the
In he addition appeared weekly on the regular payments original $5 he the first year probation At end of court. county $225. owed and still only weekly payments had made five and he with him up described performance caught why county probation show court ordered to cause original On December 1967 the should not be revoked. a revocation at hearing, conducted sentencing judge and again to violation of pleaded guilty probation, Lavelle clemency. sought the court and is obvious from the between colloquy
It for continuance of plea Lavelle and the latter’s renewed that he had probation, intelligent person of his probation. conditions thorough understanding *4 felt a fair impressed. very time was not He judge This the and willfully chance at rehabilitation had been given ignored Lavelle, be to live longer who no could relied or of pay within the conditions to the balance probation installments. fine in weekly Consequently probation $250 revoked, vacated, was the sentence was original suspended years new of three to five State a sentence Prison and already time spent confinement) credit the and (with $1,000 Obviously was mindful of imposed. fine of Lavelle’s judge the ordered that he expressly remain past performance,
319 until this respect committed the fine was With to paid. N. J. 2-A:168-4 that sentence it should be noted under S. violated, the terms of have the upon finding been probation court to be cause the sentence “may [originally] imposed executed or have impose any sentence which might originally been imposed.” This sentence was well within replacement $2,000 the two fine not penalty years to exceeding authorized N. J. A. S. the crime 24:18-47(c) (1) possession marijuana.
The Division Appellate unanimously rejected claim that this sentence was excessive. concur We in that view and no see need further discussion of -the matter.
While the appeal was in the pending Division, Appellate defendant, served sufficient to make him having time eligible consideration the minimum (i. or one-third of the maximum term less behavior good and work credits A. (N. 30:4-123.10)), presented to application Board. Parole Board The from im- granted parole the fixed of the prisonment part sentence to be effective on January 7, 1969, but subject the condition that if he was unable $1,000 pay portion thereof, he would have to work off in it the institution $5 at the rate of Since day. defend- ant therefore unable to on 9 he on January went so-called cell parole and began amortize it at a day. $5 $5 rate of credit is fixed by :166-16,2 J.N. 2A8. which further provides when “the shall have been confined for a prisoner sufficient number of to establish credits days total equal aggregate amount * * * such fines shall be from discharged imprison- * * *.” ment years ago statutory day. Until few rate was In 1961 $3 expressed this Court’s Committee Criminal Procedure view considerably higher. (Report p. 27). Legislature should be in- day. Considering maintaining prisoner creased it a$5 the cost of preliminary finding in confinement the Parole Board’s that he is ready unpaid fine, for street but for the further consideration day adequacy per might public $5 credit in- terest. *5 N. J. by authorized Parole Board action of the is eligible an inmate which if 30:4-123.15, A. under
S. because confinement remain in “but parole required * * * release may the board of failure to a fine pajr [him] * * * be paid, condition that such parole upon county the [appropriate] the office through probation * * * board.” by fixed amounts to be weekly fact (a Defendant that since he is indigent claims us), the record before sufficiently we shown regard him parole Board fit for street finding order the Parole :4-123.14, N. J. A. 30 to release refusing under a day $5 it off at $1,000 unless either or works pays he law him due of the protection denies and process equal under More spe the Constitution the United States. when Board his cifically granted out points from of his application part imprisonment sentence, 7, 1969, to become on January signified effective of “reasonable (as cited statute finding required) that, if released will his and probability” proper “he assume place law, without violation of rightful society, that his release is not with the welfare of incompatible societjc” And Lavelle that since a argues financially capable would be prisoner released on the date upon payment basic were violated when he was denied rights his liberty solely because he was and unable to make the payment. of the majority Appellate Division that the recognized
trial judge was bound N. J. S. A. 24:18-47(e) (1) the defendant for the punish narcotics aby offense prison term of not less than years two nor more than 15 years $2,000. fine not exceeding Thus the three five year $1,000 sentence plus fine was in response to the command statute constituted the sum of punishment im noted, And as the posed. majority even if Lavelle served 200 additional days $1,000 off the working fine, his total im would be mrnfmirm prisonment less than the three year sen tence since he was granted parole (as of January 9, 1969) *6 after years; confinement of a month more than two only such a of total within period clearly confinement maximum Eor of the sentence. imprisonment imposed term of the totality that reason and after of the consideration Board, before two concluded circumstances the Parole judges of treatment discriminatory that no had been made of showing in Board defendant abuse of the part or of discretion on fine was 7, 1969 unless the street on denying parole January paid or worked off. dissenting judge acknowledged propriety legal fine or provide
crimes statutes for or imprisonment both for And “not en- as their violation. he did punishment a fine uncon- tertain the idea that is ever imposition stitutional because of the of the miscreant merely poverty Allen, at 104 N. J. 197. But Super., sentence.” State at in view it is a denial and of process pro- his of due equal “an jail to defaulter in “arbitrarily” tection keep other his sheer inability pay no reason than * * Id., 198. fundamentally *.” at And he it “as regarded fine liberty of his no better reason unjust person to deprive moment he has not at the wherewithal than that * * Id., 200. added). a fine in full *.” at (Emphasis pay who is ready parole In an his judgment indigent prisoner subject be released in of the Board should opinion the fine in reasonable installments. pay the condition failed to make the willfully payments, Then if he commitment work off fine or due. Ac- any would follow to balance an in- above, noted Conford would order Judge cordingly, and on a would direct finding indigency hearing, digency to release Lavelle under reasonable plan Board the Parole fine. of the payments for installment unnecessary. The existence indigency A hearing se indigency per But cannot be deemed is plain. state release Parole Board to Lavelle on con to require fine. Such a rule part payments of periodic dition invade the would legitimate func release automatic requiring e., its discretion Board, i. exercise reasonably of the tion circumstances what and in and when in whether deciding we agree stated be For reasons to should granted. refusal Division with the majority Appellate was not off worked or paid fine was order release until the an discretion. to be abuse of shown statute, 30:4-123.15, N. J. sufra, S. A. controlling inmate an authorizes the Board its discretion to release :A-123.14) under N. J. A. 30 eligible (otherwise the fine be paid condition that unpaid with And further provides to be fixed it. amounts weekly failure to accordance revocation for for parole *7 invade for a court the Obviously, the terms imposed. and require branch of the government of another province the on the street to automatically pay be put a prisoner installments, eligible because he is otherwise simply statutorily the Board’s be trespass upon would for parole, frustrate the and to legis discretionary prerogatives, granted — for fines manda providing particularly lative purpose — part as whole or for certain crimes. punishment ones tory hand since the determination as to whether other On the ato fine should be released to subject satisfy by it prisoners committed the is to the discretion of payments installment within the Board, statutorily delegated authority it would be as a matter of and administra policy to adopt for the Board which all such by prisoners a rule (otherwise tion general J. A. under N. would be 30:4-123.14) for ready parole a to make installment payments. chance given released will come into on would operation July 1) a rule (which Such N. J. intent exhibited S. A. frustrate the legislative not administrative implementa It would represent 30:4-123.15. the lawmakers had agency of that intent tion its effectuation. committed or denial
Ordinarily grant parole ais matter discretion of the parole which rests authority. It is the statute function. Under judicial not minimum portion or the maximum designated sentence sentence after which the merely period convict is signifies eligible
323 at the released expira- not automatically ishe parole; eligible becomes term, tion of the minimum merely Board, 17 v. Parole White at that time. consideration Zink, 48 N. J. Faas v. N. J. 580 Div. Super. 1952); (App. (1958); N. J. 500 25 309 Div. affirmed Super. 1957), (App. Div. 1950), 511 (Law In 9 J. Super. re N. Fitzpatrick, Zink Div. 1951); affirmed 14 N. Super. (App. Lear, 1954). Div. 28 N. J. Super. (App. specific served a sufficient portion
When Lavelle had con- make him eligible sentence to imprisonment in two Board’s discretion sideration, the exercise of the conducive his record was First, whether areas required. be incom- would not belief that his release to a reasonable he Second, whether welfare of society. patible faith effort make reasonably good could be relied upon installments. walls his fine in prison weekly outside the to pay Board concluded that hearing, undoubtedly Following if were not for the unpaid qualified parole. on the basis However, it also obvious from the record that Board decided probation, of his previoris performance for release since he could not relied he was risk poor effort his fine. to make faith good Lavelle, have recounted above how intelligent We take to be advantage failed to person, opportunity *8 to a probation perform at as citizen. large responsible activity he continued in criminal in of two spite Instead of and he failed over grants probation, additional period $25 to more than his $250 of a of then year pay existing that, than failed to work regularly, More he not because fine. do so or that unavailable, he was was employment unable really because was not interested regular employ- he The of must probation reports, copies ment. be filed there, Prison defendant’s confinement with State that Lavelle on B. B. show occasions 3:7-10(b), many aas non-conformist with himself to most regard described behavior current standards. probation the officer reported with his that supervision Lavelle charged “diligently avoided hours and where his regular employment earnings could be accounted for” and work as “preferred caddy.” had from school and had some (He graduated high college He officer on by many was told the occasions education.) and on unsatisfactory, such one occa- employment sion he was referred to Union plastics company County work. The officer was informed regular reported for work in an intoxicated condition. foreman gave him the to return the opportunity following night begin work, but he never came back or otherwise communicated Later no he showed interest company. upon being referred the United States Service for Employment job- In conclusion officer probation advanced the training. that the “defendant as one dedicated appears opinion firmly any to a of life which continues to way preclude possibility * * * under satisfactory adjustment prevailing as ordered this Court.” These probation by reports rules well contact satisfied him county judge’s personal as consciously that Lavelle avoided regular employment him in a position weekly $5 would install- put $250. ments on his fine of original clearly history The Parole Board was aware Lavelle’s it, record, his work just particularly as we have outlined his toward and his failure to regular employment, attitude to him opportunity given county court to accept satisfy weekly payments. $250 moderate It studied case and “all relevant factors” on two occasions exercise of its experienced judgment decided not $1,000 him until he satisfied the fine at the rate $5 Telease each confinement after 1969. day January Obviously, he would not the Board concluded make faith effort good or keep regular employment to obtain to pay his K. treatment accorded Leon Allen by fine. The the Board therefor be contrasted and the reasons with that may given Allen, 54 N. State also (1969) Lavelle. See decided day. this
325 the record Under all the circumstances revealed solely denied street parole cannot be said that Lavelle was weight because of his Courts must indigency. give great in decisions. expertise the Board dealing They clearly convincingly should not intervene unless it No its discretion. such appears Board abused been we no showing Accordingly, problem has made here. see case, of constitutional in dimension consequently no in necessity to discuss the issue as framed the dissent Division. reserved con Appellate Such is question sideration in a more appropriate setting.3
Since the of this argument case the Parole Board on June 2, 1969 rule adopted general to be hereafter applied connection with the inmates of State insti- penal tutions who have unpaid fines at the time are found they otherwise eligible parole. rule, Under to become effective 1 July “all cases, of indi- proof [such] will be gency paroled upon condition that the fines be paid in installments in the community.” It appears also that Lavelle will have worked out his 21, fine on 1969. July We assume 1 the Board will July reconsider Lavelle’s situation and decide whether him the give option 20 devoting remaining days the complete discharge the balance of or released to being off the $100 in remaining reasonable weekly installments.
Eor the reasons indicated the judgment Appellate « Division is affirmed. C. J. I (concurring). join in the opinion
Weintraub, of Mr. Justice Erancis but add some comments. 3 regard note in We this several courts related somewhat rights contexts held have that no denial oí constitutional is involved imprisoned satisfy payment
when an defendant of a Carsley, (Miss. Sup. v. April 14, fine. Wade 221 So. 2d 725 Ct. 1969) ; People Williams, Sup. (Ill. 511, v. Ill. 2d 244 N. E. 2d 197 41 Kross, 1969) ; Supp. Ct. United ex rel. States Privitera v. 239 F. 118 (S. Y.), 533, N.D. affirmed 345 F. 2d 911, certiorari denied U. S. 382 People Saffore, 254, ; (1965) 86 S. Ct. 15 L. Ed. 2d 18 cf. 972, 2d Y. 2d (1966). Y. 271 N. 218 N. E. 2d N. *10 area a that
A to float this misconception vaguely seems an because he offender “fine” is a and to imprison that debt for debt. akin to imprisonment lacks a fine is funds and is term, imposed than a A no less is jail punishment, deter him and it will correct the offender in the hope of offender, because If the and others from transgressing. the stung through pocketbook, be thus cannot indigency, so, is is If that may imprisonment. alternative be only committed because he indigent, not because he is jailed, him. reshape reach and toway no other an offense and there is it unless can result no obstacle to I see constitutional to- entitled constitutionally an is indigent maintained that which a man for every offense any commit with impunity means would be fined. merely of a for a of
Indeed, may jailed wrong man wealth well be a of man of moder- fine would suffice in the case stiff offender, be- means, if the concludes the sentencing ate judge wealth, a dollar by penalty; cause of his would be unimpressed an imprisoned, that account would be jailed offender he committed not he has but because worldly goods, because the aims of an and there no other to achieve way offense is Ivan, (1960). 33 N. 202-203 State punishment. Cf. be held beyond Nor is accurate that a man say might it in jail if he be- maximum term remains jail the authorized authorized maximum is cause fine has not been paid. of the time jail plus period the authorized maximum term if au- which, statute, may an offender be held by is not thorized fine paid.
Nor is correct say it that the purpose imprisonment of a fine is to nonpayment “compel” its Obvi- payment. so. that is not ously offender is not custody held in until fine fully is On the paid. contrary, is fine liquidated far by imprisonment, from payment, such yielding results in loss imprisonment State of both the fine and the cost additional confinement. The point to be remembered is the in-lieu-of imprisonment is substituted to achieve aim that punishment punitive could not be at- liquida- for the provides statute way tamed fine. The is in- because the jail precisely a fine time in tion of to jail intolerable would be Indeed, tended to punish. reduction without until fine is paid offender of imprison- smack would detention, for that period than punishment rather ment for debt nonpayment misdeed. for the penal being that the erroneous thesis offender
Again *11 that debt, of a it could be nonpayment argued imprisoned failure to never be unless his to is found ought jailed pay failure, But the of a “wilful” applicable be “wilful.” concept in a a defendant matter is jailed noncompliance when civil order, a into the scene before us. wtih court does not fit to a wilfulness defining concept and difficulty applying failure Further, if the a must be evident. prison population wilful, the offender remain not then what? Should to failed correct a fine has even the effort to though free immune? he is economically because a fine, When without sentencing judge imposes with or term, he determines that the jail thereby pain be achieve the experienced purpose must to the prmish- ment of the too when prisoner. So board concludes parole the time served of the fine plus payment will It is suffice. assume, I to think the does, that wrong dissenting opinion board here found the aims of had been punishment realized and became a collection mere an agency pursuing Rather debt. we should assume the unpaid board understood values involved expected prisoner to experience hurt, or economic jail-time necessary its as a equivalent, release precondition compatible the welfare of society. say
This is not to installment payments should not If the can be reached in permitted. goals punishment be But of course should. it would be way, they wrong or the say this Court statute Constitution grants released, an be be re- all automatic right prisoners if fail to would be they “wilfully” pay. turned This only an unrealistic to the more sense approach It makes problem. to leave the subject with the board for its evalua- tion of the likelihood of successful installment punishment by I payments. would not release a assume that failure to man And, installment be arbitrary.1. must program of course, a decision not to do in a case hardly so particular raises a “constitutional” issue.
A fine intended as being punishment, Legislature for a I understandably provided jail-time equivalent. agree with Mr. Justice Prancis that the could well re- Legislature view time. periodically daily jail dollar-rate of substituted And it should be remembered dollar any statutory equa- tion can be no more than a the rela- rough approximation tive and hence punitive stings, it would flitting permit both the decide in and the board to sentencing judge any case that the given statutory inappropriate formula is that a lesser substituted time would suffice. jail (dissenting). defendant in this case is
Proctor, denied his being constitutional right to equal protection of laws, I therefore dissent for the essentially reasons *12 expressed by Conford in Judge his in dissenting opinion Allen, State v. 104 N. J. 197 Super. 187, Div. (App. I have no 1969). quarrel part the majority and the opinion, thrust of the concurring opinion, that “A term, no less than a jail is punishment, and is imposed in the that it will hope correct the offender and deter from transgressing again.” My objection is not that an in fined. I digent being object an keeping in after jail the Parole Board has determined that “there is * * * reasonable probability will assume his proper rightful place society, without violation law, that his release is not incompatible with the welfare of so- 1 So, too, I rule, will not apparently assume that the board’s new providing payments cases, for release and installment in all constitutes improper enough exercise I board’s discretion. do not know proposed implementation judge about of that rule it. N. J. A. ciety.” S. 30:4-123.14. Since this case deter mination has been made that after serving part his prison sentence the defendant is a fit subject to return to society under conditions of N. J. parole, 30:4-123.15, S. A. he was prevented from so because of doing solely his indigency. (I am as does the assuming, majority, Board Parole had jurisdiction in this status; ease to review Lavelle’s is, I assume he had served his minimum sentence or one- third of the maximum and was therefore if eligible the Board found him to he rehabilitated. N. J. sufficiently A. 30:A-123.10; State v. 54 N. It Cooper, (1969). is therefore irrelevant what the trial said judge concerning the fine at the time of sentence.)
The majority characterizes Parole Board decision as follows: "not to release him until he satisfied the [Lavelle] $1,000 fine at $5 the rate of for each confinement day after 7, 1969.” January at (Id., However, p. 324). Board’s order would have permitted Lavelle’s instant release if he were fortunate $1,000 have available enough to through or friends family. There is in the record to show nothing the Parole Board ever intended that Lavelle continue to be incarcerated if he money. could have raised the
The majority concluded, has however, that un- Lavelle’s in the reliability of a payment previously imposed $250 fine provides justification for his incarceration beyond January 1969. But evidence of prior unreliability cannot be permitted override, at this point case, the decision of the Parole Board that Lavelle was sufficiently rehabilitated to permit into reentry society. Consideration of prior unreliability should be in the sole purview Board, the Parole since it is in the best position determine whether incarceration has had effect on all rehabilitating aspects the defendant’s character. There is no evidence in the record to show that the Parole Board that, ever intended due prior unreliability, *13 Lavelle is not fit to return to until society fine is paid It off. was solely Lavelle’s lack of funds that was keeping 7, after prison January 1969. A prisoner, rich or con- under been found to society who has fit to return
poor, to pay ditions of should be opportunity given adopted rule liberty. installments while is at he in the 1969, cited 2, Parole Board on June conclusion, 325, this majority at is consistent p. opinion, even held in case, I being prison, As see this man is state organ an official he has been declared though cannot because solely return to ready society, such To permit freedom. for his capital command the ironic to the vulnerable laws system a result make our is to majestic law its “The Prance that comment of Anatole under sleep poor rich as well forbids equality, Lys Le bread.” and to steal streets, in the bridges, beg ch. 7. Rouge, Schettino, JJ., in this dissent. join
Jacobs and Justices For Justice Weinteatib affirmance-—Chief Peancis, and Haneman —4. Hall For reversal—Justices Jacobs, Peoctoe, and Schettino — 3. JERSEY, PLAINTIFF-RESPONDENT, NEW STATE OF WILLIAM JOSEPH COOPER AND ROBERT PAUL MUR- FITT, DEFENDANTS-APPELLANTS. February 18, July Argued 196 9 Decided 1969.