Mahoney v. Parole Bd. of New Jersey

Hehbk, J.

(dissenting). The State Constitution of 1947 empowers the Governor to grant pardons and reprieves in all eases other than impeachment and treason, and to suspend and remit fines and forfeitures, and to establish a commission or other body to aid and advise the Governor in the exercise of executive, clemency, and directs that “A system for the granting of parole shall be provided by law.” Article Y, Section II, paragraphs 1 and 2.

It is of the essence of this constitutional direction for the establishment of a parole system that the exercise of the power be free from unjust and invidious discriminations. The principle of the equal protection of the laws is implicit in the provision. There can be no arbitrary classification of prisoners for parole eligibility. The Constitution contemplates a fair and reasonable exercise of the power in the service of the general parole policy. The Legislature necessarily has a great latitude of discretion in classifying prisoners for parole consideration. But the power is not absolute, its exercise is contained by the dictates of fairness and reasonableness and the equality of right and privilege — the antithesis of arbitrary action' — that is basic in our constitutional system. Compare Finley v. California, 222 U. S. 28 , 32 S. Ct. 13 , 56 L. Ed. 75 (1911); Carlesi v. New York, 233 U. S. 51 , 34 S. Ct. 576 , 58 L. Ed. 843 (1914).

Here, the statute makes an arbitrary distinction between fourth offenders who are life prisoners and those who are not that bears no reasonable relation to the policy of the law. The fourth offender undergoing a sentence of life imprisonment, whether for murder in the first degree or as an habitual *281 criminal under R. S. 2:103-10, as amended (see, also, N. J. S. 24:85-12) becomes eligible for parole consideration when he has served 25 j^ears of his sentence less commutation time for good behavior and work credits, making possible a reduction of the minimum period to 14 years, 7 months and 23 days, while a fourth offender not under a life sentence is obliged to serve his full maximum sentence, even although it far exceeds the minimum period which qualifies the fourth offender under a life sentence for parole consideration. In the case now before us the maximum sentence less earned commutation time is 23 years; in some cases the fourth offender’s maximum sentence goes beyond the normal life span.

It has been said that release on parole is a matter of grace. It is rather a discretionary function controlled by well-defined considerations concerned with the welfare of society and the interest of the prisoner which need not be elaborated here. Certainly, eligibility for parole consideration is not to be arbitrarily granted in one case and refused in another in like circumstances. Unequal operation of the law would run counter to the genius and spirit of the Constitution. The Constitution is not to be read as conferring absolute power— a wholly unregulated discretion that would admit of partiality and inequality in the extension of paroles. The statement of the affirmative of this proposition carries its own refutation. The use of the term “system” in the grant of power bespeaks its essential quality and limitations. The principle finds expression in the Fourteenth Amendment to the Federal Constitution. Carlesi v. New York, cited supra. It is expounded in Smith v. Board of Examiners, 85 N. J. L. 46 (Sup. Ct. 1913).

It is not an answer to say that the released life prisoner is subject to parole supervision so long as life lasts, unless clemency be extended, while a fourth offender discharged from imprisonment upon completion of his maximum sentence is not. This I consider an artificial and illusory distinction that does not take into account the policy and purpose *282 of the parole law, i. e., release from imprisonment before the maximum sentence is served. Parole is in mitigation of the punishment, so much so that retroactive laws granting more favorable parole terms to the prisoner are not ex post facto. Lindsey v. Washington, 301 U. S. 397 , 57 S. Ct. 797 , 81 L. Ed. 1182 (1937); People v. Adams, 274 N. Y. 447 , 9 N. E. 2d 46 (Ct. App. 1937); Andrus v. McCauley, 21 Fed. Supp. 70 (D. C. Wash. 1926). The continuous quest by prisoners for the advancement of the date of parole eligibility is a practical demonstration of the fact.

I would reverse the judgment.

For affirmance — Chief Justice Vanderbilt, and Justices Olibiiant, Wacheneeld, Burling, Jacobs and Brennan —6.

For reversal — Justice Hbher — 1.