State v. Maxey

Hall, J.

(concurring). The majority and dissenting opinions appear to be in essential agreement that there is no common law or direct statutory prohibition against judicial imposition of consecutive life sentences whether such sentencing follows a jury verdict in a single trial for more than one murder, jury verdicts in separate trials or pleas to one or more indictments. I am in complete accord with this proposition.

The minority concludes, nonetheless, that the 25-year (which usually amounts to about 14% years after deduction of required credits) minimum eligibility provisions in the parole statute, N. J. S. A. 30:4-123.10 and 123.11, apply to consecutive sentences where one is for life as well as when all are for terms of years, and thus renders any life sentence consecutive to a previous one for the same period or for any term of years completely illusory and ineffective. While the dissent does not expressly say that by reason thereof the judge loses power to make the sentences cumulative, I take it the *76 suggestion certainly is that courts should not make vain pronouncements. The majority, on the other hand, finds a legislative intent that the 25-year provision shall not be applicable to any situation where at least one of the consecutive sentences is for life and so that, even if parole eligibility provisions may control sentencing power, there is not even an indirect restraint on the imposition of consecutive life sentences.

Both opinions actually decide a question which is premature and unnecessary to be determined here, i. e.3 when a prisoner under consecutive life sentences is first eligible for parole and musí be considered by the Parole Board for release. That question is not ripe until this defendant has served 25 years less credits. The issue before us is fully and adequately determined when we say that the imposition by the trial judge of two cumulative sentences for life in this case was not illegal. Moreover, to me, the date for parole eligibility has no more pertinence to the matter of whether a court has the right to impose consecutive life sentences than on the question of whether consecutive terms for years may be validly imposed where the aggregated minimum thereof exceeds 25 years because the last paragraph of N. J. 8. A. 30:4-123.10 says that every prisoner serving consecutive terms for years shall be eligible for parole consideration at least at the end of that period regardless of the total of his sentences.

In addition, and perhaps more important, it seems to me most unwise to deal at this time with the matter of parole eligibility in the situation before us even for the sake of settling something for the future. This is a sensitive area of public importance and concern where it is the Legislature’s province to make the policy judgment, which should be expressed definitely and unambiguously. The fact of the differing views in the court in this case is sufficient evidence that this has not yet occurred. While it is the judicial function to construe and interpret unclear statutes, we should not do so where that is not presently required. Eor my part, while a plausible argument can be made to support either of the views *77 expressed in the two opinions, I am not by any means convinced that the Legislature even thought about or intended to cover at all the matter of minimum parole eligibility where the consecutive sentences were each for life or where one was for life and the other or others for terms of years. While it might well be determined as a matter of policy that a man guilty of only one first degree murder ought to be entitled to consideration for release after 25 years less such credits as the statute prescribes, it is not so obvious that it would be felt that a man who has committed more than one premeditated killing or one such murder plus some other offense or offenses serious enough to warrant state prison confinement ought to have the same early consideration for parole. Since the Legislature has not spoken clearly on the subject, even if it intended to speak of it at all, we ought to give the opportunity, now that the question has been broached, for an unambiguous expression before we unnecessarily announce an opinion based on the present form of the statute.

I do, of course, concur in the result reached by the majority and so vote to affirm.