power to impose consecutive life sentences resides in the trial judge; such sentences not repugnant to purposes of parole act
How later courts described this case
- power to impose consecutive life sentences resides in the trial judge; such sentences not repugnant to purposes of parole act
Written by the judges who cited it.
The opinion
Weintkaub, C. J.
(dissenting). So far as I know, this is the first case in which consecutive life sentences were imposed.
I am not bothered by the abstract problem of how a man can succeed in serving consecutive life sentences. It can be done under our statutory scheme. The real issue is one of parole eligibility. The majority hold the sentencing judge has the power to control parole eligibility by deciding whether the subsequent life sentence shall be served with the earlier one or after it. With this I am unable to agree.
As to murder in the first degree, the statute seemingly transferred the entire sentencing responsibility to the jury. N. J. 8. 2A:113-4 provides that “Every person convicted of murder in the first degree * * * shall suffer death unless the jury shall * * * recommend life imprisonment, in which case this and no greater punishment shall be imposed.” The statute neither recognizes nor grants a discretionary role to *78 the sentencing judge to alter the consequences of the recommendation. The trial judge said “The sentences were so imposed to carry out as nearly as the law permits the plain intention of the jury that, although defendant’s life should be spared, he should be kept in confinement under guard for the remainder of his life to protect the public against a recurrence of the brutal violence which the defendant has demonstrated.” State v. Maxey, 77 N. J. Super. 397, 407 (Cty. Ct. 1962). No such purpose was expressly stated by the jury, and if the trial judge was merely executing the will of the jury, it could only be on the hypothesis that every recommendation for life imprisonment necessarily imports a decision that the sentence shall be consecutive to all other sentences which have been or can be imposed, to the end that parole eligibility shall be delayed as long as possible. In fact, the statute does not authorize the jury to consider the subject at all.
Although I have stressed the lack of authority in the court to qualify or supplement the jury’s recommendation, the case ought not to be decided on that narrow ground. The reason is that a court may impose a life sentence upon a plea of non vult or nolo contendere to an indictment for murder, N. J. S. 2A :113 — 3, and it would not make sense to differentiate multiple life sentences imposed upon such pleas from those imposed upon jury verdicts. As already said, parole eligibility is really the only meaningful issue, and as to it, I think the Legislature has fixed a minimum date of eligibility which controls whether life sentences be deemed concurrent or consecutive.
N. J. S. A. 30 :4-123.11 reads:
“Any prisoner serving a sentence of life shall be eligible for consideration for release on parole after having served twenty-five years of his sentence, less commutation time for good behavior and time credits earned and allowed by reason of diligent application to work assignments.”
I cannot read "a sentence” to mean one sentence. The Legislature was not speaking of numbers but rather of a sentence *79 which by its terms would exhaust a human life, and as to such a sentence the Legislature stated its policy that the prisoner shall be “eligible for consideration” for release on parole after serving the minimum period there stated.
The same policy appears in N. J. S. A. 30:4-123.10 which concludes:
“Notwithstanding any of the other provisions of this act, whenever it shall appear that the date upon which a prisoner shall be eligible for consideration for release on parole occurs later than the date upon which he would be so eligible if a life sentence had been imposed upon him, then, and in such case, he shall be deemed eligible for consideration for release on parole after having served 25 years of his sentence, or sentences, less commutation time for good behavior and time credits earned and allowed by reason of diligent application to work assignments.”
These provisions express the legislative judgment that imprisonment without hope is wrong; that neither judge nor jury can foretell that a man will never be able or worthy to assume a productive role in society; and that the Parole Board, with the advantage of time, can better make the final judgment. This comports with the philosophy of the constitutional provision that “A system for parole shall be provided by law.” Art. V, § 2, par. 2.
I understand that in a number of instances a sentence for life and a sentence for a term of years have been imposed on a consecutive basis and that the Parole Board deems such a combination to be beyond the provision for eligibility after 25 years. I would read the quoted statutes to apply, but I add that, as in the case of multiple sentences for life, this view would not compel the Parole Board to release a prisoner a single day before he should be. The statement annexed to the bill (A364, February 16, 1953) which added the provision of section 123.10 quoted above, correctly noted that:
“* * * It must be remembered that this amendment is designed only to create an eligibility date and in no sense requires the Parole Board to release at any specified time short of the maximum term imposed by the court.”
*80 Hence, in deciding whether and when to grant parole in these situations the Board must consider the totality of the prisoner’s conduct, including the number of the sentences and the judge’s evaluation as he may have expressed it in directing the sentences to be concurrent or consecutive. Ultimately the Board weighs the same elements that may have moved the sentencing authority, but with the advantage of time. We should assume the Parole Board is equal to its responsibility under N. J. S. A. 30:4-123.14:
“jSTo prisoner shall be released on parole merely as a reward for good conduct or efficient performance of duties assigned while under sentence, but only if the board is of the opinion that there is reasonable probability that, if such prisoner is released, he will assume his proper and rightful place in society, without violation of the law, and that his release is not incompatible with the welfare of society.”
I would therefore modify the judgment in accordance with these views.
Mr. Justice Jacobs joins in this dissent.
Hall, J., concurring in result.
For affirmance — Justices Francis, Proctor, Hall, Schettino and Haneman — 5.
For modification — Chief Justice Weintraub, and Justice Jacobs — 2.