Ex parte Mahoney

• Decision Date: 12 December 1951
• Citation: 17 N.J.Super. 99,85 A.2d 338
• Parties: Ex parte MAHONEY.
• Court: New Jersey County Court

Page 99

17 N.J.Super. 99

85 A.2d 338

Ex parte MAHONEY.

Mercer County Court Law Division, New Jersey.

Dec. 12, 1951.

Ivan C. Bash, Trenton, and Samuel Kagle, Philadelphia, Pa., for petitioner.

Theodore D. Parsons, Atty. Gen. of New Jersey (Eugene T. Urbaniak, Deputy Atty. Gen.), for the State.

HUGHES, J.C.C.

Grafton Mahoney is presently confined in the New Jersey State Prison, and filed a petition under R.S. 2:82--1, et seq., N.J.S.A., for writ of habeas corpus, alleging his unlawful imprisonment. The writ was issued and hearing was had thereunder, and complete stipulations of fact entered in the record, with the approval of the court.

The facts:--On April 22, 1937, petitioner entered the New Jersey State Prison to serve five consecutive terms of imprisonment imposed upon him in the appropriate court in Essex County. These included four separate sentences, each with a minimum term of three years and a maximum of five years, and a fifth sentence with a minimum term of two years and a maximum of three years. All of these sentences were ordered by the sentencing judge to be served consecutively and not concurrently, and there is no doubt as to the power of such court to so order. State v. Mahaney, 73 N.J.L. 53, 62 A. 265 (Sup.Ct.1905); Ex parte Deluccia, 10 N.J.Super. 374, 76 A.2d 304 (Law Div. 1950).

These sentences thus amounted to an aggregate minima of 14 years and an aggregate maxima of 23 years. Upon petitioner entering the New Jersey State Prison, he was informed he was considered as a prisoner having 'lumped' or combined minimum sentences of 14 years and such maximum sentences of 23 years, and he would thus be treated, and he actually was treated until recently, as a prisoner serving a single sentence of not less than 14 nor more than 23 years. He was also advised by a book of prison regulations then handed him (which had been marked here in evidence as P--1), that on the basis of a term amounting to 23 years in the maximum, he would be allowed under R.S. 30:4--140, N.J.S.A., the maximum number of credits available under this statute which provides incentive rewards for good conduct, faithful performance of assigned labor, and the like. Granted observance of good conduct and other elements described in this statute on the part of the prisoner, the book advised him of the specific number of days by which his combined sentences would be reduced in the aggregate, amounting to 2,736 days. If his sentences had been treated separately, the allowances against each would have been much less, for short-term prisoners derive from the statute less remission time on the obvious premise that they need less incentive for good conduct.

To understand the complete mechanical basis of this distinction, it is necessary to examine the statute. ¹ Aside from their obvious utility, indeed their very necessity, in the maintenance of discipline, such statutes are said to be prompted by the highest motives of humanity, and are generally looked upon with favor both by the state and federal legislatures. Ex parte Anderson, 149 Tex.Cr.R. 139, 192 S.W.2d 280 (Ct.Crim.App.Tex.1946); 41 Am.Jur., Prisons and Prisoners, § 41.

The first sentence of our New Jersey statute, supra, provides credit allowances which may be regarded as 'basic,' in the sense that such remission of sentence is fixed, mandatory of allowance in the case of all prisoners regardless of the length of their term of sentence, and withheld, or else forfeited retroactively, only in case of the meriting of punishment by flagrant misconduct or otherwise. On the other hand, the remission of time for uninterrupted good conduct as provided for in the final sentence of the statute is not fixed, being based '* * * On the recommendation of the principal keeper and moral instructor, * * *.' Moreover, this type of remission is progressive in that '* * * for each succeeding year of uninterrupted good conduct the remittance shall be progressively increased at the rate of one day per month for that year.'

Now, although the latter remissions seem dependent on the exercise of interim judgment of the designated prison officials, the practice referred to, fortified by regulations apparently within the competence of the prison managers (R.S. 30:4--4, N.J.S.A.) contemplated the notification to the prisoner at the very outset of his term of service that such time was allowed him, subject to withdrawal for cause. The validity of this procedure (obviously dictated by necessary practical reasons) is not presently before me, for concededly this petitioner has merited no forfeitures. ²

Under this statute, therefore, a prisoner having a five-year maximum was thus advised that such allowances applicable to his term amounted to 390 days; that on a three-year maximum term there was similarly allowed a total of 228 days. In the case of this petitioner, these allowances, separately applied to each sentence, would have amounted to a total of 1,788 days. However, as stated, the petitioner was advised that on the combined maxima of all of his sentences he would be allowed 2,736 days, as though he were serving a single sentence of such maximum.

If entitled to the latter and greater remission, his term of service has expired, and he is entitled to immediate release. Based on the former allowance, i.e., a total of 1,788 days, however, the maximum of his sentences, or the final one of them, has not expired, and he is properly held further in confinement.

In 1950, the State of New Jersey, by the office of the Attorney-General, advised the prison authorities that the practice of combining or 'lumping' sentences was illegal, and later the Law Division of the Mercer County Court decided that such practice was indeed unjustified by law, and was a nullity. Ex parte Fitzpatrick, 9 N.J.Super. 511, 75 A.2d 636 (Cty.Ct. 1950). On the authority of such decision, the administrative officials of the prison have re-shaped the records of each prisoner serving consecutive sentences, causing these records now to show the true condition of such sentences, Ab initio, i.e., as described in the Fitzpatrick decision, namely, that the maximum of each such sentence was served (or would have to be served) separately, less commutation credits available by force of the aforesaid statute. Applying this corrected procedure, it appears now that petitioner has served the maximum of each of his first four sentences, and is now serving time against the final sentence of not less than two nor more than three years. The tentative expiration date of such sentence is June 14, 1953, less work time which the prisoner is permitted to earn under R.S. 30:4--92, N.J.S.A., in the meanwhile.

This petitioner urges that the carrying of the illegal practice of 'lumping' or combining consecutive sentences into a standardized and long-established procedure of calculating commutation time credits under R.S. 30:4--140, N.J.S.A., supra, constituted an equitable relationship of sorts between the prisoner and the State, on which the State of New Jersey and its prison authorities should not now be permited to renege.

I do not see how this argument can prevail. There is no authority in the courts, nor in the State Prison authorities as such, to parole prisoners, that function being reposed exclusively in the New Jersey State Board of Parole, by the Constitution and laws of this State. Unless parole intervenes, a prisoner is bound to serve the maximum term of his sentence, less the credits provided for in R.S. 30:4--140, N.J.S.A., supra, and R.S. 30:4--92, N.J.S.A., supra. Moreover, he must serve one maximum sentence after the previous maximum sentence has been completed. Ex parte Fitzpatrick, supra. Even the release of an inmate by error, or intentionally, short of service of this maximum term, by the prison authorities, is ineffectual in law. Ex parte Damato, 11 N.J.Super. 576, 78 A.2d 734 Cty.Ct.1951). Departmental or administrative construction of a statute, even though of long standing, and while entitled to respect in cases of ambiguity or of reenactment 734 (Cty.Ct. 1951). Departmental or administrative the courts, and the latter must override the same where plainly erroneous. State Board of Administration v. Jones, 212 Ala. 380, 102 So....