Mahoney v. Parole Bd.

• Decision Date: 26 June 1952
• Docket Number: No. A--110,A--110
• Citation: 90 A.2d 8,10 N.J. 269
• Parties: MAHONEY v. PAROLE BOARD.
• Court: New Jersey Supreme Court

Page 269

10 N.J. 269

90 A.2d 8

MAHONEY v. PAROLE BOARD.

No. A--110.

Supreme Court of New Jersey.

Argued March 24, 1952.

Decided June 26, 1952.

Samuel Kagle, of the Pennsylvania Bar, Philadelphia, Pa., argued the cause for appellant (Ivan C. Bash, Trenton, attorney).

Eugene T. Urbaniak, Deputy Atty. Gen. argued the cause for respondent (Theodore D. Parsons, Atty. Gen. of New Jersey, attorney).

The opinion of the court was delivered by

BURLING, J.

This is an appeal to the Superior Court, Appellate Division, under Rule 3:81--8 (in lieu of the prerogative writ of Certiorari) from an order of the Parole Board of the State of New Jersey. The proceeding was brought to obtain a declaration of the constitutionality and effect of paragraph (c) of section 12 of L.1948, c. 84 (the Parole Act; N.J.S.A. 30:4--123.1 et seq.) and the validity of a ruling of the Parole Board of the State of New Jersey (hereinafter called the Parole Board) contained in a letter from the chairman of the Parole Board dated January 4, 1952, denying the appellant, Grafton Mahoney (hereinafter called Mahoney) consideration for release on parole. Although this proceeding was described in the pleadings and briefs as a petition for declaratory judgment under Rule 3:81--10, adjectively speaking this appears improper inasmuch as no review is sought of an administrative rule promulgated by a state administrative agency. Prior to hearing before the Appellate Division this action was brought to this court pursuant to certification allowed on our own motion.

In the study of this case we must first notice that the Constitution of 1844 contained the following provision:

'The governor, or person administering the government, the chancellor, and the six judges of the court of errors and appeals, or a major part of them, of whom the governor, or person administering the government, shall be one, may remit fines and forfeitures, and grant pardons, after conviction, in all cases except impeachment.' N.J.Const. 1844, Art. V, par. 10.

Whereas under the Constitution of 1947, the general subject is dealt with as follows:

'1. The Governor may grant pardons and reprieves in all cases other than impeachment and treason, and may suspend and remit fines and forfeitures. A commission or other body may be established by law to aid and advise the Governor in the exercise of executive clemency.

'2. A system for the granting of parole shall be provided by law.' N.J.Const. 1947, Art. V, Sec. II, pars. 1 and 2.

Pursuant to that authority the Legislature enacted an act in 1948 which took effect May 28, 1948. This established a parole system as distinct from the pardoning power.

It must be observed that the Parole Act gives the power to and imposes the duty upon the Parole Board to classify the offenders upon entry into confinement so as to formulate a time table for consideration for parole of each inmate. No provision is made for hearing upon the classification; in fact, it is expressly provided to the contrary. L.1948, c. 84, Sec. 17; N.J.S.A. 30:4--123.17. The wisdom of such a policy is for the Legislature and is not a constitutional requirement.

The agreed statement of facts, filed pursuant to Rules 1:2--22 (applicable to the Appellate Division under Rules 4:2--6) and 3:81--10 shows: that Mahoney was committed to the New Jersey State Prison at Trenton on April 21, 1937 from the appropriate criminal court in Essex County; that on that same date he was given five consecutive sentences four of which had a minimum of three years and a maximum of five years on conviction of charges of breaking and entering, and the fifth having a minimum of two years and a maximum of three years on conviction of the charge of possession of burglar tools; that interrogation of Mahoney by prison authorities, and examination of his fingerprint record submitted to them by the Federal Bureau of Investigation of the United States Department of Justice in Washington, D.C., disclosed that he had the following previous criminal record of convictions and sentences:

As Grafton Mahoney No. A--11391, appellant was convicted of the crime of escape and sentenced to the State Prison in Pittsburgh, Pennsylvania, on May 11, 1921, for a term of 10 years.

As Earl Comer No. 11050, appellant was convicted of the crime of breaking and entering and sentenced on November 4, 1927 for a term of 4 years to the New Jersey Prison at Trenton.

As Grafton Mahoney No. 62797 appellant was convicted of the crime of burglary in a dwelling by night on November 6, 1930 and given a sentence of from 5 to 30 years in the State Prison at Columbus, Ohio.

Mahoney admits that he is the individual so convicted on the dates above specified and was sentenced to and confined in the respective State Prisons at Pittsburgh, Pennsylvania; Trenton, New Jersey; and Columbus, Ohio, all being prior to the sentences now being served by him at State Prison in Trenton. The statement of facts also shows that he was not indicted, tried, convicted or sentenced as an habitual offender at the time of his sentencing in Essex County on April 21, 1937. See State v. Burns, 136 N.J.L. 601, 603, 57 A.2d 1 (E. & A.1948).

The Parole Board, upon a consideration of the foregoing prior convictions of the appellant and the fact of his confinement in the aforementioned State Prisons of Pennsylvania, New Jersey and Ohio, admitted by appellant but not formally proved at a hearing before respondent, determined that he was a fourth offender within contemplation of section 12, chapter 84, L.1948 (N.J.S.A. 30:4--123.12) and further determined that respondent was precluded from considering appellant eligible for release on parole prior to the expiration of the maximum of the sentence imposed upon him.

On January 2, 1952, Mahoney addressed a letter to the Parole Board requesting consideration of his case. The Parole Board, by letter of January 4, 1952, addressed to the Principal Keeper of the State Prison, replied as follows:

'The information in the possession of the State Parole Board indicates that Grafton Mahoney is a fourth offender in contemplation of said Section 12, Chapter 84, P.L.1948, and it is the judgment of this board that it is precluded from considering him as eligible for release on parole until he has served the maximum of the sentence or sentences imposed upon him less credits for work performed.

'It is further our understanding that Grafton Mahoney does not deny that he was the individual convicted on the prior occasions but rather takes the position that his admission thereof is insufficient to permit this board to classify him as such fourth offender under Section 12 aforesaid.

'Please inform Grafton Mahoney of this decision of the Parole Board.'

Shortly thereafter, Mahoney instituted the present proceeding in the Superior Court, Appellate Division. Prior to hearing there, certification was allowed on this court's own motion, as hereinbefore stated.

The questions involved, asserted by Mahoney, are whether he has been denied equal protection of the laws and due process of the law, under the 14th Amendment to the United States Constitution, by L.1948, c. 84 (N.J.S.A. 30:4--123.1 et seq.). These necessarily involve construction of various portions of that enactment including paragraph (c) of section 12, under which the action of the Parole Board was effectuated.

Mahoney's first objection is that he is, by the terms of the statute, deprived of equal portection of the laws under the 14th Amendment to the Constitution of the United States. The gist of Mahoney's contention in this respect is that Sec. 12, par. c, of L.1948, c. 84 (N.J.S.A. 30:4--123.12(c)) is not uniformly applicable to fourth offenders in that some fourth offenders are eligible for parole at an earlier period during their confinement than is Mahoney. To support his contentions he argues that fourth offenders sentenced to life imprisonment under the habitual criminals act (R.S. 2:103--10 as amended by L.1940, c. 219, sec. 3 N.J.S.A.; see also N.J.S. 2A:85--12, N.J.S.A.) are eligible for parole under section 11 of the Parole Act (N.J.S.A. 30:4--123.11) after serving 25 years (less good conduct and work credits), and those confined in county penitentiaries serving terms greater than one year are eligible for parole after serving at least one year of such term. The State agrees with Mahoney that the limitations contained in section 12 have no reference to section 11, and argues that those serving life sentences are in a different class because they have no determinable maximum sentence and if released remain on parole for life, whereas those released under section 12 are freed of parole at the expiration of the time of their maximum sentence. As for section 35 of the same statute (N.J.S.A. 30:4--123.35), the State contends that prisoners in a county penitentiary constitute a different class from those confined in a state prison for the reason that their crimes are less serious, and that in any event there is no provision in section 35 releasing county prisoners from the restrictions of section 12. In resolving these conflicting arguments and reaching the construction of the enactment the court is required to read the terms used by the Legislature, so as to reach an understanding of the legislative intent and define the same in such a way as to give effect to every word and phrase of the statute. Hoffman v. Hock, 8 N.J. 397, 406, 409, 86 A.2d 121 (1952); Lynch v. Borough of Edgewater, 8 N.J. 279, 286, 85 A.2d 191 (1951). To do this, it seems necessary to set forth in full the language of the pertinent portions of L.1948, c. 84 (N.J.S.A. 30:4--123.1 et seq.) to which our attention has been drawn. They are as follows:

Section 11 (N.J.S.A. 30:4--123.11)

'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...