State v. Costello

• Decision Date: 27 October 1971
• Citation: 59 N.J. 334,282 A.2d 748
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Mary A. COSTELLO, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 334

59 N.J. 334

282 A.2d 748

STATE of New Jersey, Plaintiff-Respondent, v. Mary A. COSTELLO, Defendant-Appellant.

Supreme Court of New Jersey.

Argued April 5, 1971.

Decided Oct. 27, 1971.

Joseph Asbell, Camden, for defendant-appellant.

I. Michael Heine, Asst. Prosecutor (A. Donald Bigley, Camden County Prosecutor, attorney), and John A. Brogan, Deputy Atty. Gen. (George F. Kugler, Jr., Atty. Gen., attorney; Barry H. Evenchick, Deputy Atty. Gen., of counsel and on the brief), for plaintiff-respondent.

The opinion of the Court was delivered by

HALL, J.

This appeal constitutes a two-pronged attack upon a custodial sentence imposed by the Camden County Court following guilty pleas of defendant, a 39 year old female, to three indictments charging gambling offenses. The first prong is a claim that the sentence was excessive under the circumstances. The second is a contention that, in contrast to the sentencing provisions relating to male defendants, the statutory scheme for the custodial sentencing of female offenders arbitrarily discriminates against them and so violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. The case is here by virtue of certification on our own motion of the appeal while pending in the Appellate Division. R. 2:12--1.

All of the offenses charged in the indictments arose out of the same set of facts and all are alleged to have been committed on the same day. One indictment was for bookmaking in violation of N.J.S.A. 2A:112--3. That section designates the crime as a misdemeanor, but contains a special punishment provision requiring, if a custodial sentence is imposed, that the imprisonment be in the state prison for not less than 1 year nor more than 5 years. A second indictment charged the keeping of a gambling resort in violation of the same section, carrying, of course, the same special imprisonment provision. The third charged possession of 'papers, documents, slips or memoranda pertaining to the business of lottery or lottery policy,' made a misdemeanor by N.J.S.A. 2A:121--3. Since this section contains no special punishment provision, the penalty is governed by N.J.S.A. 2A:85--7, which prescribes 'a fine of not more than $1,000, or by imprisonment for not more than 3 years, or both' for all misdemeanors for which no punishment is specifically provided.

The trial court judge sentenced defendant on the bookmaking indictment to an indeterminate term at the New Jersey Reformatory for Women (now called the 'Correctional Institution for Women', L. 1970, c. 300). Similar sentences, to run concurrently with the first, were imposed on the gambling resort and lottery indictments. This place of confinement is directed by N.J.S.A. 30:4--154, which provides:

Any female above the age of 16 years, convicted of a crime which would be punishable by imprisonment in the State Prison if she were a male, shall be committed to the Correctional Institution for Women * * *.

The effect of these indeterminate sentences is concurrent maximum terms of five years on the first two mentioned indictments and of three years on the third. This result is dictated by N.J.S.A. 30:4--155, ¹ which requires in effect that all custodial sentences of women over the age of 16 years (except sentences to a county jail, penitentiary or workhouse as authorized by N.J.S.A. 2A:164--15), are to be to the Correctional Institution for Women for an indeterminate term not to exceed five years, or the statutory maximum for the crime if that is less (except in the case of murder or manslaughter). The court, however, may impose an indeterminate sentence greater than five years, but not to exceed the statutory maximum for the particular crime if the latter is longer than five years. Within these limits the actual length of time served is determined entirely by the institution's board of managers, who may end the term at any date between commitment and the applicable maximum. ²

We deal first with the second prong of defendant's attack, I.e., the contention that the New Jersey statutory scheme for the sentencing of female offenders violates the equal protection clause. The question is an important one and novel in this state. The United States Supreme Court has not ruled upon it. It was not raised below and no record has been made with respect to it. We feel unable to consider it properly without a record and therefore remand for the making of one. Some amplification of the issue will demonstrate what we mean and why.

The Correctional Institution for Women in this state is, by reason of the relatively small number of female offenders, our only institution for their incarceration (except county jails, penitentiaries and workhouses and the Training School for Girls, which is limited, N.J.S.A. 30:4--157.9, to the confinement of female juvenile delinquents of the age of eight years or more and under the age of 17 years). Pursuant to N.J.S.A. 30:4--154, it in fact serves several classes of offenders:

1. Female juveniles above the age of 16 years and under the age of 18 who have committed an offense which, if committed by an adult male, would amount to a crime punishable by imprisonment in the state prison and who have been treated and sentenced as juveniles.

2. Females above 16 but under 25 years of age convicted of an offense punishable by imprisonment in any county penitentiary or workhouse. (Commitment to the women's institution under this classification is permissive and not mandatory.)

3. Female adults between the ages of 18 and 30 years (as well as juveniles between 16 and 18 years of age who have been transferred for adult prosecution, N.J.S.A. 2A:4--15) who have committed a crime punishable by imprisonment in the state prison if the offender were a male, but who, if male, would have been eligible for and would have been committed to the Youth Correctional Institution Complex (male reformatory) instead.

4. Females between the ages of 18 and 30 years of age (as well as juveniles between 16 and 18 years of age transferred for adult prosecution) who have committed a crime punishable by imprisonment in the state prison if the offender were a male, but who, if male, would not have been eligible for or if eligible, would not for other reasons, have been committed to the Youth Correctional Institution Complex, but would have been sentenced to the state prison.

5. Females above the age of 30 years who have committed a crime punishable by imprisonment in the state prison if the offender were a male and would have been required to be committed to that institution if male by reason of their age.

While defendant's claim of unlawful discrimination in the sentencing of women offenders is expressed very broadly, it necessarily is applicable only to offenders under classes 4 and 5 I.e., those who, if male, would have been sentenced to the state prison. Defendant, by reason of age, falls in class 5. Female and male juvenile offenders under the age of 16 are treated the same with respect to the duration of confinement. N.J.S.A. 2A:4--37(b). The same is true as to males and females in the 18--30 age group sentenced, if males, directly to the reformatory system or, in the case of females, to the women's institution but who would have been sentenced to the reformatory system if they had been males. In each case, as we have indicated, the sentence is indeterminate, subject to a maximum previously described, with release at any time between commitment and the expiration of the maximum dependent upon action of the institution's board of managers. N.J.S.A. 30:4--148 (males); N.J.S.A. 30:4--155 (females). ³

There is, however, a considerable distinction between the nature and effect of sentences of males to the state prison and of females to the Correctional Institution for Women who would have been committed to the state prison had they been males (except with respect to women sentenced to minimum-maximum terms or life for murder or manslaughter pursuant to N.J.S.A. 30:4--155). First, in the case of males, minimum and maximum terms are fixed by the judge and the maximum may be less than the statutory maximum permitted for the particular crime. In the case of females, the sentence must be for an indeterminate term with the maximum fixed by N.J.S.A. 30:4--155 at five years or that prescribed by the statute governing the particular crime if such is less than five years. The sentencing judge may not prescribe a lesser maximum (State v. Lavender, 113 N.J.Super. 576, 274 A.2d 611 (App.Div.1971)), but he may, pursuant to the cited section, for good cause, direct a greater maximum up to that authorized by the statute governing the crime. Second, the minimum-maximum sentences of male inmates of the state prison are reduced for 'continuous orderly deportment' in accordance with a schedule prescribed in N.J.S.A. 30:4--140. Comparable inmates of the women's institution receive no such benefit. (As to sentence credits for work performed, see N.J.S.A. 30:4--92.) Third, male inmates of the state prison are eligible for parole consideration by the State Parole Board when a certain statutorily designated portion of the sentence has been served. N.J.S.A. 30:4--123.10 and 123.12. (This does not, of course, mean that every inmate will be released on parole when he is first eligible for consideration.) There is no such provision relating to inmates of the women's institution; as to them, as we have said, release and consideration therefor is entirely in the hands of the board of managers without any statutory directions or guidelines.

These distinctions, in essence, form the basis of defendant's claim of denial of equal protection because of discrimination on the basis of sex. The specific result she seeks is a requirement that she received a minimum-maximum sentence, fixed by the judge, the same as if she were a male being sentenced to the state prison. The contention may be made more concrete by an example....