State v. Newton

• Citation: 111 A.2d 272,17 N.J. 271
• Decision Date: 24 January 1955
• Docket Number: No. A--65,A--65
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Jack NEWTON, Petitioner-Appellant.
• Court: United States State Supreme Court (New Jersey)

Page 271

17 N.J. 271

111 A.2d 272

The STATE of New Jersey, Plaintiff-Respondent, v. Jack NEWTON, Petitioner-Appellant.

No. A--65.

Supreme Court of New Jersey.

Argued Dec. 6, 1954.

Decided Jan. 24, 1955.

Francis M. Seaman, Perth Amboy, argued the cause for appellant.

Eugene T. Urbaniak, Trenton, argued the cause for respondent (Grover C. Richman, Jr., Atty. Gen., attorney).

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.

Under the 1950 Act for the Treatment of Sex Offenders, N.J.S. 2A:164--3 et seq., L. 1950, c. 207, p. 454, N.J.S.A., a judge may not impose a prison sentence upon a person convicted of rape, carnal abuse, sodomy, open lewdness, indecent exposure or impairing the morals of a minor, or of an attempt to commit any such offense, if the Diagnostic Center reports, from an examination of the offender, that his conduct was characterized by a pattern of repetitive, compulsive behavior, and either violence or an age disparity from which it appears that the victim was under the age of 15 years and the offender was an adult aggressor. In such case it is the duty of the court, upon recommendation of the Diagnostic Center, to submit the offender to a program of specialized treatment for his mental and physical aberrations. The program may entail probation conditioned on his receiving out-patient psychiatric treatment, or he may be committed to an institution designated by the Commissioner of Institutions and Agencies for treatment, and upon release shall be subject to parole supervision. N.J.S. 2A:164--6, N.J.S.A.

The question here is whether the Commissioner of Institutions and Agencies has the authority under the Sex Offender Act to transfer to the State Prison at Trenton a convicted sex offender who was committed by the sentencing judge, upon the Commissioner's designation, to the State Hospital at Marlboro.

Newton was convicted in Middlesex County Court of the crime of carnal abuse and was committed to the State Hospital at Marlboro in compliance with the act. He did not respond to individual and group therapy techniques applied at the hospital and when after 14 months a special classification review board, constituted under N.J.S. 2A:164--8, N.J.S.A., determined that he was 'without psychosis, mental deficient, moron,' with an I.Q. of 70, the Commissioner transferred him to the State Prison. The board had recommended that he be transferred to the New Lisbon Colony for Feeble-minded Males, but that institution has a waiting list of upwards of 700 and there is no room for Newton there at this time.

Newton sought and was denied a writ of Habeas corpus by the Middlesex County Court and the Appellate Division affirmed, 30 N.J.Super. 382, 104 A.2d 851 (1954). We granted certification on Newton's petition.

Newton was not entitled, in any event, to his immediate release from custody, and we might sustain the denial of the writ of Habeas corpus on that ground, In re Kershner, 9 N.J. 471, 88 A.2d 849 (1952). However, both lower tribunals based their judgments upon holdings that the transfer was proper within the authority given the Commissioner by N.J.S. 2A:164--7, N.J.S.A. providing:

'The commissioner, in his discretion, is hereby authorized and empowered to arrange for the transfer of such person to or from any institution within the jurisdiction of the department for the purpose of providing for the needs and requirements of such person according to the individual circumstances of the case.'

In the light of the importance of the question, we have concluded to state our reasons for our agreement with this view. Both the State Hospital at Marlboro and the State Prison at Trenton are 'institutions within the jurisdiction of the department,' R.S. 30:1--7, N.J.S.A.

It is true that if the report of the Diagnostic Center had been that Newton's conduct was not characterized by a pattern of repetitive, compulsive behavior and neither violence nor age disparity was indicated, the trial judge, under N.J.S. 2A:164--9, N.J.S.A., would have been free to impose a prison sentence, in which case any sentence to the State Prison at Trenton would have been for fixed minimum and maximum terms, N.J.S. 2A:164--17, N.J.S.A., against which Newton would have been entitled to remission by way of commutation time for good behavior and for work performed, R.S. 30:4--140, N.J.S.A., and to consideration for release on parole (unless he be a multiple offender subject to R.S. 30:4--123.12, N.J.S.A.) after serving his minimum sentence less commutation time or one-third of his fixed maximum sentence without regard to commutation time, whichever occurred sooner, R.S. 30:4--123.10, N.J.S.A. But, having originally been committed to the State Hospital at Marlboro pursuant to N.J.S. 2A:164--6, N.J.S.A. of the Sex Offender Act upon the affirmative findings of the Diagnostic Center, no minimum term was or could be ordered, N.J.S. 2A:164--6, N.J.S.A., he is not entitled to remission of sentence by way of commutation time but only to monetary compensation for work performed, and, subject to the provisions of the Sex Offender Law, he may be confined for the maximum period provided by law for his crime and can be considered for parole only if and when the special classification review board recommends to the State Parole Board that he is capable of making a social adjustment in the community, N.J.S. 2A:164--8, N.J.S.A. Thus, it may be that Newton will remain in the State Prison for the maximum of the term fixed by law for his crime, N.J.S. 2A:138--1, N.J.S.A., unless an abuse of discretion by the Commissioner in detaining him there rather than in another institution under the department's jurisdiction can be established in an appropriate proceeding seeking review of the Commissioner's action. No point is made by Newton that the Commissioner's discretion was abused, and we reserve for a proper case the definition of the permissible considerations which may control the exercise of the Commissioner's transfer power. It will be noted that under N.J.S. 2A:164--8, N.J.S.A. it is made the 'duty of the chief executive officer of any institution wherein such a person is confined to report in writing at least semiannually to the commissioner concerning the physical and mental condition of such person with a recommendation as to his continued confinement or consideration for release on parole.'

The nub of the argument on Newton's behalf is that the Commissioner's transfer power is limited to transfers between Hospitals under the department's jurisdiction, this upon the contention that it is implicit in the Sex Offender Law that a person found by the Diagnostic Center to require specialized treatment is a 'sick' man to be treated as such and not to be confined in a penal institution. The argument is summarized in the brief as follows:

'It would not be oversimplification to state that the intent of the Legislature, in cases of the instant character, was this: If the offender was sick, he belonged in a hospital or under outpatient care; and not in prison, ever. If he was not sick, there was only one institution in which he should be confined: prison. He should be sent to prison only if he was not sick, and only by the Judge, on a sentence. The character of the place of his confinement, i.e., hospital or correctional, is indicated inexorably by the report of the diagnostic center, in the very beginning. If he was sick, he was not an imprisonable criminal, but a patient, and did not belong in the state prison, regardless of whether any type or degree of therapeutic facilities existed there, for the treatment of his condition. The Legislature certainly did not prescribe imprisonment for a sick man, but treatment. The word runs repeatedly throughout the enactment. If he was sent to prison, even under the lip-service of treatment, it is still imprisonment and punishment of a sick man, no matter how sugar-coated his durance vile may be. The Legislature did not intend punishment for him, but mental and physical rehabilitation in an effort to arrest and cure his repetitive and compulsive predilection toward the sex offense of which he was convicted.'

To the contrary, we think the scheme of the Sex Offender Law is this: If the sex offender whose conduct reveals a pattern of repetitive, compulsive behavior may not in the judgment of the Diagnostic Center safely be placed on probation by the sentencing judge in the first instance, his confinement for the maximum period provided by the law for his crime is essential for the protection of society unless during such period the application of such psychiatric or medical remedies for the relief of his aberrations as the State is able to provide results in a recommendation by a special classification review board to the Parole Board that he is capable of making an acceptable social adjustment in the community and he is released under parole supervision. However, the hard fact is that in the present reach of psychiatric and medical knowledge in the field and under the now existing handicaps of insufficient facilities and small professional staffs, results of treatment are often disappointing. The express broad power of transfer among all institutions under the Commissioner's jurisdiction, correctional or not, is recognition that, while the interests of both society and the convicted offender require that every reasonable effort be made to aid the offender to make an acceptable social adjustment, society's greater interest demands that he be confined for so long during the maximum period as remedies to that end prove unavailing and in such institutions under the Commissioner's jurisdiction as from time to time may be appropriate in the circumstances of the particular case.

The important differences as to commutation time and parole consideration which result from affirmative clinical findings of the Diagnostic Center are not the only evidence that this is the legislative scheme. The...