On appeal from the Parole Board of the State of New Jersey.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justice Heher. The opinion of the court was delivered by Burling, J. Heher, J. (dissenting).
[10 NJ Page 271] 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 Rule 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 (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 ...