Clapp, Goldmann and Ewart. The opinion of the court was delivered by Goldmann, J.A.D.
Lear appeals from a judgment of the Superior Court, Law Division, denying relief on an application made by him entitled "Writ of Mandamus." Appellant was sentenced in the Camden County Court in April 1946 on two charges of armed robbery to consecutive terms of 7 1/2 to 15 years in State Prison. Neither the application nor the judgment is printed in the record, but we shall consider the several points now urged: (1) "unequal and unusual punishment," (2) the ex post facto application of L. 1948, c. 84, the new Parole Act, and (3) "double jeopardy."
Under the first point of "unequal and unusual punishment" Lear complains that he has been and is unable to gain a reduction of his sentence through work time allowance because of the inequitable operation of the provisions of R.S. 30:4-92, which reads as follows:
"The inmates of all correctional and charitable, hospital, relief and training institutions within the jurisdiction of the state board shall be employed in such productive occupations as are consistent with their health, strength and mental capacity and shall receive such compensations therefor as the state board shall determine.
Compensation for inmates of correctional institutions may be in the form of cash or remission of time from sentence or both. Such remission from the time of sentence shall not exceed one day for each week of sentence, but remission granted under this section shall in no way affect deductions for good behavior or provided by law."
Specifically, he complains that although he is willing and in fact eager to work, and has in the past faithfully discharged such work assignments as have been given him, he has not been able to gain the full advantage of work time allowances under the statute. Presently, he says, it is possible for a prisoner who satisfactorily completes assigned duties to earn about 52 days off for each year of sentence, or one day for each week's work. Cf. R.S. 30:4-140. Lear claims that whenever, upon doctors' orders, he was required to remain in the prison hospital or to rest in his cell because of illness, he missed the equivalent number of days worked -- in all about 50 days during his seven years of confinement -- and
has thereby suffered a loss of ten days' work time allowance. He contends that the distinction between the physically able inmate and the one who suffers illness is discriminatory and metes out unequal and unusual punishment. The same argument applies to the situation claimed to exist at the State Prison where, because of alleged overcrowded conditions, there are not enough jobs for those who are willing to work. Lear claims that he has lost many days of work time allowance because he was not fully employed. Similarly, he claims he has lost work time because he could not work when supervisory personnel were ill, or because they were on vacation, or because of national holidays observed at the prison. In all, he says that he has been credited with only 250 days, instead of the approximately 364 days which he fully expected to "earn" if fully employed during the last seven years -- a loss of 114 days. Lear seeks to enjoin the State Parole Board from withholding this "compensation" in the future and also prays that the board be directed to credit him with the days off that have so far been withheld.
The simple answer to this is that there is no authority under R.S. 30:4-92 for granting work time allowance to men who do not work, whether because of illness, unavailable work, vacations or otherwise -- and this is conceded. The Legislature has not provided for granting work time credits to prisoners who are not actually engaged in productive occupations. The prison authorities can reduce a sentence only in the manner prescribed by statute. The prisoner alleges that the Legislature is fully aware of the present situation. He recognizes that it is for the Legislature, if it sees fit, to pass remedial legislation. It has not chosen to do so. As for Lear's assertion that he is entitled to more credit than he has received, we have no way of knowing the truth of the matter. The prison authorities will undoubtedly check the accuracy of his representation.
The argument made by Lear as to the ex post facto application of the new Parole Act (L. 1948, c. 84; N.J.S.A. 30:4-123.1 et seq.) runs as follows: The 1948 act creating the State Parole Board in the Department of Institutions
and Agencies provided in section 37 (N.J.S.A. 30:4-123.37) that any prisoner sentenced prior to the effective date of the act -- as Lear was -- "shall retain all rights of eligibility for parole available to him under any pre-existing law." Lear claims he has been deprived of these rights because: (a) prior to May 28, 1948, the effective date of the act, prison inmates had the right to appear before the then Board of Pardons every two years for parole consideration, whereas now, under a rule promulgated by the new Parole Board, it will hear inmates incarcerated before 1948 every two years upon petition only; (b) many prisoners were paroled by the Court of Pardons before their minimum sentence was served, or at minimum, but now the Parole Board cannot parole an inmate before the expiration of his minimum or one-third of his maximum term (N.J.S.A. 30:4-123.10); (c) the vote of the members of the board must be unanimous (N.J.S.A. 30:4-123.19), whereas the former Court of Pardons acted on a majority vote (R.S. 2:10-2); and, finally, (d) clemency at the hands of the Governor is no longer available; prior to the 1948 act the executive acted independently of the Court of Pardons, and although the Governor may still be appealed to for clemency he, in turn, asks the State Parole Board to review the case and make a recommendation; it is idle for a prisoner to expect the board, which has acted unfavorably in his case, to make an about-face and report favorably to the executive.
It should first be observed that Lear, by his own admission, is a third offender and subject to the laws applying to such a prisoner. His reference to not being eligible for consideration for release on parole until he has served his minimum or one-third of his fixed maximum sentence (L. 1948, c. 84, § 10, as amended by L. 1953, c. 277, § 1; N.J.S.A. 30:4-123.10), is inappropriate, since that section deals with first-time offenders. The applicable section of ...