On appeal from Superior Court, Appellate Division, whose opinion is reported at 30 N.J. Super. 382.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Jacobs and Brennan. For reversal -- Justice Heher and Burling. The opinion of the court was delivered by William J. Brennan, Jr., J. Heher, J. (dissenting). Mr. Justice Burling joins in this opinion.
Under the 1950 Act for the Treatment of Sex Offenders, N.J.S. 2 A:164-3 et seq., L. 1950, c. 207, p. 454, 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. 2 A:164-6.
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. 2 A:164-8, 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 Feebleminded 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 (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 (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. 2 A:164-7 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.
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. 2 A:164-9, 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. 2 A:164-17, 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, and to consideration for release on parole (unless he be a multiple offender subject to R.S. 30:4-123.12) 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. But, having originally been committed to the State Hospital at Marlboro pursuant to N.J.S. 2 A:164-6 of the Sex Offender Act upon the affirmative findings of the Diagnostic Center, no minimum term was or could be ordered, N.J.S. 2 A:164-6, 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. 2 A:164-8. 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. 2 A:138-1, 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 ...