Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
[44 NJSuper Page 470] Plaintiff is now serving a life sentence at the New Jersey State Prison as an habitual offender. In October 1956 he filed what was in effect a petition in the Chancery Division praying that an order to show cause be issued directing defendant McCorkle, then Principal Keeper of the State Prison, to explain why he was subjecting plaintiff to cruel and unusual punishment through prolonged "solitary confinement" and denying him free exercise of his religious beliefs through attendance at Mass on Sundays and Holy Days as prescribed by the Roman Catholic Church. Defendant moved to dismiss on the ground
that the matter was reviewable only in the Appellate Division under R.R. 4:88-8. The Chancery Division thereupon ordered the proceedings transferred to the Appellate Division "for its consideration" as to whether the matter was reviewable under that rule.
In his initial brief in this court, filed pro se , plaintiff stated that "he is not questioning the reason or reasons as to why he is not released from solitary [ sic ] confinement nor * * * attacking the rules or regulations of the Board of Managers of the Prison or * * * of the State Board of Control of Institutions and Agencies," but was "only seeking an 'order to show cause' why the Principal Keeper of the New Jersey State Prison should not be restrained from invoking cruel and inhuman and unusual punishment upon the plaintiff, because the Principal Keeper has prevented in the past and is now preventing the plaintiff * * * the right to the free exercise of religious beliefs and attendance of Mass on Sundays and Holy days as prescribed by the Roman Catholic Church and nothing else." The Attorney-General, acting on behalf of defendant, then filed an answering brief questioning whether matters relating to the disciplining of an inmate for infraction of prison rules are reviewable under R.R. 4:88-8, but in any event arguing that defendant was not subjected to cruel and unusual punishment or deprived of his religious liberties in violation of the State or Federal Constitution. Attached to this brief was an appendix, certified by the Attorney-General, setting out plaintiff's disciplinary record at the State Prison in detail.
The appendix reveals that plaintiff is not in solitary confinement, as he claims, but has been kept in the segregation wing of the Prison. Although inmates in segregation do not have contact with the general inmate population, they do have contact with each other in the segregation exercise yard and are permitted exercise outdoors for two hours each day, weather permitting. If their conduct warrants, they are permitted commutation credits for good behavior as provided in R.S. 30:4-140, and may take special
correspondence school courses through the educational department. They have the same mail privileges as other inmates, and visiting privileges are the same except that visitors must come at stated hours. The case of each inmate in segregation is reviewed once each month by the supervising officer in the custodial department, at which time a decision is made as to whether the inmate may be returned to the general prison population. Inmates in segregation are not allowed to accompany the general prison population to chapel for religious services on Sunday and other appropriate days, but a chaplain of each religious faith is available to such men to visit them in their cells for spiritual guidance, including Holy Communion. Any request made by plaintiff for spiritual assistance would be granted. None of these matters relating to men in segregation is denied. We were informed at oral argument that there are presently some 30 men in the segregation wing of the State Prison.
Following the coming in of plaintiff's reply brief this court, on its own motion, appointed Hamilton S. Kean, Esquire, to brief and argue the appeal on behalf of the prisoner. Counsel was instructed to argue, among such other points as he might desire to raise, whether this appeal properly comes before the Appellate Division under R.R. 4:88-8 and whether the denial to plaintiff of attendance at Mass amounted to what he describes as cruel and unusual punishment. This court desires to express its appreciation to assigned counsel for the thoroughness and excellence of his presentation.
The following facts are not in dispute:
(1) Plaintiff has been in the segregation wing since October 1952. Defendant alleges he was so confined because he participated in the riot in No. 7 Wing at the State Prison on October 12, 1952; plaintiff, however, denies such participation. Plaintiff's disciplinary record shows no acts of misconduct between October 1952 and July 29, 1954, but lists some 15 violations since then which have resulted in a continuation of confinement in segregation. Most of these charges relate to the use of "foul, obscene and indecent language" to prison officials and plaintiff's refusal to obey orders.
(2) While in segregation plaintiff has not been permitted to attend Mass in the prison chapel along with the nonsegregated inmates. The Catholic chaplain will not hold Mass in the segregation wing in the absence of a chapel.
(3) The Catholic chaplain has at all times been available to plaintiff and others in segregation, to offer spiritual advice, guidance and counsel as well ...