For reversal and remandment -- Chief Justice Weintraub, and Justices Wachenfeld, Burling and Jacobs. For reversal and remandment in accordance with dissenting opinion -- Justice Heher. For affirmance -- Justice Oliphant. The opinion of the court was delivered by Jacobs, J. Heher, J. (dissenting).
This is an appeal from a judgment of the Appellate Division affirming an order of the Monmouth County Court denying an application for a writ of habeas corpus.
On March 17, 1952 the defendant Harold L. Wingler was found guilty on an indictment which charged him with
carnal abuse (N.J.S. 2 A:138-1), open lewdness (N.J.S. 2 A:115-1), and attempting to impair the morals of a child under the age of 16 (N.J.S. 2 A:85-5; N.J.S. 2 A:96-3). In accordance with N.J.S. 2 A:164-3, Judge Knight committed him to the Diagnostic Center for a complete mental and physical examination. On April 15, 1952 Dr. Brancale, Director of the Diagnostic Center, forwarded a report stating that the defendant had a severe psychiatric disturbance and recommending that he be placed under the Sex Offender's Act and committed to a State Hospital for further observation. On April 16, 1952 Judge Knight wrote to Commissioner Sanford Bates of the Department of Institutions and Agencies, advising that the defendant had been convicted of one or more of the offenses enumerated in L. 1950, c. 207, as amended by L. 1951, c. 44 (now N.J.S. 2 A:164-3), that he had been given a complete examination as required by the statute, and that it appeared from the Diagnostic Center's report that the defendant came within the terms of the statute requiring his commitment to an appropriate institution to be designated by the Department of Institutions and Agencies. Judge Knight requested the name of the institution and Commissioner Bates recommended the New Jersey State Hospital at Marlboro. On May 9, 1952 Judge Knight sentenced the defendant "to the New Jersey State Hospital at Marlboro for an indeterminate period."
The defendant was admitted to the State Hospital at Marlboro on May 12, 1952. Dr. Palsson's report, dated May 13, 1952, stated that the defendant was uncooperative, had refused to adhere to ward routine and had threatened to leave the hospital. Dr. McCreight's report, dated June 23, 1952, pointed out that the defendant had been "uncooperative, hostile, and defensive in his attitude toward physicians," and recommended that he be transferred to the Men's Disturbed Building for security reasons. On June 25, 1952 Dr. Frantz reported that repeated efforts had been made to test the defendant with no success, and the defendant had refused to enter into any "testing, counselling or therapeutic situation." The hospital reports dated July 3, 1952 indicated
that the defendant was "resistive and assaultive," had complained about shock treatments, had stated that he would "kill anyone that came near him with any ideas of giving him shock," and had threatened to "kill the doctor that attempted to give it to him." On July 7, 1952 Dr. Gordon, Medical Director at Marlboro, wrote to Dr. Bixby, Director of Correction, advising that the defendant had been diagnosed as "Without Psychosis, Psychopathic Personality with Pathological Sexuality," had displayed an "assaultive attitude," and was "very antagonistic, aggressive, and hostile." Dr. Gordon recommended that the defendant be transferred to a penal institution. On July 16, 1952 Dr. Bixby wrote to Dr. Gordon that he could not, at that time, see his way clear "to recommending his transfer to a correctional institution." However, on July 16, 1952 the defendant was transferred, by order of Commissioner Bates, to the Vroom Building of the Trenton State Hospital.
On November 26, 1952 the Special Classification Review Board, established under N.J.S. 2 A:164-8, submitted a report of the defendant's first consideration for parole release and recommended further review in May 1953. Early in March 1953 there was a threatened disturbance in the Vroom Building. Dr. Magee advised Dr. Bixby, by letter dated March 2, 1953, that it appeared that a fairly well-organized plan had been worked out to stage a demonstration and that the plan had been "thought out by a number of the patients, 7 of whom were non-psychotic sex offenders." He named the seven, including the defendant, and requested that "they be transferred to the State Prison for safekeeping." On March 3, 1953, by order of Commissioner Bates, the defendant was transferred to the New Jersey State Prison at Trenton.
On March 25, 1953 the defendant was examined by the prison psychologists. They reported that it appeared that they were dealing with "an extremely primitive and inadequate personality, perhaps a simple schizophrenic." They noted the defendant's statement that he "would a been in the riot at the State Hospital if it had a got started," and they expressed the view that "his chances for staying out of
trouble when released are slim." On May 11, 1953 the defendant received his second consideration for parole release. Mr. Korn, Director of Education and Counselling, noted that the defendant's sexual drive was "compulsive in character," and that he was "confused and threatened by sexual impulses he can neither acknowledge nor control -- he is not to be considered in the category of the wilfully deliberate and self-controlled sex offender." The Special Classification Review Board recommended further review in November 1953. Its report quoted the following "Institution Recommendation":
"Serious nature of the offense, short period served, the fact the inmate is still highly neurotic and compulsive and is unable to cope with his own impulses, lack of insight, the fact he rationalizes his avoidance of all blame through his hostility toward the institution by refusing to work. His psychiatric condition precludes release to the community at this time."
The defendant's third consideration for parole release was on November 16, 1953. Mr. Korn reported his efforts to establish a therapeutic relationship with the defendant and indicated that "a tenuous relationship" was being built; he stated that it was impossible to offer a prognosis since "everything depends on the character and strength of the slow-developing relationship with the counsellor." The Board recommended further review in May 1954. On April 13, 1954 Commissioner Bates wrote to Dr. Bixby requesting that the classification committee at the Prison study the defendant's case and give its recommendation as to whether the defendant "is now suitable for transfer to Bordentown." This matter was taken up during the defendant's fourth consideration for parole on May 10, 1954. At that time the defendant said he wanted neither a parole nor a transfer to Bordentown, but that he did want to go to the State Hospital at Marlboro. Dr. Jackson reported that the defendant was "too irresponsible and confused to be at large," and the prison classification committee opposed the defendant's transfer to Bordentown. The committee pointed out that the defendant had threatened to escape from Bordentown
if transferred there and that in view of "his impulsivity and the possibility of an outburst of violence" he would present "a definite threat to the reformatory."
The defendant's fifth consideration for parole release was on November 15, 1954. Dr. Jackson reported that the defendant was not cooperative and had made "a threat of violence to Dr. Brancale when he gets out." The sixth consideration was on May 16, 1955. Dr. Jackson reported that "he is obviously an unsuitable case for immediate release to the community but presents an extreme problem as to establishment of helpful personal and professional relationships." At the time of the seventh consideration on November 14, 1955, the defendant was in segregation and consequently was not interviewed by the classification committee. The Board recommended further review in May 1956 and requested a complete psychiatric examination of the defendant. On May 18, 1956 the defendant was examined by Dr. Revitch, a psychiatrist attached to the Diagnostic Center. Dr. Revitch expressed the view that the defendant would make a "better adjustment in prison than in the hospital." The eighth and ninth considerations for parole review resulted in recommendations by the Board for further review at later designated dates. On November 9, 1956 Mr. M. Olive, counsellor at the Prison, addressed a memorandum to Dr. Revitch pointing out that the defendant's record indicated various deviant activities and suggesting that the defendant might "respond more appropriately to the therapeutic environment of a hospital." Mr. Olive requested that Dr. Revitch see the defendant "for consideration for possible transfer to the State Hospital." On November 19, 1956 Dr. Revitch examined the defendant. He reported that the defendant was in great need of psychotherapy, that some kind of casual relationship could be established, and that he would call from time to time for meetings with the defendant. His specific recommendations were that the defendant be given an assignment in which he could move around and that there be occasional psychotherapeutic interviews between him and the defendant.
In April 1956 the defendant applied for a writ of habeas corpus. His application was denied and he appealed to the Appellate Division which affirmed the denial on January 2, 1957. Thereafter he was granted leave to appeal as an indigent person and counsel was assigned to file a brief and argue on his behalf. In this court he seeks a reversal and an order returning him "to the lower court for resentence." In his brief he contends: (1) that the Sex Offender Act (N.J.S. 2 A:164-3 et seq.) as interpreted in State v. Newton, 17 N.J. 271 (1955), denies to him the equal protection of the laws, and (2) that he is entitled to a hearing to determine whether his transfer to the State Prison involved an abuse of discretion. The State's brief denies these contentions and, in addition, asserts various preliminary procedural points which should not, however, be permitted to delay the just determination of the important substantive issues presented.
Much has already been written by members of the legal and medical professions about the sex offender and his treatment. See e.g., Ploscowe, Sex and the Law (1951); Karpman, The Sexual Offender and His Offenses (1954); Reinhardt, Sex Perversions and Sex Crimes (1957); Sexual Offences (Radzinowicz ed. 1957). Much more remains to be written, for the misconceptions are quite numerous and the psychiatric and medical knowledge and equipment are quite limited. See Guttmacher, Sex Offenses (1951); Final Report of the Department of Mental Hygiene, California Sexual Deviation Research (1954); Tappan, "Some Myths about the Sex Offender," 19 Fed. Prob. 7 (June 1955); Ellis & Brancale, The Psychology of Sex Offenders (1956).
The problems raised by the sex offender are part and parcel of the larger issues presented in the custody and treatment of all criminals whose rehabilitation is sought for their return to society as law-abiding and useful citizens. But because of their particularly abhorrent nature, sex offenses involving force or age disparity have brought forth the most insistent public demands for the institutionalization and treatment of abnormal sex offenders until they may safely
be released. During the past quarter-century almost half the states have adopted enactments which specially regulate sex offenders. These enactments are commonly known as sex psychopath statutes. New Jersey's first enactment was L. 1949, c. 20, which prescribed mental examinations for sex offenders. Whenever the examination disclosed that the violator suffered from an abnormal mental illness which caused the commission of his offense, it became the duty of the court to commit the violator to an institution, designated by the Department of Institutions and Agencies, for a term not to exceed the maximum provided by law. The Commissioner of the Department of Institutions and Agencies was authorized to transfer the violator from institution to institution "for the purpose of providing for the needs and requirements of such person according to the individual circumstances of the case." The Legislature directed that no statutory provision relating to remission of sentence "by way of commutation time for good behavior and for work performed" shall be applicable and that probation or parole shall not be granted until the Commissioner certifies that the violator has "recovered sufficiently from his or her mental illness to make it reasonably certain that repetition of sex offenses is unlikely."
By Joint Resolution approved April 11, 1949, a Commission was created to determine whether a new statute should be enacted "to make possible the more adequate scientific treatment of the habitual sex offender or sex deviate." The Commission engaged Dr. Tappan as its Technical Consultant and under date of February 1, 1950 submitted its comprehensive Report and Recommendations. It referred to legislative and administrative experiences in other states and suggested that a wholly new enactment be adopted providing for the treatment of persons convicted of designated sex offenses where it is found that their conduct was characterized by "(a) a pattern of repetitive-compulsive behavior and (b) violence or (c) an age disparity between a victim (under the age of 15) and the adult defendant-aggressor." Report and Recommendations of the Commission
on the Habitual Sex Offender 9 (1950). It suggested that (apart from instances where the defendant is placed on probation with out-patient psychiatric treatment) the violator be committed for treatment to a mental or correctional institution designated by the Commissioner of Institutions and Agencies for release when the violator is believed capable of making "an acceptable social adjustment," but in no event beyond the maximum term prescribed by law for the crime of which he was convicted. In ...