in the case of Application of Johnson, D.C., 178 F.Supp. 155, but for reasons we need not discuss we are not fully in accord with his views.
The applicant again challenges as arbitrary the refusal of the Board of Managers of the institution to release him on parole. The allegations advanced in support of the challenge would seem to suggest that, in the opinion of the applicant, his rehabilitation is sufficient to warrant his release on parole; the opinion is clearly subjective. It is rather obvious that a correctional system devised for the rehabilitation of the youthful offender would become a travesty if the personal opinion of the inmate of an institution were made a determinative factor.
The authority to grant release on parole is defined by statute. There is vested in the 'several boards of managers of state correctional institutions, except the state prison,' the discretionary 'power to release upon parole such inmates of their respective institutions * * * as they may determine to be eligible therefor,' N.J.S.A. 30:4-106, subject however, to other statutory limitations. The grant of parole is a matter of legislative grace and the ultimate decision as to its grant or denial is entrusted to the paroling authority. White v. Parole Board, 17 N.J.Super. 580, 86 A.2d 422; State ex rel. Kincaid v. State Parole Board, 53 N.J.Super. 526, 147 A.2d 817. A writ of habeas corpus is not available to secure relief from its decisions. See Hauck v. Hiatt, 3 Cir., 141 F.2d 812 and the case therein cited. The applicant may not demand, as a matter of right, that he be discharged on parole.
The observation of Mr. Justice Hall in the case of In re Smigelski, 30 N.J. 513, 527, et seq., 154 A.2d 1, 8, et seq., is pertinent here: It is therein stated 'The responsibility of the board of managers in this type of case is a heavy one, both to society and to the prisoner. Since confinement here has already extended over about 12 years, during the greater part of which we presume there has been exposure to rehabilitative treatment, his status should be the subject of careful attention and periodic review at reasonably short intervals. As was said in State v. Wingler, 25 N.J. 161, 181, 135 A.2d 468, 479 (1957), 'arbitrary or capricious action is impermissible and upon a sufficient showing of such conduct judicial relief will justly be afforded." We can safely presume that the Board of Managers in the proper discharge of its function, and following the admonition of the Supreme Court of New Jersey, will review the case of the applicant from time to time as occasion requires.
It appears to be the further contention of the applicant that the vacation of his original sentence, imposed in 1949, and his subsequent commitment 'for an indefinite term' violated the prohibition against double jeopardy. The contention is clearly without merit. The original sentence was held to be invalid; this decision did not entitle the applicant to release. However, it is not necessary for this Court to even consider the contention; the prohibition against double jeopardy embodied in the Fifth Amendment is not one of the fundamental protections guaranteed by the due process clause of the Fourteenth Amendment. Palko v. State of Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288.
The applicant further alleges that he was not permitted to communicate with the representatives of two publications and was thus denied the opportunity to place the facts of his case before the public. We assume that the rules necessary in the orderly conduct of the institution prohibited such communication. Such a rule would not violate any constitutional right of the applicant. The usual concomitance of lawful incarceration is the withdrawal or limitation of many privileges; these limitations are justified by the considerations underlying the orderly administration of the penal system. Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 92 L. Ed. 1356. The inmate of a correctional institution has no right to unrestricted freedom in the receipt and transmission of mail and the courts will not interfere with rules defining appropriate restriction. Ortega v. Ragen, 7 Cir., 216 F.2d 561, certiorari denied 349 U.S. 940, 75 S. Ct. 786, 99 L. Ed. 1268; Adams v. Ellis, 5 Cir., 197 F.2d 483; United States ex rel. Vraniak v. Randolph, D.C., 161 F.Supp. 553; Reilly v. Hiatt, D.C., 63 F.Supp. 477; United States ex rel. Mitchell v. Thompson, D.C., 56 F.Supp. 683. However, the legality of the restriction is not a matter for consideration upon petition for writ of habeas corpus. Ibid.
It is the opinion of the Court for the reasons hereinabove discussed that the application, considered in the light most favorable to the applicant, presents no federal question cognizable under a petition for writ of habeas corpus.
It Is Ordered on this 14th day of July, 1960, that the application for the assignment of counsel and the said application treated as a petition for writ of habeas corpus be, and it hereby is, denied; and,
It Is Further Ordered that the said application be filed without prepayment of costs.
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