For remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. Opposed -- None. The opinion of the Court was delivered by Hall, J.
This appeal constitutes a two-pronged attack upon a custodial sentence imposed by the Camden County Court following guilty pleas of defendant, a 39 year old female, to three indictments charging gambling offenses. The first prong is a claim that the sentence was excessive under the circumstances. The second is a contention that, in contrast to the sentencing provisions relating to male defendants, the statutory scheme for the custodial sentencing of female offenders arbitrarily discriminates against them and so violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. The case is here by virtue of certification on our own motion of the appeal while pending in the Appellate Division. R. 2:12-1.
All of the offenses charged in the indictments arose out of the same set of facts and all are alleged to have been committed on the same day. One indictment was for bookmaking,
in violation of N.J.S.A. 2A:112-3. That section designates the crime as a misdemeanor, but contains a special punishment provision requiring, if a custodial sentence is imposed, that the imprisonment be in the state prison for not less than 1 year nor more than 5 years. A second indictment charged the keeping of a gambling resort in violation of the same section, carrying, of course, the same special imprisonment provision. The third charged possession of "papers, documents, slips or memoranda pertaining to the business of lottery or lottery policy," made a misdemeanor by N.J.S.A. 2A:121-3. Since this section contains no special punishment provision, the penalty is governed by N.J.S.A. 2A:85-7, which prescribes "a fine of not more than $1,000, or by imprisonment for not more than 3 years, or both" for all misdemeanors for which no punishment is specifically provided.
The trial court judge sentenced defendant on the bookmaking indictment to an indeterminate term at the New Jersey Reformatory for Women (now called the "Correctional Institution for Women", L. 1970, c. 300). Similar sentences, to run concurrently with the first, were imposed on the gambling resort and lottery indictments. This place of confinement is directed by N.J.S.A. 30:4-154, which provides:
Any female above the age of 16 years, convicted of a crime which would be punishable by imprisonment in the State Prison if she were a male, shall be committed to the Correctional Institution for Women * * *.
The effect of these indeterminate sentences is concurrent maximum terms of five years on the first two mentioned indictments and of three years on the third. This result is dictated by N.J.S.A. 30:4-155,*fn1 which requires in effect [59 NJ Page 338] that all custodial sentences of women over the age of 16 years (except sentences to a county jail, penitentiary or workhouse as authorized by N.J.S.A. 2A:164-15), are to be to the Correctional Institution for Women for an indeterminate term not to exceed five years, or the statutory maximum for the crime if that is less (except in the case of murder or manslaughter). The court, however, may impose an indeterminate sentence greater than five years, but not to exceed the statutory maximum for the particular crime if the latter is longer than five years. Within these limits the actual length of time served is determined entirely by the institution's board of managers, who may end the term at any date between commitment and the applicable maximum.*fn2
We deal first with the second prong of defendant's attack, i.e., the contention that the New Jersey statutory scheme for the sentencing of female offenders violates the equal protection clause. The question is an important one and novel in this state. The United States Supreme Court has not ruled upon it. It was not raised below and no record has been made with respect to it. We feel unable to consider it properly without a record and therefore remand for the making of one. Some amplification of the issue will demonstrate what we mean and why.
The Correctional Institution for Women in this state is, by reason of the relatively small number of female offenders, our only institution for their incarceration (except county jails, penitentiaries and workhouses and the Training School for Girls, which is limited, N.J.S.A. 30:4-157.9, to the confinement of female juvenile delinquents of the age of eight years or more and under the age of 17 years). Pursuant
to N.J.S.A. 30:4-154, it in fact serves several ...