For reversal -- Chief Justice Weintraub and Justices Jacobs, Proctor, Schettino and Mountain. For affirmance -- Francis and Hall, J.J. Francis, J. (dissenting). Justice Hall joins in this dissent.
The judgment of the Appellate Division is reversed for the reasons given by Judge Halpern in his dissenting opinion. (114 N.J. Super. 146, 148 (1971))
FRANCIS, J. (dissenting). I vote to affirm the sentence as modified by the majority opinion of the Appellate Division.
For a number of years the Legislature has shown increasing concern with the problem of use of narcotic drugs and the ever mounting traffic in such drugs. The original regulatory and penal statute on the subject has been amended or revised on several occasions since 1933 (L. 1933, c. 186), the last one being L. 1970, c. 226. For nearly 20 years the lawmakers steadfastly regarded illegal possession, use and sale of narcotics as such a serious assault upon the fabric of our society as to require imposition of prison terms within specified minimum and maximum limits on all persons convicted of such violations. L. 1951, c. 56.
The present defendant was indicted and convicted of illegal possession of narcotics in violation of N.J.S.A. 24:18:47(c)(1), (since repealed and replaced by N.J.S.A.
24:21-20(a)(1)), which ordained that the punishment for him as a first offender "shall" be "a fine not exceeding $2,000.00 and by imprisonment with hard labor, for a term of not less than 2 years nor more than 15 years." The stern legislative mandate for compulsory incarceration remained unchanged until the last revision in 1970 (L. 1970, c. 226) when the mandatory minimum prison term was eliminated.*fn1 But cf. N.J.S.A. 2A:168-1.
I am satisfied beyond all doubt that the Legislature never intended at any time, prior to 1970 at least, to authorize the courts in their discretion to disregard the command for a mandatory minimum sentence for narcotics law violators, and instead to commit them to the New Jersey Reformatory for Males at Yardville Youth and Correction Center (now Youth Reception and Correction Center, Yardville, (L. 1970, c. 300)), for an indeterminate term its length to depend upon the will of the managers of that institution. We know that on an indeterminate sentence the prisoner may be released by the managers whenever in their judgment his response to the custodial treatment warrants it. N.J.S.A. 30:4-148; In re Nicholson, 69 N.J. Super. 230, 233, 237 (App. Div. 1961); In re Zienowicz, 12 N.J. Super. 563, 571, 574 (Cty. Ct. 1951). It is a matter of record that when at least one of the revisions of the narcotics law was under consideration, some of our experienced criminal trial judges testified before the appropriate committee of the Legislature in opposition to the mandatory sentence feature of the bill. It was their view, as it is mine, that eliminating the exercise of discretion of experienced judges in the matter of minimum sentences, and requiring them to impose fixed minimum terms is an unwise policy. Moreover, in 1950 a committee of county judges appointed by this Court to study sentencing procedures recommended (with the approval of Commissioner Sanford Bates and Deputy Commissioner F.
Lovell Bixby of the Department of Institutions and Agencies) that
the sentencing Judge be empowered to direct that offenders under 30 years of age, although sentenced to State Prison under existing statutes, be committed to the institution at Bordentown for a minimum-maximum term. Such a sentence would be designed to fit those whose offense requires an indeterminate rather than an 'institutional' sentence, but who at the same time appear to have rehabilitative potentialities. At the same time, it would retain with the Commissioner of Institutions and Agencies the discretion of transferring the inmate to State Prison if he did not properly avail himself of the opportunities afforded him at Bordentown. Report of New Jersey Supreme Court Committee of County Judges on Improvement of Sentencing and Probation Procedures (1950), p. 9.
A somewhat similar ameliorative suggestion was made on September 10, 1951 by another Supreme Court Committee assigned to study the sentencing of narcotics violators. Report, Incarceration and Treatment of Narcotics Violators (1951), pp. 5-6. But the lawmakers, as a matter of public policy, disagreed with the judicial expressions, and directed the courts to impose the mandatory sentences which were set forth in L. 1951, c. 56. As a consequence, I regard it as clear that the Legislature intended judges to visit mandatory minimum prison terms upon convicted narcotics violators*fn2 rather than wholly indeterminate reformatory commitments. [60 NJ Page 5] And putting aside, as I think should be done, any possible argument that such a legislative directive trespasses upon inherent judicial prerogatives, and proceeding upon principles of comity between partners in our tripartite form of government, I believe we should consider ourselves bound by the mandate of the statute to impose a minimum two year sentence. In this connection I agree with the majority opinion of the Appellate Division that the three year minimum term fixed by the trial court should not be sustained. Any effort to reconcile the two statutes involved here, i.e., N.J.S.A. 24:18-47(c)(1) and N.J.S.A. 30:4-148, in order to utilize the rehabilitative facilities of Yardville rather [60 NJ Page 6] than the more punitive ones of State Prison, ought to seek effectuation of the policies of both enactments with the least possible seeming trespass upon the overall policy of each of them. That result can be accomplished here by giving recognition to the legislative mandate for a two year minimum sentence regardless of where it is to be served, and at ...