The opinion of the court was delivered by: LACEY
Petitioner is an inmate of the Correctional Institution for Women at Clinton, New Jersey. She seeks herein a declaration of fourteenth amendment unconstitutionality, on equal protection grounds, of the state statute under which she was sentenced; and, if successful, either her immediate release by writ of habeas corpus issued by this tribunal, or a judgment herein that a writ of habeas corpus issue unless she is resentenced by the state pursuant to a statutory scheme which, she urges, would result promptly in her parole. For the reasons hereinafter set forth, her petition is denied.
Petitioner, a 39-year old wife and mother, pleaded guilty to bookmaking (N.J.S. 2A:112-3) on May 21, 1970, in Essex County Court, and was sentenced to a minimum-maximum sentence of one to two years by Superior Court Judge James R. Giuliano.
Ironically, in view of the instant issue, she was dissatisfied with this sentence and appealed it on severity grounds, although, as was noted in the state courts, a search of her apartment at the time of her apprehension revealed more than $3,000 in horse bets, $1,000 in numbers bets, and more than $4,000 in sports bets, evidencing, in the opinion of the Appellate Division, that "she was engaged in a large-scale bookmaking operation." (Appellate Division Opinion, April 13, 1971). Her appeal was denied but the Appellate Division directed that the sentence be changed to an indeterminate sentence under N.J.S. 30:4-155, which was done by the trial court on April 30, 1971.
She began serving her sentence on April 30, 1971, was released on May 21, 1971, to care for an ill child, and resumed confinement on May 16, 1972.
In accordance with procedures at the institution of her confinement, she was, shortly after resuming her confinement last May, advised that her projected date of release was in March, 1973. However, this date has been moved up to January 11, 1973, contingent upon good behavior.
Petitioner's assertion of equal protection unconstitutionality is founded upon the following reasoning, which has at its core her claim of a statutory-created and constitutionally impermissible difference in sentencing between men and women convicted of violating the aforesaid bookmaking act (N.J.S. 2A:112-3).
Her contentions are: Had she been a male she would have received no more than a minimum-maximum sentence of one year to two years at State Prison, under N.J.S. 2A:164-17 (the sentence originally imposed by Judge Giuliano), which gives the sentencing judge discretion to fix a minimum-maximum term, with the maximum being allowably less than the five years imposed by that statute. This optimistic prediction derives from Justice Hall's opinion in State v. Costello, 59 N.J. 334, 343, 282 A.2d 748 (1971), where, in dealing with a female also convicted of a violation of 2A:112-3, he stated:
. . . The specific result she seeks is a requirement that she receive a minimum-maximum sentence, fixed by the judge, the same as if she were a male being sentenced to the state prison. The contention may be made more concrete by an example. Defendant could be held on the bookmaking conviction for as long as five years (although it is most unlikely that she would be). A first offender male, convicted of the same crime, would likely receive a state prison sentence of not less than one nor more than two years. He could not be confined for more than two years, less good behavior and work credits, and, assuming maximum such credits, would be eligible for parole, and, considering the nature of the offense, quite likely paroled in 4 months and 28 days. See Administrative Office of the Courts, Sentencing Manual for Judges (July 1971 edition), Appendix B.
Petitioner leans heavily upon another portion of Costello wherein Justice Hall wrote (59 N.J. at 342-343, 282 A.2d at 752-753):
There is, however, a considerable distinction between the nature and effect of sentences of males to the state prison and of females to the Correctional Institution for Women who would have been committed to the state prison had they been males (except with respect to women sentenced to minimum-maximum terms or life for murder or manslaughter pursuant to N.J.S.A. 30:4-155). First, in the case of males, minimum and maximum terms are fixed by the judge and the maximum may be less than the statutory maximum permitted for the particular crime. In the case of females, the sentence must be for an indeterminate term with the maximum fixed by N.J.S.A. 30:4-155 at five years or that prescribed by the statute governing the particular crime if such is less than five years. The sentencing judge may not prescribe a lesser maximum ( State v. Lavender, 113 N.J.Super. 576, 274 A.2d 611 (App.Div. 1971)), but he may, pursuant to the cited section, for good cause, direct a greater maximum up to that authorized by the statute governing the crime. Second, the minimum-maximum sentences of male inmates of the state prison are reduced for "continuous orderly deportment" in accordance with a schedule prescribed in N.J.S.A. 30:4-140. Comparable inmates of the women's institution receive no such benefit. (As to sentence credits for work performed, see N.J.S.A. 30:4-92.) Third, male inmates of the state prison are eligible for parole consideration by the State Parole Board when a certain statutorily designated portion of the sentence has been served. N.J.S.A. 30:4-123.10 and 123.12. (This does not, of course, mean that every inmate will be released on parole when he is first eligible for consideration.) There is no such provision relating to inmates of the women's institution; as to them, as we have said, release and consideration therefor is entirely in the hands of the board of managers without any statutory directions or guidelines.
Against this background, petitioner argues she is the victim of unlawful sex discrimination in that "she will be required to serve 8 months for an offense for which a male would ordinarily serve 4 months and 28 days," and that she "has already served 5 months, 5 days, as of October 16, 1972." (Petition, paras. 10-11).
The claim tendered by this petition was the subject of an application by petitioner for state post-conviction relief, R. 3:22, addressed to Judge Giuliano, and requesting the vacating of the indeterminate sentence and entry of a fixed minimum-maximum sentence. The application was denied on September 8, 1972. Appeal therefrom was taken to the Appellate Division, Docket No. A-119-72, and, in connection therewith, petitioner applied for bail release pending the appeal's outcome. On April 26, 1972, bail was denied by the Appellate Division. Thereafter, petitioner applied to the Supreme Court of New Jersey to fix bail pursuant to Rules 2:9-4 and 2:9-8, pending the outcome of petitioner's appeal (which has been or will be consolidated with several other cases involving the identical issue). The Supreme Court denied bail on October 4, 1972. The petition herein was thereafter filed on October 19, 1972.
Ever since Ex parte Royall, 117 U.S. 241, 6 S. Ct. 734, 29 L. Ed. 868 (1886), it has been well settled that "a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus. . . ." Picard v. ...