In State v. Vacca for affirmance -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall, Mountain and Sullivan, and Judge Conford. For reversal -- None. In all other cases for affirmance and remand with directions -- Chief Justice Weintraub, Justices Jacobs, Proctor, Mountain and Sullivan, and Judges Conford and Collester. For reversal -- None. The opinion of the Court was delivered by Sullivan, J. Conford, P.J.A.D., Temporarily Assigned (concurring).
These six cases, consolidated on appeal and certified while pending unheard in the Appellate Division, are a sequel to State v. Costello, 59 N.J. 334 (1971) wherein the Court questioned the constitutionality, on equal protection grounds, of the present New Jersey statutory provisions for the custodial sentencing of female criminal offenders insofar as they require the sentencing of a female offender for an indeterminate term in a situation where a male offender would be sentenced to State Prison for a minimum-maximum term for the same offense.*fn1 The statutory provisions in question are set forth in full in Costello and need only be summarized.
Generally, all female offenders who are given custodial sentences (except those sentenced to a county jail, penitentiary or workhouse), are sentenced 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. (A female convicted of murder or manslaughter must be sentenced for a minimum-maximum term, unless the sentence is for life.) If the statutory maximum for the particular crime is longer than five years the court may impose an indeterminate sentence greater than five
years and up to the statutory maximum for the crime. Within these limits, the actual length of time to be served by a particular female inmate is determined entirely by the institution's board of managers, who may end the term at any date between commitment and the applicable maximum.
A male offender, on the other hand, even though convicted of a similar crime, if he is sentenced to State Prison receives a minimum-maximum term (except for life imprisonment) and is subject to release under specified statutory standards. The disparity is discussed by Justice Hall in Costello as follows:
"* * * 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 (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." 59 N.J. at 342-343.
As an example of what can happen under the two statutory schemes, Justice Hall pointed to the female defendant Costello who had pleaded guilty to bookmaking and two ancillary charges and received the mandatory indeterminate sentence.
"* * * 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 Courts, Sentencing Manual for Judges (July 1971 edition), Appendix B." 59 N.J. at 343.
In Costello, 59 N.J. at 345, we said that the statutory provisions for disparate sentencing based on sex fell into the category of special treatment given a selected class which "impinges seriously on fundamental personal interests" and required a substantial justification empirically grounded to the greatest extent possible. However, we recognized that the question had been raised for the first time on appeal and without any record. We concluded that the issue could not properly be determined on the bold approach of an attack on the face of the statutory scheme and that the State should have the opportunity to present formal proofs in support of its thesis that the statutory scheme rests on a solid basis from the standpoint of both societal benefit and the welfare of the females themselves. Accordingly, we remanded for a full adversary hearing to be followed by appropriate findings and conclusions.
Following the remand defendant Costello cooperated with the prosecuting authorities, see 59 N.J. supra at 346, and was resentenced to the Camden County jail for a term of three months so that in her case the constitutional issue became moot. However, the same question has been raised in each of the six appeals now before us. All six cases involve females who had either pleaded guilty to gambling charges or were tried and found guilty of gambling offenses. Five of the six female defendants were over 30 years ...