Defendant was convicted of robbery, N.J.S.A. 2A:141-1, and was sentenced by this court on April 14, 1972 to New Jersey State Prison for a maximum term of eight years and a minimum term of five years. On May 31, 1972 defendant filed an appeal to the Appellate Division of the Superior Court. His conviction was affirmed on November 16, 1973. Defendant then filed a motion for reconsideration of sentence pursuant to R. 3:21-10(a) on January 3, 1974.
At the hearing on the motion defendant testified that he had been attending religious services and meetings within the prison conducted by Jehovah's Witnesses since April 1972. In June 1972 he was converted to the Jehovah's Witnesses sect and since then has become a devout member of that religion. The membership in this religious organization has grown from three inmates when defendant first began attending the meetings, to a present active membership of 24. The defendant's religious fervor became instrumental in the conversion of several members of the prison community to the teachings of Witnesses, by "making calls on them" and bringing them "the message" of his religion. Defendant testified one of the basic tenets of his faith is that all Witnesses "must preach the good news to all the world; all four corners of the earth."
By this motion for a reconsideration of sentence defendant does not seek the usual relief available under R. 3:21-10(a). He testified that he "wasn't seeking relief to that extent, not for a reduction of sentence." He requested that the court "let the sentence stay." He believed that had he requested the normal reduction of sentence, he "would be looking out for myself." Thus, it is defendant's desire to help the "total (religious) organization" which has prompted him to request an unusual type of relief.
Instead of a reduction of sentence defendant requests that this court grant him a release from the State Prison one weekend a month "to participate most actively with the rest
of the Jehovah's Witnesses out there." His activities in the community would include attendance at religious services at the Kingdom Hall, going from door to door, bringing the good news and "(e)verything the Witnesses do in the field." Most important to defendant is that he be given the opportunity to attend ministry schools and services in the community so that he "could become more enlightened" and "could enlighten the brothers that have been converted here in the prison as to the organization out there." Defendant testified he would restrict his activities to the Trenton, Hopewell or Princeton communities and abide by any restrictions which the court seeks to place on his mobility. He would plan to live with his parents during the weekend releases.
Defendant testified that other inmates who belong to other religious sects have been released for religious purposes. He testified that inmate Edward McDowney, a Seventh Day Adventist, has been released every Saturday, unescorted, to attend church services in Trenton.
Miss Lilian J. Lucier, Coordinator of the Community Release Program at State Prison, testified that through the program prisoners who are classified as "minimum custody" are permitted to attend religious functions outside the institution, and approximately ten prisoners each month are permitted to leave to attend church services or other religious programs. While the same inmate might be released more than once, no inmate is released on a "regular basis." An inmate is released "never more than once a month" and "usually never even once every third month or something." Miss Lucier refuted Richardson's testimony concerning inmate McDowney. She testified that McDowney had applied for and been granted a release to attend church services on December 22, 1973. However, McDowney is not granted a release every week, as defendant indicated. During the two years that Miss Lucier has been assigned to the State Prison, only one inmate had been released on more than three occasions, for reasons involving family problems and religious
functions. Inmates whose applications are approved are never granted a release for more than ten hours and are always escorted during that period.
The court finds no substance in defendant's contention that he was denied his rights under the free exercise clause of the First Amendment, grounded in the argument that any denial of the opportunity to attend religious functions outside the prison on a monthly basis prohibits him from practicing the most important tenet of his faith. In its resolution of this issue the court is governed by the principle that a prisoner retains the constitutionally protected rights of an ordinary citizen except to the extent that their withdrawal or limitation may be justified by the considerations underlying our penal system. Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 1060, 92 L. Ed. 1356 (1948); Jackson v. Godwin, 400 F. 2d 529, 532 (5 Cir. 1968); Smith v. Robbins, 328 F. Supp. 162 (S.D. Me. 1971); Sostre v. McGinnis, 442 F. 2d 178, 188 (2 Cir. 1971). The confinement of defendant in this instance resulted in a justifiable restraint imposed by the State on his freedom to exercise his belief in the necessity to "preach the good news" to the community outside the prison walls and is a permissible infringement upon defendant's First Amendment rights. In Cantwell v. State of Conn., 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1939), the Supreme Court distinguished between the freedom to believe and the freedom to exercise one's belief embodied in the free exercise clause of the First Amendment:
In the instant matter defendant's conviction and sentence and resulting interests of society in his lawful incarceration may be held paramount to his right to ...