The New Jersey Supreme Court, by R. 3:28, has authorized the establishment of Pretrial Intervention Programs (PTI) in those counties whose programs receive the approval of the Supreme Court. Currently 12 of New Jersey's 21 counties have such a program in operation. Although Somerset County does not have PTI, adjacent Morris, Mercer, Union and Middlesex Counties do.
Defendant William Kowitski, a 21-year-old male, was arrested on March 4, 1976. Kowitski, who lives a short distance from Middlesex County, applied to Middlesex PTI for admission into their program. His application was denied on the grounds that the crime was not committed in Middlesex County. He then moved before this court for an order directing that his application be accepted by Middlesex PTI or, in the alternative, that his case be removed from the trial list until Somerset County has established a PTI program. The basis of the motion was that to deny him the opportunity to apply for PTI, a right granted to defendants in 12 other counties, State v. Leonardis , 71 N.J. 85 (1976), would be a denial of the equal protection of the laws. For the reasons expressed below, this court agrees and hereby directs the establishment of a PTI program for Somerset County and the removal of this case from the trial list until such a program is established.*fn1 [145 NJSuper Page 240] The right to equal protection of the laws is guaranteed by both the Federal and State Constitutions, U.S. Const. Amend. XIV; N.J. Const. (1947), Art. I, par. 1. See Washington Nat'l Ins. Co. v. Bd. of Review , 1 N.J. 545 (1949). The standard tests for determining whether there is an equal protection violation have been oft repeated. The court looks to the character of the classification in question the individual interest affected and the governmental interests in support of the classification. Dunn v. Blumstein , 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972). There must be some rational basis for the distinctions. Marshall v. United States , 414 U.S. 417, 422, 94 S. Ct. 700, 704, 38 L. Ed. 2d 618, 623 (1974); Rinaldi v. Yeager , 384 U.S. 305, 308, 86 S. Ct. 1497, 1499, 16 L. Ed. 2d 577, 579 (1966), and the reason must be related to a legitimate governmental interest. United States Dept. of Agric. v. Moreno , 413 U.S. 528, 533, 93 S. Ct. 2821, 2825, 37 L. Ed. 782, 787 (1973). Where fundamental rights are involved, or a suspect classification made, a compelling state interest is needed to
satisfy the court's strict scrutiny. Memorial Hospital v. Maricopa Cty. , 415 U.S. 250, 256, 94 S. Ct. 1076, 1081, 39 L. Ed. 2d 306, 313 (1974). When, however, these factors are not present mere rationality, at least for purposes of the Federal Constitution, will suffice and the classification will be upheld. See Southern Burlington Cty. NAACP v. Mt. Laurel Tp. , 67 N.J. 151, 175 (1975), app. dism., 423 U.S. 803, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975); Collingswood v. Ringgold , 66 N.J. 350, 370 (1975), app. dism., 426 U.S. 901, 96 S. Ct. 2220, 48 L. Ed. 2d 826 (1976); Robinson v. Cahill , 62 N.J. 473, 491 (1973), cert. den. 414 U.S. 976, 94 S. Ct. 292, 38 L. Ed. 2d 219 (1973).
Although pretrial intervention as presently constituted involves no suspect classification, it cannot be said for state equal protection purposes that no important rights are involved. The mere fact that there is no inherent substantive right to pretrial intervention does not withdraw it from the ambit of equal protection scrutiny. The role of equal protection in our judicial system is not to create new substantive rights, San Antonio Independent School Dist. v. Rodriguez , 411 U.S. 1, 33, 93 S. Ct. 1278, 1297, 36 L. Ed. 2d 16, 42 (1973), but to ensure that those individuals situated similarly are treated similarly by the State. PTI is an entitlement to those eligible individuals and cannot be arbitrarily withdrawn. Goldberg v. Kelly , 397 U.S. 254, 262, 90 S. Ct. 1011, 1017, 25 L. Ed. 2d 287, 295 (1970); State v. Leonardis , 71 N.J. 85, 116 (1976).
The history behind the development of PTI and its goals for the improvement of criminal justice were amply detailed in the Leonardis opinion and need only be summarized here. PTI is a recognition that criminal defendants and society as a whole are not served by forcing all accused individuals to face criminal prosecution and subsequent criminal stigmatization. In fact, denominating certain individuals as "criminals" can hinder rehabilitation by foreclosing future employment opportunities. Thus New Jersey's PTI operates before trial, allowing those individuals who successfully complete
the program to avoid any adjudication of guilt. Diversion serves both the eligible individual and society and the decision to allow program participation becomes one of great importance. State v. Leonardis, supra , 71 N.J. at 117.
Presently, in New Jersey, eligibility to apply for PTI does not depend on the nature of the crime, defendant's past criminal record, State v. Leonardis, supra at 111-113, or defendant's residence, State v. Nolfi , 141 N.J. Super. 528 (Law Div. 1976), but rather on the location of the crime. Geography is therefore the dividing line between the class of eligible defendants and those not eligible. Although recognizing that PTI is an experimental program designed to alleviate presently existing defects in the criminal justice system and thus entitled to wide judicial deference, McGinnis v. Royster , 410 U.S. 263, 270, 93 S. Ct. 1055, 1059, 35 L. Ed. 2d 282, 288 (1973), this court cannot conceive of a rational articulable justification for determining PTI eligibility for defendants accused of committing state crimes on the basis of where within New Jersey the crime was committed. An individual is no less amenable to rehabilitation, the dominant purpose behind PTI, because the situs of the crime was in Somerset County rather than Middlesex. Geographical distinction has no basis in practical experience and is wholly unrelated to the rehabilitative objectives of the PTI program, United States Dept. of Agric. v. Moreno , 413 U.S. 528, 533, 93 S. Ct. 2821, 2825, 37 L. Ed. 2d 782, 787 (1973); Schilb v. Kuebel , 404 U.S. 357, 364-365, 92 S. Ct. 479, 484, 30 L. Ed. 2d 502, 510-511 (1971).
In reaching this determination, the court is not unmindful of Marshall v. United States , 414 U.S. 417, 94 S. Ct. 700, 38 L. Ed. 2d 618 (1974), and McGinnis v. Royster , 410 U.S. 263, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1973), but finds them distinguishable. In Marshall the U.S. Supreme Court upheld against an equal protection attack Title II of the Narcotic Rehabilitation Act, 18 U.S.C.A. § 4251 (1970). The statute limited civil commitment for treatment purposes to narcotic addicts who did not have more than one
prior felony conviction. The statutory aim was to reduce drug related crime by attempting to rehabilitate the addict by treating him outside the penal system. At the same time Congress wanted to ensure that the hardened criminal received an appropriate punishment. The court held that Congress could rationally conclude that persons with multiple felony convictions would not be amenable to treatment. The court noted the experimental nature of the program and stated that where Congress acts in an area "fraught with medical and scientific uncertainties," broad legislative options must be permitted. Marshall v. United States, supra , 414 U.S. at 426-427, 94 S. Ct. at 706, 38 L. Ed. 2d at 625-626. A court is not to "inhibit state experimental classifications in a practical and troublesome area * * * ...