Yanoff, J.c.c. (temporarily assigned).
This opinion is written pursuant to R. 2:5-1(b) as an amplification of remarks made at sentencing on July 22, 1977 on an appeal from sentence in a homicide case. The trial resulted in a conviction of second-degree murder. The sentence imposed was a minimum of 10 years and a maximum of 20 years at New Jersey State Prison. Defendant is 19 years of age. As an adult this was his first offense. However, he had a substantial record as a juvenile, consisting of sustained petitions as to arson, assault and battery and robbery which I could take into account in assessing defendant's personality. State v. Ebron , 122 N.J. Super. 552 (App. Div. 1973), certif. den. 63 N.J. 250 (1973). He was under probationary supervision at the time of the offense. In the reasons given for imposing such a sentence pursuant to R. 3:21-4(e), I said:
I agree with the State that this was an heinous act, the reason for which we do not know and that a substantial term is required by way of punishment. It is also required as a general deterrent in the group of which the defendant is part of. [ sic ] It was clear during the trial that there was a conflict between two groups of families. I am convinced this sentence will become known to them and it will act as a deterrent. The sentence is below the maximum because of the defendant's youth. This is a case where the object of rehabilitation must yield to the necessity of punishment and deterrent [sic].
Were there no more, there would be no need for an opinion; an appellate court could exercise its judgment on consideration of the presentence report. R. 2:3-2; 2:10-3.
The fundamental consideration is the correctness of the sentence. However, at sentencing I used as an aid for the first time in this state "Sentencing Guidelines" which had been formulated for Essex County under a grant of the National Institute of Law Enforcement and Criminal Justice of the Law Enforcement Assistance Administration
(LEAA). This, it was urged, was not permissible and is the basis of the pending appeal.
After filing of notice of appeal, the Appellate Division made an order of remand for the purpose of taking testimony explaining the guidelines. At the hearing counsel for defendant were permitted to introduce evidence critical of the guidelines. See State v. Kunz , 55 N.J. 128 (1969).
The guidelines were developed for the purpose of reducing sentence disparity by making available to the sentencing judge as additional material the "going rate" for persons of similar characteristics for similar crimes. The basic technical premise of the guidelines is that not all factors (variables) which enter into a decision are equally important and that the salient variables can be selected by mathematical and statistical techniques.*fn1 The use of such techniques with voluminous data became feasible only with computer assistance,
In 1970 Professor Leslie Wilkins and Don M. Gottfredson (now Dean of the Rutgers School of Criminal Justice) published "Parole Guidelines," 28 CFR 2.20 (1970), which described a method of using such techniques in a revision of the operations of the Federal Parole Board. Suffice it that by use of such techniques the federal parole system has been revised, and is presently using a matrix based upon the significant factors which enter into the parole release decision*fn2
In 1973 a project financed by a LEAA grant was instituted to develop a remedy for sentencing disparity. The group participating consisted of statisticians, mathematicians and persons experienced in prison administration, with a steering committee composed of judges from various parts of the country.*fn3 The result was a report*fn4 (hereinafter "Feasibility Study") issued in October 1976 which stated that
The guideline system, in brief, takes advantage of and incorporates, the collective wisdom of experienced and capable sentencing judges by developing representations of underlying court policies. The system simultaneously articulates and structures legal judicial decision-making processes so as to provide clearer policy formulation, more cogent review and enhanced equity to criminal defendants everywhere. [at xiii]
The report states, in part:
(1) It is feasible to structure judicial discretion by means of sentencing guidelines: (a) the statistical wherewithal is neither excessively complicated, time-consuming, nor costly; and (b) conscientious judges across the country appear quite willing to adopt a guideline format.
(2) It is desirable to structure judicial discretion by means of sentencing guidelines: (a) totally unfettered judicial discretion and/or completely indeterminate sentencing are generally recognized
today as necessarily leading to inequities; (b) attempting to completely eliminate judicial discretion would lead to rigidity and/or circumvention of the law; and (c) it does not appear that any other presently available alternative would be just or as efficacious. [at xvi]
The technique advocated by the report is described as follows:
The guideline sentences were readily computed by giving assigned weights to particular aggravating and mitigating factors relating to pertinent characteristics of both the crime and the criminal, and locating those weights on a sentencing grid. The weights that resulted in an Offense Score (seriousness of the offense) were located on the Y axis and the Offender Score weights (prior record and social stability dimension) were located on the X axis. The cells of the grid contained the guideline sentence. By plotting the Offense Score against the Offender Score (much as one plots mileage figures on a road map), one is directed to the cell in the grid which indicates the suggested length and/or type of sentence. * * * [at xv]
It is important to keep in mind that even when fully implemented, the guideline sentences are in no way intended to be binding, mandatory sentences. The judge as human decision-maker will still retain the discretion to override any suggested guideline. We are, however, suggesting that particularized written reasons be given when judges depart from the specific, narrowly drawn guideline sentence and -- later when the guideline model system becomes fully operational -- that judicial panels might perhaps be utilized in these more unusual cases. Moreover, the system we propose would feed back those departures into the data base used in constructing the guidelines, thus injecting a continuous element of self-improvement and regeneration into the guidelines. * * * [at xvi]
Following the Feasibility Study, guidelines were formulated for Denver County (Denver), Colorado; Cook County (Chicago), Illinois; Essex County (Newark), New Jersey, and Maricopa County (Phoenix), Arizona, using the principles and methods described.
The work in Essex County, directed by a team from the Criminal Justice Research Center and financed by a LEAA
grant, began in December 1976. It consisted of an analysis of 1205 presentence reports selected from cases sentenced in 1975 by a computer programmed to select a random sample. These 1205 cases comprised approximately one-fourth of all sentences imposed in Essex County in 1975. It was determined by the use of mathematical techniques that only 93 items had any significance in the sentencing decision (Data Collection Instrument EX. C-5). Thereafter, by use of mathematical and statistical techniques, with computer assistance, the significant factors and the crucial elements entering into the sentencing decision were ascertained. Tentative guidelines were formulated and validated by analyzing 500 current cases. With appropriate modifications, the final matrices were issued.
On July 9, 1977 the system was put into effect in Essex County. It was preceded by a letter to the New Jersey Law Journal , dated May 25, 1977, published June 9, 1977, 100 N.J.L.J. 508 (1977), which explained the system.
In the spirit of State v. Kunz, supra , the sentencing sheets, matrices and manuals used in conjunction with the guidelines were made available to both the prosecutor and defendant's counsel.
The Nature of the Problem
N.J.S.A. 2A:168-1 empowers a judge to suspend sentence in any case after conviction or plea of guilty or non vult and place the defendant on probation "for any crime or offense, except those hereinafter described,"*fn5 for a
period of not less than one year nor more than five years. The discretion thus entrusted to a sentencing judge ranges from a suspended sentence to the statutory maximum, except as limited by the right of appeal for abuse of discretion. See State v. Laws , 51 N.J. 494 (1968), cert. den. 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968); R. 2:10-3.
It is worth considering what guidance is provided by the basic principles set out by Chief Justice Weintraub in his classic statement in State v. Ivan , 33 N.J. 197 (1960):
The philosophical justification for 'punishment' has divided men for centuries. Suggested bases or aims are (1) retribution, (2) deterrence of others, (3) rehabilitation of the defendant, and (4) protection of the public by isolation of the offender. Redmount, ' Some Basic Considerations Regarding Penal Policy ,' 49 Journal of Criminal Law, Criminology and Police Science 426 (1959). Today retribution is not a favored thesis, although some still claim a need to satisfy a public demand for vengeance. Perhaps it persists as an unarticulated premise in individual sentences. Present-day thinking emphasizes deterrence and rehabilitation. Few would permanently isolate the offender without regard to the nature of his crime upon a finding of incorrigibility. That course, however defensible in abstract theory, cannot be seriously considered until future behavior is predictable with substantial certainty. [at 199]
With customary perspicuity, he continued:
No single aim or thesis can claim scientific verity or universal support. Agreement can hardly be expected until much more is known about human behavior. Until then, the sentencing judge must deal with the complex of purposes, determining in each situation how the public interest will best be served. [at 201]
What is there in this statement of principles which can guide a judge in the exercise of his discretion? The difficulty in articulating a standard becomes apparent when one considers the objectives mentioned in Ivan, supra. When should an offender be isolated rather than rehabilitated?
And what weights should be afforded each of these considerations? Are there not cases in which giving primacy to rehabilitation will impair the object of deterrence or where the object of deterrence conflicts with rehabilitation?
Sentencing institutes among judges have confirmed the general impression that sentencing disparity is widespread. A 1974 study by the New Jersey Division of Correction and Parole revealed "wide discrepancies from one portion of the state to another in the lengths of incarceration to which offenders were sentenced for various crimes." Raymar, "Criminal Dispositions for New Jersey," 8 Seton Hall L. Rev. 1 (1976), at 22, n. 104. It is debatable whether appellate review has had much impact on the sentencing process. In each of the years 1974-75, 1975-76 and 1976-77, reversals on appeals from sentencing decisions have been at the rate of eight per cent of appeals from sentences.*fn6
Implicit in this is the conclusion to which common sense would lead, that the weights given to the sentencing principles outlined in State v. Ivan, supra , are far from uniform, and that the principles referred to there cannot guide a judge in sentencing.
Appellate courts have approved and disapproved sentencing judges' reliance upon one rather than another of the four justifications for punishment noted in Ivan, supra. In State v. Pickell , 136 N.J. Super. 340 (App. Div. 1975), a custodial sentence in a welfare fraud case was affirmed on the ground that deterrence was a legitimate objective of sentencing. But in State v. Harris , 70 N.J. 586 (1976), also a welfare fraud case, restitution as a condition of probation was vacated because "considering the offender and her worth to society in struggling to sustain her five children, the human cost of such deterrence in this instance
is too great." (at 596) In State v. Mpetas , 79 N.J. Super. 202 (App. Div. 1963) a sentence of three to five years for possession of three marijuana cigarettes was sustained. In State v. Ward , 57 N.J. 75 (1970) a two-to-three-year sentence for a similar offense was set aside and probation ordered; but cf. State v. Knight , 72 N.J. 193 (1976). In State v. Dunbar , 69 N.J. 333 (1976), a 15-to-20-year sentence for a youthful first offender on a second-degree murder conviction was sustained (Justice Pashman dissenting). Yet, in State v. Leggeadrini , 75 N.J. 150 (1977) in which a non vult plea to a first-degree murder charge by a 66-year-old offender resulted in a sentence of 25 to 30 years, the sentence was set aside and a sentence of 7 to 10 years imposed. In State v. Sherwin , 127 N.J. Super. 370 (App. Div. 1974), certif. den. 65 N.J. 569 (1974); cert. dism. Loughran v. N.J. , 419 U.S. 801, 95 S. Ct. 9, 42 L. Ed. 2d 32 (1974), the nature of the crime was said to make incarceration desirable for deterrence reasons. In others, as in Ward, supra , rehabilitation outweighed other considerations. Can it not be concluded that the objective selected is attributable to the social, economic and psychological background of the judge? See Ivan, supra , 33 N.J. at p. 201; Hogarth, Sentencing as a Human Process , 211-228 (1971).
The result in the individual case may be recognized as correct, but the principle stated is not a guide for decision in other cases.*fn7
Legal writing criticizing the unfettered authority of a sentencing judge is abundant: e.g. , Frankel, "Lawlessness in Sentencing," 41 U. Cinc. L. Rev. 1 (1972); Davis, Discretionary Justice , 133 (1969); Morris, The Future of
Imprisonment , 45 (1975); Raymar, "Criminal Dispositions for New Jersey," supra; Singer, "In Favor of Presumptive Sentences," 5 Crim. Just. Q. , 88 (1978), 24 Crime and Delinquency -- (1978).
Among the efforts to supply a remedy, that of the American Bar Association, in "Standards Relating to Sentencing Alternatives and Procedures" (1968), is notable. So too is the Model Penal Code (10 Uniform Laws Annotated , § 7.01 at 514-515 (1974)), which reads:
(1) The Court shall deal with a person who has been convicted of a crime without imposing sentence of imprisonment unless, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, it is of the opinion that his imprisonment is necessary for protection of the public because:
(a) there is undue risk that during the period of a suspended sentence or probation the defendant will commit another crime; or
(b) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
(c) a lesser sentence will depreciate the seriousness of the defendant's crime.
Subsection 2 reads similarly. However, sentencing judges were still left with generalities. For example, the guidelines formulated by the American Bar Association (ABA Standards Relating to the Administration ...