On appeal from the New Jersey State Parole Board.
Allcorn, Francis and Morton I. Greenberg. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
[182 NJSuper Page 543] We deal here with an appeal from a decision of the New Jersey State Parole Board in fixing the parole eligibility date of an inmate under the Parole Act of 1979, N.J.S.A. 30:4-123.45 et seq. The Legislature, in adopting that act, shortened parole eligibility dates for inmates who were repeat offenders and whose parole eligibility date had been set under prior law. The Parole Act of 1948 had provided that a second, third or fourth offender as defined in the act would respectively be eligible for parole after serving one-half, two-thirds or four-fifths of his maximum sentence less time off for good behavior and work credits. N.J.S.A. 30:4-123.12. The Parole Act of 1979 shortened these periods for persons previously classified under N.J.S.A. 30:4-123.12 to, respectively, one-third, one-half and two-thirds of the maximum sentence imposed, less time off for good behavior and work credits. Further, the Parole Act of 1979 provided that unless evidence developed or produced at a hearing showed that there was a substantial likelihood that an inmate would commit a crime under the laws of this State if
paroled, he should be released when he reached his parole eligibility date. N.J.S.A. 30:4-123.53. This represented a substantial easing of parole requirements under the Parole Act of 1948, N.J.S.A. 30:4-123.1 et seq. , which provided that an inmate be paroled "only if the board is of the opinion that there is a reasonable probability that, if such prisoner is released, he will assume his proper and rightful place in society, without violation of the law, and that his release is not incompatible with the welfare of society." N.J.S.A. 30:4-123.14. See Monks v. N.J. Parole Board , 58 N.J. 238 (1971).
The Parole Act of 1979, however, includes a provision which in certain cases will limit the benefits of the new law to repeat offenders classified under the former Parole Act. N.J.S.A. 30:4-123.51 provides that
The consequence of such advice from the prosecutor or sentencing court is thus to limit the inmate to obtaining one-half of the maximum, lessening of the periods for parole eligibility under the new law. N.J.S.A. 30:4-123.51 then includes a provision the validity of which has given rise to this appeal. The section recites:
If the prosecuting attorney or the sentencing court advises the board that the punitive aspects of the sentence have not been fulfilled, such advice need not be supported by reasons and will be deemed conclusive and final. Any such decision shall not be subject to judicial review except to the extent mandated by the New Jersey and United States Constitutions.
The record concerning the history of appellant's offenses is scanty. The parties agree, however, that he is a fourth offender having been sentenced to a term of not less than 15 years nor
more than 17 years on April 2, 1976.*fn1 Thus, he was entitled to some relief under the 1979 act. Accordingly, by letter dated April 15, 1980 the Parole Board asked the prosecutor whether the punitive aspects of appellant's sentence would be fulfilled if he became eligible for the maximum reduction under N.J.S.A. 30:4-123.51. A chart accompanying the letter indicated that appellant's parole eligibility date, if he were allowed the full benefit of the 1979 act, would be September 23, 1981, after allowance of credits. The chart indicated that if the punitive aspects of his sentence had not been fulfilled, his eligibility date would be September 5, 1982. The prosecutor, by letter dated May 29, 1980, indicated that the punitive aspects of the sentence would not be so satisfied if defendant were eligible for parole on the earlier date. The board then notified appellant by letter dated June 17, 1980 that his eligibility date had been advanced to May 25, 1983.*fn2 He appeals the fixing of this date, asserting that the due process and equal protection rights have been violated by the procedures followed. U.S.Const. , Amends. V, XIV. He further alleges that the decision by the Parole Board to limit the benefit given him under the Parole Act of 1979 is a discretionary act subject to appellate review under N.J.Const. (1947), Art. VI, § V, par. 4.
We deal first with a preliminary procedural problem. As already noted, the prosecutor, by letter dated May 29, 1980, stated his determination that the punitive aspects of defendant's sentence would not be fulfilled by the time of the earlier possible eligibility date. The parole board advised appellant of his amended parole eligibility date on June 17, 1980. Appellant's appeal was taken from the action of the Parole Board and
not the prosecutor. It could therefore be argued that a review of the validity of the prosecutor's action is not before us. Nevertheless, we believe we should deal with the entire controversy on the merits. Undoubtedly there are other inmates who will also be granted partial relief under the Parole Act of 1979. Indeed, the record in this case includes a chart which shows that of 11 inmates sentenced in Passaic County by a particular judge, in seven cases it was decided by the prosecutor that the punitive aspects of the sentence would not be fulfilled if the maximum benefit of N.J.S.A. 30:4-123.51 were allowed the inmate. While we do not know how many inmates sentenced ...