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State v. Roth

Decided: February 7, 1984.


On certification to the Superior Court, Law Division, Union County.

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by O'Hern, J.


This is the first time we have addressed in detail the standards that guide sentencing and review courts under the Code of Criminal Justice, N.J.S.A. 2C:1-1 to 98-4, and that govern the State's right to appeal sentences under N.J.S.A. 2C:44-1(f)(2). It is our view that the Code established an entirely new sentencing process. It displaced standards established under prior decisional law, created presumptive terms of imprisonment, and limited the discretionary power of sentencing courts. Our appellate supervision of the sentencing process in this case requires us to remand for sentencing in accordance with the standards we define today.

Defendant Roth pleaded guilty to a charge of aggravated sexual assault. The presence and threatened use of a weapon made the offense a crime of the first degree. N.J.S.A. 2C:14-2(a)(4). On June 28, 1982, a young mother strolling a child on a Cranford street was stopped by defendant. At knifepoint he forced her under a bridge overpass. She pleaded with him not to harm her or her baby. At fear of injury, she was forced to perform a sexual act upon him. He did not injure the child sleeping in the carriage.

Tests performed on Roth while he was in custody revealed a severe alcohol dependence and a drug abuse problem. His past criminal offenses were alcohol-related. The Avenel Adult Diagnostic and Treatment Center found no evidence of compulsive psychosexual behavior and reported that Roth did not come under the sex offender provisions of N.J.S.A. 2C:47-1 to -7.

The Trenton Psychiatric Hospital, the defense psychiatrist, and the Runnells Hospital Alcoholic Rehabilitation Unit were unanimous that Roth should receive extensive treatment for his substance abuse in a residential facility. The sentencing judge received over 30 letters from parish priests, employers, friends, relatives, neighbors, naval shipmates, and drug treatment professionals urging that Roth not be imprisoned, that his behavior was out of character, and that the incident was the result only of his drug and alcohol problems. Earlier on the day of the crime, Roth had been drinking heavily and had consumed half a quaalude.

The trial court sentenced Roth to five years' probation on condition that he undergo a specified in-patient rehabilitation program and that he continue his visits to Alcoholics Anonymous.

The State appealed on February 28, 1983, pursuant to N.J.S.A. 2C:44-1(f)(2).*fn1 We directly certified the case under R. 2:12-1. 94 N.J. 622 (1983).



It was once axiomatic that criminal sentences were beyond the scope of appellate review. In State v. Benes, 16 N.J. 389, 396 (1954), Justice Brennan said "[a] judgment of sentence is not ordinarily revisable by an appellate court where the sentence is within authorized statutory limits." See also In re Lewis, 11 N.J. 217 (1953).

State v. Johnson, 67 N.J. Super. 414 (App.Div.1961), surveyed the history of appellate review of sentences and found the only impediments to such review were "historical assumptions and

meagre precedent." Id. at 427. Judge Gaulkin wrote that the courts had the "power to correct an illegal or improper sentence," id. at 428 (quoting State v. Culver, 23 N.J. 495, 505 (1957)) (emphasis in Johnson), and concluded "we have the right to revise a sentence where it is manifestly excessive, even though within authorized statutory limits." Johnson, 67 N.J. Super. at 432.*fn2

Since Johnson, "[t]he defendant's right to appeal from his sentence as manifestly excessive has become firmly established in our State." State v. Kunz, 55 N.J. 128, 141 (1969). While the right of appellate review in New Jersey has been established, this right had been exercised exclusively by defendants in appealing sentences that while within the statutory maximum, were found to be excessive. See, e.g., State v. Leggeadrini, 75 N.J. 150 (1977); State v. Hicks, 54 N.J. 390 (1969); State v. Bess, 53 N.J. 10 (1968).

A State appeal that seeks to increase a defendant's sentence presents other distinct problems. In State v. Ryan, 86 N.J. 1, 9 (1981), a pre-Code case, we held that double jeopardy principles

barred the imposition of any increased sentence after violation of probation when the defendant already served a portion of that custodial sentence.

We have not yet passed on the constitutionality of the State's right to appeal under N.J.S.A. 2C:44-1(f)(2). It has been argued in this case that such an appeal is unconstitutional under the Double Jeopardy Clauses of the New Jersey Constitution, Art. I, para. 11, and the Federal Constitution, Amend. V, as made binding on the states, Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). We disagree.

Precedents are few because at common law the prosecution had no right to appeal in any criminal case, much less appeal the length of a sentence. See generally Note, 9 Rutgers L. Rev. 545 (1955). Thus, the government cannot take an appeal in a criminal case absent express statutory authority. United States v. Sanges, 144 U.S. 310, 12 S. Ct. 609, 36 L. Ed. 445 (1892); State v. Watson, 183 N.J. Super. 481 (App.Div.1982). For a long time, then, statutory restrictions on government appeals made discussion of the constitutional question unnecessary. With the 1971 revision of 84 Stat. 1890, 18 U.S.C.A. § 3731, Congress allowed government appeals up to the limits of the Constitution. This triggered Supreme Court decisions on whether such appeals violated the Double Jeopardy Clause of the Fifth Amendment.

In United States v. Wilson, 420 U.S. 332, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975), Justice Marshall reviewed the history of the Double Jeopardy Clause and concluded it "was directed at the threat of multiple prosecutions, not at Government appeals, at least where those appeals would not require a new trial." Id. at 342, 95 S. Ct. at 1021, 43 L. Ed. 2d at 241. The government could therefore take an appeal when the trial court granted the defendant's postverdict motion and dismissed the indictment; even if the government succeeded on appeal, the jury's guilty verdict would be reinstated and there could not be a second prosecution. See also United States v. Martin Linen Supply Co.,

430 U.S. 564, 569-70, 97 S. Ct. 1349, 1353-54, 51 L. Ed. 2d 642, 650 (1977).

The specific question of the right of government to appeal sentences was addressed by the Court in United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980). That case involved the government's right to appeal a sentence imposed under the "dangerous special offender" provisions of the Organized Crime Control Act. By a 5-4 vote, the Court held such appeals, when explicitly authorized by Congress, did not violate the Double Jeopardy Clause's proscription against multiple trials. Id. at 132, 101 S. Ct. at 434-35, 66 L. Ed. 2d at 342. The court rejected the argument that imposition of sentence is an "implied acquittal" of any harsher sentence and, therefore, not appealable. Id. at 133, 101 S. Ct. at 435, 66 L. Ed. 2d at 343. The defendant does not have any expectation of finality if the statute authorizes government appeal. More important, with the determination of guilt made, the defendant is not subject to the harassment and risk of multiple prosecution the Double Jeopardy Clause was meant to prohibit. Id. at 136, 101 S. Ct. at 437, 66 L. Ed. 2d at 345. The dissenters focused on the Double Jeopardy Clause's protection against multiple punishment and argued that imposition of sentence should be accorded the same finality as an acquittal. Id. at 144, 101 S. Ct. at 441, 66 L. Ed. 2d at 350 (Brennan, J., dissenting).

The right of the State to appeal sentences is a troubling question, as evidenced by the Supreme Court's five to four split in DiFrancesco. We have consistently followed the principles of the federal Double Jeopardy Clause because its language is broader than our State's. State v. Barnes, 84 N.J. 362, 370 (1980); State v. Lynch, 79 N.J. 327, 340 (1979); State v. Rechtschaffer, 70 N.J. 395, 404 (1976); State v. Jones, 188 N.J. Super. 201, 204-06 (App.Div.1983). Although we are free to construe our State constitutional provisions more expansively than the Supreme Court construes the corresponding federal provisions, particularly when there are peculiarly local considerations,

State v. Hunt, 91 N.J. 338, 345 (1982), we find no such considerations here to give a broader reading to our concededly narrower State Double Jeopardy Clause. See State v. Farr, 183 N.J. Super. 463 (App.Div.1982).

Nor do we find that the provisions for State sentence appeal lack sufficient standards to guide decisionmakers thus resulting in arbitrary and uneven sentence appeal by prosecutors: "Vague laws deprive citizens of adequate notice of proscribed conduct, Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S. Ct. 618, 619, 83 L. Ed. 888, 890 (1939), and fail to provide officials with guidelines sufficient to prevent arbitrary and erratic enforcement." Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983). As we shall see in Part II hereof, the Code is anything but vague. The central theme of the Code's sentencing reforms is the replacement of the unfettered sentencing discretion of prior law with a structured discretion designed to foster less arbitrary and more equal sentences. Nor do we find that the provisions for State appeal affect principles of fundamental fairness that we apply in supervision of the administration of justice. Monks v. New Jersey State Parole Bd., 58 N.J. 238 (1971); State v. De Bonis, 58 N.J. 182 (1971). The provisions for State appeal are procedurally fair; their substantive fairness is a matter of legislative policy that does not offend constitutional principle. See New Jersey State Parole Bd. v. Byrne, 93 N.J. 192 (1983) (statement of reasons must be furnished in parole eligibility decisions to afford procedural due process).


New Jersey's pre-Code policy of sentencing reflected prevailing American common law:

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. * * *

Expressed in other terms, the prevailing theme is that punishment should fit the offender as well as the offense. * * * Except where the Legislature has decreed a mandatory sentence, thereby determining the punishment should fit the offense without regard to the circumstances of the offender, the problem devolves upon the sentencing judge. Our Legislature has not stated the aims to be achieved by punishment. Indeed few Legislatures have, and where they have, the statement has been "too general to be of service." * * *

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. * * * There can be no precise formula. The matter is embedded deeply in individual discretion. [ State v. Ivan, 33 N.J. 197, 199-201 (1960) (citations omitted).]

In that view "the judge must decide in what way the interest of the public will best be served." Ivan, 33 N.J. at 201. It was up to the individual judge to establish a priority among the philosophical justifications for punishment.

This sentencing theory reflected a broader philosophical viewpoint that "[r]etribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence." Williams v. New York, 337 U.S. 241, 248, 69 S. Ct. 1079, 1084, 93 L. Ed. 1337, 1343 (1949) (footnote omitted). As Professor Andrew von Hirsch observed:

This dominant sentencing ideology stressed two themes: rehabilitation and prediction of future criminality. The judge was supposed to fashion the sentence to promote the offender's resocialization. The sentence also was supposed to reflect the likelihood of the offender's offending again: if his prognosis was favorable, he should be given a sentence in the community; if unfavorable, he should be separated from the community as long as he remained a risk. [von Hirsch, "Recent Trends in American Criminal Sentencing Theory," 42 Md. L. Rev. 6, 8 (1983) (footnote omitted).]

This philosophy was widespread and the result was that

[s]entencing and parole release decisions in this country have largely been left to the unfettered discretion of the officials involved. Legislatures have traditionally set high maximum penalties within which judges must choose specific sentences, but generally have provided little guidance for the exercise of this choice. Although the purposes of sentencing have often been defined as including deterrence, retribution, incapacitation, rehabilitation, and community

condemnation to maintain respect for law, legislatures have been silent regarding which purposes are primary and how conflicts among the purposes are to be resolved. [ Bullington v. Missouri, 451 U.S. 430, 443 n. 16, 101 S. Ct. 1852, 1860 n. 16, 68 L. Ed. 2d 270, 282 n. 16 (1981) (quoting Hoffman and Stover, "Reform in the Determination of Prison Terms: Equity, Determinacy, and the Parole Release Function," 7 Hofstra L. Rev. 89, 96 (1978)).]

This philosophy was explicitly set forth in the Model Penal Code, approved by the American Law Institute in 1962, and in the 1968 American Bar Association's Standards Relating to Sentencing Alternatives and Procedures. Both encouraged suspended sentences as an alternative to imprisonment. Both emphasized that the court should not impose a sentence of imprisonment unless it was necessary to protect the public, the offender needed treatment most effectively afforded by commitment, or because a lesser sentence would minimize the seriousness of the crime. Model Penal Code § 7.01(1) (1962).

Such ideas were dramatically challenged in the 1970s: "To note a revolution in thought regarding the sentencing of criminal offenders is perhaps to begin with understatement." Perlman and Stebbins, "Implementing an Equitable Sentencing System: The Uniform Law Commissioners' Model Sentencing and Corrections Act," 65 Va. L. Rev. 1175, 1176 (1979). This transformation in thought was spurred by powerful critiques. See Struggle for Justice (American Friends Service Committee 1971); M. Frankel, Criminal Sentences: Law Without Order (1973); J. Mitford, Kind and Usual Punishment (1973); A. von Hirsch, Doing Justice: The Choice of Punishments (1976); Fair and Certain Punishment, Report of The Twentieth Century Fund Task Force on Criminal Sentencing (1976) [hereinafter cited as Fair and Certain Punishment].

This last study concluded:

After two decades or more of intense concern over the inadequacies of the criminal justice system, the nation still appears unable to check the rise in crime, especially violent crime. All that appears to be certain is that more of everything -- more police, more courts, more prisons, more laws -- will not achieve the intended objective of reform in the system of criminal justice that can ultimately lead to a lower crime rate. * * * The greatest indictment of the criminal justice

system in the United States is simply that it fails in providing equitable justice. * * *

Although the Task Force does not overlook the other serious problems that afflict the criminal justice system in the United States, we believe that perhaps the major flaw is the capricious and arbitrary nature of criminal sentencing. By failing to administer either equitable or sure punishment, the sentencing system -- if anything permitting such wide latitude for the individual discretion of various authorities can be so signified -- undermines the entire criminal justice structure. [Fair and Certain Punishment, supra, at 3.]

Other studies were equally disconcerting: The country's sentencing provisions are "so arbitrary, discriminatory, and unprincipled that it is impossible to build a rational and humane prison system on them." N. Morris, The Future of Imprisonment 45 (1974) (emphasis in original). Judge Marvin Frankel described sentencing as a "vast wasteland in the law." Frankel, "Lawlessness in Sentencing," 41 U. Cin. L. Rev. 1, 54 (1972). Senator Kennedy wrote:

Sentencing in America today is a national scandal. Every day our system of sentencing breeds massive injustice. Judges are free to roam at will, dispensing ad hoc justice in ways that defy both reason and fairness. Different judges mete out widely differing sentences to similar offenders convicted of similar crimes. There are no guidelines to aid them in the exercise of their discretion, nor is there any mechanism for appellate review of sentences. [Kennedy, "Introduction," 7 Hofstra L. Rev. 1, 1 (1978) (footnote omitted).]

Each commentator cited what were referred to as "favorite atrocity stories." Frankel, Criminal Sentences, supra, at 17. Each focused upon disparity in sentencing as the cruelest manifestation of a sentencing system bereft of structure. Central to the demise of the old structure was the clinical evidence that the prevailing theory of rehabilitation simply did not work. These studies led irrevocably to the conclusion that the criminal justice system had no idea how to rehabilitate offenders and reduce recidivism. See Martinson, "What Works? -- Questions and Answers About Prison Reform," 35 Pub. Interest 22 (1974).

The American Friends Service Committee Report offered an influential alternative concept of just sentencing. Its proposal for a radical about-face in sentencing, which advocated "a return to the principle of uniform application of penal ...

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