Before Judges Skillman, D'Annunzio and Fall.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 3, 1999
On appeal from New Jersey Department of Corrections.
Appellant Paul Auge, who is incarcerated in New Jersey State Prison, appeals from respondent Department of Corrections' action in imposing a 10% surcharge upon his purchases from the prison commissary. These surcharges were imposed in conformity with Chapter 396 of the Laws of 1997, N.J.S.A. 30:4-15.1, which provides that "[e]very commissary in a county or State correctional facility operated for the sale of commodities shall collect a surcharge of 10% of the sales price of every item sold" and also exempts such sales from the retail sales tax. Appellant argues that because he is incarcerated for an offense committed prior to the enactment of N.J.S.A. 30:4-15.1, the imposition of the surcharge upon him violates the Double Jeopardy and Ex Post Facto Clauses of the Federal and State Constitutions. Appellant also argues that the surcharge violates the due process guarantees of the Federal and State Constitutions. We reject appellant's constitutional claims and affirm the imposition of the 10% surcharge.
In 1971, the Legislature enacted the Criminal Injuries Compensation Act (the Act). L. 1971, c. 317, N.J.S.A. 52:4B-1 to 21. "The primary purpose of the Act is to provide compensation to persons who have suffered bodily injury from the commission of a serious crime." White v. Violent Crimes Compensation Bd., 76 N.J. 368, 386 (1978). However, the Legislature failed during the 1970s to appropriate sufficient funds to provide adequate and timely compensation to violent crimes victims in accordance with the Act. See Assembly Judiciary, Law, Public Safety & Defense Committee, Statement to Assembly Bill No. 3648 (194 N.J. Leg., 2d Sess. 1979) (noting that as of 1977 "[t]he number of claims as well as insufficient funding [had] created a situation where a claimant [had] to wait up to 3½ years before receiving relief"). To establish an additional source of funding, the Legislature enacted Chapter 396 of the Laws of 1979 (N.J.S.A. 2C:43-3.1), which required any person convicted of any crime or other enumerated offense to be assessed a penalty ranging from $25 *fn1 to $10,000 and directed that the money collected from the penalty be deposited in a separate account for the compensation of victims of violent crimes. However, the penalties imposed under this legislation still failed to generate sufficient revenue to fully fund the program because they often could not be collected. Sponsor's Statement to S. 2082 (207th N.J. Leg., 2d Sess. 1997).
In an effort to make up for this continuing shortfall in the funding required to compensate the victims of violent crimes, the Legislature enacted Chapter 396 of the Laws of 1997, which imposes a 10% surcharge upon the price of all commodities purchased in prison commissaries and directs that money collected from this surcharge be deposited in the Victims of Crime Compensation Board Account.
The Assembly Appropriation Committee's statement concerning the bill notes that:
The VCCB [Violent Crimes Compensation Board] surcharge authorized under this bill is expected to generate between $1.2 and $1.5 million annually for the VCCB. When coupled with federal matching funds, the VCCB should have approximately $2 million in new moneys available to compensate crime victims. [Assembly Appropriations Committee, Statement to Senate Committee Substitute for S. 2082 (207th N.J. Leg., 2d Sess. 1997).]
Appellant argues that because he is serving a sentence for offenses committed prior to the enactment of 30:4-15.1, *fn2 the imposition of the 10% surcharge upon him violates the Ex Post Facto and Double Jeopardy Clauses of the State and Federal Constitutions.
When a claim is made that a monetary assessment violates the Ex Post Facto Clause of Article I or the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution, the threshold question is whether the assessment constitutes a "criminal punishment." Hudson v. United States, 522 U.S. 93, ___, 118 S. Ct. 488, 493, 139 L. Ed. 2d 450, 458-59 (1997); Kansas v. Hendricks, 521 U.S. 346, 367-71, 117 S. Ct. 2072, 2085-86, 138 L. Ed. 2d 501, 519-21 (1997); Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994); see also E.B. v. Verniero, 119 F.3d 1077, 1092 (3d Cir. 1997), cert. denied, 522 U.S. 1110, 118 S. Ct. 1039, 140 L. Ed. 2d 105 (1998); Doe v. Poritz, 142 N.J. 1, 70-71 (1995). To determine whether an assessment imposes a "criminal punishment" or is civil in nature, "[a] court must first ask whether the legislature '... indicated either expressly or impliedly a preference for one label or the other.'" Hudson, supra, 522 U.S. at ___, 118 S. Ct. at 493, 139 L. Ed. 2d at 459 (quoting United States v. Ward, 448 U.S. 242, 248, 100 S. Ct. 2636, 2641, 65 L. Ed. 2d 742, 749 (1980)). If the legislature has characterized an assessment as civil, the court still must determine "'whether the statutory scheme [is] so punitive either in purpose or effect,' as to 'transfor[m] what was clearly intended as a civil remedy into a criminal penalty.'" Ibid. (quoting Ward, supra, 448 U.S. at 248- 49, 100 S. Ct. at 2641, 65 L. Ed. 2d at 749-50, and Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S. Ct. 219, 222, 100 L. Ed. 149, 155 (1956)). However, "'only the clearest proof' will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Ibid. (quoting Ward, supra, 448 U.S. at 249, 100 S. Ct. at 2641-42, 65 L. Ed. 2d at 749).
Our Supreme Court has interpreted the protections provided by the Double Jeopardy Clause of the New Jersey Constitution, N.J. Const., art. I, para. II, to be "coextensive" with those provided under the United States Constitution, State v. Widmaier, 157 N.J. 475, 490 (1999), and has recently applied the Hudson analytical framework to a double jeopardy claim under the New Jersey Constitution. Id. at 492-94, 499- 500. The Court also has held that the interpretation of the Ex Post Facto Clause of the New Jersey Constitution, N.J. Const., art. IV, § 7, para. 3, should follow the interpretation of the Ex Post Facto Clause of the United States Constitution. State v. Muhammad, 145 N.J. 23, 56-57 (1996); Doe v. Poritz, supra, 142 N.J. at 42-43 n.10. Therefore, the tests set forth in Hudson govern appellant's double jeopardy and ex post facto claims under both the United States and New Jersey Constitutions.
It is manifest that under these tests the 10% surcharge upon purchases from prison commissaries does not constitute a "criminal punishment" and consequently does not violate the Double Jeopardy or Ex Post Facto Clauses of the Federal and State Constitutions. The Legislature characterized the 10% assessment as a "surcharge," rather than any form of penalty, and thus clearly contemplated that it was civil in nature. Hudson, supra, 522 U.S. at ___, 118 S. Ct. at 493, 139 L. Ed. 2d at 459. In addition, the assessment is not "so punitive in purpose or effect" that it must be considered a criminal penalty. Ibid. It is not imposed upon an inmate's conviction for an offense but rather when he makes purchases from the prison commissary. Moreover, the amount he must pay does not depend upon the gravity of his offense but rather the amount of his commissary purchases. Most significantly, the evident purpose of the surcharge is not to impose additional "punishment" upon an inmate but rather to generate an additional revenue source for the Violent Crimes Compensation Fund, and the amount of the assessment is not "excessive in relation to [this] purpose." Hudson, supra, 522 U.S. at ___, 118 S. Ct. at 493, 139 ...