State v. Hampton

Weintraub, C. J.,

dissenting in part. I join in the opinion of the Court except with respect to its treatment of the 30-year provision in N. J. S. A. 2A:118 — 1. The statute provides that any person committing the kidnapping offense therein described “is guilty of a high misdemeanor, and shall be punished by imprisonment for life, or for such other term of not less than 30 years as the court deems proper.” The Court’s opinion reads the statute to mandate a “minimum” term of 30 years. I read the statute to authorize a “maximum” term of not less than 30 years in lieu of the maximum of life imprisonment, the minimum to be such term as the sentencing judge may select.

I agree with the Court’s opinion that a State Prison sentence is required by N. J. S. A. 2A:164-17 to “be for a maximum and minimum term, except sentences for life,” the minimum term to be not less than one year. But the question is whether the quoted portion of N. J. S. A. 2A:118-1 refers to the minimum term or to the maximum when it speaks of “such other term of not less than 30 years as the court deems proper.” I think the reference is to the maximum term, for several reasons.

The authority thus given the sentencing judge qualifies “imprisonment for life,” which is itself a maximum and not a minimum term,¹ thus indicating the Legislature had the maximum in mind. The Legislature invested the sentencing judge with a choice as is evident from the use of the conjunction “or.” The choice must be of things of like functional quality — here of maximum sentences. It would make no sense in our penal scheme to ask a sentencing judge to choose between a maximum sentence and a minimum sentence.

Indeed, if the Legislature intended a minimum term of 30 years, there would be no authority for any maximum term if the minimum is imposed.² Surely the 30-year provision cannot itself serve to authorize both a minimum of 30 years and a maximum of whatever number of years a judge may select. If a statute provided only that a person guilty of an offense “shall be punished by imprisonment for not less than two years,” it would hardly be maintained that the sentencing judge could add a maximum of any duration he might choose (other than of course a maximum authorized by a general statute fixing the punishment for that class of misdemeanor). Nor can the provision for imprisonment for life serve itself as the maximum or as authority to impose a maximum in terms of years. This is so because a choice is mandated between life imprisonment and imprisonment for not less than 30 years, and both terms could not be imposed simultaneously unless the conjunction “or” were read to mean “and,” and if “or” were read to mean “and,” then a life sentence coupled with a 30-year minimum would he mandatory in every case.³

In finding authority for both a minimum term of 30 years and a maximum term of a greater number of years, the majority apply the statute as if it read that a person convicted of the offense shall be punished “by imprisonment for life, or by imprisonment for not less than 30 years and not more than life or such term of years as the court deems proper.” That of course is not what the draftsman said.

To put it in other words, the phrase “such other term,” taken in isolation, could refer either to a “maximum” or to a “minimum” term. One word or the other must be interpolated in reading the phrase. The majority interpolate “minimum” so that the phrase becomes “such other (minimum) term.” But the phrase can he read as “such other (maximum) term.” That reading, I believe, is the only one which gives meaning to the words “such other” in the total context. A draftsman would hardly say “and shall be punished by imprisonment for life, or such other minimum term of not less than 30 years as the court deems proper.” But it would be sensible and correct to say “and shall be punished by imprisonment for life, or for such other maximum term of not less than 30 years as the court deems proper.” If one wanted to express the reasonable thought that the maximum for a crime should be life but that there should be discretion to impose a lesser maximum, not below 30 years, he would say precisely what the Legislature said here, that the defendant “shall be punished by imprisonment for life, or for such other term of not less than 30 years as the court deems proper.” That, I believe, is precisely what the Legislature intended.

That this is the correct reading becomes evident when reference is made to the subject of release from imprisonment. A mandatory minimum of 30 years would not serve any apparent purpose. I think it evident that the Legislature intended to permit a more lenient term by the clause in question. Under N. J. S. A. 30 :4-123.11 a person under a life sentence is eligible for release on parole “after having served twenty-five years of his sentence, less commutation time for good behavior and time credits earned and allowed by reason of diligent application to work assignments,” which can make him eligible in about 14 years. A 30-year “minimum” would not hasten parole eligibility. Hence if a life sentence were imposed as the maximum (assuming the statute permits a sentence of 30 years to life, see State v. Rosenberg, supra, 30 N. J. Super. 369), eligibility for parole would be governed by N. J. S. A. 3:4-123.11, just cited, and that section provides no role for a minimum when the sentence is for life.

And if the maximum imposed is a term of years rather than life, a minimum of 30 years again would have no role as to parole eligibility, and this because of two statutory provisions. N. J. S. A. 30:4-123.10 provides, as to a first offender, that:

No inmate of a penal or correctional institution serving a sentence for a fixed minimum and maximum term shall be eligible for consideration for release on parole until he has served his minimum sentence or 1/3 of his fixed maximum sentence, less, in each instance, commutation time therefrom for good behavior and for diligent application to work assignments whichever occurs sooner, subject to the provisions of section 12 hereof.

(Section 12 provides as to second, or further, offenders, that eligibility for parole shall be determined on the basis of a higher percentage of the maximum sentence imposed. N. J. S. A. 30:4-123.12.) Thus if a minimum of 30 years were imposed, parole eligibility would not be hastened under the statutory provision just quoted unless the maximum exceeded 90 years and the crime was the offender’s first offense. State v. Cooper, 54: N. J. 330, 335-336 (1969). And even if the maximum were of that extraordinary duration, the last paragraph of the same statute would take over, for it provides that:

“* * * whenever it shall appear that the date upon which a prisoner shall be eligible for consideration for release on parole occurs later than the date upon which he would be so eligible if a life sentence had been imposed upon him, then, and in such case, he shall be deemed eligible for consideration for release on parole after having served 25 years of his sentence, or sentences, less commutation time for good behavior and time credits earned and allowed by reason of diligent application to work assignments.”

Thus a mandatory minimum of 30 years has no impact upon parole eligibility. And of course it would have no impact upon a final discharge from custody since completion of a sentence is determined by the maximum rather than the minimum. Hence I find no role for a mandatory minimum of 30 years under our statutory parole scheme. A role could be found only if it were held that the Legislature intended to override that parole scheme, and no one advances that view.

On the other hand, the mandatory 30-year term has meaning if it refers to the maximum, for it would permit consideration for parole at an earlier date than in the case of a life sentence. Thus read, the provision is in harmony with the general legislative practice of prescribing only the “maximum” sentence, leaving the minimum to the discretion of the sentencing judge. See N. J. S. A. 2A:85-6, as to high misdemeanors, and N. J. S. A. 2A:85-7, as to misdemeanors. Thus N. J. S. A. 2A:118-2, which deals with a threat or attempt to kidnap, authorizes “imprisonment for a term of not more than 30 years,” or a fine, or both, the Legislature thereby specifying the maximum and leaving the minimum to the sentencing judge. Although as to some offenses the Legislature has prescribed a mandatory minimum, I am not aware of any instance in which the Legislature did so without also specifying the authorized maximum. Upon the majority’s reading of the statute before us, there would be a mandatory minimum without an express specification of a maximum term of years. It is more consonant with legislative style to say the mandated 30-year term applies to the maximum, the sentencing judge being free to fix the minimum he finds appropriate.

For these reasons I conclude that the 30-year mandate limits the underside of the maximum rather than the minimum. But of course a trial judge may impose a maximum in excess of 30 years. Accordingly there was no legal infirmity in the trial court’s sentence of 30 to 35 years. I cannot say the trial court fixed the maximum at 35 years or the minimum at more than 1/3 of that maximum because he read the statute to prescribe a mandatory minimum. If this assumption is incorrect, the trial court would be free to reconsider the sentence under my view of the statute.

Weintraub, C. J., concurs in result and dissents in part.

For affirmance — Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hale, Schettino and Mountain — 7.

For reversal — None.

1 Life imprisonment is usually authorized without a provision for a minimum term, but conceptually it is a maximum term.

2 If the 30-year provision related to the minimum, then the Appellate Division in this case would have been correct in impositing a 30-year minimum term without any maximum. Apparently the Appellate Division read State v. Johnson, 67 N. J. Super. 414, 434 (App. Div. 1901), to call for the imposition of only a “minimum” term. In fact the term there imposed was 30 years to 35 years, and it is not clear that Johnson, in using the word “minimum” was speaking of a “minimum” and not of a “maximum” of not less than 30 years.

3 A sentence of 30 years to life was sustained in State v. Rosenberg, 30 N. J. Super. 369 (App. Div. 1954), apparently on the thesis that the statute requires a life sentence to he imposed but permits imposition also of a minimum of not less than 30 years. There was no discussion as to whether that minimum advantages or disadvantages the recipient of the life sentence. I cannot agree with that reading of the statute.