Commonwealth v. Butler

Concukring Opinion by

Mr. Justice Pomeboy:

I concur in the decision of the Court. This supplementary comment is added to indicate why I believe that striking down that part of the Muncy Act which proscribes minimum sentences for female offenders is the correct judicial response to the unconstitutional statutory discrimination between male and female of*304fenders with, respect to minimum sentences of imprisonment.

As the Court repeatedly observes, it is “the joint operation of the Act of 1911 and the new Muncy Act,” rather than any defect peculiar to one or the other of these two statutes, which results in unconstitutional discrimination between male and female offenders. Standing alone, each statute represents a reasonable attempt to deal with the problems of punishment and rehabilitation within our criminal justice system. A legislative choice to apply either approach to all criminal offenders irrespective of sex would be unimpeachable.

I underscore this obvious point solely to emphasize that, in framing a remedy for this impermissible discrimination between male and female offenders, we are not necessarily obliged to restrict ourselves to the Muncy Act. Invalidating the minimum sentence provision of the Act of 1911 would accomplish the same result. Indeed, this is precisely the relief which appellant seeks.

Where the burden of a discriminatory statutory scheme falls exclusively on one identifiable class, the choice of remedies may be obvious. See Frontiero v. Richardson, 411 U.S. 677, 36 L.Ed.2d 583 (1973). Here, however, the choice is not so clear, for the effect of the discrimination will vary in accordance with the facts of each case. As the Court points out, the significance of a minimum sentence lies in its relation to an offender’s eligibility for parole. In the case of a male offender, the expiration of the minimum sentence marks the beginning of eligibility. On the other hand, at least in theory, female offenders are eligible for parole from the moment their sentences begin to run. Act of August 6, 1941, P.L. 861, §§21, 31, as amended; 61 P.S. §§331.21, 331.31. In practice, however, the Board of Probation and Parole will not consider the case of *305a female offender until the expiration of an arbitrary period which, in some cases, may be longer than the minimum sentence which would have been imposed on a male offender in the same circumstances.1 Thus, while in most cases the burden of discrimination will fall on male prisoners, in some cases it will be female prisoners who will be penalized by the bipartite statutory scheme.

But our present concern is not limited to whether the appellant is better or worse off than a female offender in like circumstances. A party who proves a denial of equal protection of the laws is not necessarily entitled to have statutory lines of classification redrawn for his personal benefit. See Skinner v. Oklahoma, ex rel. Williamson, 316 U.S. 535 (1942). The choice of remedies must be determined upon a larger view. “Where a statute denies equal protection by making an unconstitutional classification, the classification can be abolished by making the statute operate either on everyone or on no one. . . . Though the test is imprecise, a court must weigh the general interest in retaining the statute against the court’s reluctance fco extend legislation to those not previously covered. Such an inquiry may lead a court into examination of legislative purpose, the overall statutory scheme, statutory arrangements in connected fields and the needs of the public.” Developments in the Law — Equal Protection, 82 Harv. L. Rev. 1.065, 1136-37 (1969) (footnote omitted).

The manner of achieving equality of treatment for male and female offenders is, as I see it, dependent upon a determination of legislative intent: had it known that the two statutes could not constitutionally coexist, would the General Assembly have preferred the entire community of offenders, male and female, to receive *306minimum sentences or to receive no minimum sentence? For two reasons, I conclude that the former alternative would comport more closely with the legislature’s intent. First, as the Court points out, the Act of 1911 is a statute of general applicability, whereas the Muncy Act is limited to female offenders. Second, it is questionable whether, absent radical changes in the state’s parole machinery, the system could effectively cope with an administrative (Muncy Act) as opposed to a judicial (Act of 1911) determination of initial parole eligibility. While in the past the relatively small number of women offenders has made feasible the administrative practice under the Muncy Act, the addition of many hundreds of male offenders might well create a chaotic administrative situation.

When a statute, either alone or in conjunction with another statute or statutes, infringes on constitutional rights, this Court has an obligation to make every effort to salvage the statute by an appropriate excision so long as legislative intent will not be frustrated thereby. See 1 Pa.C.S. §1925; State Board of Chiropractic Examiners v. Life Fellowship of Pennsylvania, 441 Pa. 293, 300, 272 A.2d 478, 482 (1971) (concurring and dissenting opinion of this writer); Saulsbury v. Bethlehem Steel Co., 413 Pa. 316, 196 A.2d 664 (1964); Rieck-McJunkin Dairy Co. v. Milk Control Commission, 341 Pa. 153, 18 A.2d 868 (1941). In light of what I conceive to be the correct reading of the legislature’s intent under the circumstances, such an excision is feasible and proper in this case. Thus I agree that striking the last sentence of the Muncy Act will serve to cure the constitutional infirmity of the total statutory scheme while at the same time reflecting the legislative intent as accurately as it is possible to do on the record before us.2 If, in performing this bit of judicial surgery, we *307have misjudged the legislative intent, new remedial legislation is of course possible.

See the dissenting opinion of this writer in Commonwealth v. Piper, 458 Pa. 807, 328 A.2d 845 (1974).

I do not consider that §1936 of the Statutory Construction ' Act of 1972, 1 Pa.C.S. §1936, is applicable to this situation. That *307section provides: “Whenever the provisions of two or more statutes enacted finally by different General Assemblies are irreconcilable, the statute latest in date of final enactment shall prevail.” That section is addressed to facial incompatibility in the provisions of two or more statutes, not to constitutional defects in a statutory scheme which is otherwise internally consistent.