(dissenting). Defendant’s status before the law involves an assessment of the sense and meaning of N. J. 8. 2A :164-3 et seq.
N. J. S. 2A :164-5 ordains that if the report of the Diagnostic Center reveals a determination “through clinical findings” that the convicted sex offender’s “conduct was characterized by (a) A pattern of repetitive, compulsive behavior; and (b) Either violence; or (c) An age disparity from which it shall appear that the victim was under the age of 15 years and the offender is an adult aggressor; it shall be the duty of the court, upon recommendation of the Diagnostic Center, to submit the offender to a program of specialized treatment for his mental and physical aberrations!’ (Emphasis supplied.)
This is the section as it was at the time of the defendant’s conviction, March 17, 1952, on an indictment charging carnal abuse, N. J. S. 2A :138-1, open lewdness, N. J. S. 2A :115-1, and an attempt to impair the morals of a child under age 16, N. J. S. 2A:85-5; 2A :96 — 3. By L. 1956, c. 37, subdivision (a) was amended to include this exception: “and, except in convictions for open lewdness or indecent exposure,” thus qualifying the alternative subdivisions (b) and (c).
The “disposition” to be made by the court of such person, section 2A :164 — 6, “upon written report and recommendation of the Diagnostic Center, shall include 1 or more” of these measures: (a) Probation with “out-patient psychiatric treatment in the manner to be prescribed in each individual case”; (b) Such person “may be committed to an institution to be designated by the commissioner of institutions and agencies for treatment, and upon release shall be subject to parole supervision”; and in the latter event, the order of commitment “shall not specify a minimum period of detention” but in no event shall the person “be confined or subject to parole supervision for a period of time greater than that provided by law for the crime of which such person was convicted.” (Emphasis added.)
*183The Commissioner is directed, upon the commitment of “such person,” section 2A :164-7, to “arrange for his treatment” in “one of the institutions” under the jurisdiction of the Department which, in his judgment, “is best suited to care for the needs of such person”; and he is empowered to transfer “such person” from one “institution” to another in the Department’s jurisdiction, “for the purpose of providing for the needs and requirements of such person according to the individual circumstances of the case.” (Emphasis added.)
And “Any person committed to confinement,” as provided by section 6, may be released under parole supervision, N. J. S. 2A: 164-8, when it shall appear to the satisfaction of the State Parole Board, “after recommendation by a special classification review board” appointed by the State Board of Control of Institutions and Agencies, that “such person is capable of making an acceptable social adjustment in the community”; and it is made the duty of the “chief executive officer of any institution wherein such a person is confined” to “report in writing at least semi-annually” to the Commissioner concerning the “physical and mental condition of such person” with a recommendation “as to his continued confinement or consideration for release on parole.”
Where the report of the Diagnostic Center, section 2A :164-9, affirms that the “offender’s conduct was not characterized by a pattern of repetitive, compulsive behavior and neither violence nor age disparity was indicated, as provided for in section 2A :164-5,” the court is directed to “impose sentence on such person in the manner provided by law.”
No statute, N. J. S. 2A :164-10, relating to “remission of sentence” by way of commutation time for good behavior and work performance shall apply to any person “committed” under section 6, but provision may be made for “monetary compensation” by the Department “in lieu of remission of sentence for work performed.”
And there is provision, section 2A :164-13, for the voluntary admission to the Diagnostic Center of any person *184believing himself to be suffering from a “physical or mental condition which may result in sexual trends dangerous to the welfare of the public”; and for later “voluntary admission,” if such condition is found to exist and the person so afflicted indicates a desire for treatment, to “an institution to be designated by the commissioner,” where he shall receive the “treatment indicated by the circumstances in the individual case,” which such person may discontinue on five days’ notice, in writing, to the chief executive officer of the institution “of his intention to leave.”
We have no occasion now to consider whether there is a scientific and factual basis for the “clinical finding” that this “offender’s conduct” was “characterized” by a “pattern of repetitive, compulsive behavior”; it suffices here to say that when the Diagnostic Center makes the statutory findings, it becomes the peremptory “duty” of the court to “submit the offender” to a “program of specialized treatment for his mental and physical aberrations,” a course of action in no sense penal but rather regenerative for his eventual social adjustment and integration, and meanwhile protective of society itself against such “repetitive, compulsive behavior,” due to “mental and physical aberrations.” It is a socio-legal measure wholly devoid of the punitive, in essence preventive and reformative, in keeping with the teachings of sociological and psychological experience; and it cannot be converted into a confinement that savors of the penal in disregard of the essential policy to be served. The reason and spirit of the statutory rehabilitative process cannot be subverted for administrative convenience.
We need not now ponder the implications of the legislative terms, “repetitive, compulsive behavior” and “mental and physical aberrations.” In psychopathology, “compulsion” means “an irresistible impulse to perform some irrational act.” Webster’s New World Dictionary, 1953. Such an inquiry could conceivably involve the freedom of will and the power of choice, the mens rea, essential to moral or criminal responsibility. See State v. Monahan, 15 N. J. 34, 49 (1954); State v. Lynch, 130 N. J. L. 253 (E. & A. *1851943). In Michigan, for example, as Justice Jacobs points out, a criminal conviction is not a precondition. There is provision for a hearing to determine whether the defendant is a “criminal sexual psychopathic person”; and he may be “confined,” if so adjudged, until “fully and permanently recovered from such psychopathy”; and there is no fixed maximum term of confinement. People v. Chapman, 301 Mich. 584, 4 N. W. 2d 18 (Sup. Ct. 1942). But we have here provision for a post-conviction.psychotherapy technique; and the procedure is to be assayed accordingly.
The contention is that the cited statute, as interpreted in State v. Newton, 17 N. J. 271 (1955), “denies to this defendant the equal protection of the law”; and, at all events, defendant is entitled to a hearing to determine whether his transfer to the State Prison “involved an abuse of discretion.”
Judge Knight “sentenced” defendant, May 7, 1952, “to the New Jersey State Hospital at Marlboro for an indeterminate period”; July 16, 1952, he was transferred to the Trenton State Hospital, and eight months later, March 31, 1953, he was taken to the State Prison as a “non-psychotic sex offender,” “reported” by the hospital’s Medical Superintendent as one of the “ring-leaders” in a “well-organized plan to stage a demonstration” in the hospital’s dining room; he was at age 19 placed in the State Prison for “safekeeping,” and there he has remained for more than four and a half years. Thus it is that, as in Newton, the “offender” here is confined in the State’s maximum-security prison, not under sentence for a maximum-minimum term sanctioned by the State’s limited indeterminate sentence law, with commutation credits for good behavior and work performance, parole eligibility, and other ameliorating benefits designed to inculcate the resolve for rehabilitation as a primary adjunct of the punitive process, but by the decree of the Commissioner to serve, it is now held, the maximum of the term of 30 years fixed by law for the crimes of which he was convicted, not entitled to remission of sentence by way of commutation time but only to monetary compensation *186for work performance and to release “under parole supervision,” N. J. S. 2A :164 — 8, if and when “a special classification review board” appointed by the State Board of Control shall recommend to the State Parole Board, and that Board shall then be satisfied, that he “is capable of making an acceptable social adjustment in the community.”
Defendant is a prisoner in the State Prison, not under the sentence of a judge of the court in which the conviction was had, but by the action of a state administrative officer on the report of the hospital medical superintendent that he was in a rebellious mood; and this, in disregard of the essential principle and policy of the statute and the peremptory requirements of due process and the equal protection of the laws.
And, as in Newton, there is no showing here that the State Prison is equipped with the “special treatment” facilities needed to fulfill the legislative policy of medical and psychotherapy in a field where the rate of recidivism is low; at all events, the law-giver plainly had in view for persons of the given class a radically different social policy and rule of action, one of specialized rehabilitative treatment, physical and psychological, for which the punitive climate and associations are ill-adapted and deterrent, not to mention the circumstances of maladjusted mind and body as mitigating moral guilt; for the others, there is to be, section 2A :164-9, “sentence * * * in the manner provided by law.” This sociological measure for mental, moral and physical health is not to be administered in the penal system. Indeed, the prime motivation for defendant’s transfer to the prison was “safekeeping,” presumably on the hypothesis that the function of the State Hospital was the care and treatment of “psychotics” alone. Note the difference in the legislative terms: section 6 speaks of the “disposition” to be made when the prerequisite clinical findings are made by the Diagnostic Center; section 9, of “sentence” in the manner provided by law where such findings are not made.
*187The history given in the opinion of my colleagues makes manifest the unsuitability of the prison as a corrective mechanism. The Diagnostic Center reported, April 15, 1952, that defendant had a severe psychiatric disturbance and recommended that he be committed to a State Hospital for further observation. At Marlboro, he was resistant to “shock treatments,” “uncooperative,” “antagonistic, aggressive, hostile and defensive,” and found to be “without psychosis, psychopathic personality with pathological sexuality,” and the medical director of the hospital recommended, July 7, 1952, that he be transferred to a “penal” institution; the recommendation was rejected by the Commissioner, but later, on July 16, 1952, he was taken to the State Hospital at Trenton. At the State Prison, he was classified as “an extremely primitive and inadequate personality, perhaps a simple schizophrenic”; and later on, May 11, 1953, the Director of Education and Counseling concluded that defendant’s sexual drive was “compulsive in character,” and he was “confused and threatened by sexual impulses he can neither acknowledge nor control,” and “is not to be considered in the category of the wilfully deliberate and self-controlled sex offender”; he is “still highly neurotic and compulsive and is unable to cope with his own impulses”; he, himself, had said “he wanted neither a parole nor a transfer to Bordentown [the State Reformatory] but that he did want to go to the State Hospital at Marlboro”; and on November 9, 1956 a counselor at the prison, Mr. Olive, addressed a memorandum to Dr. Revitch, a psychiatrist at the Diagnostic Center, suggesting that defendant might “respond more appropriately to the therapeutic environment of a hospital,” and that he be considered “for possible transfer to the State Hospital.” Yet he remains in the prison.
Here we have utter frustration of the legislative design. Commitment to prison cannot be excused by the difficulties attending the fulfillment of the statutory redemptive process. He was not “sentenced” as a criminal, to expiate his crime in a penal institution, but rather was “submitted,” as a *188sexual psychopath, to a program of “specialized treatment” for his “mental and physical aberrations.”
There is serious question as to whether at this late day, some five and a half years after his conviction, the County Court would have jurisdiction to sentence defendant under N. J. S. 2A :164-9, assuming the want of the clinical findings requisite to action under N. J. S. 2A :164-5. But there is no occasion now to consider the point.
I would reverse the judgment and remand the cause for the discharge of the defendant from confinement in the State Prison and the taking of further proceedings in conformity with the statutory policy and purpose.
For reversal and remandmeni — Chief Justice Wbintraub, and Justices Wacheneeld, Burling and Jacobs — 4.
For reversal and remandment in accordance with dissenting opinion — Justice Heher — 1.
For affirmance — Justice Oliphant — 1.