(dissenting). The majority has held and found that Catena should be released because from Catena’s subjective viewpoint his commitment has lost its coercive impact and become punitive. I must dissent on two grounds: (1) the test applied is unsound; and (2) even if that standard is used, the evidence does not justify the result.
I.
To view the refusal to testify from Catena’s viewpoint is to ignore the clear legislative mandate. But more than that, it results in the substitution of Catena’s code for that mandate, a code which the majority points out may well be “organized crime’s oath of silence.” The effect of the Court’s holding today is to substitute Catena’s dogma for the law duly adopted by society.
The State Commission of Investigation was created to conduct investigations in connection, among other things, with the “faithful execution and effective enforcement of the laws of the State, with particular reference but not limited to organized crime and racketeering”. N. J. S. A. 52:9M-2. In this respect its functions are to be carried on in cooperation with law enforcement officials (N. J. S. A. 52:9M-5 and 6) as well as making recommendations to the Governor for submission to the Legislature for legislative action “for the more effective enforcement of the law.” N. J. S. A. 52:9M-3.
The teeth in its investigative authority are found in N. J. S. A. 52:9M-17. Under that section the Commission may confer immunity upon the witness so that neither the *231responsive evidence nor the fruits thereof may be used against him in a criminal prosecution. Once granted, it is incumbent on the witness to respond. If he refuses to do so, the witness may be “prosecuted” for contempt for failing to give an answer in accordance with the order of the Commission.
The prime purpose of the act is to satisfy the public need for the information irrespective of the stubbornness of the witness. The Legislature, fully aware of that need, authorized the Commission to clothe the witness with immunity so that the data could be obtained. Refusal to comply with the order justifies a finding of contempt. The statute contemplates that the witness should be incarcerated indefinitely under those circumstances. Chief Justice Weintraub in In re Zicarelli, Occhipinti, Russo, 55 N. J. 249, 272 (1970), aff'd 406 U. S. 472, 92 S. Ct. 1670, 32 L. Ed. 2d 234 (1972), wrote:
. . . Here we have no doubt that the Legislature intended the S.C.I. to obtain the facts, whatever the wish of the person subpoenaed. The very provision for a grant of immunity repels the notion that a witness may choose to be silent for a price.
The State’s primary motive is to obtain information. “[T]he mission of the S. C. I. is to obtain facts for the Legislature and the mere punishment of a recalcitrant witness would not achieve that end.” In re Zicarelli, Occhipinti, Russo, supra, 55 N. J. at 272. In the absence of a showing that the public need for that information no longer exists, the contempt remains unabated. “To uphold a coercive commitment in an investigatory proceeding, there must be a present and continuing interest in the information requested.” Note, “The Application of the Law of Contempt to the Uphaus Case,” 61 Colum. L. Rev. 725, 735 (1961). No one has asserted or offered any evidence that the Commission’s position has ever been any other than to obtain the information which Catena probably has; and that that information is still presumably useful to the Commission. *232Catena has conceded for the purpose of this appeal that he is able to testify and possesses information pertinent to the Commission’s continuing investigation of organized crime.1
The fact that the imprisonment may be for an indefinite period is legally justifiable. Uphaus v. Wyman, 360 U. S. 72, 81, 79 S. Ct. 1040, 1046, 3 L. Ed. 2d 1090, 1099 (1959); Penfield Co. of California v. Securities & Exchange Commission, 330 U. S. 585, 67 S. Ct. 918, 91 L. Ed. 1117 (1947); Maggio v. Zeitz, 333 U. S. 56, 68 S. Ct. 401, 92 L. Ed. 476 (1948); In re Manna, 124 N. J. Super. 428 (App. Div.), certif. den. 64 N. J. 158 (1973). In Uphaus v. Wyman, supra, Uphaus refused to produce certain documents before a New Hampshire legislative investigating committee whose purpose was to ascertain whether subversive persons or organizations were present in the state. After refusal to comply with two subpoenas duces tecum in court, he was adjudged in contempt and committed to jail until he complied with the court order. The sentence was upheld. The Court relied on the following language in Green v. United States, 356 U. S. 165, 197, 78 S. Ct. 632, 650, 2 L. Ed. 2d 672, 696 (1958) (dissenting opinion):
Before going any further, perhaps it should be emphasized that we are not at all concerned with the power of courts to impose conditional imprisonment for the purpose of compelling a person to obey a valid order. Such coercion, where the defendant carries the keys to freedom in his willingness to comply with the court’s directive, is essentially a civil remedy designed for the benefit of other parties and has quite properly been exercised for centuries to secure compliance with judicial decrees.
One court recently has held that, where the individual had been in jail for one year for failure to comply with a *233court order to disclose the location of a child, so long as the witness had the power to obey, the incarceration was proper. People ex rel. Feldman v. Warden, etc., 46 A. D. 2d 256, 362 N. Y. S. 2d 171 (App. Div. 1974). The court stated:
The law is clear that one who has been directed by a court to perform an act which .the court finds is within that person’s power to perform, he may be imprisoned until the act is performed.
if#***#'**
. . . The appellant should not be allowed to bargain and barter with the court on the conditions of her compliance .... 362 N. Y. S. 2d at 173-174.
In the absence of demonstrating that the public need for the information no longer exists, Catena should not be permitted to substitute his code for the law of society. He should not be permitted to remain “silent for a price.”
II.
Even applying the subjective standard, namely, when did Catena’s incarceration lose its coercive effect, the record here is insufficient to justify his release.
Incarceration has a dual aspect insofar as the prisoner is concerned. It is both coercive and punitive. There can be no doubt that from the outset he must consider his being jailed as punishment. “[I]nearcerating a man until he does a certain act is as much a punishment of his original refusal to do that same act as it is a coercion of his doing it in the future.” Goldfarb, The Contempt Power 60 (1963). The longer he is there, the more extensive the punishment. On the other hand, as time passes the coercive force of the desire to open the door to freedom in all likelihood becomes greater too. Age and health do not necessarily detract from and may in fact increase the coercive effect of imprisonment.2
*234At what point the imprisoned person becomes completely adjusted to that life depends on the individual. Certain types of personalities can withstand strain over a longer period of time than others. Menninger, Psychiatry In A Troubled World 145 (1948). In considering the effects of imprisonment it has been said that: “The different ways in which punishment is accepted, and the different time taken in the development of the mental processes cause great inequalities.” Ohm, Personality Changes During Deprivation of Liberty (1964), summarized in Bxcerpta Criminológica 219 (1965).
Where, as here, the legislative intent has been expressed to compel the witness to divulge the information in return for immunity, and where the factual issue to he resolved will vary from individual to individual depending upon his personality, psychiatric reactions and adjustment, it is incumbent on him to prove clearly and convincingly that continued incarceration will have no coercive effect. Catena has not met that burden. His continuous legal attacks since incarceration, on many different grounds, until November 1974, reflect a hope which diluted the coercive effect of the order. Catena v. Seidl, 65 N. J. 257, 263 (1974). Conspicuous by its absence was any expert psychiatric evidence. As noted earlier, age and health may well be factors which have primarily a coercive drive — rather than resignation. This Court in Catena v. Seidl, supra, 65 N. J. at 264, in June 1974 wrote:
The argument is made that Catena’s age, condition of health and his persistent silence for four years, without more, establish a prima facie case that his commitment has failed as a coercive measure. We cannot agree. As heretofore noted, Catena’s past silence can be rationally attributed to considerations other than an adamant refusal to purge himself of contempt despite the consequences.
*235There has been nothing more satisfactorily shown in this record to alter the conclusion we made then. Having failed to establish clearly and convincingly that continued imprisonment has lost its coercive import, Catena should not be freed.
I would reverse.
Justice Mountain joins in this dissent.
For remand — Chief Justice Hughes, Justices Sullivan, Pashman and Clifford and Judge Conford — 5.
Opposed — Justices Mountain and Schreiber — 2.
Catena v. Seidl, 66 N. J. 32, 38 (1974). Inability to comply with the order would justify release. Maggio v. Zeitz, 333 U. S. 56, 68 S. Ct. 401, 92 L. Ed. 476 (1948). This is not the situation where “[a] man, faced with perpetual imprisonment till he discloses his confederates, will in the end find confederates to disclose.” Loubriel v. United States, 9 F. 2d 807, 809 (2 Cir. 1926).
The plaintiff places great stress on the argument that the trial judge’s findings should not be disturbed unless clearly mistaken. *234State v. Johnson, 42 N. J. 146 (1964). Appellate review of a conviction for contempt is had on the law and facts. R. 2:10-4. In re Ruth M. Buehrer, et al., 50 N. J. 501, 516 (1967); In re Education Association of Passaic, Inc., 117 N. J. Super. 255, 259 (App. Div. 1971), certif. den. 60 N. J. 198 (1972).