(dissenting). The defendant in this case is being denied his constitutional right to equal protection of the laws, and therefore I dissent essentially for the reasons expressed by Judge Conford in his dissenting opinion in State v. Allen, 104 N. J. Super. 187, 197 (App. Div. 1969). I have no quarrel with the part of the majority opinion, and the thrust of the concurring opinion, that “A fine, no less than a jail term, is punishment, and is imposed in the hope that it will correct the offender and deter him from transgressing again.” My objection is not that an indigent is being fined. I object to keeping an indigent in jail after the Parole Board has determined that “there is reasonable probability * * * he will assume his proper and rightful place in society, without violation of the law, and that his release is not incompatible with the welfare of so*329ciety.” N. J. S. A. 30:4-123.14. Since in this case a determination has been made that after serving a part of his prison sentence the defendant is a fit subject to return to society under conditions of parole, N. J. S. A. 30:4-123.15, he was prevented from so doing solely because of his indigency. (I am assuming, as does the majority, that the Parole Board had jurisdiction in this ease to review Lavelle’s status; that is, I assume he had served his minimum sentence or one-third of the maximum and was therefore eligible for parole if the Board found him to he sufficiently rehabilitated. N. J. S. A. 30:A-123.10; State v. Cooper, 54 N. J. 330 (1969). It is therefore irrelevant what the trial judge said concerning the fine at the time of sentence.)
The majority characterizes the Parole Board decision as follows: "not to release him [Lavelle] until he satisfied the $1,000 fine at the rate of $5 for each confinement day after January 7, 1969.” (Id., at p. 324). However, the Board’s order would have permitted Lavelle’s instant release if he were fortunate enough to have $1,000 available through friends or family. There is nothing in the record to show that the Parole Board ever intended that Lavelle continue to be incarcerated if he could have raised the money.
The majority has concluded, however, that Lavelle’s unreliability in the payment of a previously imposed $250 fine provides justification for his incarceration beyond January 7, 1969. But evidence of prior unreliability cannot be permitted to override, at this point in the case, the decision of the Parole Board that Lavelle was sufficiently rehabilitated to permit his reentry into society. Consideration of prior unreliability should be in the sole purview of the Parole Board, since it is in the best position to determine whether incarceration has had a rehabilitating effect on all aspects of the defendant’s character. There is no evidence in the record to show that the Parole Board ever intended that, due to prior unreliability, Lavelle is not fit to return to society until the fine is paid off. It was solely Lavelle’s lack of funds that was keeping him in prison after January 7, 1969. A prisoner, rich or *330poor, who has been found fit to return to society under conditions of parole should be given an opportunity to pay his fine in installments while he is at liberty. The rule adopted by the Parole Board on June 2, 1969, and cited in the majority opinion, at p. 325, is consistent with this conclusion,
As I see this case, a man is being held in prison, even though he has been declared by an official organ of the state to be ready to return to society, and solely because he cannot command the capital to pay for his freedom. To permit such a result is to make our system of laws vulnerable to the ironic comment of Anatole Prance that “The law in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” Le Lys Rouge, ch. 7.
Jacobs and Schettino, JJ., join in this dissent.
For affirmance- — Chief Justice Weinteatib and Justices Peancis, Hall and Haneman — 4.
For reversal — Justices Jacobs, Peoctoe, and Schettino — 3.