dissenting.
Defendant Humphreys, who pleaded guilty tó possession of 27.34 grams of marijuana, was denied admission to our conditional discharge program, N.J.S.A. 24:21-27. In denying defendant’s application, the trial court relied on three factors: (1) “extreme public anxiety” over defendant’s misconduct; (2) defendant’s occupation as a high school teacher; and (3) some evidence that Humphreys may have distributed small amounts of marijuana and one valium tablet, which evidence was adduced at a separate trial in which he was acquitted of possession of marijuana with intent to distribute.
The trial court’s reliance on public pressure as a ground for not admitting Humphreys to the program was a clear denial of due process. The majority concedes this. (Ante at 15.) Yet somehow the majority believes it can purge the trial court decision of its unconstitutional aspect by deferring to its permissible reasons for denial. I disagree that the elements underlying the trial court decision can be dissected so neatly. The weakness of the other grounds for denial and the strong record for admission presented by defendant demonstrate that the trial court’s capitulation to public pressure was central to its decision. Moreover, each of the other grounds relied on by the trial judge is of questionable validity at best. The net result is a clear abuse of discretion by the trial court.
Humphreys is obviously eligible for conditional discharge. He is charged with an offense under N.J.S.A. 24:21-20, has no prior drug convictions and, although charged with distribution as well as possession, was acquitted by a jury of the distribution charge. Under N.J.S.A. 24:21-27(c), conditional discharge is to be denied unless the trial court finds that defendant’s presence in the community or in a civil treatment center or. program will not pose a danger to the community. However, neither the trial court nor the majority relies on this provision to disqualify defendant. It would be absurd to disqualify him on the basis of the danger he poses to the community since the first Appellate *18Division decision precluded incarceration as a sanction. Moreover, it is now more than five years since defendant’s arrest. His completely clean record in the interim shows beyond a doubt that he poses no danger to the community.
In denying conditional discharge to defendant, the trial court relied on the “whole person” concept. Even if defendant is fully eligible for the program under the statutory criteria, “the [trial] court also has broad discretion, considering all relevant factors and applying the whole person concept, to determine whether such person is otherwise a fit subject for the statutory program.” State v. Sayko, 71 N.J. 8, 13 (1976) (footnote omitted).
As the majority, notes, the general rule is deference to trial court decisions on conditional discharge. Nonetheless, this Court has on several occasions approved reversals of trial court decisions under this program and prosecutorial decisions under the analogous pre-trial intervention program. See State v. Bender, 80 N.J. 84 (1979); State v. Maddocks, 80 N.J. 98 (1979); State v. Sutton, 80 N.J. 110 (1979); State v. Sayko, supra.
Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment. [State v. Bender, 80 N.J. at 93]
The majority concedes that the trial court’s decision was in part premised on the inappropriate factor of hostile public opinion. Yet the majority ignores the trial court’s serious transgression by deferring to its disposition.
Premising a sentencing decision on public outcry against a particular defendant is no mere technical error. It is nothing less than the surrender of our criminal justice system to public pressure. As the majority explains,
Judicial recognition of or action u¡>on public opinion against a particular defendant cannot be tolerated in our criminal justice system. That the citizens of Pennsville became infuriated to the extent of threatening to take their children out of school is, and should be, of no concern to the trial judge. ‘The constitutional safeguards relating to the integrity of the criminal process attend every stage of a criminal proceeding.... There can be no doubt that they ... exclude influence or domination by either a friendly or hostile mob.’ Cox v. Louisiana, 379 U.S. 559, 563, 85 S.Ct. 476, 480, 13 L.Ed.2d 487,491, (1965). [Ante at 15]
*19The trial court decision must thus be deemed a patent abuse of discretion. It was an abdication of the rule of law. “[M]ob law is the very antithesis of due process.” Cox v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 479, 13 L.Ed.2d 487 (1965).
The majority recognizes that the usual practice in the face of such a serious trial court error would be a remand, ante at 15, see State v. Bender, supra, but chooses instead to affirm the denial. The majority bases this disposition on its view that public opinion formed only a small part of the trial court’s rationale, and that therefore the decision would have been the same even absent that factor. (Ante at 15.) However, any attempt to ascertain what factors led the trial judge to his decision must be pure speculation. The majority focuses on the evidence of distribution as the primary reason for denial. However, the trial court’s first denial, which this Court summarily reversed, 81 N.J. 269 (1979), makes absolutely no mention of distribution as a reason for denial. We are thus left with no choice but to conclude that defendant’s occupation, and the public outcry against him because of his occupation, were essential to the trial court’s decision.
In support of its affirmance of the trial court, the majority strongly emphasizes the deference generally accorded trial judges in these decisions. This is a mistake. It is simply wrong to defer to a decision based on unconstitutional grounds since we have no way of knowing what the result would have been had the judge based his decision entirely on proper factors. In reality, the majority is independently weighing the evidence and reaching its own determination that Humphreys should be denied conditional discharge. I have no objection to this procedure. In view of the length of this litigation, I agree that independent factfinding is preferable to another remand. However, in this weighing of the evidence, we cannot give to the trial court the deference which would be appropriate had it made a proper decision.
*20More importantly, I strongly disagree with the result the majority reaches. The grounds relied upon are highly questionable, and even if valid, amount to very little when compared with the favorable record defendant presents.
The factor on which the trial court claims to rely most heavily is evidence that Humphreys may have distributed drugs. The evidence suggests that he distributed one valium tablet and that he had tried to grow marijuana that, if he had succeeded, he might have shared with his friends. However, none of this evidence was properly before the trial court. Rather, it was based on evidence the trial judge heard in Humphreys’ separate trial for distribution, in which he was acquitted of that charge.
Our rules and cases clearly establish that all information on which the trial judge relies must be either part of the record of the case or contained in the pre-sentence report. R. 3:21-2; State v. Kunz, 55 N.J. 128 (1969). This rule derives from a defendant’s constitutional right to see and comment upon all factors on which a sentencing decision is to be based. In addition, the rule is necessary so that the reviewing court can evaluate all the evidence on which the sentencing decision was made. Defendants seeking admission to conditional discharge should similarly be able to confront all adverse evidence that may affect the decision.
The trial court’s reliance on evidence adduced at a different trial is a clear violation of this principle. Neither the alleged giving of a valium tablet nor defendant’s alleged intention to give part of his small marijuana crop to some close friends was relevant to the charge that his possession of 27.34 grams was with intent to distribute. Therefore, there was no incentive for defendant to seek to refute that evidence. Moreover, we do not have the record of the first trial before us, so we cannot know the extent to which these allegations were established. All we can know with certainty is that a jury found Humphreys not guilty of distribution.
*21Further, even if this evidence were properly before the trial court, and even if it conclusively proved that defendant gave small amounts of marijuana or an occasional valium tablet to close friends, that would hardly be a strong reason to deny conditional discharge. There is no allegation that he was engaged in the business of selling drugs. The quantities involved are very small.1 Activity of this nature is a flimsy ground on which to deny conditional discharge.
The second reason offered is that Humphreys is a teacher. This, of course, is the reason for the public outcry against him. Nonetheless, it is agreed that such public pressure is an unconstitutional basis for denial. Nor does the majority contend that Humphreys violated a public trust. The public trust doctrine concerns only persons whose crimes have threatened the public at large, or have been directly related to the trust reposed in such person. Thus, we have approved of conditional discharge or pre-trial intervention for a policeman charged with possession of heroin, State v. Alston, 71 N.J. 1 (1976), a pharmacist charged with diverting cocaine to personal use, State v. Bender, supra, and school teachers charged with possession and receipt of stolen property, State v. Hermann, 80 N.J. 122 (1979). Here as well, defendant’s wrongdoing has no relation to his occupation as a teacher.2
Yet the majority still suggests that defendant’s occupation can be considered, though it does not suggest why. Whether or not a person should continue to teach when he has violated the law is not a proper concern of this Court. That is for the school district to determine.3 More likely, the majority is worried that *22granting conditional discharge would set a bad example for the children in defendant’s school district. This was the reason for the trial court’s first denial, which we reversed, 81 N.J. 269 (1979).
I think the view that a teacher must be punished to give school children the proper lesson about drug use is misguided. The premise underlying conditional discharge is that drug abuse is an illness as much as a crime. Where a defendant can be diverted into a program that may cure him, at no risk to the community, we have an opportunity to temper justice with mercy and pragmatism, limiting punitive incarceration to cases in which it is needed. This is part of the way our criminal justice system works. Is that so terrible a lesson for children to learn? The desire to hide the workings of conditional discharge from high school students is an improper and inadequate reason to deny Humphreys admission to the program. See State v. Hermann, supra.
The final reason offered is that Humphreys believes there is nothing wrong with marijuana use, advocates reform of the marijuana laws, and therefore is not amenable to rehabilitation. I assume it is beyond dispute that the Constitution manifestly prohibits basing criminal sanctions on a person’s political beliefs, or on his expression of those beliefs. Out of fairness to my colleagues, I will therefore assume that their concern is that Humphreys’ political beliefs will necessarily entail continued violation of our drug laws. That position reflects two basic assumptions that I decline to adopt.
The first assumption underlying the majority’s position is that persons supporting legalization of marijuana use it despite its illegality. There is absolutely no basis in fact for such an assumption. Advocacy of legalization represents a view that the criminal justice system is not the best means of dealing with marijuana users. It does not represent any view as to the advisability of using marijuana.
*23Moreover, the majority’s position assumes that drug laws have no deterrent effect. One of the premises of conditional discharge and pre-trial intervention is that certain first offenders will be sufficiently scared by their first arrest, and by the possibility of going to prison, that actual incarceration may not be needed. Humphreys is intelligent enough to know that a second offense would be dealt with more harshly. There is thus no reason to believe he will continue to use marijuana, merely because he supports its legalization. This view is strengthened greatly by the fact that his record since this arrest has been perfectly clean.
Secondly, the majority is assuming in advance that supervisory treatment of Humphreys’ drug use will have no effect. Again, the only basis for that assumption is defendant’s advocacy of reform of the marijuana laws, and again the assumption is unfounded. Part of the purpose of drug rehabilitation programs is to change the user’s attitudes about drug use by teaching the user about the problems associated with it.
I thus conclude that defendant’s belief in reform of the marijuana laws provides no basis for denying conditional discharge. The majority’s arguments along these lines amount to the imposition of criminal sanctions on a person because of his political beliefs, which is a dangerous proposition.4
In sum, the majority, under the guise of deference to a trial court decision that merits no deference, has performed its own analysis of the record and has denied conditional discharge for several highly questionable reasons. It relies on unproven allegations of drug distribution not properly part of the record, defendant’s occupation as a teacher and his advocacy of reform of the marijuana laws. These reasons are each of questionable *24validity, and even if proper they do not add up to much. At worst, they suggest someone who has personally used small amounts of marijuana, may have shared some with friends, and advocates reform of marijuana laws.
These are weak grounds indeed for denying discharge to a man with a strong professional record, a decorated veteran with no prior arrests of any sort, who has been able to conform his conduct to the law during the more than five years since his arrest. I would therefore affirm.
Justice POLLOCK joins in this dissent.
For reversal—Chief Justice WILENTZ and Justices CLIFFORD, SCHREIBER, HANDLER and O’HERN—5.
For affirmance—Justices PASHM AN and POLLOCK—2.
The marijuana “crop” which defendant allegedly attempted to grow was merely a six feet by six feet patch of ground—hardly enough to constitute a business of selling drugs.
There is no evidence whatsoever that defendant provided marijuana to his students or used any drugs in their presence.
As a matter of fact, defendant is no longer teaching in New Jersey.
How different is this from the view that opponents of our political system are less committed to our law and the stability of our social fabric, and therefore more likely to commit crimes of various sorts? Such a line of reasoning is of course unconstitutional as a basis for criminal justice decisions.