(dissenting). Newton is confined in the State Prison at Trenton, 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 designated to inculcate the resolve for rehabilitation as a primary adjunct of the punitive process, but by the edict of the State Commissioner of Institutions and Agencies to serve in the State’s maximum-security prison, it is now held, the “maximum of the term fixed by law for his crime,” carnal abuse, “not entitled to remission of sentence by way of commutation time but only to monetary compensation for work performed,” and without the right to the parole eligibility which is a redemptive mechanism basic to all sentences of imprisonment for crime, but to consideration for parole, N. J. S. 2A :164-8, “only if and when the Special Classification Review Board recommends to the State Parole *280Board that he is capable of making a social adjustment in the community,”' and so Newton will be confined to the State Prison for the maximum term fixed by the law for the crime of which he was convicted, N. J. S. 2A :138-1, unless an abuse of discretion by the Commissioner in detaining him there rather than in another institution under the department’s jurisdiction can be established in an appropriate proceeding seeking review of the Commissioner’s action.
The action thus taken is not, I would suggest, within the purview of the act for the “treatment” of sex offenders, L. 1950, c. 207; L. 1951, c. 44; N. J. S. 2A:164-3; and, at all events, there is in fact and in law imprisonment of Newton without the constitutionally secured due process of law. He is a prisoner in the State Prison, not in virtue of a commitment by the sentence of a judge in the court in which the conviction was had, but by the action of state administrative officer who in justification now pleads the want of treatment facilities adequate to serve the imperative statutory policy of curative treatment of habitual sex deviates.
Judge Kalteissen did not sentence Newton to prison, but ordered his commitment to the “Diagnostic Center for examination,” as required by N. J. S. 2A :164-3. Upon completion there of the “physical and mental examination” directed by section 4, a “written report of the results” was submitted to the court, and there being a determination “through clinical findings” that the “offender’s” conduct was of the character delineated in section 5, and a “recommendation” to that end by the Diagnostic Center, it became the peremptory “duty” of the court “to submit the offender to a program of specialized treatment for his mental and physical aberrations”; and he was accordingly “committed” by Judge Kalteissen “to the New Jersey State Hospital at Marlboro, N. J.,” on April 18, 1952, and from there he was transferred by the Commissioner of Institutions and Agencies to the State Prison on June 19, 1953. If the findings of the Diagnostic Center, section 9, are contra,, it is incumbent on the judge to “impose sentence on such person in the manner provided by law.”
*281The statute, section 5, considers Newton, not as one sentenced to expiate a crime in a penal institution, but rather as an “offender” in need of “specialized treatment for his mental and physical aberrations.” The requisite showing being made by the clinical findings of the Diagnostic Center, sections 6, 8, the committing judge could (a) place Newton on probation conditioned on “out-patient psychiatric treatment in the manner to be prescribed in each individual ease,” or (b) commit him to an “institution” to be designated by the Commissioner of Institutions and Agencies “for treatment,” and eventual release “subject to parole supervision” when it shall be made to appear to the State Parole Board, “after recommendation by a special classification review board appointed by the state board of control of institutions and agencies,” that he is “capable of making an acceptable social adjustment in the community.” But the Commissioner is enjoined, section 7, to arrange for the “treatment” of the offender 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 to transfer such person to or from any “institution” within the jurisdiction of the department “for the purpose of providing for the needs and requirements of such person according to the individual circumstances of the case.” In such cases, section 6, there shall be no specified 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 he was convicted. And there is also provision, section 13, for the voluntary “treatment” in an institution designated by the Commissioner of a person who believes himself “to be suffering from a physical or mental condition which may result in sexual trends dangerous to the welfare of the public.”
It seems to be conceded that the State Prison does not have the “specialized treatment” facilities contemplated by the statute, and requisite to fulfill the legislative policy of rehabilitative medical and psycho-therapy, in a field where the rate of recidivism is generally low. That would seem *282to be a matter of common knowledge. Indeed, it is quite frankly avowed that compliance with the recommendation made by the special classification review board that Newton be transferred to the New Lisbon Colony for Feeble-minded Males was not had because that institution had a waiting list of upwards of 700.
But however this may be, there is no warrant whatever for the incarceration of this man in the State Prison. The Legislature plainly had in view for persons of this class a radically different social policy and rule of action, one of specialized regenerative treatment, physical and psychological, for which the punitive atmosphere and associations are ill-adapted and deterrents to effective treatment, not to mention the circumstances of maladjusted mind and body as mitigating moral guilt; for the others, it distinctly provided, section %A :164-9, for “sentence * * * in the manner provided by law.” The Commissioner’s power of transfer is so conditioned by the imperative terms of the statute. There is no provision for the administrative transfer of one so confined to a correctional institution, much less the State’s maximum-security prison. The curative and rehabilitative treatment is not to be administered in the penal system. The essential policy to be served is the key to the understanding of the statute; the course taken here, I submit, subverts the genius and spirit of the enactment.
I would reverse the judgment and remand the cause for proceedings conforming to the foregoing conception of the legislative design.
Mr. Justice Burling joins in this opinion. For affirmance — Chief Justice Vanderbilt, and Justices Olidhant, Wacheneeld, Jacobs and Brennan — 5. For reversal — Justices Heher and Burling — 2.