                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-21-2001

Myrie v. Comm NJ Dept Corr
Precedential or Non-Precedential:

Docket 99-6059




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation
"Myrie v. Comm NJ Dept Corr" (2001). 2001 Decisions. Paper 218.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/218


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Filed September 21, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NOS. 99-6059 & 99-6060

JUNIOR SAMUEL MYRIE,
       Appellant

v.

COMMISSIONER, N.J. DEPARTMENT OF CORRECTIONS;
DONALD E. LEWIS, WARDEN;
CORU, BUREAU OF AUDIT & ACCOUNTS;
JOHN DOES, NUMBERS 1 THROUGH 10,
(Fictitious Names) Members of the
Administration Riverfront State Prison;
RICHARD ROES, NUMBERS 1 THROUGH 10,
(Fictitious Names) Members of the Commissioner
of Department of Corrections Office

On Appeal from the United States District Court
for the District of New Jersey
District Judge: Honorable Anne E. Thompson
D.C. No. 98-cv-03708

NORWOOD L. WHITE,
       Appellant

v.

JACK TERHUNE; STEVEN PINCHAK

On Appeal from the United States District Court
for the District of New Jersey
District Judge: Honorable Anne E. Thompson
D.C. No. 98-cv-04356
Argued: January 8, 2001

Before: SCIRICA and AMBRO, Circuit Judges
and POLLAK,* District Judge

(Filed: September 21, 2001)

       Richard S. Lehrich, Esq.
       Laura M. Le Winn, Esq. (Argued)
       190 North Avenue East
       P.O. Box 8
       Cranford, New Jersey 07016

        Counsel for Appellants

       John J. Farmer, Jr., Esq.
       Attorney General of New Jersey
       Mary C. Jacobson, Esq.
       Assistant Attorney General
       Jeffrey K. Gladden, Esq. (Argued)
       Deputy Attorney General
       R.J. Hughes Justice Complex
       25 Market Street
       P.O. Box 112
       Trenton, N.J. 08625

        Counsel for Appellees

OPINION OF THE COURT

POLLAK, District Judge:

On this consolidated appeal of two cases jointly
adjudicated in the District Court for the District of New
Jersey, Junior Samuel Myrie and Norwood L. White, both of
whom are inmates of New Jersey prisons, contend that the
District Court erred in sustaining the validity-- challenged
under several provisions of the Constitution of the United
_________________________________________________________________

* Honorable Louis H. Pollak, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation

                                 2
States and cognate provisions of the Constitution of New
Jersey -- of N.J. Stat. Ann. S 30:4-15.1. The statute
provides:

       CHAPTER 396

       An Act concerning payment of Crime Compensation
       Board assessments and supplementing Title 30 of the
       Revised Statutes.

       BE IT ENACTED by the Senate and General
       Assembly of the State of New Jersey:

       C.30:4-15.1 Collection of "VCCB Surcharge" by
       commissary in correctional facility.

        1. Every commissary in a county or State
       correctional facility operated for the sale of
       commodities shall collect a surcharge of 10% of the
       sales price of every item sold. The surcharge shall be
       known as the "VCCB Surcharge." All funds collected
       pursuant to this section shall be forwarded to the State
       Treasurer for deposit in the Victims of Crime
       Compensation Board Account, shall be subject to
       reporting and accounting procedures pursuant to the
       provisions of section 2 of P.L. 1979, c.396 (C.2C:43:3.l)
       and shall be used in satisfying claims pursuant to the
       provisions of the "Criminal Injuries Compensation Act
       of 1971," P.L. 1971, c.317 (C.52:4B-1 et seq.). A sale
       subject to surcharge under this section shall not be
       subject to any tax imposed under the "Sales and Use
       Tax Act," P.L. 1966, c.30
       (C.54:32B-1 et seq.).

        2. This act shall take effect immediately but section
       1 shall remain inoperative until the 180th day following
       enactment.

Section 30:4-15.1 was enacted in January of 1998 and
went into effect in July of that year. Between August and
December of 1998 ten lawsuits asserting, inter alia, the
invalidity of S 30:4-15.1 were filed in the District Court
pursuant to 42 U.S.C. S 1983. The plaintiffs-- one of whom
was Mr. Myrie and another of whom was Mr. White-- in
these several lawsuits were all persons incarcerated in state
or county prisons in New Jersey. The defendants were state

                               3
officials, led by (then) Governor Whitman. The District
Court consolidated the several lawsuits for the limited
purpose of dealing in unified fashion with their common
ingredient -- the constitutional claims involvingS 30:4-
15.1. The federal constitutional claims were that the statute
violated the double jeopardy, ex post facto, bill of attainder,
and excessive fines clauses1, and also deprived the plaintiffs
of due process and equal protection. The state
constitutional claims were based on those provisions of the
New Jersey Constitution that are counterparts of the
federal constitutional clauses.2 On cross-motions for
summary judgment with respect to those common
constitutional claims, the District Court, in a thoughtful
and comprehensive opinion, granted summary judgment in
_________________________________________________________________

1. Article I, Section 10 of the United States Constitution bars states
from
"pass[ing] any Bill of Attainder [or] ex post facto Law." The double
jeopardy and excessive fines clauses are, in terms, constraints on the
federal government ("nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb," Fifth Amendment),
("nor excessive fines imposed," Eighth Amendment), but both constraints
are deemed to apply to state governments as well via the Fourteenth
Amendment.

2. Art. 4, S 7, P 3: "The Legislature shall not pass any bill of
attainder, ex
post facto law . . ." Art. I, S 12:". . . [E]xcessive fines shall not be
imposed . . ." Art. I, S 11: "No person shall, after acquittal, be tried
for
the same offense."

The foregoing state constitutional provisions appear to cover the same
ground as the corresponding federal constitutional provisions. See, e.g.,
Doe v. Poritz, 142 N.J. 1, 68-69, 662 A.2d 367, 388 (1995) (bill of
attainder and ex post facto); New Jersey v. Williams, 669 A.2d 867, 873-
74 (N.J. Super. 1995) (excessive fines). The wording of Article I, S 11 of
the New Jersey Constitution, which in terms is confined to prior
acquittals, is narrower than the wording of the Fifth Amendment's
double jeopardy clause but has the same coverage. New Jersey v.
Widmaier, 157 N.J. 475, 490, 492-94, 499-500 (1999).

The Fourteenth Amendment's guarantees of due process and equal
protection are equatable with, respectively, Article I, S 1 and Article I,
S 5
of the New Jersey Constitution. The New Jersey constitutional provisions
do not track the Fourteenth Amendment's language but they appear to
have the same content. See Washington Nat'l Ins. Co. v. Board of Review,
1 N.J. 545, 553, 64 A.2d 443, 446 (1949); Auto-Rite Supply Co. v. Mayor
and Township Committeemen, 142 A.2d 612, 616-17 (N.J. Super. 1956).
4
favor of the defendants. Thereafter, because (unlike some of
the other lawsuits) the lawsuits brought by Mr. Myrie and
Mr. White advanced no other claims, final judgment was
entered against Mr. Myrie and Mr. White. They have both
appealed.

I. Double Jeopardy, Ex Post Facto, and Bill of Attainder

The double jeopardy, ex post facto, and bill of attainder
provisions are discrete constitutional protections addressed
to distinct types of impermissibly oppressive governmental
constraints. But they have a common thread: they only
apply to those situations in which the injury complained of
constitutes an imposition or exaction of a "criminal" rather
than a "civil" nature. See Rex Trailer Co. v. United States,
350 U.S. 148, 154 (1956).

In Hudson v. United States, 522 U.S. 93 (1997), a case in
which the Supreme Court rejected a contention that
criminal prosecutions undertaken following the imposition
of sanctions imposed by a civil regulatory agency
constituted double jeopardy, the Court (speaking through
Chief Justice Rehnquist, and building upon its earlier
decision in Kennedy v. Mendoza-Martinez, 372 U.S. 144
(1963)), formulated the pertinent analytic scheme in the
following terms:

       Whether a particular punishment is criminal or civil is,
       at least initially, a matter of statutory construction.
       Helvering [v. Mitchell, 303 U.S. 391], 399[(1938)]. A
       court must first ask whether the legislature, "in
       establishing the penalizing mechanism, indicated either
       expressly or impliedly a preference for one label or the
       other." [United States v.] Ward, 448 U.S. 242, 248
       [(1980)]. Even in those cases where the legislature "has
       indicated an intention to establish a civil penalty, we
       have inquired further whether the statutory scheme
       was so punitive either in purpose or effect," id., at 248-
       249, as to "transfor[m] what was clearly intended as a
       civil remedy into a criminal penalty," Rex Trailer Co. v.
       United States, 350 U.S. 148, 154 (1956).

        In making this latter determination the factors listed
       in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-

                               5
       169 (1963), provide useful guideposts, including: (1)
       "[w]hether the sanction involves an affirmative
       disability or restraint"; (2) "whether it has historically
       been regarded as a punishment"; (3) "whether it comes
       into play only on a finding of scienter"; (4)"whether its
       operation will promote the traditional aims of
       punishment-retribution and deterrence"; (5) "whether
       the behavior to which it applies is already a crime"; (6)
       "whether an alternative purpose to which it may
       rationally be connected is assignable for it"; and (7)
       "whether it appears excessive in relation to the
       alternative purpose assigned." It is important to note,
       however, that "these factors must be considered in
       relation to the statute on its face," id., at 169, and
       "only the clearest proof " will suffice to override
       legislative intent and transform what has been
       denominated a civil remedy into a criminal penalty.
       Ward, supra at 249 (internal quotation marks omitted).

522 U.S. at 99-100.

In the cases under review the District Court examined
the double jeopardy, ex post facto, and bill of attainder
challenges to S 30:4-15.1 through the prism of the Court's
opinions in Hudson and Mendoza-Martinez . On appeal the
parties agree that Hudson/Mendoza-Martinez is the
appropriate constitutional template, but appellants (Junior
Myrie and Norwood White) argue that the District Court
misapplied it, while appellees (the State officials) argue that
the District Court got it right.

We concur in the parties' acknowledgment that
Hudson/Mendoza-Martinez is the proper rubric. We turn
now to the application of its principles to appellants'
claims.

A. Did the New Jersey Legislature intendS 30:4-15.1 to
       be a "civil" imposition or a "criminal" one?

As the Chief Justice explained in Hudson,"[w]hether a
particular punishment is criminal or civil is, at least
initially, a matter of statutory construction . . . . A court
must first ask whether the legislature, `in establishing the
penalizing mechanism, indicated either expressly or

                               6
impliedly a preference for one label or the other.' " 522 U.S.
at 99. F

In Auge v. New Jersey Dep't of Corrections, 743 A.2d 315
(N.J. Super. 2000), a case decided shortly after the District
Court's dismissal of appellants' claims, the Appellate
Division of the New Jersey Superior Court rejected a New
Jersey prison inmate's contention that Chapter 396 of the
Laws of 1997 -- codified as S 30:4-15.1-- contravened his
double jeopardy, ex post facto, and due process rights. The
Auge court's opinion provides an instructive summary of
the events -- going back to 1971 -- that led to the
enactment of S 30:4-15.1:

       In 1971, the Legislature enacted the Criminal Injuries
       Compensation Act (the Act). L. 1971, c. 317, N.J.S.A.
       52:4B-1 to 21. "The primary purpose of the Act is to
       provide compensation to persons who have suffered
       bodily injury from the commission of a serious crime."
       White v. Violent Crimes Compensation Bd., 76 N.J. 368,
       386, 388 A.2d 206 (1978). However, the Legislature
       failed during the 1970s to appropriate sufficient funds
       to provide adequate and timely compensation to violent
       crimes victims in accordance with the Act. See
       Assembly Judiciary Law, Public Safety & Defense
       Committee, Statement to Assembly Bill No. 3648 (194
       N.J. Leg., 2d Sess. 1979) (noting that as of 1977"the
       number of claims as well as insufficient funding[had]
       created a situation where a claimant [had] to wait up
       to 3 years before receiving relief "). To establish an
       additional source of funding, the Legislature enacted
       Chapter 396 of the Laws of 1979 (N.J.S.A. 2C:43-3.1),
       which required any person convicted of any crime or
       other enumerated offense to be assessed a penalty
       ranging from $25 [FN1] to $10,000 and directed that
       the money collected from the penalty be deposited in a
       separate account for the compensation of victims of
       violent crimes. However, the penalties imposed under
       this legislation still failed to generate sufficient revenue
       to fully fund the program because they often could not
       be collected. Sponsor's Statement to S.2082 (207th
       N.J. Leg., 2d Sess. 1997).

                               7
       FN1. The minimum amount of the penalty has since
       been increased to $50. L. 1991, c. 329, S 3.

       In an effort to make up for this continuing shortfall in
       the funding required to compensate the victims of
       violent crimes, the Legislature enacted Chapter 396 of
       the Laws of 1997 [S 30:4-15.1] which imposes a 10%
       surcharge upon the price of all commodities purchased
       in prison commissaries and directs that money
       collected from this surcharge be deposited in the
       Victims of Crime Compensation Board Account. The
       Assembly Appropriation Committee's statement
       concerning the bill notes that:

       The VCCB [Violent Crimes Compensation Board]
       surcharge authorized under this bill is expected to
       generate between $1.2 and $1.5 million annually for
       the VCCB. When coupled with federal matching
       funds, the VCCB should have approximately $2
       million in new moneys available to compensate crime
       victims [Assembly Appropriations Committee,
       Statement to Senate Committee Substitute for
       S.2082 (207th N.J. Leg., 2d Sess. 1977).]

743 A.2d at 317.

The statement of the Assembly Appropriations Committee
quoted in Auge was dated December 11, 1997. On
December 16, a "fiscal note" on the pending bill enlarged on
the statement of the Assembly Appropriations Committee.
The fiscal note explained why the statutory surcharge was
to be imposed on all inmate purchases, not just on
purchases by inmates who still owed money to the Victims
of Crime Compensation Board (VCCB): according to the
fiscal note, developing a computer system capable of
identifying the inmates owing money to the VCCB would
have been prohibitively expensive. The fiscal note also
pointed out that exempting correctional facility commissary
sales from New Jersey's sales tax -- then, as now, 6% --
would reduce the aggregate anticipated annual surcharge
revenue of $1,000,000 by "up to" $600,000. 3

(Text continued on page 10)
_________________________________________________________________

3. The full text of the fiscal note is as follows:

                               8
       Fiscal Note to Senate Committee Substitute for Senate No. 2082
       State of New Jersey - Dated: December 17, 1997

       Senate Committee Substitute for Senate Bill No. 2082 of 1997
       imposes a 10 percent surcharge on all commissary sales in State
       and county correctional facilities in order to generate additional
       revenues to compensate crime victims pursuant to the"Criminal
       Injuries Compensation Act of 1971," P.L. 1971, c.317 (C52:4B-1 et
       seq.) or any other law. The bill also provides that any sales
subject
       to the surcharge would not be subject to sales tax.

        Every defendant found guilty of a criminal offense is required by
       law to pay an assessment to the Victims of Crime Compensation
       Board (VCCB). The moneys paid into the VCCB's account are used
       to provide compensation to the victims of crime. However, although
       every defendant is assessed a penalty payable to the VCCB, not all
       of those assessments are paid.

        The Department of Corrections states that about $10 million is
       spent by State prisoners on commissary purchases each year. The
       department notes that it is not clear whether the 10 percent
       surcharge would be added to every commissary purchase regardless
       of whether an inmate owes VCCB assessment or not. Although the
       department is unable to estimate the cost of implementing this
       program, it states that if only inmates who owe VCCB assessments
       are subject to the surcharge, it would be required to identify the
       specific inmates and the amount of unpaid assessment for both
       current and prior convictions. Current computer systems lack the
       ability to identify and track VCCB assessment or any other revenue
       categories. Modification of software would be extremely costly, and
       even with the modifications, insufficient capacity for data storage
       would prohibit the ability to operate such a system. A manual
       system for researching and tracking assessments and payments
       would not be feasible.

        The Office of Legislative Services (OLS) notes that if the
       assessment is placed on all inmate commissary purchases
       regardless of the amount owed per inmate, the department would
       simply be required to increase the product prices by 10 percent,
for
       total annual collections of about $1 million, to be transferred to
the
       VCCB for the payment of claims. The OLS also notes that the
       elimination of the requirement to pay sales tax on certain items
       would reduce State revenue by up to $600,000 per year. The cost of
       implementing such a program should be minimal.

                               9
We think that the history of S 30:4-15.1 (the Auge court's
description of its provenance, together with the recital of
the Assembly Appropriations Committee and the
supplementary fiscal note) convincingly demonstrates that
the intent of the Legislature was to put in place a civil
remedial program: a program designed to generate funds
that would help New Jersey fulfill its long-standing but only
partially realized commitment to compensate crime victims,
not a program designed to add further punishment to those
incarcerated.

To be sure, this history does not specify why the
Legislature looked to prison inmates as the source of the
needed revenues. It would seem, however, not unreasonable
to infer that the Legislature regarded the inmate population
as a cohort whose members were in large measure
accountable for the victim harms for which adequate
compensation had not been achieved.

Such a legislative attribution of accountability--
assuming it was, in fact, made -- would not, of course, be
flawless. As pointed out by the fiscal note, the program
adopted by the Legislature contemplated that the surcharge
would be added to the price of all inmate purchases,
including purchases by inmates who had already completed
payment of sums owing to the VCCB. Also, the New Jersey
inmate population presumably included -- and continues
to include -- persons held in pre-trial custody, not
convicted of any crimes. But this lack of one-to-one
correspondence between a particular inmate's purchase
and an identifiable and precisely quantifiable dollar
obligation to a victim does not undercut the general
rationality of the attribution of accountability which, we
assume, animated the Legislature. More to the point, it
does not undercut the conclusion that the surcharge
regime was intended by the Legislature to be civil and
remedial.
_________________________________________________________________
 This fiscal note has been prepared pursuant to P.L. 1980, c.67.

                               10
B. Does application of the seven Mendoza-Martinez
       factors mark S 30.4-15.1 as so punitive in effect as to
       transform the statutory surcharge it authorizes into a
       criminal punishment?

In Section I (A) of this opinion we concluded that the text
and history of S 30:4-15.1 show it to have been intended by
the New Jersey Legislature to be a civil remedial program,
not a program intended to enhance the punishment of
persons incarcerated in New Jersey's state and county
prisons.

We now address the second question posed by the
Hudson Court. That second question is whether,
notwithstanding that "the legislature `has indicated an
intention to establish a civil penalty . . . the statutory
scheme was so punitive either in purpose or effect' . . . as
to `transfor[m] what was clearly intended as a civil remedy
into a criminal penalty.' " 522 U.S. at 99. In aid of that
inquiry, the Supreme Court pointed lower courts to seven
criteria identified in Mendoza-Martinez.

As previously noted, the seven Mendoza-Martinez   criteria
are as follows:

       Whether the sanction involves an affirmative disability
       or restraint, whether it has historically been regarded
       as a punishment, whether it comes into play only on a
       finding of scienter, whether its operation will promote
       the traditional aims of punishmen-retribution and
       deterrence, whether the behavior to which it applies is
       already a crime, whether an alternative purpose to
       which it may rationally be connected is assignable for
       it, and whether it appears excessive in relation to the
       alternative purpose assigned are all relevant to the
       inquiry, and may often point in differing directions.

Mendoza-Martinez, 372 U.S. at 168-69.

The "sanction" challenged in our case is a 10% surcharge
added by state law to the price of retail purchases at New
Jersey state and county prison commissaries. It has all the
earmarks of a sales tax. Indeed, it replaces the sales tax
that New Jersey imposes on purchases made in ordinary
retail stores throughout the state. As of the time period

                               11
covered by this litigation, the New Jersey sales tax has been
6% -- except for those categories of retail items, primarily
food, clothes and prescription drugs, that New Jersey law
exempts from sales tax. Thus the effective "sanction" is a
commissary price increment of 10% for items that would be
exempt from sales tax at a retail store, while for other items
the commissary price increment is 4% (i.e., 10% - 6%).4

The first Mendoza-Martinez inquiry is whether the
asserted sanction is an "affirmative disability or restraint."
The phrase apparently derives from the Court's opinion in
Flemming v. Nestor, 363 U.S. 603 (1960). In that case the
Court upheld, against constitutional challenge, the
termination, pursuant to S 202(n) of the Social Security Act,
of old-age benefits of an alien deported for past Communist
Party membership. Among the grounds for constitutional
challenge were contentions "that the termination of
appellee's benefits amounts to punishing him without a
judicial trial, see Wong Wing v. United States, 163 U.S. 228;
that the termination of benefits constitutes the imposition
of punishment by legislative act, rendering S 202(n) a bill of
attainder, see United States v. Lovett, 328 U.S. 303;
Cummings v. Missouri, 4 Wall. 277; and that the
punishment exacted is imposed for past conduct not
unlawful when engaged in, thereby violating the
constitutional prohibition on ex post facto laws, see Ex
parte Garland, 4 Wall. 333." 363 U.S. at 613. The Flemming
v. Nestor Court went on to observe that "[e]ssential to the
success of each of these contentions is the validity of
characterizing as `punishment' in the constitutional sense
the termination of benefits under 202(n)." Id. In the course
of its extended discussion of whether the challenged
sanction was a " `punishment' in the constitutional sense,"
the Court observed that "[h]ere the sanction is the mere
denial of a noncontractual governmental benefit. No
affirmative disability or restraint is imposed, and certainly
_________________________________________________________________

4. The fact that exempting commissary sales from sales tax was expected
by the authors of the "fiscal note", see supra, note 3, to result in an
effective reduction of "up to" $600,000 of the anticipated aggregate
annual surcharge revenue of $1,000,000, suggests that somewhat over
50% of commissary purchases are of items which, at ordinary retail
stores, would be subject to sales tax.

                               12
nothing approaching the `infamous punishment' of
imprisonment, as in Wong Wing, on which great reliance is
mistakenly placed." Id. at 617.5
_________________________________________________________________

5. The Court in Flemming v. Nestor was unable to equate the termination
of old-age benefits with the " `punishment' in the constitutional sense"
found by the Court in (1) Wong Wing (invalidating federal statute
providing for up to a year's imprisonment at hard labor for Chinese
aliens found, at trial without a jury, to be unlawfully in the United
States), (2) Lovett (invalidating federal statute terminating the
compensation, and hence the further employment, of three named
federal employees found by the House Appropriations Committee to be
"subversive"), (3) Cummings (invalidating post-Civil War state
constitutional provision prohibiting, inter alia, clergymen from pursuing
their ministry unless they took an oath that they had never been disloyal
to the government of the United States), and (4) Garland (invalidating
similar post-Civil War federal statute directed at lawyers).

In Lovett, the Court, speaking through Justice Black, found Cummings
and Garland to be controlling authority. Justice Black's characterization
of Cummings and Garland is instructive:

         In Cummings v. Missouri, 4 Wall. 277, 323, this Court said, "A bill
         of attainder is a legislative act which inflicts punishment without
a
         judicial trial. If the punishment be less than death, the act is
termed
       a bill of pains and penalties. Within the meaning of the
       Constitution, bills of attainder include bills of pains and
penalties."
       The Cummings decision involved a provision of the Missouri
       Reconstruction Constitution which required persons to take an Oath
       of Loyalty as a prerequisite to practicing a profession. Cummings,
a
       Catholic Priest, was convicted for teaching and preaching as a
       minister without taking the oath. The oath required an applicant to
       affirm that he had never given aid or comfort to persons engaged in
       hostility to the United States and had never "been a member of, or
       connected with, any order, society, or organization, inimical to
the
       government of the United States . . ." In an illuminating opinion
       which gave the historical background of the constitutional
       prohibition against bills of attainder, this Court invalidated the
       Missouri constitutional provision both because it constituted a
bill
       of attainder and because it had an ex post facto operation. On the
       same day the Cummings case was decided, the Court in Ex parte
       Garland, 4 Wall. 333, also held invalid on the same grounds an Act
       of Congress which required attorneys practicing before this Court
to
       take a similar oath. Neither of these cases has ever been
overruled.
       They stand for the proposition that legislative acts, no matter
what
       their form, that apply either to named individuals or to easily
       ascertainable members of a group in such a way as to inflict
       punishment on them without a judicial trial are bills of attainder
       prohibited by the Constitution.

                               13
Since the withdrawal of old-age benefits challenged in
Flemming v. Nestor was found not to constitute an
"affirmative disability or restraint," it is plain that the
comparatively minor imposition complained of on this
appeal cannot be so characterized.

Having determined that the statutory 10% surcharge on
prison commissary sales is not "an affirmative disability or
restraint," we find it possible to address with greater
expedition the balance of the Mendoza-Martinez criteria.
Thus, to state the question "whether [such a surcharge] has
historically been regarded as a punishment", 372 U.S. at
168, is, manifestly, to answer that question in the negative.
Similarly, it is plain that the addition of a surcharge to the
price of a retail purchase is not an event that"comes into
play only on a finding of scienter." Id. Nor is there ground
for supposing that the imposition of a 10% surcharge on
commissary purchases "will promote the traditional aims of
punishment -- retribution and deterrence." Id. Further, it is
not the case that "the behavior to which it [the surcharge]
applies" -- namely, purchasing items at a commissary --
"is already a crime." Id.

The sixth Mendoza-Martinez criterion is"whether an
alternative purpose to which [the asserted "sanction"] may
rationally be connected is assignable for it." Id. at 168-69.
We understand this criterion to inquire whether an
asserted "sanction" may be reasonably regarded as having
a purpose other than punishment. The answer is that, as
explained in the discussion of the history of S 30:4-15-1 in
section I (A) of this opinion, the stated legislative intention
in providing for the surcharge was to generate additional
funds for disbursement by the underfunded VCCB.

Finally, Mendoza-Martinez inquires "whether [the asserted
sanction] appears excessive in relation to the alternative
purpose assigned." 372 U.S. at 169. Given that"the
alternative purpose assigned" by the Legislature was to
rescue the underfunded VCCB, the anticipated annual
revenue from the 10% surcharge of between $1,200,000
and $1,500,000 (potentially augmented by matching federal
funds) has not been shown to be excessive. Nor is there any
persuasive showing that the 10% surcharge is excessive
when considered from the perspective of the inmate-

                               14
purchasers: an addition of up to 10% to the price of a retail
item may certainly be obnoxious (and, indeed, might well
serve as a substantial disincentive to purchase expensive
items -- e.g., electronic equipment, automobiles, household
appliances, works of art -- of a sort not likely to be sold at
a prison commissary), but such an increment cannot be
perceived as skewing the commissary price structure in
radical fashion; moreover, as noted above, the effective
price increase for many commissary items is in fact not
10%, but 4%, since the 6% sales tax that would attach to
numerous items in non-prison retail stores is not applicable
to prison commissary sales.6

Thus, we distill out of the seven Mendoza-Martinez
criteria no support for the proposition that the surcharge is
" `so punitive either in purpose or effect'. . . as to
`transfor[m] what was clearly intended as a civil remedy
into a criminal penalty.' " Hudson, 522 U.S. at 99. And, in
light of the Court's instruction that the Mendoza-Martinez
" `factors must be considered in relation to the statute on
its face' and `only the clearest proof ' will suffice to override
legislative intent and transform what has been
denominated a civil penalty into a criminal penalty,"
Hudson, 522 U.S. at 100, we conclude that the surcharge
authorized by S 30:4-15.1 does not constitute
" `punishment' in the constitutional sense" and hence its
imposition on purchases made by appellants at prison
commissaries does not offend the double jeopardy, bill of
attainder, or ex post facto clauses of the federal
Constitution. Given that the cognate provisions of the New
Jersey Constitution have essentially the same meaning as
their federal counterparts, supra notes 1 and 2, appellants'
claims pursuant to the New Jersey provisions are also
unavailing.

II. Excessive Fines

As noted earlier in this opinion, both the Eighth
Amendment of the federal Constitution and Article I,S 12 of
the New Jersey Constitution bar the imposition of
"excessive fines," and these identical phrases have been
_________________________________________________________________

6. See text at note 4, supra.

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construed to have the same content. Supra notes 1 and 2.
Although, as a general matter, the prohibition on"excessive
fines" is a limitation on "the government's power to extract
payments, whether in cash or in kind, as punishment for
some offense," Austin v. United States, 509 U.S. 601, 609-
10 (1993), the prohibition is not confined to exactions
imposed as an aspect of the criminal law enforcement
process. See id. at 607-08. A civil imposition, such as a
civil forfeiture, which is adjudged "excessive," would fall
within the purview of the constitutional bar. But, as we
have noted in our discussion of the Martinez-Mendoza
criteria, the 10% surcharge challenged by appellants is not
"excessive" when viewed in the context of the reasons for its
enactment. Accordingly, we conclude that appellants' claim
that the surcharge constitutes an "excessive fine" is without
merit.

III. Due Process and Equal Protection

We turn, finally, to appellants' contentions that the
surcharge offends the federal due process and equal
protection guarantees as well as their New Jersey
constitutional counterparts. Appellants' due process
argument proceeds along two alternative lines:

First, appellants "submit that . . . the statutory surcharge
is not rationally related to the purportedly legitimate
governmental interest of bridging the funding gap for the
Victims of Crime Compensation Board . . . Assuming this to
be a `legitimate' governmental purpose, [appellants] contend
that the rational `means' to achieve that purpose would be
to establish a more effective collection mechanism, to
secure payments from those defendants obliged under
court orders to pay same, rather than to allocate
responsibility for `filling the funding gap' to a class of
individuals defined only by their status as inmates and not
by any claimed status as VCCB `obligors.' "

It cannot be doubted that "establish[ing] a more effective
collection mechanism" for the sums owed by "VCCB
`obligors' " would be a "rational `means' " to augment VCCB
revenues. Conceivably, indeed, such a "more effective
collection mechanism" would harvest revenue more quickly

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than the challenged surcharge. But the due process clause
does not authorize courts to exercise oversight with respect
to the comparative efficiency, and/or relative wisdom, of the
particular measure or measures that a legislature selects
from a menu of possible measures reasonably calculated to
achieve a permissible legislative objective. Provided that the
measure selected by the legislature is reasonably calculated
to bring about in some significant degree the achievement
of an appropriate legislative goal, the legislature's choice of
measures is not open to judicial second-guessing.

Second, arguing in the alternative, appellants submit that
"[w]hile the statute may have a purported`permissible
legislative purpose,' nonetheless, the arbitrary and
capricious classification of inmates as the only group
responsible for serving that purpose, vitiates any possibility
of finding `a real and substantial relationship' between the
`means' selected by the statute and its proffered`legislative
purpose'."

The flaw in this prong of appellants' due process
argument inheres in appellants' characterization of the
"classification of inmates as the only group responsible for
serving that [legislative] purpose" as"arbitrary and
capricious." We have pointed out, in Section I (A) of this
opinion, that "[i]t would seem . . . not unreasonable to infer
that the Legislature regarded the inmate population as a
cohort whose members were in large measure accountable
for the victim harms for which adequate compensation had
not been achieved." And, after noting the likelihood that
some fraction of the inmate population would not, in fact,
owe anything to the VCCB, we stated that "this lack of one-
to-one correspondence between a particular inmate's
purchase and an identifiable and precisely quantifiable
dollar obligation to a victim does not undercut the general
rationality of the attribution of accountability which, we
assume, animated the Legislature."

Appellants' equal protection claim is, in essence, an
extension and refinement of the due process claim, just
addressed, that the Legislature's selection of prison inmates
to bear the entire burden of the surcharge was "arbitrary
and capricious." According to appellants, "[n]ot only is the
nexus between the statutory means and the proffered

                               17
government interest irrational . . . the statutory
classification of affected individuals is likewise irrational
and arbitrary, thereby constituting a violation of the Equal
Protection Clause. A law such as N.J. Stat. Ann. 30:4-15.1,
that creates a `wholly arbitrary' classification cannot
withstand judicial scrutiny when it manifests prejudice
against `discrete and insular minorities' (such as prisoners),
according to Justice Stone's famous footnote in United
States v. Carolene Products, 304 U.S. 144, 151 n.4 (1938)."

Appellants' argument reaches too far. Prisoners, taken in
the large, are not a "discrete and insular minorit[y]." They
are not a "suspect classification." Hundreds of statutes and
administrative regulations, both state and federal, deal
comprehensively and in detail with persons who are
incarcerated, and, in the main, they are deemed to be as
presumptively constitutional as other legislative and
administrative directives.

On the other hand, we appreciate that there could be
circumstances in which a statute or regulation that has
valid application to an aggregate prison population the
generality of whom are, like appellants, convicted felons,
might nevertheless be open to challenge as applied to
particular inmate sub-groups who do not share the
characteristics that justify the constraints imposed by the
challenged statute or regulation on the general prison
population. But appellants, in challenging S 30:4-15.1, do
not present themselves -- and, indeed, would lack standing
to present themselves -- as champions of a hypothetical
inmate sub-group. They challenge the statute
comprehensively, and their challenge fails.

IV. Conclusion

For the foregoing reasons -- reasons which in substantial
measure track the careful opinion of the District Court --
the judgments of the District Court granting summary
judgment dismissing appellants' claims are affirmed.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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