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decided: October 16, 1974.


Appeal from judgment of sentence of Court of Common Pleas of Monroe County, Jan. T., 1971, No. 103, in case of Commonwealth of Pennsylvania v. Ronald Allen Butler.


Richard D. James, Ronald J. Mishkin and Soren P. West, Public Defenders, for appellant.

Benjamin Lerner, Deputy Attorney General, with him C. Daniel Higgins, Assistant District Attorney, and James F. Marsh, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen concurs in the result. Concurring Opinion by Mr. Justice Pomeroy.

Author: Roberts

[ 458 Pa. Page 290]

This case presents a significant question of the facial constitutionality of the legislative response to our decision in Commonwealth v. Daniel, 430 Pa. 642, 243 A.2d 400 (1968). We agree with appellant that the Commonwealth's sentencing statutes -- the Act of 1911 and the so-called new Muncy Act -- by their joint operation are constitutionally impermissible. We disagree, however, that the Act of 1911 must be struck down. Instead, we hold unconstitutional that portion of the new Muncy Act directing that no minimum sentence be imposed on women convicted of crime. Because the constitutionally-offensive part of the statutory scheme has been declared invalid, we affirm appellant's judgment of sentence.*fn1

Appellant on April 9, 1971, pleaded guilty to murder generally and was convicted of murder in the second degree. The court assessed punishment at ten to twenty years imprisonment and a $1,000 fine. This appeal ensued.*fn2

Appellant's sole challenge is to the constitutionality of the legislative choice to prescribe that all men receive minimum sentences and that all women not be given minimum sentences. An understanding of this Commonwealth's sentencing scheme is necessary.

[ 458 Pa. Page 291]

In 1911, the Legislature enacted a general sentencing statute. Act of June 19, 1911, P.L. 1055, §§ 1-6, as amended, 19 P.S. §§ 1051-57 (1964). Section 6 of that act provided that any person convicted of a crime*fn3 was to be sentenced to an indeterminate sentence. 19 P.S. § 1057 (1964).*fn4 Trial courts were further instructed

[ 458 Pa. Page 292]

    by section 6 to "[s]tat[e] in such sentence the minimum and maximum limits thereof . . . and the minimum limit shall never exceed one-half of the maximum sentence prescribed by any court." Id. A few years later an exception to this general sentencing statute was carved out by the original Muncy Act. Act of July 25, 1913, P.L. 1311, §§ 7-26, as amended, 61 P.S. §§ 551-91 (1964). When it came to women convicted of crime, trial courts were to sentence them to the State Correctional Institution at Muncy.*fn5 Act of July 25, 1913, P.L.

[ 458 Pa. Page 2931311]

, § 15, as amended. According to the original Muncy Act, "Every sentence imposed pursuant to this act shall be merely a general one . . . and shall not fix or limit the duration thereof." Id.*fn6

This disparate treatment of men and women went unchallenged until 1966, when Jane Daniel, on appeal from a robbery conviction, contended that the sentencing scheme was unconstitutional. More particularly, she argued that the failure to fix maximum sentences for women convicted of crime coupled with the requirement that men convicted of crime receive a minimum and a maximum denied her the equal protection of the laws. This Court agreed and on July 1, 1968, declared unconstitutional that portion of the Muncy Act requiring that women not be given a maximum sentence. Commonwealth v. Daniel, 430 Pa. 642, 243 A.2d 400 (1968).

[ 458 Pa. Page 294]

On July 16, 1968, the Legislature passed a bill to replace that part of the Muncy Act held invalid in Daniel. Act of July 16, 1968, P.L. 349, § 1, 61 P.S. § 566 (Supp. 1974). Under this new Muncy Act, women are to receive maximum sentences. However, "[t]he court in imposing sentence shall not fix a minimum sentence . . . ." Id.*fn7 It is the constitutionality of the proscription of minimum sentences for female offenders that is here challenged.

The significance of minimum sentences arises in connection with eligibility for parole. See generally Act of August 6, 1941, P.L. 861, §§ 1-34, as amended, 61 P.S. §§ 331.1 -- 331.34 (Supp. 1974). Responsibility for determining when to release a person on parole is vested in the Board of Parole. 61 P.S. § 331.17 (Supp. 1974).*fn8 No person who has received a minimum sentence

[ 458 Pa. Page 295]

    may be considered for parole prior to the expiration of that minimum sentence. Id. § 331.21 (1964). In other words, a minimum sentence serves to notify the Board when it may exercise its discretion to parole an individual. Cf. Commonwealth ex rel. Hendrickson v. Pennsylvania State Board of Parole, 409 Pa. 204, 207-08, 185 A.2d 581, 584 (1962), cert. denied, 374 U.S. 817, 83 S. Ct. 1713 (1963). See also Commonwealth v. Tinson, 433 Pa. 328, 249 A.2d 549 (1969). Women, as we have seen, receive no minimum sentence and are accordingly eligible for parole immediately upon incarceration at Muncy. 61 P.S. §§ 331.21, 331.31 (1964).

[ 458 Pa. Page 296]

See Commonwealth v. Daniel, 430 Pa. at 647 n. , 243 A.2d at 402 n.6. Since men alone are sentenced under section 1057, and therefore only men receive minimum sentences, section 331.21's limitation on eligibility for parole applies solely to males convicted of crimes.

On May 18, 1971, the voters of this Commonwealth adopted an equal rights amendment to our Constitution. Article I, section 28 provides: "Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual." That the purpose of this constitutional provision was to end discriminatory treatment on account of sex is clear. See generally L. Kanowitz, Sex Roles in Law and Society (1973); Brown, Emerson, Falk, & Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871 (1971). In this Commonwealth, sex may no longer be accepted as an exclusive classifying tool. In the recent past, we have unhesitatingly accepted the mandate of Article I, section 28. Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974).*fn9 We will not hesitate here.

The statutory scheme on its face treats men less favorably than women. Few interests are more substantial

[ 458 Pa. Page 297]

    than freedom from lawfully-imposed confinement.*fn10 See State v. Chambers, 63 N.J. 287, 296, 307 A.2d 78, 82 (1973); United States ex rel. Robinson v. York, 281 F. Supp. 8, 16 (D. Conn. 1968). Indeed, parole is a fundamental public policy of this Commonwealth. 61 P.S. § 331.1 (1964). Parole may mean an opportunity to start anew in society, and may be a determinative step in a person's "rehabilitation, adjustment and restoration to social and economic life." Id.*fn11

[ 458 Pa. Page 298]

That one person (assuming equality of considerations as, for example, prior criminal record or rehabilitative progress) should be eligible for parole at a different time than another person solely because of his or her sex is discrimination of the most obvious sort.*fn12 We perceive no basis, let alone a rational basis, for predicating eligibility for parole on a person's sex.*fn13 The discrimination between men and women envisioned by the joint operation of the Act of 1911*fn14 and the new Muncy Act*fn15 with respect to minimum sentences therefore violates article I, section 28 of the Pennsylvania Constitution.

We are buttressed in our conclusion by cases interpreting the equal protection clause in the context of sexual discrimination.*fn16 Chief among these is our own

[ 458 Pa. Page 299]

    decision in Commonwealth v. Daniel, 430 Pa. 642, 243 A.2d 400 (1968).*fn17 See also United States ex rel. Robinson v. York, 281 F. Supp. 8 (D. Conn. 1968). In Daniel, as has been noted, this Court struck down the original Muncy Act's interdiction of maximum sentences for women. In an opinion authored by the late Chief Justice Bell, this Court stated: "[W]e fail to discern any reasonable and justifiable difference or deterrents between men and women which would justify a man being eligible for a shorter maximum prison sentence than a woman for the commission of the same crime, especially if there is no material difference in their records and the relevant circumstances." 430 Pa. at 650, 243 A.2d at 404 (emphasis in the original). By a parity of reasoning, the conclusion we reached in Daniel holds for sex-based discrimination in eligibility for parole.

The Supreme Court of New Jersey was recently confronted with the identical issue.*fn18 That court held that

[ 458 Pa. Page 300]

"the statutory provisions . . . for the sentencing of a female offender to an indeterminate term are unconstitutional in a situation where a male offender convicted of the same offense would be sentenced to State Prison for a minimum-maximum term." State v. Chambers, 63 N.J. 287, 294, 307 A.2d 78, 81 (1973) (citation & footnote omitted). See also State v. Costello, 59 N.J. 334, 282 A.2d 748 (1971). Using an equal protection analysis, the New Jersey Supreme Court found there was no rational basis to warrant a different sentencing procedure for men than for women.*fn19

In other contexts, much has been written about the equal protection clause (especially about its impact on sex discrimination)*fn20 and many different views of its

[ 458 Pa. Page 301]

    scope and role propounded.*fn21 And although at times the equal protection clause can at best be seen through a glass darkly, one aspect is perceived clearly: if a legislative classification bears no reasonable relationship to the purposes of the legislation, the equal protection clause is offended. E.g., Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251 (1971); F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S. Ct. 560, 561-62 (1920); cf. Stanley v. Illinois, 405 U.S. 645, 658, 92 S. Ct. 1208, 1216 (1972). Because we have concluded that there is no rational relationship between the sex of a convicted person and the Commonwealth's interest in parole eligibility, the denial of equal protection occasioned by the joint operation of the Act of 1911 and the Muncy Act furnishes an independent basis for our decision.

Having decided that the statutory sentencing scheme is unconstitutional, we conclude that the provision in the new Muncy Act mandating that no woman

[ 458 Pa. Page 302]

    receive a minimum sentence must fall. Liminally, we note that in Daniel, this Court, and in Chambers, the New Jersey Supreme Court, when confronted with analogous problems struck down the sentencing statute which made an impermissible exception on the basis of sex from the general sentencing statute. We are further persuaded by weighty constitutional and policy reasons to follow the course charted by these two decisions.

First, because the Act of 1911 applies to "any person," it is neutral on its face. It is the exception of women from the general coverage of "any person" that works an unconstitutional result. Second, our resolve to hold unconstitutional the new Muncy Act is more in harmony with the legislative intent. The history of special sentencing statutes for women demonstrates that they were departures from a more general intent to provide equal sentencing treatment for men and women. Third, were we to invalidate the sentencing provisions of the Act of 1911, no statutory authority would then exist to sentence male offenders. Declaring invalid the new Muncy Act would mean that both men and women could be sentenced pursuant to section 6 of the Act of 1911. 19 P.S. § 1057 (1964).

We therefore hold unconstitutional by reason of Article I, section 28 of the Pennsylvania Constitution and the equal protection clause of the Fourteenth Amendment of the United States Constitution, section 1 of the Act of July 16, 1968, P.L. 349, 61 P.S. § 566 (Supp. 1974), insofar as it requires trial courts not to

[ 458 Pa. Page 303]

    fix a minimum sentence when imposing sentence on women convicted of crime.*fn22

The general sentencing statute under which appellant was sentenced is on its face completely neutral. It expresses a legislative judgment about sentencing alternatives that applies to "any person," whether male or female. Appellant's judgment of sentence must therefore stand.

Judgment of sentence affirmed.


Judgment of sentence affirmed.

Concurring Opinion by Mr. Justice Pomeroy:

I concur in the decision of the Court. This supplementary comment is added to indicate why I believe that striking down that part of the Muncy Act which proscribes minimum sentences for female offenders is the correct judicial response to the unconstitutional statutory discrimination between male and female offenders

[ 458 Pa. Page 304]

    with respect to minimum sentences of imprisonment.

As the Court repeatedly observes, it is "the joint operation of the Act of 1911 and the new Muncy Act," rather than any defect peculiar to one or the other of these two statutes, which results in unconstitutional discrimination between male and female offenders. Standing alone, each statute represents a reasonable attempt to deal with the problems of punishment and rehabilitation within our criminal justice system. A legislative choice to apply either approach to all criminal offenders irrespective of sex would be unimpeachable.

I underscore this obvious point solely to emphasize that, in framing a remedy for this impermissible discrimination between male and female offenders, we are not necessarily obliged to restrict ourselves to the Muncy Act. Invalidating the minimum sentence provision of the Act of 1911 would accomplish the same result. Indeed, this is precisely the relief which appellant seeks.

Where the burden of a discriminatory statutory scheme falls exclusively on one identifiable class, the choice of remedies may be obvious. See Frontiero v. Richardson, 411 U.S. 677, 36 L.Ed.2d 583 (1973). Here, however, the choice is not so clear, for the effect of the discrimination will vary in accordance with the facts of each case. As the Court points out, the significance of a minimum sentence lies in its relation to an offender's eligibility for parole. In the case of a male offender, the expiration of the minimum sentence marks the beginning of eligibility. On the other hand, at least in theory, female offenders are eligible for parole from the moment their sentences begin to run. Act of August 6, 1941, P.L. 861, §§ 21, 31, as amended; 61 P.S. §§ 331.21, 331.31. In practice, however, the Board of Probation and Parole will not consider the case of

[ 458 Pa. Page 305]

    a female offender until the expiration of an arbitrary period which, in some cases, may be longer than the minimum sentence which would have been imposed on a male offender in the same circumstances.*fn1 Thus, while in most cases the burden of discrimination will fall on male prisoners, in some cases it will be female prisoners who will be penalized by the bipartite statutory scheme.

But our present concern is not limited to whether the appellant is better or worse off than a female offender in like circumstances. A party who proves a denial of equal protection of the laws is not necessarily entitled to have statutory lines of classification redrawn for his personal benefit. See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942). The choice of remedies must be determined upon a larger view. "Where a statute denies equal protection by making an unconstitutional classification, the classification can be abolished by making the statute operate either on everyone or on no one. . . . Though the test is imprecise, a court must weigh the general interest in retaining the statute against the court's reluctance to extend legislation to those not previously covered. Such an inquiry may lead a court into examination of legislative purpose, the overall statutory scheme, statutory arrangements in connected fields and the needs of the public." Developments in the Law -- Equal Protection, 82 Harv. L. Rev. 1065, 1136-37 (1969) (footnote omitted).

The manner of achieving equality of treatment for male and female offenders is, as I see it, dependent upon a determination of legislative intent: had it known that the two statutes could not constitutionally coexist, would the General Assembly have preferred the entire community of offenders, male and female, to receive

[ 458 Pa. Page 306]

    minimum sentences or to receive no minimum sentence? For two reasons, I conclude that the former alternative would comport more closely with the legislature's intent. First, as the Court points out, the Act of 1911 is a statute of general applicability, whereas the Muncy Act is limited to female offenders. Second, it is questionable whether, absent radical changes in the state's parole machinery, the system could effectively cope with an administrative (Muncy Act) as opposed to a judicial (Act of 1911) determination of initial parole eligibility. While in the past the relatively small number of women offenders has made feasible the administrative practice under the Muncy Act, the addition of many hundreds of male offenders might well create a chaotic administrative situation.

When a statute, either alone or in conjunction with another statute or statutes, infringes on constitutional rights, this Court has an obligation to make every effort to salvage the statute by an appropriate excision so long as legislative intent will not be frustrated thereby. See 1 Pa.C.S. § 1925; State Board of Chiropractic Examiners v. Life Fellowship of Pennsylvania, 441 Pa. 293, 300, 272 A.2d 478, 482 (1971) (concurring and dissenting opinion of this writer); Saulsbury v. Bethlehem Steel Co., 413 Pa. 316, 196 A.2d 664 (1964); Rieck-McJunkin Dairy Co. v. Milk Control Commission, 341 Pa. 153, 18 A.2d 868 (1941). In light of what I conceive to be the correct reading of the legislature's intent under the circumstances, such an excision is feasible and proper in this case. Thus I agree that striking the last sentence of the Muncy Act will serve to cure the constitutional infirmity of the total statutory scheme while at the same time reflecting the legislative intent as accurately as it is possible to do on the record before us.*fn2 If, in performing this bit of judicial surgery, we

[ 458 Pa. Page 307]

    have misjudged the legislative intent, new remedial legislation is of course possible.

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Official citation and/or docket number and footnotes (if any) for this case available with purchase.

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