In re Request to Modify Prison Sentences

Decision Date05 June 2020
Docket NumberM-1093 September Term 2019,084412
Citation231 A.3d 667,242 N.J. 357
Parties In the MATTER OF the REQUEST TO MODIFY PRISON SENTENCES, Expedite Parole Hearings, and Identify Vulnerable Prisoners
CourtNew Jersey Supreme Court

Joseph E. Krakora, Public Defender, argued the cause for the Office of the Public Defender (Joseph E. Krakora, Public Defender, attorney; Joseph E. Krakora, Joseph J. Russo, Assistant Public Defender, Alison Perrone, First Assistant Deputy Public Defender, and Laura B. Lasota, Assistant Deputy Public Defender, on the briefs).

Alexander Shalom argued the cause for the American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Alexander Shalom and Jeanne LoCicero, on the briefs).

Laura Cohen argued the cause for amicus curiae Rutgers Criminal and Youth Justice Clinic (Rutgers Criminal and Youth Justice Clinic, attorneys; Laura Cohen, Elana Wilf, and Tyler Dougherty, on the brief).

Stephanie J. Cohen, Assistant Attorney General, argued the cause for the Office of the Attorney General, the Department of Corrections, and the State Parole Board (Gurbir S. Grewal, Attorney General, attorney; Stephanie J. Cohen, Kai W. Marshall-Otto, Deputy Attorney General, Tim Sheehan, Deputy Attorney General, and Michael T. Moran, Deputy Attorney General, on the briefs).

Joseph Paravecchia, Assistant Mercer County Prosecutor, argued the cause for the County Prosecutors Association of New Jersey (Angelo J. Onofri, President, County Prosecutors Association, attorney; Joseph Paravecchia, Laura Sunyak, Assistant Mercer County Prosecutor, John McNamara, Jr., Chief Assistant Morris County Prosecutor, Jeffrey L. Weinstein, Assistant Hunterdon County Prosecutor, Jaimee M. Chasmer, Assistant Bergen County Prosecutor, and Frank J. Ducoat, Assistant Essex County Prosecutor, on the brief).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

The COVID-19 pandemic has presented many serious challenges. We now consider issues relating to the impact of the coronavirus on individuals in state prison and juvenile facilities.

As of June 1, 2020, out of a total population of 15,302 inmates in state prison, 1720 had tested positive for the virus, about 192 had been hospitalized, and 46 had died. Up to 737 out of 8008 staff members had also tested positive. Although no residents under the custody of the Juvenile Justice Commission have died, 28 residents out of a total population of 274 had tested positive.1 Those statistics speak for themselves and reveal how critical the situation is.

The Office of the Public Defender and the American Civil Liberties Union of New Jersey (ACLU) applied directly to the Court for relief relating to the spread of the virus in both settings. They essentially asked the Judiciary to order a framework for the early release of several groups: adults and juveniles serving a sentence that will expire in the next year; individuals eligible for parole; and any defendant who is particularly vulnerable to COVID-19. Under the proposed framework, judges or court-appointed special masters would decide whether to grant release or a furlough in individual cases after considering any objections.

On April 10, 2020, two days after the Public Defender and ACLU wrote to the Court, the Governor issued Executive Order 124. The Order created a mechanism to identify inmates in state prison to be considered for parole or a medical furlough: inmates who are at least sixty years old; who possess an underlying medical condition that increases their risk of death or serious injury from COVID-19; who were denied parole within the last year; whose sentence will end within ninety days; or who will be eligible for parole within ninety days.

The Executive Order provides two tracks for review. It directs the Parole Board to expedite its consideration of inmates for parole. It also directs the Commissioner of the Department of Corrections (DOC) to decide whether to grant a medical furlough -- an "emergency medical temporary home confinement" -- if he "is satisfied that the proposed conditions of confinement appropriately safeguard the health and safety of the inmate, the general public, and any victims of the inmate's offense." In making that decision, the Commissioner must consider recommendations prepared by the newly created Emergency Medical Review Committee (Review Committee). Its recommendations include the views of the prosecutor and the victim or next of kin in each case, but not the position of the inmate.

Pursuant to the Executive Order, 3050 inmates were identified for consideration.

Hundreds of them declined to be considered, which reduced the total number to 2500. As of May 26, 2020, 607 inmates had been approved for home confinement or parole, and 337 had been released. By June 1, 2020, an additional 70 had been released.

Consistent with existing law, the Parole Board provided inmates with an individualized statement of reasons for cases in which it denied parole. Inmates denied a medical furlough received a two-sentence form letter from the Commissioner that notified them of the outcome but did not set forth any reasons. Inmates denied parole have an avenue for appeal; inmates denied a medical furlough under the Executive Order do not.

The decision whether to grant parole or to furlough an inmate rests largely with the Executive Branch. The Legislature empowered the Parole Board to make decisions about parole, see N.J.S.A. 30:4-123.45 to -123.76, and gave the Commissioner authority to decide whether to furlough inmates, see N.J.S.A. 30:4-91.3. Although a court rule authorizes judges to amend a sentence and release an individual defendant because of illness or infirmity, R. 3:21-10(b)(2), neither the rule nor the other sources raised provide authority for the courts to establish and oversee a broad-based program to release or furlough inmates in state prison. We therefore respectfully decline to grant the relief requested by the Public Defender and the ACLU.

As to the two tracks the Executive Order created to consider inmates for release, the Parole Board has been considering inmates in a manner consistent with existing practices. That includes various due process protections that attach to the parole process. Through a different process, the Commissioner, with help from the Review Committee, has been addressing medical furloughs. In that regard, the Governor's Order created a commendable path for the emergency release of certain inmates from prison during this time of crisis, with safeguards in place to protect the public. Inmates will be confined at home subject to various restrictions.

We hold that because the Order creates a sufficient expectation of eligibility for release through a furlough program, the Order calls for certain due process protections. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 12, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) ; State Parole Bd. v. Byrne, 93 N.J. 192, 203, 460 A.2d 103 (1983). At a minimum, due process requires notice and an opportunity to be heard. Doe v. Poritz, 142 N.J. 1, 106, 662 A.2d 367 (1995). We add the following protections to the Executive Order to comport with due process:

(1) inmates are to be afforded an opportunity to present a written statement in support of their request to be furloughed in the same way that prosecutors and victims are allowed to express their views. Inmates may proceed on their own or with the help of volunteer lawyers. The Public Defender's Office has volunteered its assistance and should be provided with the lists of eligible inmates generated under the Order, under seal, subject to a protective order;

(2) the Commissioner is to provide a statement of reasons to inmates who are denied a medical furlough to help guard against mistakes and arbitrary decisionmaking and allow for meaningful judicial review if it is sought; and

(3) inmates are to be given an opportunity to respond in order to try to satisfy the Commissioner's concerns and cure any mistakes. The Commissioner shall consider each response before issuing a final decision.

Inmates may challenge the DOC's action, a final agency decision, by seeking review before the Appellate Division. See Acoli v. State Parole Bd., 224 N.J. 213, 222-23, 130 A.3d 1228 (2016) ; R. 2:2-3(a)(2). The agency's decision is entitled to deference on appeal. In re State & Sch. Emps.' Health Benefits Comm'ns' Implementation of Yucht, 233 N.J. 267, 279, 184 A.3d 475 (2018).

Individual inmates may also seek relief independently under Rule 3:21-10(b)(2). They do not have to exhaust the remedies available under the Executive Order before they may file a motion in court.

As to sentences imposed on juveniles who are in the custody of the JJC, the Judiciary retains jurisdiction over their cases and has the authority to modify dispositions. N.J.S.A. 2A:4A-43, -45. Those individuals may seek relief from the court on an individual basis. Among other relevant factors, courts are to consider the ongoing COVID-19 crisis and its impact on the individual's health condition.

We add an overriding concern. Because of the risks COVID-19 poses, which are amplified in jail settings, each day matters. To the extent this opinion calls for trial judges to rule on motions and the Appellate Division to review agency decisions, we exercise the Court's supervisory authority to require that applications be heard and decided in a matter of days. For the same reason, we urge the Commissioner and the Parole Board to act as expeditiously as possible. The Executive Order itself calls for an expedited process; the additional measures imposed, which are not inconsistent with the Order's purpose, should not extend the time for review in a notable way. We urge that the entire process -- review for approval and release -- be carried out carefully and expeditiously because the stakes are so high.


On March 19, 2020, the Public Defender brought an application before this Court...

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