[Kris Marker]

Phoenix Ra explains how New Jersey Parole Board reform is urgently needed as the Board repeatedly exceeds its lawful authority, undermines sentencing courts, and perpetuates a parole system with little oversight or accountability.

The New Jersey state legislature must take the necessary action to reform the New Jersey State Parole Board to ensure that the Board functions in accordance with the applicable law as envisioned by the legislature.

There has been, for some time now, a concerted effort by the Governor of New Jersey, the New Jersey Office of the Public Defender, several legal associations, law schools, and other interested parties to reform the New Jersey criminal justice system. One enclave of that system has strenuously resisted any change, continues to circumvent court rulings, and to thumb its nose at the legislature: the Board.

The Board has been, for many years, considered a fortress of political patronage and cronyism. The Board consists of a chairperson, 14 associate members, and three alternate members, appointed by the Governor and approved by the Senate. There are six Board Panels made up of two members each who are assigned to hear adult and young adult cases. The chairperson serves as the third member whenever a two member panel refers a case to a three-member panel, and also chairs the full Board’s hearings. Panel members’ salaries start at $116,000 per year plus a free car.

Why Reform Is needed to Stop the Board From Undermining Sentencing Courts

The full Board—the subject of this exposition—consists of 10-12 panel members and the chairperson. Their task is to conduct hearings wherein eligible parole applicants are interviewed or to determine whether or not they are in fact suitable to be paroled. The full Board serves a necessary and important function within the New Jersey parole system, and no one, including me, is suggesting their function isn’t a vital one. However, the legislature never intended that the Board should usurp the power of the sentencing courts. But that’s exactly what it’s done in case after case, underscoring the urgent need for reform.

The discretion bestowed by the Board unto itself in N.J.A.C. 10A:71-3.21(d) has arguably transformed the parole eligibility process into a resentencing. Decisions made by the full Board are weighty ones, and the courts are deferential to the agency’s “expertise” in determining an applicant’s suitability to be released on parole. Historically, the Board has functioned as though their raison d’etre was to correct and enhance sentences handed down by the courts, perhaps bowing to public opinion or to promote some other agenda—precisely the type of conduct reform is meant to address.

Extreme Parole Denials and Future Eligibility Terms

One 70-year-old felon convicted of murder, who had been in prison for nearly 50 years, was denied parole 11 times. Another, convicted of murder and in prison for 44 years, was denied three times. The Board set the latter’s future eligibility term (FET) the first time at 22 years in the future, the second denial 20 years, and the most recent denial 10 years in the future.

Occasionally, the Board will repeatedly deny parole release and impose FETs that exceed the length of prison time contemplated by the sentencing judge. The Board has been guilty of imposing FETs as long as 30 years . Recently, some of the Board’s decisions have come under scrutiny in the New Jersey Supreme Court. Another, in the New Jersey Superior Court Appellate Division. But despite these rulings wherein the courts have sought to correct, guide, and inform the Board’s decision-making process, the Board continues their efforts to override the courts’ jurisdiction and legislative intent, reinforcing the necessity of reform.

What the Law Actually Requires in Parole Decisions

Under the 1979 Parole Act, the Parole Board must assess a number of factors for the purpose of determining what a man is and what he may become rather than simply what he has done. The New Jersey Administrative Code N.J.A.C. 10A:71-3.11(a) provides that the grant or denial of parole must be based on the aggregate of all pertinent factors. The regulation sets forth a list of 24 factors that the Parole Board shall consider, in addition to other factors it may deem relevant, in making a parole decision—standards central to meaningful reform.

The phrase: “shall consider” is an important one. In the law, the word “shall” doesn’t lend itself to interpretation; it is an imperative and literally means one is enjoined, by the force of legal authority, to perform the act or actions that follow it. In the statute cited above, the act is to consider. The word consider means “to think carefully,” or “to think about in order to understand. In order to understand a complicated issue, and especially something as complex as a human being, all relevant information must be considered: historical, verbal, documentary, and psychological—taking into account what we know about human nature and how people react under the influence of certain emotions.

Lack of Oversight and Due Process in Parole Hearings

We apply critical thinking to all the relevant factors. We don’t give credence to only those factors that support a conclusion which we have already arrived at, based on our own narrow, biased perceptions. The courts, and all others concerned, assume the Board will exercise their so-called expertise and professionalism, and diligently consider the relevant factors as required by the law—the law they profess to support and uphold. And that’s why the courts have, as a rule, afforded substantial deference to the Board’s decisions. But the essentially unrestricted discretion the Board has been given—and takes full advantage of—is rarely questioned by New Jersey courts. This has created a system with little oversight, little due process, and manifest injustice, all of which demand reform.

Simply put, the Board can’t always be trusted to administer justice. Pursuant to N.J.S.A. 30:4-123.SS(f), any person convicted of murder who becomes eligible for parole must undergo a hearing before the full Board before they can be paroled. The potential parolee appears before the Board without the benefit of legal representation, without the ability to cross-examine the Board’s experts, present his own expert testimony, discover the contents of confidential psychological evaluations, or participate in an adversarial proceeding—conditions reform efforts seek to remedy.

Why New Jersey Parole Board Reform Is Necessary

The courts have misplaced their trust in the Board. They rely on the Board to make an honest assessment of the rehabilitative efforts of a potential parolee, but this isn’t the case. The Board pays scant attention to programming and institutional progress reports, or reports written by prison psychologists or psychiatrists. The Board often focuses almost exclusively on the crime the potential parolee committed—sometimes 30 or 40 years prior to becoming eligible for parole.

The Board does, however, afford great weight to any factors that support their own predetermined objective. Once it has denied parole, the Board can decide to keep the applicant in prison for as long as it wishes, without limit. Against this backdrop, the parole applicant appears before the full Board, and like a lamb upon an altar, is sacrificed for the sake of some hidden agenda—making reform not just appropriate, but essential.

Want to read more? Check out Prison Reform: A Letter From Cell Block 6

The post Why New Jersey Parole Board Reform Is Long Overdue first appeared on Prison Writers.

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