On certification to the Superior Court, Appellate Division, whose opinion is reported at 177 N.J. Super. 499 (1981).
For modification and remandment -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. Opposed -- None. The opinion of the Court was delivered by Handler, J.
This case raises important questions concerning the interpretation and application of the Parole Act of 1979. The initial issue presented on appeal is whether the State Parole Board is authorized under the Parole Act to impose restitution as a condition of parole for an inmate convicted of homicide and, if so, what standards are to be applied in fixing the amount of such restitution. We must also decide whether the State Parole Board has the authority under appropriate circumstances to reconsider its determination that an inmate is entitled to parole. Further, this case requires us to consider the factors relevant to a parole decision under the Parole Act, especially with respect to inmates who were sentenced prior to the enactment of the current New Jersey Code of Criminal Justice.
These issues are raised in two consolidated appeals that resulted from parole proceedings concerning Thomas Trantino, who killed two police officers in 1963. These murders occurred in the wake of a robbery committed by Trantino and an accomplice. The two were celebrating the success of their criminal exploits in a Lodi nightclub and became so disruptive that police were called to the scene. When the officers arrived, Trantino and his partner managed to gain physical control over the two policemen and then proceeded to humiliate and torture them. The slayings were particularly brutal in that the two officers were forced to strip partially, pistol-whipped into near unconsciousness and then, despite their desperate pleas to be spared, repeatedly shot. In 1964 Trantino was convicted of murder in the first degree. The jury failed to recommend mercy, and Trantino was sentenced to death. He remained on death row until 1972 when the death penalty law under which he was sentenced was invalidated. State v. Funicello, 60 N.J. 60 (1972). His sentence was then commuted to life imprisonment. Under this sentence Trantino became eligible for parole in 1979.
Trantino's prison record has improved over the years. After an early period of unruly behavior, during which he was cited
for 28 institutional infractions, he has more recently shown signs of progress. He is now housed at a minimum security facility and has served as a counsellor for other offenders. In addition, he has taken up writing, which he apparently plans to pursue as a career if paroled. Moreover, in 1980 Trantino married. He hopes to live in New York with his wife and her mother if he is released on parole.
The public outcry over Trantino's possible release was loud and swift. The families of the murdered officers organized efforts to keep Trantino in prison, and his case became the focus of widespread media attention, including a television special called "The Night of the Devil." Crowds of demonstrators have followed this case vociferously at every stage.
On March 1, 1979, after Trantino first became eligible for parole, the Parole Board, operating under the former parole statute, N.J.S.A. 30:4-123.14 (repealed), denied Trantino's request for parole for punitive and deterrent reasons. The Board scheduled a rehearing to be held one year later. On March 4, 1980, a two-member Board heard his case and recommended parole contingent upon Trantino's acceptance in a New York parole plan. However, when the full Board met to consider the case on April 1, 1980, the Board once again denied parole, explaining that "the punitive aspect of this sentence has not been satisfied." A rehearing was scheduled for June 1980.
Trantino's case was next heard on June 9, 1980. At that time proceedings were conducted under the current statute, the Parole Act of 1979, L. 1979, c. 441, N.J.S.A. 30:4-123.45 et seq. A single Board member, sitting as a hearing officer, heard the case and recommended parole. He concluded that "[a]lthough committed on a very serious charge, [Trantino] has met requirements for release consideration. I find no substantial likelihood [of future criminal conduct]."
A certifying member of the Board, Chairman Dietz, confirmed the hearing officer's recommendation on July 3, 1980, and approved parole effective no earlier than August 12, 1980. The
parole was made subject to several special conditions, including intensive supervision and restitution, the amount to be set by the sentencing court.
Chairman Dietz then requested that the Superior Court fix the amount of restitution. On September 23 and 24, 1980, the court conducted hearings and heard testimony about the losses suffered by the families of the victims and about Trantino's ability to pay restitution. It also heard legal arguments from attorneys for Trantino, the families of the victims, the Parole Board, the Public Advocate, and various police organizations on the question of whether restitution is a proper condition for parole in a murder case.
On October 2, 1980, the judge determined that it was impossible to fix an amount of restitution because that process would entail placing a value on a human life. He concluded that Trantino must remain in prison because the Parole Board believed Trantino's rehabilitation required restitution, which could not be imposed. The judge remanded the matter to the Parole Board for further proceedings.
On October 8, 1980, the Board vacated the July 3, 1980 decision, which had established a parole release date of not earlier than August 12, 1980, on condition of restitution. The case was then referred to the adult board panel for further review. Five members of the seven-member Board conducted a hearing on November 13, 1980.*fn1 The Board rendered a formal written decision on December 1, 1980. By a three-to-two vote, the Board granted a parole release date effective no earlier than December 23, 1980, to a New Jersey parole plan and again included restitution as a special condition. The Board stated that if the precondition of restitution could not be met because the courts find it inappropriate, then another parole hearing on the issue of release would be necessary.
Two appeals resulted from these proceedings: the first on November 20, 1980, by the Parole Board from the trial court's order refusing to fix the amount of restitution; the second on December 17 by Trantino from the Board's decision of December 1. The two appeals were consolidated in the Appellate Division, which affirmed the trial court's order refusing to set an amount of restitution and reversed that part of the Board's December 1 decision imposing restitution as a condition of parole. 177 N.J. Super. 499 (1981). The court also affirmed the decision of the Board that Trantino remain in prison and that a new hearing be held to consider his release if restitution could not be ordered. The Appellate Division remanded the case to the Board for further proceedings. Both Trantino and the Board petitioned for certification, and this Court granted both petitions. 87 N.J. 385 (1981).
The initial question presented is whether restitution can be imposed under the Parole Act of 1979 as a special condition of parole for an inmate convicted and sentenced for an intentional homicide.
The Parole Act of 1979 effected a radical change in the parole system in New Jersey. The former parole law authorized parole only if the Board determined that "there is a reasonable probability that, if such prisoner is released, he will assume his proper and rightful place in society, without violation of the law, and that his release is not incompatible with the welfare of society." N.J.S.A. 30:4-123.14 (repealed). The 1979 Act postulates a much narrower standard for determining an inmate's fitness for parole. It states that "[a]n adult inmate shall be released on parole at the time of parole eligibility, unless [it is demonstrated] . . . by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime under the Laws of this State if released." N.J.S.A. 30:4-123.53(a). The Act thus posits the likelihood of future criminal conduct as
the determinative test for parole eligibility and effectively establishes a presumption in favor of parole.
Further, the Parole Act specifically authorizes the Parole Board to impose restitution as a condition of parole. The Act reads, in pertinent part, that
This provision also requires that "the amount of [such] restitution shall be set by the sentencing court upon request of the board." Id.
In affirming the decision of the lower court in this case, the Appellate Division gave a narrow interpretation to the statutory concept of restitution as a parole condition. It concluded that by restitution, the Legislature meant that the inmate must restore the fruits of the offense to the victim. The court distinguished "restitution" from "reparation," which it viewed as compensation for damages or losses caused by a crime. 177 N.J. Super. at 518. The Appellate Division believed that by referring only to "restitution" in the Parole Act, the Legislature intentionally meant to exclude "reparation" as an available condition for parole. It found significant the fact that the Legislature had also failed to refer to reparation as a condition of probation in the contemporaneous enactment of the Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq., even though both reparation and restitution had been included as available probationary conditions under the prior law.*fn2 N.J.S.A. 2A:168-2.
The Appellate Division added that this Court has recognized a distinction between restitution and reparation. See, e.g., State v. Harris, 70 N.J. 586 (1976); State in the Interest of D.G.W., 70 N.J. 488 (1976).
The language of the Parole Act mentions restitution as one of many possible parole conditions. The statute specifically authorizes the Board to "impose any other specific conditions of parole deemed reasonable in order to reduce the likelihood of recurrence of criminal behavior." N.J.S.A. 30:4-123.59(b) (emphasis added). Thus, if reparation is "deemed reasonable" by the Board as conducive to the rehabilitation of an inmate, it would be permissible as a parole condition. Cf. State v. Bausch, 83 N.J. 425, 433 (1980) (similar probation provision that permits a court to compel a defendant "to satisfy any other conditions reasonably related to the rehabilitation of the defendant," N.J.S.A. 2C:45-1(b)(12), construed as granting court discretion to formulate appropriate conditions for particular cases).
The issue in this case then is not whether the Parole Act of 1979 bars "reparation" in some broad sense, but whether the Legislature intended to authorize that a parolee convicted of homicide can be required to compensate persons for losses, damages or injuries which go beyond the return of the direct economic spoils of the crime. We hold that such compensatory payments in the nature of reparations are authorized by the Parole Act, provided they are imposed in a manner which will "reduce the likelihood of the recurrence of criminal behavior."
It has been observed in the analogous context of probation that the value of restitution or reparation is that a "defendant who learns that he cannot profit from crime or that if he does damage he must pay for it, has taken a large step forward in the process of rehabilitation." Model Penal Code § 301.1, comment
7 (Tent.Draft No. 2, 1954). Compensatory payments can have correctional worth, regardless of whether the offender is required only to disgorge the fruits of his offense or to compensate persons for the injuries and losses suffered as a result of his crime. See State v. Morgan, 8 Wash.App. 189, 190, 504 P. 2d 1195, 1196 (1973). As we explained in Harris:
Unlike a fine as a condition of probation, or service of a jail term prior to supervision, restitution has an understandable logic. It is directly related to the offense and the attitude of the offender . . . Society wants to make sure the offender realizes the enormity of his conduct; and it asks him to demonstrate this by making amends to the individual most affected by the defendant's ...