On certification to the Superior Court, Appellate Division, whose opinion is reported at 182 N.J. Super. 540 (1982) (A-90 New Jersey State Parole Board v. Byrne). On certification to the Superior Court, Appellate Division (A-91 Maples v. Dietz).
For affirmance in part and reversal in part -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.
These appeals question the constitutionality of the method by which defendants were given half-step reductions of the advanced parole eligibility dates otherwise granted to previously sentenced multiple offenders under the Parole Act of 1979, N.J.S.A. 30:4-123.45 to -123.69 (L. 1979, c. 441) (hereinafter "Parole Act"). Specifically, defendants challenge N.J.S.A. 30:4-123.51(j), which allows a sentencing judge or prosecutor to block a full-step reduction for a multiple offender without explanation by advising the Parole Board that the punitive aspects of the original sentence have not yet been fulfilled. We hold that the interests defendants claim are "liberty" interests protected by the Due Process Clause of the Fourteenth Amendment, and that the method employed lacks the necessary due process. Therefore, we remand the causes to the Parole Board for further proceedings.
Under the parole law in effect at the time these defendants were sentenced, first, second, third and fourth offenders became eligible for parole after having served one-third, one-half, two-thirds or four-fifths of their maximum sentences less credits, respectively. N.J.S.A. 30:4-123.10; N.J.S.A. 30:4-123.12 (L. 1948, c. 84, §§ 10, 12) (repealed).
The Parole Act of 1979 changed the scheme by providing that the parole eligibility date for multiple offenders would now be computed as if they had committed one fewer prior offense -- i.e., a second offender would be treated as a first offender, a third offender as a second offender, and a fourth offender as a [93 NJ Page 197] third offender. This "full-step" reduction in the parole eligibility date would not be granted, however, if the prosecutor or sentencing judge advised that the punitive aspects of the sentence had not yet been fulfilled. In that instance, the inmate would receive only a "half-step" reduction -- i.e., the inmate would not become eligible for parole "until serving an additional period which shall be one half of the difference between the primary parole eligibility date calculated pursuant to this subsection and the primary parole eligibility date calculated pursuant to section 12 of P.L.1948, c. 84 (C. 30:4-123.12)." The act further provided that the advice of the prosecutor or sentencing judge "need not be supported by reasons" and "shall not be subject to judicial review except to the extent mandated by the New Jersey and United States Constitutions." N.J.S.A. 30:4-123.51(j).*fn1
Defendant Byrne is serving a sentence of 15 to 17 years imposed in 1976 in Passaic County for armed robbery. He has three prior convictions: 1967, atrocious assault and battery; 1969, escape; and 1972, larceny and illegal use of credit cards. Under the Parole Act, as a fourth offender he would, if granted a full-step reduction, become eligible for parole after serving two-thirds of his sentence instead of four-fifths.
Defendant Maples is serving a sentence of 10 to 12 years imposed in 1979 in Monmouth County for possession of drugs with intent to distribute, and a concurrent 4 to 5 year term for simple possession relating to the same incident. He was classified as a second offender because he had served time in State Prison for a previous offense,*fn2 and was to serve one-half of his sentence before being eligible for parole. Under the Parole Act, a full-step reduction would make him eligible after he served one-third of his sentence.
In each case the Parole Board advised the sentencing court and the prosecutor of their right to object to the proposed full-step reduction. Neither judge replied. Both prosecutors advised denial of full-step reduction. The Parole Board complied.
Both defendants appealed to the Appellate Division. That court disposed of Byrne first. New Jersey State Parole Board v.
Byrne, 182 N.J. Super. 540 (1982). It held that the Parole Act and the process afforded thereunder were constitutional, finding that the act created only a "possibility of parole" and not a constitutionally-protected "liberty interest" within the meaning of Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979). It also found that the Legislature must have intended to distinguish between repeat offenders who had committed "serious" crimes and those who had committed "less serious" crimes. The court upheld this classification against defendant's equal protection claim. 182 N.J. Super. at 552. Finally, it observed that a statement of reasons why the punitive aspect of the sentence was unfulfilled "would only state the obvious -- that the punitive aspects of the sentence have not been fulfilled," id. at 553, and that its absence was of no legal consequence. The Appellate Division decided Maples on the basis of Byrne in an unreported opinion.
We granted certification in both cases. 91 N.J. 531 (1982).
The threshold question is whether the loss of a full-step reduction in parole eligibility time "implicates a liberty interest that is protected by the Due Process Clause" of the federal Constitution. Vitek v. Jones, 445 U.S. 480, 487, 100 S. Ct. 1254, 1261, 63 L. Ed. 2d 552, 561 (1980) (transfer of prisoners to mental institutions involves protected liberty interest). We hold that it does.
In a series of decisions commencing with Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), the Supreme Court has sketched the outlines of what constitutes a protected liberty interest for criminal offenders in the contexts of probation, parole and prison. Justice White traced that development in Vitek:
There is no "constitutional or inherent right" to parole, Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, [99 S. Ct. 2100, 2103-2104], 60 L. Ed. 2d 668 (1979), but once a State grants a prisoner the conditional liberty properly dependent on the observance of special parole restrictions, due process protections attach to
the decision to revoke parole. Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). The same is true of the revocation of probation. Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656, 71 Ohio Ops 2d 279 (1973). In Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935, 71 Ohio Ops 2d 336 (1974), we held that a state-created right to good-time credits, which could be forfeited only for serious misbehavior, constituted a liberty interest protected by the Due Process Clause. We also noted that the same reasoning could justify extension of due process protections to a decision to impose "solitary" confinement because "[it] represents a major change in the conditions of confinement and is normally imposed only when it is claimed and proved that there has been a major act of misconduct." [Citation]. Once a State has granted prisoners a liberty interest, we held that due process protections are necessary "to insure that the state-created right is not arbitrarily abrogated." [Citation].
In Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976), and Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976), we held that the transfer of a prisoner from one prison to another does not infringe a protected liberty interest. But in those cases transfers were discretionary with the prison authorities, and in neither case did the prisoner possess any right or justifiable expectation that he would not be transferred except for misbehavior or upon the occurrence of other specified events. Hence, "the predicate for invoking the protection of the Fourteenth Amendment as construed and applied in Wolff v. McDonnell [was] totally nonexistent." [Citation].
Following Meachum v. Fano and Montanye v. Haymes, we continued to recognize that state statutes may grant prisoners liberty interests that invoke due process protections when prisoners are transferred to solitary confinement for disciplinary or administrative reasons. Enomoto v. Wright, 434 U.S. 1052, 98 S. Ct. 1223, 55 L. Ed. 2d 756 (1978), summarily affg 462 F. Supp. 397 (N.D.Cal.1976). Similarly, in Greenholtz v. Nebraska Penal Inmates, supra, we held that state law granted petitioners a sufficient expectancy of parole to entitle them to some measure of constitutional protection with respect to parole decisions. [445 U.S. at 488-89, 100 S. Ct. at 1261-1262, 63 L. Ed. 2d at 562].
In the course of these cases, the Court articulated the standard for whether process is due in different ways. In Morrissey, the most conceptually sweeping of these decisions, Chief Justice Burger rejected the long discredited "right"-"privilege" distinction, and stated:
"Whether any procedural protections are due depends on the extent to which an individual will be 'condemned to suffer grievous loss.' [Citations]. The question is not merely the 'weight' of the individual's interest, but whether the nature of the interest is one within the contemplation of the 'liberty or property' language of the Fourteenth Amendment." [408 U.S. at 481, 92 S. Ct. at 2600, 33 L. Ed. 2d at 494].
Two years later in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), the Court characterized the loss of good-time credits as a state-created right, which "has real substance and is sufficiently embraced within Fourteenth Amendment 'liberty' to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the ...