On Appeal from the New Jersey State Parole Board.
Petrella, Cohen and Ashbey. The opinion of the court was delivered by Cohen, J.A.D.
Frederick B. Thompson appeals from a denial of parole. He has been an inmate at the New Jersey State Prison since 1968, serving a life sentence for murder. He contends that, in denying him parole and giving him a remote eligibility date, the Parole Board made an unconstitutional ex post facto application of the regulations adopted under the Parole Act of 1979, N.J.S.A. 30:4-123.45 et seq. He also argues that the Board improperly denied him disclosure of documents which it considered in his parole file. He applied to this court for access to those documents for appeal purposes. We reserved decision until now.
We deal first with defendant's ex post facto arguments. Thompson was convicted of murder in 1968 for stabbing to death a 57 year-old woman who unsuspectingly entered her home after Thompson had broken into it. The murder occurred in 1967, only two days after Thompson was paroled from a Connecticut prison. He had eight adult convictions and had been continuously involved in seriously anti-social conduct since his youth. In the absence of a contrary recommendation from the jury which convicted him, Thompson was sentenced to death. N.J.S.A. 2A:113-4 (repealed).
In 1972, Thompson's death sentence was modified to life imprisonment after invalidation of the death penalty law in effect when he was sentenced. State v. Funicello, 60 N.J. 60, cert. den., 408 U.S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766 (1972). His tentative parole eligibility date was then listed as 1982. He was considered for parole in 1982 and denied, and a twenty-two month future eligibility term was imposed. Thompson was again denied parole in 1984, but this time he was given a future eligibility term of twelve years. Thompson asserts that the future eligibility term of twelve years was unlawfully imposed on him on the authority of N.J.A.C. 10A:71-3.19(d), which was
adopted more than a decade after his conviction. The regulation permits a lengthy future eligibility term to be set where the presumptive term would be clearly inappropriate for the circumstances of the offense, the history of the offender, and his institutional behavior.
The United States Constitution prohibits states from passing ex post facto laws. U.S. Const., Art. I, § 10. They are penal laws which are applied retrospectively to prior conduct and which are more onerous than the laws in effect at the time of the prior conduct. Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17, 23 (1981). There is no question that the new parole regulations relate to penal matters, that they are intended to apply to conduct prior to their enactment, see N.J.S.A. 30:4-123.46(a), and that they have been applied to Thompson. The State argues that the regulations are not "laws,' and that they are not more onerous than at the time of Thompson's conviction.
The U.S. Court of Appeals for the Third Circuit has held that New Jersey's parole regulations may be "laws' for the purpose of the bar against ex post facto laws. Royster v. Fauver, 775 F.2d 527, 534 (3 Cir.1985). Other United States Courts of Appeal have ruled otherwise with respect to federal parole guidelines. See cases collected in United States ex rel. Forman v. McCall, 776 F.2d 1156, 1159, n. 3 (3 Cir.1983), in which the Third Circuit held that the federal parole guidelines were not "laws.' The United States Supreme Court has expressly reserved judgment on the question. See United States Parole Commission v. Geraghty, 445 U.S. 388, 408, 100, S. Ct. 1202, 1214, 63 L. Ed. 2d 479, 498 (1980). We need not resolve the local question because we are satisfied that, if our regulations are considered to be penal laws, they are not more onerous than those in effect at the time of Thompson's offense.
Thompson argues that the current regulations are more onerous in two respects. The first is that they do not require annual reviews, as Thompson says they used to do, for prisoners
given remote future eligibility terms. It is unclear whether, in 1967, annual reviews were more than a usual but variable practice of the Board not required by regulation. It is of no consequence, however, because in early 1985 N.J.A.C. 10A:71-3.19(e) was amended to require annual reviews for Title 2A prisoners with lengthy future parole eligibility terms. The argument is therefore moot.
Thompson's second argument is that, under earlier regulations, he would not have received a 12 year future parole term after serving some 16 years of his sentence. The argument can be understood only after a brief review of recent developments of the penal law in New Jersey.
When Thompson committed the murder in 1967, the Parole Act of 1948 authorized the Board to grant parole to a prisoner only if it concluded:
that there is reasonable probability that * * * 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 second quoted test required the Board to determine whether the "punitive aspects' of the sentence had been accomplished, that is, whether the prisoner had served sufficient time in terms not only of society's need for adequate punishment but also of the prisoner's progress toward rehabilitation. In re Trantino Parole Application, 89 N.J. 347, 368 (1982). It was a determination to be made by the Parole Board because the sentencing court did not have the responsibility of making it in fixing sentence.
In 1979, the new Code of Criminal Justice was enacted, and the Parole Act of 1979 accompanied it, not only in time, but also in legislative design. An entirely new approach to sentencing appeared in the Code. State v. Roth, 95 N.J. 334 (1984); State v. Hodge, 95 N.J. 369 (1984). Among its elements were longer sentences and mandatory minimum terms, which gave sentencing courts the ability and thus the responsibility to sentence in such a way as to assure that the punitive purposes of the sentence would be served by the time the prisoner became
eligible for parole. In re Trantino Parole Application, 89 N.J. at 369-370.
In the accompanying Parole Act of 1979, the Board was no longer told to consider whether release was "compatible with the welfare of society.' Instead, its attention was directed solely to the question of the likelihood of recidivism. The new statute said:
An adult inmate shall be released on parole at the time of parole eligibility, unless [the Board finds] * * * 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].
The difficulty was that if the Parole Board considered only recidivism with respect to preCode prisoners, then neither the original sentencing decision nor the subsequent parole decision would take into account the essential element of the punitive purposes of the sentence. As a result, the Supreme Court instructed the Parole Board that, with respect to preCode prisoners only, it was to continue to take into account, in deciding whether to release a prisoner on parole, the question whether the punitive purposes of the sentence had been accomplished. In re Trantino Parole Application, 89 N.J. at 373.
It is apparent that the 1979 Parole Act's regulations do not apply to preCode prisoners a body of penal law more onerous than that in existence at the time they committed their crimes. The continuing obligation of the Parole Board to consider the punitive aspects of a preCode sentence does not represent a change in the law. It is rather a continuation of preCode conditions without imposition of more onerous terms. See Royster v. Fauver, 775 F.2d 527 (3 Cir.1985), where the U.S. Court of Appeals reached the same conclusion.
The Parole Board's denial of parole to Thompson and establishment of a twelve-year future parole eligibility term were contained in a Notice of Decision which reviewed the history of the offense and the offender. It recognized that Thompson had an adequate disciplinary record, a good work and housing record and had made positive strides. It determined,
however, that those elements were insufficient to overcome the punitive aspects of the sentence for a brutal murder; that Thompson had not sufficiently developed insight into his anti-social behavior or achieved significant behavioral and attitude changes or rehabilitative development.
On these bases, the Parole Board concluded:
The Parole Board's determinations whether to grant parole are "impregnated with highly predictive and individualized discretionary appraisals.' Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973). They are not reversible except for arbitrariness, Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971), or abuse of discretion, State v. Lavelle, 54 N.J. 315, 322 (1969). On the basis of the Board's thorough consideration of Thompson, his history, his crime and his subsequent behavior, we have no basis upon which to criticize its judgment.
There is a suggestion in Thompson's brief that there is another and distinct ex post facto problem, this one arising out of the actual administration by the Board of the Trantino decision. The suggestion is that the Board uses the decision to justify delaying parole release for long enough to equalize the prison time served under preCode life sentences with the time served under Code life sentences with their lengthy parole ...