time of sentencing is violative of U.S. Const., Art. I, Sect. 10, as a bill of attainder which imposes a punishment absent a judicial trial."
Petitioner raised the same four claims in state court when he appealed the parole board's actions. The Superior Court of New Jersey, Appellate Division, found these claims to be "without merit," and the New Jersey Supreme Court found that petitioner "[failed] to state a substantial constitutional issue." Both courts affirmed the parole board's decision to increase petitioner's parole ineligibility date.
Considering petitioner's claims de novo, we find them to be without merit. Petitioner claims that N.J.S.A. 30:4-123.48(d) unconstitutionally empowers the New Jersey State Parole Board to impose a criminal penalty, the extension of an inmate's parole ineligibility date, which may only be imposed in a judicial proceeding. Petitioner argues that this is a violation of the principle of separation of powers. To begin with, a prison disciplinary hearing is not a criminal prosecution. Wolff v. McDonnell, 418 U.S. 539, 556, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); Avant v. Clifford, 67 N.J. 496, 522, 341 A.2d 629 (1975). The parole board is not imposing a criminal penalty as a result of a disciplinary hearing. Instead, the parole board is merely doing what it is authorized to do by the New Jersey Legislature when it extends an inmate's parole ineligibility. N.J.S.A. 30:4-123.52(a). The legislature has clearly granted the parole board this authority "if the appropriate board panel determines that an adult inmate has seriously or persistently violated specifically defined institutional rules." N.J.S.A. 30:4-123.52(a). Furthermore, the legislature gives the parole board the discretion to develop a schedule to apply when increasing an inmate's parole ineligibility. In this state, N.J.A.C. 10A:71-3.4 is the schedule the parole board applies to determine the length of the extension. The New Jersey Supreme Court has held that "there can be 'no unconstitutional delegation of legislative authority as long as the administrative discretion is hemmed in by standards sufficiently definitive to guide its exercise,' such standards not necessarily being stated 'in express terms if they may be reasonably inferred from the statutory scheme as a whole. In re Berardi, 23 N.J. 485, 129 A.2d 705 (1957).'" Avant v. Clifford, 67 N.J. at 553. Here, the legislature has explicitly set forth the standards for when a parole board may increase a parole ineligibility date (e.g. when the inmate has "seriously or persistently violated specifically defined institutional rules"). Therefore, since the parole board is authorized by the legislature to impose extensions of parole ineligibility, and since the sanctions are not criminal penalties arising out of a criminal proceeding, the authority of the parole board is not unconstitutional.
Since we have just determined that the parole board acts legally when it imposes an extension of parole ineligibility, petitioner's claim that N.J.A.C. 10A:71-3.4 violates due process is without merit also. An extension of parole ineligibility is not an increase in punishment relative to a criminal conviction. The schedule set forth in N.J.A.C. 10A:71-3.4 aids the parole board in accomplishing an act that is properly authorized by the legislature. Since petitioner's disciplinary proceedings were not criminal prosecutions, "the full panoply of rights due a defendant in such a proceeding does not apply." The due process standards set forth in N.J.A.C. 10A:71-3.4 clearly meet the standards established in Wolff and Avant for proceedings in a prison setting.
The petitioner also claims that he has been exposed to double jeopardy. It is well settled that the scope of the Double Jeopardy Clause is limited to criminal prosecutions. Breed v. Jones, 421 U.S. 519, 44 L. Ed. 2d 346, 95 S. Ct. 1779 (1975). Therefore, petitioner's claim that the imposition of punishment at a prison disciplinary hearing and extension of parole ineligibility by the parole board constitute two separate administrative penalties for the same infraction has no merit.
Petitioner's last claim is that the action of the parole board increasing the parole ineligibility period violates the Constitution as a bill of attainder which imposes a punishment absent a judicial trial. The parole board does not find petitioner guilty again in its proceedings. Instead, the board gives res judicata effect to the findings at the disciplinary proceedings. It is important to note that guilt must first be established at the disciplinary proceedings for the parole board to take any action in extending an inmate's parole ineligibility. We find that the claim that the parole board's actions constitute a bill of attainder is without merit.
For the above reasons, we concur with the findings of the state courts and dismiss the claims raised in this petition as being without merit.
It is therefore on this 18th day of February 1988,
ORDERED that the petition of Milton J. Conklin, Jr. for writ of habeas corpus filed in this court on October 28, 1987 be and hereby is dismissed without an evidentiary hearing, and this Court certifies there is no probable cause for appeal from this Order. No costs.
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