On appeals from the New Jersey State Parole Board and Department of Corrections and the Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication January 15, 1997. As Corrected January 27, 1997.
Before Judges Pressler, Stern and Humphreys. The opinion of the court was delivered by Stern, J.A.D. Pressler, P.j.a.d., Concurring in part, Dissenting in part. Humphreys, J.A.D. (concurring)
The opinion of the court was delivered by: Stern
The opinion of the court was delivered by
Thomas Trantino was convicted of murder in 1964 and sentenced to die. The conviction was affirmed on direct appeal. State v. Trantino, 44 N.J. 358, 209 A.2d 117 (1965), cert. denied, 382 U.S. 993, 86 S. Ct. 573, 15 L. Ed. 2d 479 (1966), reh'g denied, 383 U.S. 922, 15 L. Ed. 2d 679, 86 S. Ct. 901, 86 S. Ct. 901, 15 L. Ed. 2d 679 (1966). While our Supreme Court has found that Trantino "killed two police officers in 1963," In re Trantino Parole Application, 89 N.J. 347, 352, 446 A.2d 104 (1982), and that "Trantino was guilty of two murders," id. at 375, n. 9, it is undisputed before us that the indictment alleged only one count of murder and that only one sentence for murder was imposed. *fn1 Thus, when the Supreme Court invalidated the statute under which the death penalty for first degree murder was imposed, N.J.S.A. 2A:113-4 (now repealed), Trantino's death penalty was converted to a single sentence of life imprisonment. State v. Funicello, 60 N.J. 60, 286 A.2d 55 (1972), cert. denied, sub. nom. New Jersey v. Presha, 408 U.S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766 (1972). Under the Supreme Court's mandate, Trantino was "sentenced to life imprisonment, nunc pro tunc, as of the date the life sentence was initially imposed, the defendant to be entitled to the same credits as if initially sentenced to life imprisonment." Id. at 67-68. As a result of that sentence, "Trantino became eligible for parole in 1979," Trantino Parole Application, (supra) , 89 N.J. at 352, because a person sentenced to life imprisonment under N.J.S.A. 2A:113-4 was eligible for parole after twenty-five years less commutation time and work credits. N.J.S.A. 30:4-123.11 (repealed).
This appeal deals principally with the Parole Board's April 1996 decision to deny Trantino parole and to fix a future parole eligibility date (FET) of ten years hence.
The facts regarding the brutal slayings of Sergeant Peter Voto of the Lodi Police Department and police trainee Gary Tedesco are detailed in Chief Justice Weintraub's opinion affirming the conviction:
On the evening of August 25, 1963 Trantino and Frank Falco committed a robbery in Brooklyn, following which they and some companions went to the Angel Lounge, a tavern in Lodi, New Jersey, for pleasure. During the early morning of the 26th, Trantino or someone else fired two shots in horseplay. Sergeant Peter Voto of the Lodi Police Department and Gary Tedesco, a young man who was about to be appointed a patrolman and who accompanied Sergeant Voto for a view of police routine, entered the tavern, presumably to investigate the report of gunfire.
Voto and Tedesco had been in the tavern earlier that morning. On the further visit following the gunfire just mentioned, Voto asked all of the patrons to establish their identity. Following inspection of identifying papers, Voto found a gun wrapped in a towel. Trantino thereupon seized the officer from behind, placed a gun to his head, cursed him and shouted that he would die. He ordered Voto to undress. Voto did so slowly, and as he did Trantino struck him repeatedly with the gun, forcing him to his knees. When Tedesco, who had gone out for a searchlight, re-entered, he was seized by Falco. Tedesco too was ordered to undress, and he did promptly. With Voto partially undressed and on the floor, almost unconscious from the blows, and with Tedesco stripped to his shorts, Trantino fired a number of shots at both, killing them almost instantly. There was testimony that Falco shouted to Trantino, "You're crazy. What are you doing? You're crazy," to which Trantino replied, "We are going for broke. We are burning all the way. We are going for broke."
Trantino and Falco fled, both returning to New York City. Falco was killed there a few days later by police officers who were trying to apprehend him. Trantino surrendered to New York authorities and was extradited to this State.
The resume of events given above was the State's version of the murders. In his defense Trantino testified that on the 25th he took two dexedrine pills and consumed a considerable quantity of liquor from the afternoon of that day to the time of the homicides on the 26th. He denied any recollection of the slaying of the officers, saying he recalled only a loud explosion, followed by a confusion of wild sound and light within which Falco appeared to be a devil with arched eyebrows. He claimed he next recalled entering the car of a Mrs. Norma Jaconnetta (she left the tavern hurriedly after the shooting) and leaving the car with Falco when she was unable to start it. He related a frenzied flight to the home of a Mrs. Patricia MacPhail (she too had been at the Angel Lounge and had left just before the officers were shot), and described the drive with her help to New York. He insisted those events were heavily clouded.
Although Trantino thus disavowed awareness of the homicides, Mrs. MacPhail testified he told her the policemen were killed, at first saying that Falco had killed them and later saying during the ride to New York City that it was he, Trantino, who had slain them and that he did so to help Falco who was wanted for murder in New York.
[ State v. Trantino, (supra) , 44 N.J. at 361-63.]
The insanity defense was rejected at trial, and the Supreme Court questioned the sufficiency of the proofs to support its consideration. Id. at 367. The opinion noted that the diagnosis of defendant's expert "was sociopathic-personality disturbance, drug and alcoholic addiction with emotional instability, and depressive reaction, situational in character." Id. at 365. The facts regarding the murder, the diagnosis and Trantino's denial of recollection at trial each have significance with respect to the decision of the Parole Board before us.
In 1980, Trantino was granted parole with restitution imposed as a special condition. However, the Law Division refused to set the amount of restitution in a murder case, and a number of issues had to be resolved in light of the adoption of the Parole Act of 1979, N.J.S.A. 30:4-123.45 et seq., L. 1979, c. 441, § 1 et seq., which had taken effect. In Trantino Parole Application, (supra) , the Supreme Court interpreted the Parole Act of 1979, a provision of which provides that inmates sentenced to life imprisonment pursuant to N.J.S.A. 2A:113-4 were not to be eligible for parole as provided in the new Act. Rather, their parole eligibility was to be computed pursuant to the 1948 Parole Act, N.J.S.A. 30:4-123.1 et seq. (repealed), which was in effect at the time of the murders committed by Trantino. See N.J.S.A. 30:4-123.51(j).
In Trantino Parole Application, (supra) , the Court analyzed the impact of the Parole Act of 1979 with respect to Trantino as a Title 2A offender and the decision to parole Trantino. The Court concluded that restitution could be imposed as a condition of parole for an inmate convicted of homicide based on specific criteria, id. at 361, but that the Parole Board imposed restitution as a condition of parole in Trantino's case based on standards which were "much too imprecise and broad." Id. at 363. Because "the imposition of restitution as a parole condition in [Trantino's] case was not an independent, severable or free-standing factual determination made by the Board," id. at 364, the Supreme Court concluded that "modification of the Board's imposition of restitution as a condition of parole puts an entirely different cast upon its ultimate determination that there is no substantial likelihood that Trantino will commit future criminal acts if released" and determined that the Board had "the right to reconsider and redetermine" its prior determination. Id. at 364-65. According to Justice Handler's opinion for the Court, "[a] new development or new evidence relating to established facts or a material misapprehension concerning an essential matter which is critical to an agency determination can constitute a reasonable basis for reconsideration by the agency." Id. at 365. The Court therefore remanded the matter to the Parole Board "to reconsider and redetermine Trantino's fitness for parole." Id. at 377.
The Court also addressed the standards to be applied by the Board for purposes of making parole decisions with respect to Title 2A offenders following adoption of the Parole Act of 1979. The Court emphasized the difference in approach to the subject of sentencing and parole under Title 2A and 2C, the latter of which was adopted effective September 1, 1979. N.J.S.A. 2C:98-4. Justice Handler explained that the 1979 Parole Act limited Parole Board discretion and embodied presumptive parole (which took into account the punitive aspects of the sentences set by the Court). Id. at 368-70; see also N.J.S.A. 2C:43-6, 2C:43-7; N.J.S.A. 30:4-123.51. Under Title 2C, the judicial determination embodies the punitive aspects of the sentence and "the parole decision must be confined solely to whether there is a substantial likelihood for a repetition of criminal behavior." Trantino Parole Application, (supra) , 89 N.J. at 369. However, the Court further explained that the same approach was not applicable under the Parole Act of 1979 for a Title 2A offender. As noted, the 1979 Act saved from repeal the 1948 Act for purposes of parole consideration relating to Title 2A offenders. N.J.S.A. 30:4-123.51(j); see also N.J.S.A. 30:4-123.11 (repealed). According to the Court:
Thus, for an inmate, such as Trantino, sentenced to life imprisonment, the parole eligibility date arose after 25 years, "less commutation time for good behavior and time credits earned and allowed by reason of diligent application to work assignments." Nevertheless, substantive parole determinations regarding such inmates are to be made by applying the new Act's parole fitness standard. N.J.S.A. 30:4-123.46. Viewed in this light, the difference between these two classes of inmates - those sentenced pre-Code and those sentenced post-Code - becomes glaringly apparent. Inmates serving sentences under the Code - post-Code inmates - will have presumptively satisfied all punitive aspects of their sentences at the time they become eligible for parole. This is not true of pre-Code inmates. The punitive aspects of their sentences will not necessarily have been fulfilled by the time parole eligibility has occurred.
[Trantino Parole Application, (supra) , 89 N.J. at 369-70. *fn2 ]
Contrary to Trantino's assertions, the Parole Act does not prevent consideration of the punitive aspects of a pre-Code inmate's sentence as they relate to the rehabilitative prospects of the inmate and his likelihood of recidivism if released. ... Hence, the punitive aspects of a sentence are extremely relevant in terms of the inmate's rehabilitation.
... We now hold that, at least with respect to pre-Code sentenced inmates such as Trantino, while the Parole Board may not determine parole release or fitness solely on grounds of the adequacy of the punishment reflected in the inmate's prison term, the Board must consider whether the punitive aspects of a sentence have been satisfied in terms of the rehabilitative potential of the inmate. Thus, on remand in this case, the Board must reassess the punitive aspects of Trantino's sentence in considering the extent of his rehabilitation and his fitness for parole.
On this critical point it is necessary to underscore the gravity of Trantino's underlying crimes since the seriousness of the offense is the main factor that creates the need for punishment. ... While the gravity of the crime may not now be considered an independent reason for continuing punishment and denying parole, the Parole Board must nevertheless weigh the seriousness of the crime as an element in determining whether the offender's punishment has been adequate to insure his individual progress toward rehabilitation.
In considering Trantino's fitness for parole release, the egregiousness of his crime and the harsh sentence imposed obligate the Parole Board to weigh most scrupulously and conscientiously whether Trantino has been punished sufficiently for it to conclude with confidence that he has been rehabilitated and will not commit future crimes. Furthermore, in this regard it cannot be claimed that pre-Code inmates such as Trantino are being treated unfairly in comparison to inmates sentenced under the Code. If Trantino had been convicted and sentenced under the Code, it is almost certain he would not yet be eligible for parole and probably would not become eligible for many years to come.
[ Id. at 369-75 (citations omitted).]
Thus, the Third Circuit has concluded that Trantino Parole Application, (supra) , requires the Parole Board to "consider both the likelihood of recidivism and whether the punitive aspects of [Trantino's] sentence have been satisfied." Royster v. Fauver, 775 F.2d 527 (3d Cir. 1985).
After the Supreme Court remanded the case to the Parole Board in 1982, the Board imposed a ten year FET which, considering work credits and good time, made him eligible for parole again in 1988. What happened at that time is not detailed in the record, but it appears from Trantino's brief and the transcripts of the 1993, 1994 and 1995 parole hearings before us, that although initially recommended for parole by a panel in 1988, he ultimately received a six year FET from the full Board. We affirmed the denial of parole in an unpublished opinion and affirmed the Board's action based on its Conclusions "that rehabilitation has not been sufficiently achieved and that, therefore, the punitive aspects of Mr. Trantino's sentence have not been satisfied" and "that there also exists a substantial likelihood that Mr. Trantino will commit a crime under the laws of this State if released on parole at this time."
Subsequently on September 18, 1991, the full Parole Board again denied parole and set a thirty-six month FET. The Board, however, recommended that the Department of Corrections (DOC) "place Mr. Trantino in a 1/2 way house," so that the Board could ultimately "evaluate his behavior in a less structured environment." The Board also recommended that Trantino "continue to maximize his participation in psychological counseling." These determinations are not before us on this appeal. *fn3
Trantino now appeals from subsequent determinations including the Parole Board's 1996 decision to deny him parole and to establish a future parole eligibility date ten years hence. He also appeals from the denial by the Law Division of his petition for habeas corpus. According to Trantino:
Before this court are appellants [sic ] appeal from the 1993 Adult Panel hearings, resulting in the decision of December 17, 1993, affirmed on April 26, 1995 by the full Board; if necessary, the September 1, 1994 hearing resulting in the decision of April 17, 1995, affirmed by the full Board on September 26, 1995; if necessary, the hearing of September 14, 1995 resulting in the decision of September 25, 1995. Also before this Court, again only necessary if appellant does not prevail on his challenge to the December 17, 1993 decision, is the [Department of Corrections (DOC)] denial of transfer to a halfway house on January 2, 1994. Also before this court is the issue of whether the state habeas corpus statute, N.J.S.A. 2A:67-1, is an appropriate vehicle, under the facts of this case, for resolution of these disputes.
The Board and DOC claim that the appeal from the 1993 and 1994 decisions are moot and irrelevant by virtue of the subsequent Parole Board hearings and decisions.
In September 1995 a two-member panel of the Board denied Trantino parole and recommended another extended FET beyond the guidelines. The matter was therefore referred to a three person panel. N.J.A.C. 10A:71-3.21(d). The third member questioned Trantino extensively at a hearing conducted on December 11, 1995. However, the matter was referred to the full Board because of the lack of unanimity of the three person panel regarding the extended FET. N.J.A.C. 10A:71-3.21(d). On April 3, 1996, the Board set a ten year FET. The decision was based on psychological evaluations of Trantino conducted by James Bell, a psychology consultant, and Glenn Fergusson, an MA, who were interviewed by the Board concerning their evaluations. The Board was impressed by the fact that Trantino does not take responsibility for the shootings, evidenced by his assertion to Bell that Frank "Falco shot both victims, that [he] did not discharge a gun, and that [he] left the bar before anyone was shot." The Board expressed concern that Trantino "claimed at [his] parole hearing on September 14, 1995 that [he] could not remember details of the shooting, but [he] did remember minute details of events both before and after the murders." Thus, the Board found that "further counseling" was essential "to gain insight into [his] role in the crimes." In its May 20, 1996 written decision confirming the April 3, 1996 determination, the Parole Board concluded:
It is clear to the Board that despite the program participation completed by you during the years of your incarceration you still have not gained sufficient insight into your role in these crimes. Therefore, you have not achieved your rehabilitative potential and the punitive aspects of your sentence have not been satisfied and there is substantial likelihood that you would commit a crime if released on parole. Therefore, the Board believes the ten year future eligibility term is necessary in order to provide you with the opportunity to participate in appropriate psychological counselling to address your lack of responsibility and insight.
The Board emphasized its standard of review in light of the Supreme Court's prior recognition that the Board's "'obligation to scrutinize the adequacy of Trantino's punishment in relation to his progress toward rehabilitation should be regarded as a continuing one.'" Trantino Parole Application, (supra) , 89 N.J. at 375. The Board noted that there was no presumptive parole for a 2A offender, that the critical issue relating to potential lack of recidivism was to be evaluated by deciding if the inmate had reached his "rehabilitative potential," that Trantino had not, and that the future eligibility term was, therefore, required.
Before us, the Board argues that the Supreme Court's prior opinion requires a de novo review at each parole hearing and on that review, it is obligated to
determine if the punitive aspects of Trantino's sentence have been satisfied such that he is truly rehabilitated and is not likely to commit crimes in the future. On this point - the sufficiency of punishment - the Parole Board may consider the kind of sentence that the inmate would likely have received under the present Code of Criminal Justice for the crimes which he committed.
[Trantino Parole Application, (supra) , 89 N.J. at 377.]
Referring to the prior Trantino Parole Application opinion, the Board notes the language of Justice Handler that "if the Board determines that Trantino has not been punished sufficiently and, for that reason, as well as any others, it appears by a preponderance of the evidence that there is a substantial likelihood of future criminal activity if he is released, the Parole Board must deny parole." Id. at 377 (emphasis added).
The Parole Board acknowledges that the federal Constitution (art. I, § 9) would prohibit application of Title 2C parole eligibility standards with respect to parole eligibility for Trantino as a 2A offender. *fn4 However, it notes that if Trantino were sentenced under the Code of Criminal Justice (Title 2C) to a non-capital sentence at the time of the 1995 and 1996 hearings, he most likely would have received two consecutive sentences with a mandatory thirty years before parole eligibility, see N.J.S.A. 2C:11-3b, and that that is a factor to be considered with respect to the sufficiency of punishment even if it is not a factor which can be considered with respect to parole eligibility. The Board further points to Bell's psychological evaluation as constituting new evidence that lengthy psychological rehabilitation is necessary before Trantino can reach his rehabilitative potential, and that in light of Bell's report and Trantino's inconsistent statements concerning his recollection and culpability, the Board's decision was not arbitrary, capricious or unreasonable.
Trantino asserts entitlement to habeas corpus and argues that the Law Division erred in not granting the writ. He also contends that the Board acted arbitrarily and capriciously in denying him parole and in fixing a ten year future eligibility date, particularly because a panel of the Board found that he was ready for parole in 1993, conditioned upon satisfactory completion of a residency in a halfway house, and that the DOC arbitrarily deprived him of the opportunity of halfway house placement by declining to transfer him there. The DOC responds by indicating that there was a good faith basis for declining the transfer, because of letters received warning of risks to Trantino and others at such a halfway house (which letters no longer exist). The Board insists that just as frustration of the condition of parole relating to restitution required a de novo review in 1982, even assuming that we can consider the 1993 action of the panel, frustration of the recommended condition of halfway house placement requires de novo review of the determination of the panel in 1993.
In its September 18, 1991 decision establishing a thirty-six month FET, the Board urged Trantino "to make every effort to achieve halfway house status in order for the Board to evaluate his behavior in a less structured environment." Trantino immediately requested transfer to a halfway house in a letter, dated October 9, 1991, to the Superintendent of Riverfront State Prison. Trantino insists that on November 26, 1991, the Riverfront Classification Committee approved his request for transfer to the Camden Volunteers of America. However, on December 31, 1991, he was orally advised that the Prison Superintendent disapproved the request. In a letter dated April 21, 1992, the DOC advised Trantino's attorney that the transfer "was denied placement pursuant to N.J.A.C. 10A:20-4.2," the administrative rule by which the Commissioner of the DOC or his designee has the authority to determine an inmate's place of confinement or to transfer an inmate from one place of confinement to another.
Trantino became eligible for parole again in June, 1992. The panel deferred decision until an in-depth psychological evaluation could be held at Avenel, and thereafter pending an in-person interview with the psychologist who performed the evaluation. On April 2, 1993, a hearing was conducted after which one member of the Panel, Andrew Consovoy, voted to release Trantino on parole and the other, Arthur Jones, voted to deny, believing that halfway house placement was essential to parole for someone incarcerated as long as Trantino. Consovoy was quite critical of the handling of Trantino's case, asserting that "this case has never been treated the same way as any other case" and that, despite the fact there is no right to parole, the case "should be treated on the merits." He insisted that Trantino's progress as a prisoner and his program participation warranted parole because, as he explained to Trantino, "you've done what you've needed to do, and you've done all you can do," and urged him to take legal action because the halfway house application "cannot be rejected by the Department of Corrections."
Despite a rule requiring a rehearing of a split decision before a three-member panel, see N.J.A.C. 10A:71-1.3(f), the Panel members subsequently "administratively reviewed" the April 1993 decision and determined to reconsider the decision. On November 12, 1993, another hearing was conducted before the same two-member panel. At that hearing both Mr. Consovoy and Mr. Jones were critical of the fact Trantino was not placed in a halfway house. According to Consovoy, the criticism of concern to the DOC "appears to be quite localized to Bergen County ... and to certain radio shows that seem to talk to those folks" and was irrelevant to Trantino's placement in Camden. Jones stated:
I said I want to see you in a halfway house as an inmate before release. I think the Department of Corrections owe that to you. Okay? Based on their own standards. Based on a rehabilitative program and mode for inmates that have been incarcerated ten years, fifteen years, twenty years, thirty years, as yourself, there should be no other release method other than the gradual release process, where an inmate can gain a sense of identity, dignity and money in their pocket before they get out there.
Other than that, they're setting you up for a failure. In your case they would have set you up to go out where you're totally dependent upon your wife. You know? Almost totally dependent on your wife.
That is no dignity for a man or for a woman to have to be totally dependent upon another person.
And the other two is, I said the out-of-state parole plan was the best plan that I've seen that any inmate had had. Okay? The out-of-state plan they denied you because of what I felt is a right being denied to you by this Department of Corrections.
So the two of those together, I will contend that the two-way punitive aspect had not been satisfied based on one and two. Work release and the parole plan.
The parole plan -- the second parole plan that you -- that you presented, I don't feel is capable or realistic of being accomplished, because I think it's going to put too much pressure on you, it's going to put too much pressure on your wife.
I would not want to see you in that. I could not vote for release to that type of a plan. And this is what I've contended all along.
And I would want that type of plan in place for me or for you or your son or for my son. And that has been the ball of my contention with your case. Not you per se, but with your case. And I will go on record as saying that with all of the times that you have been in minimum custody and all of the work that you've done inside the institution, all the programs, there is clearly no reason why you should not be in work release or a halfway house.
The panel also agreed that they saw no written reasons for the denial of halfway house status and that Trantino's halfway house application was not denied in a proper manner. Consovoy then announced the panel's decision to deny parole and impose a thirty-six month FET because the DOC would not grant Trantino halfway house status. They also recommended that Trantino file suit against the DOC. According to Consovoy:
Mr. Trantino, as you know the last time Mr. Jones and I saw you we had a split decision. We have reconciled that split in the following manner. I am voting for your (indiscernible) to be granted, as Mr. Jones is. On a very, very limited basis. We want (indiscernible) to be resolved, and I want you to resolve them.
If the Court tells us that in your case or any other case we cannot -- especially in a 2A case, we cannot demand a halfway house placement as a pre-condition to parole approval, then frankly the board has to deal with it as it is.
And in my opinion, in the setting you're in and it's also the opinion of the professionals that have evaluated you the last two times, that you have, in fact, reached your rehabilitative potential. Any inmate who's reached his rehabilitative potential on a gratuity sentence must be paroled whether we want to or not.
But in this situation -- you see, Tom, there is no legal reason for them to deny halfway house. We've been through that. You meet every criteria. I suggest you follow it. That you take this matter where it belongs, and I believe this matter belongs before the judicial body to referee the tug-of-war between the parole board and the DOC.
But it's come -- Tom, it's come to the end. You've done your 30 years. You've done every program you can. You achieved full-minimum status, you've had full-time minimum status. If the Courts come back and tell the parole board that we can't do what we're trying to do, then you basically have my (indiscernible) I would to parole you. I can't speak for anybody else. I voted to parole you last time, and you know, people (indiscernible) I think (indiscernible).
This is not what you wanted to hear, and you don't understand this, but this is the best thing that can happen to you. It's got to end. It's got to end before a Judge and the Judge is going to tell the DOC you're right or they're going to tell the parole board you're right. And then you are on the way to get out.
In its December 17, 1993 "notice of decision" the panel set the thirty-six month FET. In its opinion the panel stated:
Over the years much has been said and written concerning this crime. In the opinion of this panel, this crime can legitimately be called heinous (defined as hateful or shockingly evil). There is no dispute that two (2) unarmed men, one a police officer, were murdered. There is no doubt that Thomas Trantino shot and killed Peter Voto. There is no question that Thomas Trantino set in motion the events that led to the murder of Gary Tedesco, a young man who was not even a police officer. Mr. Trantino is responsible for the deaths of these two men and that issue is forever closed.
In that context, the Parole Board acknowledges that Mr. Trantino has made enormous progress toward reaching his full rehabilitative potential in the 30 years of his incarceration, particularly in the last 5 years. In upholding the Parole Board decision of 1988 to deny parole to Mr. Trantino New Jersey Superior Court, Appellate Division wrote that: 'Two aspects of Trantino's conduct particularly troubled the Board. Although apparently able to remember minute details of events that occurred before and after the shootings, he has never acknowledged that he killed the officers. Also, during his many years in prison he has never undergone drug and alcohol counseling or a long-term course of psychotherapy. Regarding the killings, Trantino initially claimed that he fled from the nightclub before the officers were killed. In recent years he claims that because the evidence against him is overwhelming, he accepts responsibility for killing the officers, but insists that he does not recall having done so.
When the Board last denied Trantino parole in 1982, it urged him to undergo drug and alcohol abuse counseling. When the then Board Chairman met with Trantino in 1985 and urged him to undergo long-term counseling if only to enhance his chances of parole, Trantino walked out of the meeting. Trantino insists that he does not need counseling.
There is ample evidence in this record to support the Board's concern that Trantino has been distracting himself and others with good works, and seemingly insightful expressions of his past and present condition in order to avoid coming to grips with the fact that he suffers from  serious underlying personality problem that renders him a risk for parole at this time. His refusal to undergo drug counseling or long-term psychotherapy is further evidence of that Conclusion.' Mr. Trantino has in his current restricted environment, in our opinion, done his best to address these and other issues identified by the Parole Board, and the most recent professional reports reflect this progress. This panel, therefore, acknowledges that Mr. Trantino has reached his rehabilitative potential within the confines of his current state prison setting. However, given the specific facts of this particular case the absolute inability to function in society prior to this crime, even as a supervised parolee; his long and difficult path towards real and not superficial rehabilitation; with his only recently addressing some major issues; and the length of his incarceration. ... We believe that he cannot be Judged to have reached his true and full rehabilitative potential until and unless he has achieved an intensive, therapeutic and rigorously supervised, gradual reintegration into society. In New Jersey, the only present means to achieve this crucial goal is through the placement by the Department of Corrections of Mr. Trantino in a halfway house while still an inmate.
The Parole Board firmly believes that this last and vital step must be attempted before Mr. Trantino could even be considered to be fully rehabilitated and granted parole. Although we believe that it is not unreasonable to conclude that Mr. Trantino has made impressive strides in resolving his problems and internal conflicts that led to these homicides we will only have full knowledge of this man's rehabilitation through the reintegration process of a community based halfway house setting. In that context we can evaluate Trantino's readjustment to societal and not institutional stresses, to societal and not institutional failures, and to societal and not institutional temptations. Only through this process can the Parole Board Judge if this man has been truly rehabilitated. The Adult Panel is of the opinion that the placement of Mr. Trantino to a halfway house should be done while he is an inmate to insure the legitimate interests of all parties. *fn5
The notice of decision concluded:
The Adult Panel is of the opinion that if Mr. Trantino can successfully enter and complete a correctional halfway house program as an inmate he can achieve his full rehabilitative potential and therefore will satisfy the punitive aspect of his sentence and meet the substantial likelihood test.
On November 12, 1993, after the hearing before the panel, Trantino sent a letter to the Commissioner of the DOC requesting approval of a transfer to a halfway house which he indicated had been approved by the Riverfront Institutional Classification Committee (ICC). Trantino asserts that he never received a written reply, which the two-member panel later noted to be so, but maintains he was assured of a transfer by interstate compact to a prison in Rhode Island, where his eventual placement in a halfway house would not attract attention. He insists that when news of the transfer plans was reported in the press, political pressure led the DOC to repudiate its commitment.
Trantino wrote to the ICC again on January 11, 1994, to ask for a transfer to a halfway house. The request was "denied" on February 2, 1994 with the "reasons/comments" noted "seen for community release."
Although no clear reasons for the ICC's decision were given to Trantino, a letter from Riverfront Administrator Donald E. Lewis to an investigator for the Internal Affairs unit of the DOC, dated June 2, 1995, reported that:
On January 28, 1994, inmate Trantino made application for community release with Volunteers of America and Clinton House as his place of preferential assignments. His application was referred to the Institutional Classification Committee, chaired by Donald E. Lewis on February 2, 1994. Mr. Trantino's request for halfway house assignment was discussed, and the committee rejected his request. The denial was is [sic ] based upon (2) factors:
1. Letters of threat, received by my office, warning that Mr. Trantino would be killed if paroled. The three (3) letters were unsigned and very crudely written. One letter was alphabetized, meaning constructed by letters cut out from magazines and newspapers to spell out the threat. The letters did not have a place of origin identifying the area where mailed. Letters were received on or about mid-January, and were shared with the Classification Committee in order to render an informed decision.
2. The committee also took into consideration the circumstances of the offense and the risk if possible adverse community reaction if inmate Trantino was permitted to participate in a residential community release program.
In considering all of the above factors, a unanimous decision was rendered by the Institutional Classification Committee, in keeping with the provisions of New Jersey Administrative Code 10A:20-4.12 which provides for Institutional Classification Committee review and Disposition.
Further be advised, notwithstanding the letters of threat, inmate Trantino would have been denied based on other factors referenced under the above cited provision. As his case has high visibility and notoriety, through the news media and through Senator Kosco who vehemently objected to the parole and community release of inmate Trantino.
In concluding this report, the letters of threat have been misplaced, as it is my recollection that they were to be processed to Internal Affairs; however, this is a standard procedure, and it is possible that they were misdirected. For your further review and assistance, I have Mr. Trantino's application, classification blocks and reports to Senator Kosco all addressing the situation of inmate Trantino's parole.
On September 1, 1994, Trantino's parole was again denied and he received another thirty-six month FET. At that hearing Mr. Jones was replaced by Mr. Rolando Gomez Rivera. The hearing concentrated on Trantino's background and the events surrounding the crime. Consovoy was again critical of the DOC, stating "most people would agree that the Department of Corrections has just made a mess of this thing because they've never decided how to treat you," that the decisions not to accord halfway house status was inconsistent with the two furloughs and sixty-nine trips into the community that had been granted, but that the Board had voted that it was not going to parole Trantino to a halfway house because the DOC had an obligation to place him there as an inmate. At the hearing Trantino accepted responsibility for the crimes, and stated intimate details of the events before and after the shootings, but denied recollection relating to the shootings themselves.
On March 13, 1995, not having received a written decision from the September 1, 1994 hearing, as required by N.J.S.A. 30:4-123.55(d) and N.J.A.C. 10A:71-3.18(e), Trantino filed administrative appeals to the full Parole Board from the November 12, 1993 and September 1, 1994 denials. See N.J.A.C. 10A:71-4.2. In the absence of a response, Trantino filed a petition for a writ of ...