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State v. Black

May 14, 1998


On certification to the Superior Court, Appellate Division, whose opinion is reported at 295 N.J. Super. 453 (1996).

The opinion of the court was delivered by: Stein, J.

Argued November 17, 1997

Defendant's parole was revoked after he violated the conditions of his parole by failing to report to his parole officer, failing to refrain from drug use, and relocating his residence to another state. The primary issue posed by this appeal is whether, in view of the revocation of his parole by the Parole Board, defendant's criminal prosecution for absconding from parole is barred by principles of double jeopardy and fundamental fairness. A collateral issue is whether defendant is entitled to jail credit against his sentence on the absconding conviction for his time in custody from the date of his arrest for absconding until the date of sentencing.


In February 1991, defendant-petitioner Jerry Black was sentenced to a three-year custodial prison term following his plea of guilty to one count of distribution of a controlled dangerous substance (CDS) and one count of conspiracy to distribute CDS. Defendant was released on parole in July 1992. When defendant failed to report to his parole officer on October 14, 1992, as required, he was classified the next day as an absconder and a parole warrant issued for his arrest.

Indicted in February 1993 on a single count of third-degree absconding from parole pursuant to N.J.S.A. 2C:29-5b, defendant, who had relocated out-of-state, was returned to custody on June 16, 1995. Defendant pled guilty to the absconding charge in return for the State's agreement to recommend a three-year sentence to be served concurrently with defendant's original CDS sentence. On August 22, 1995, the Parole Board issued a Notice of Decision revoking defendant's parole and ordering him to complete the remaining 337 days of imprisonment on the CDS conviction commencing as of the date of his return to custody. On October 6, 1995, the Law Division sentenced defendant on the absconding conviction in accordance with the plea arrangement, crediting him with three days against the absconding sentence for time served. Defendant's Adult Presentence Report suggests that the three-day credit was for time served from June 26, 1995, the date when the bench warrant for defendant's arrest for absconding from parole was executed, until June 28, 1995, the date when a parole detainer was filed. The Presentence Report indicates July 5, 1995, as the date of defendant's formal arrest for absconding. Defendant's briefs, however, all refer to June 26, 1995, as the date of his arrest for absconding.

Defendant appealed his conviction and sentence, contending that his criminal prosecution for absconding from parole should have been barred by state and federal constitutional principles of double jeopardy and by principles of fundamental fairness because the revocation of parole punished him for the same conduct underlying the absconding charge. Defendant further argued that the trial court should have credited him on the absconding sentence with 103 days of time served from the date of his arrest for absconding on June 26, 1995, until the date of his sentencing on October 6, 1995. The Appellate Division rejected both of defendant's contentions. State v. Black, 295 N.J. Super. 453 (App. Div. 1996). We granted defendant's petition for certification. 149 N.J. 144 (1997).



The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution, made applicable to the States by the Fourteenth Amendment, protects against the reprosecution of a person for the same offense after an acquittal or conviction, and against multiple criminal punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225, 53 L. Ed. 2d 187, 194 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 665 (1969). Protection against double jeopardy under the New Jersey Constitution, art. I, ¶ 11, is at least coextensive with the protection afforded by the federal double jeopardy provision. State v. Womack, 145 N.J. 576, 582, cert. denied, ___ U.S. ___, 117 S. Ct. 517, 136 L. Ed. 2d 405 (1996); State v. Koedatich, 118 N.J. 513, 518 (1990).

The Double Jeopardy Clause's prohibition against multiple punishments clearly protects against a second criminal penalty being imposed in a second criminal prosecution for the same offense. It is not generally implicated by penalties imposed in civil and administrative proceedings. However, the United States Supreme Court held in 1989 that a civil or administrative penalty imposed in addition to a criminal sentence may be found to violate double jeopardy protections when it is based on the same conduct as the criminal charge and is punitive, rather than remedial, in nature. United States v. Halper, 490 U.S. 435, 446-48, 109 S. Ct. 1892, 1900-02, 104 L. Ed. 2d 487, 500-02 (1989)(holding that where defendant was sentenced to two years imprisonment for Medicare fraud and then assessed civil penalty in excess of $100,000, which bore no relation to government's actual damages, penalty was punitive and thus violated Double Jeopardy Clause).

Under Halper, the determination of when a civil or administrative sanction constitutes "punishment" for double jeopardy purposes depended on "the purposes actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction." Id. at 447 n.7, 109 S. Ct. at 1901 n.7, 104 L. Ed. 2d at 501 n.7. According to the Halper Court, the threshold question was thus whether the sanction as applied to the specific defendant serves the goals of punishment, namely retribution and deterrence. Id. at 448, 109 S. Ct. at 1901-02, 104 L. Ed. 2d at 501-02. In applying the Halper standard under both the federal and New Jersey constitutions, this Court has found that a sanction may be determined to be punitive if either the law pursuant to which the sanction was imposed was intended by the legislature to impose punishment or the impact of the sanction is punitive. Womack, supra, 145 N.J. at 583; see also Doe v. Poritz, 142 N.J. 1, 46 (1995)("An initial inquiry is whether the legislative intent was regulatory or punitive: . . . if the former, the inquiry changes to whether the impact, despite the legislative intent to regulate, is in fact punitive . . . .). Whether the civil or administrative sanction is imposed before or after the criminal prosecution for the same conduct is immaterial to the determination of whether the protection against double jeopardy has been violated. Womack, supra, 145 N.J. at 585.

Subsequent to oral argument in this appeal, the United States Supreme Court decided Hudson v. United States, 522 U.S. ___, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997). In Hudson, a five-member majority of the Court largely disavowed the double jeopardy analysis used in Halper. Id. at ___, 118 S. Ct. at 491, 139 L. Ed. 2d at 456-57. The majority explained its dissatisfaction with the Halper Court's analysis:

Our opinion in United States v. Halper marked the first time we applied the Double Jeopardy Clause to a sanction without first determining that it was criminal in nature.

As the Halper Court saw it, the imposition of "punishment" of any kind was subject to double jeopardy constraints, and whether a sanction constituted "punishment" depended primarily on whether it served the traditional "goals of punishment," namely "retribution and deterrence." Any sanction that was so "overwhelmingly disproportionate" to the injury caused that it could not "fairly be said solely to serve [the] remedial purpose" of compensating the government for its loss, was thought to be explainable as "serving either retributive or deterrent purposes."

We believe that Halper's deviation from longstanding double jeopardy principles was ill considered. As subsequent cases have demonstrated, Halper's test for determining whether a particular sanction is "punitive," and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable. We have since recognized that all civil penalties have some deterrent effect. If a sanction must be "solely" remedial (i.e., entirely nondeterrent) to avoid implicating the Double Jeopardy Clause, then no civil penalties are beyond the scope of the Clause.

[Id. at ___, 118 S. Ct. at 493-95, 139 L. Ed 2d at 459-61 (citations and footnotes omitted).]

The Court thus rejected the rule that whether a sanction is subject to double jeopardy restraints depends on whether that sanction is "punitive," as opposed to "solely" remedial in nature, and reestablished the traditional rule that whether a sanction is subject to double jeopardy restraints depends on whether that sanction essentially constitutes a criminal penalty. Id. at ___, 118 S. Ct. at 493-94, 139 L. Ed. 2d at 458-59. See also United States v. Ward, 448 U.S. 242, 248- 49, 100 S. Ct. 2636, 2641, 65 L. Ed. 2d 742, 749 (1980)(noting in dicta that Double Jeopardy Clause protects only against two criminal punishments); Breed v. Jones, 421 U.S. 519, 528, 95 S. Ct. 1779, 1785, 44 L. Ed. 2d 346, 354 (1975)("In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution."); Helvering v. Mitchell, 303 U.S. 391, 398-99, 58 S. Ct. 630, 633, 82 L. Ed. 917, 921 (1938)("Unless this sanction was intended as punishment, so that the proceeding is essentially criminal, the double jeopardy clause provided for the defendant in criminal prosecutions is not applicable.").

The Hudson Court explained that [w]hether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. Helvering, supra, [303 U.S.] at 399, 82 L. Ed. 917, 58 S. Ct. 630. A court must first ask whether the legislature, "in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." Ward, [supra,] 448 U.S. at 248, 65 L. Ed. 2d 742, 100 S. Ct. 2636. Even in those cases where the legislature "has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect," id. at 248- 49, 65 L. Ed. 2d 742, 100 S. Ct. 2636, as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty," Rex Trailer Co. v. United States, 350 U.S. 148, 154, 100 L. Ed. 149, 76 S. Ct. 219 (1956).

In making the latter determination, the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963), provide useful guideposts, including: (1) "[w]hether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as punishment"; (3) "whether it comes into play only on a finding of scienter"; (4) "whether its operation will promote the traditional aims of punishment--retribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears excessive in relation to the alternative purpose assigned." It is important to note, however, that "these factors must be considered in relation to the statute on its face," id. at 169, 9 L. Ed. 2d 644, 83 S. Ct. 554, and "only the clearest proof" will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty, Ward, supra, [448 U.S.] at 249, 65 L. Ed. 2d, 742, 100 S. Ct. 2626 (internal quotation marks omitted).

[Hudson, supra, 522 U.S. at ___, 118 S. Ct. at 493, 139 L. Ed. 2d at 459.]

Because we find that defendant's argument must fail under both federal and New Jersey double jeopardy jurisprudence as it existed prior to the Supreme Court's decision in Hudson, and because application of Hudson would only increase the burden on defendant, we need not address whether New Jersey's double jeopardy jurisprudence should be reevaluated in the wake of Hudson. Therefore, the inquiry sufficient for the disposition of this appeal remains whether the administrative sanction of parole revocation was intended by the legislature to impose punishment or is punitive in impact in accordance with prevailing federal and New Jersey precedent prior to Hudson.


The determination of whether the administrative sanction of parole revocation is punitive or remedial in nature requires a closer examination of the goals of the parole system generally, as well as the purposes and impact of parole revocation in particular.

As required under N.J.S.A. 2C:43-9, "[r]elease of offenders on parole, recommitment and reparole after revocation shall be governed by the 'Parole Act of 1979,'" codified at N.J.S.A. 30:4-123.45 to -123.76. The Parole Act provides that the grant or denial of parole rests with the State Parole Board, N.J.S.A. 30:4-123.47, although the burden of proving that an inmate eligible for parole is a likely recidivist who thus should not be released is on the State. N.J.S.A. 30:4-123.53(a); New Jersey Parole Bd. v. Byrne, 93 N.J. 192, 205 (1983). Parole is a period of supervised release "by which a prisoner is allowed to serve the final portion of his sentence outside the gates of the institution on certain terms and conditions, in order to prepare for his eventual return to society." State v. Oquendo, 262 N.J. Super. 317, 324 (App. Div.)(quoting In re Clover, 34 N.J. Super. 181, 188 (App. Div. 1955)), rev'd on other grounds, 133 N.J. 416 (1993). The United States Supreme Court has explained that the purpose of parole is "to help individuals reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of the sentence imposed." Morrissey v. Brewer, 408 U.S. 471, 477, 92 S. Ct. 2593, 2598, 33 L. Ed. 2d 484, 492 (1972). Those descriptions clearly characterize the general purpose of parole as rehabilitative rather than punitive in nature. Furthermore, this Court has observed that under the current New Jersey Code of Criminal Justice (Code), we presume that the punitive aspects of an inmate's sentence have been satisfied by the time he or she becomes eligible for parole. Byrne, supra, 93 N.J. at 205.

Parolees must agree to abide by specific conditions of parole, including, but not limited to, refraining from the commission of any crime, obtaining permission to change residence, and reporting to an assigned parole officer at reasonable intervals. N.J.S.A. 30:4- 123.59(b). The United States Supreme Court has observed that the conditions of parole include reporting to parole officers because such officers "are part of the administrative system designed to assist parolees and offer them guidance." Morrissey, supra, 408 U.S. at 478, 92 S. Ct. at 2599, 33 L. Ed. 2d at 492. Thus, the restrictions placed on parolees are also rehabilitative rather than punitive in purpose.

We note that there is no constitutional right to parole. Greenholz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S. Ct. 2100, 2104, 60 L. Ed. 2d 668, 675 (1979); Byrne, supra, 93 N.J. at 208. However, this Court held in Byrne that the Parole Act of 1979 created for inmates eligible for parole a protected expectation of parole sufficient to invoke requirements of procedural due process. Id. at 206-08. The United States Supreme Court has also "rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a `right' or as a `privilege.'" Morrissey, supra, 408 U.S. at 481, 92 S. Ct. at 2600, 33 L. Ed. 2d at 494 (quoting Graham v. Richardson, 403 U.S. 365, 374, 91 S. Ct. 1848, 1853, 29 L. Ed. 2d 534, 543 (1971)).

The Parole Act empowers the State Parole Board to revoke parole when a parolee violates the conditions of his or her parole. N.J.S.A. 30:4-123.60 to -123.62. Although the threat of parole revocation undoubtedly contains a deterrent component, the underlying purpose of parole revocation is consistent with that of the parole system generally. The Supreme Court described the decision-making process underlying a parole revocation decision:

The first step in a revocation decision thus involves a wholly retrospective factual decision: whether the parolee has in fact acted in violation of one or more conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation? The first step is relatively simple; the second is more complex. The second question involves the application of expertise ...

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