The opinion of the court was delivered by: Stein, J.
Argued September 25, 2000
On certification to the Superior Court, Appellate Division, whose opinion is reported at 331 N.J. Super. 577 (2000).
In this appeal we address the contention of the New Jersey State Parole Board (Parole Board or Board) that the Appellate Division committed error in reversing its decision to deny parole to respondent Thomas Trantino. Trantino v. New Jersey State Parole Bd., 331 N.J. Super. 577, 624-25 (2000) (Trantino V).
This Court has considered appeals from this inmate on three prior occasions. In 1965 we upheld his conviction for murder and his death sentence, later commuted to life imprisonment. State v. Trantino, 44 N.J. 358 (1965), cert. denied, 382 U.S. 993, 15 L. Ed. 2d 479, 86 S. Ct. 573 (1966), reh'g. denied, 383 U.S. 922, 15 L. Ed. 2d 679, 86 S. Ct. 901 (1966). In 1982, we set aside the Parole Board's decision to grant parole, with restitution as a condition, and remanded the case to the Parole Board to "reassess the punitive aspects of Trantino's sentence," resulting in the Board's decision to deny parole and impose a ten-year future eligibility term. In re Trantino Parole Application, 89 N.J. 347 (1982) (Trantino III). In 1998, we reversed the Appellate Division's judgment upholding the Parole Board's denial of parole on the ground that the Board's decision was based on an incorrect standard and was not supported by sufficient evidence, and remanded the matter to the Board to redetermine Trantino's eligibility for parole. Trantino v. New Jersey State Parole Board, 154 N.J. 19, 22-23 (1998) (Trantino IV).
We now affirm in part and modify in part the judgment of the Appellate Division, and thereby uphold that court's unanimous reversal of the Parole Board's decision to deny parole. The Parole Board is ordered to grant Trantino parole subject to the pre-release condition of satisfactory completion of a twelve- month halfway house placement and such other pre- and post- release conditions that it may impose. The Department of Corrections is ordered to place Trantino within thirty days in a halfway house facility within a reasonable proximity to the Camden/Cherry Hill area.
The length of this opinion reflects Trantino's thirty-seven years of incarceration and his numerous prior attempts to achieve parole. Our opinion explains that if Trantino's heinous crimes had been committed after 1997 he would never be eligible for parole, but that under the prevailing law he has been eligible for parole since 1979. We also explain in detail our conclusion that the Parole Board acted arbitrarily and capriciously, and not on the basis of a preponderance of the evidence in the whole record, in deciding to deny parole. We conclude that the Parole Board's extensive reliance on evidence relating to a 1956 robbery, assaultive conduct in 1963 with his first wife, violations from 1961 to 1963 of conditions of his parole from a New York prison, efforts by attorneys in 1974 to remove a New York detainer, and other evidence relating to events occurring prior to the 1963 murders was arbitrary and capricious. That evidence provided no substantial support for the Board's conclusion that Trantino was substantially likely to commit another crime if released on parole now. The Board's reliance on evidence of such remote events was a makeweight to compensate for the lack of substantial evidence to support the Board's conclusions. Moreover, the Board's insistence on the relevance of such evidence substantially undermined the deference that courts ordinarily confer on agency decisions.
We also conclude that the Board's virtually exclusive focus on the 1999 testimony of Dr. Ferguson to find that Trantino's psychological profile made him substantially likely to recidivate further demonstrated the arbitrariness of the Parole Board's decision. As our opinion explains, the Board's determination was not based, as the law requires, on a preponderance of the evidence, but rather on the Board's selective reliance on only that limited testimony that possibly could support a denial of parole. The Board completely disregarded substantial evidence in the record, including three prior recommendations of parole by Dr. Ferguson, that was significantly supportive of parole. It also ignored the conclusions contained in numerous other psychological evaluations including that of the psychological expert retained by the Attorney General — that Trantino presented a low risk of recidivism. The selectiveness of the Parole Board's review of this extensive record further undermines the deference to which its decision ordinarily would be entitled.
We also explain that agencies of government, like the Parole Board, cannot be allowed to apply the rule of law selectively, exempting from its coverage those least favored by society.
We previously have expressed our abhorrence of Trantino's crimes:
The brutality of those crimes, whose victims were a Lodi police sergeant and a police trainee, unquestionably is seared not only in the memories of the victims' families and friends but also in the consciousness of society. From the standpoint of retribution, perhaps no prison sentence, whatever its length, is sufficiently severe. [Trantino IV, supra, 154 N.J. at 43-33].
Thus, our decision today is mandated not by the belief that Trantino has been punished enough, but rather by the rule of law and the lack of substantial evidence in the record to support the Parole Board's decision.
Citizens of New Jersey old enough to recall the circumstances of respondent's brutal murder of Lodi Police Sergeant Peter Voto and Lodi police trainee Gary Tedesco in August 1963 may be astonished to learn that respondent is eligible under the law for parole consideration. Under today's laws, a defendant convicted of the murder of a police officer in the line of duty would face a minimum sentence of life imprisonment without any possibility of parole. N.J.S.A. 2C:11- 3b*fn1. That law, enacted by our Legislature in 1997, L. 1997, c. 60, reflects our contemporary society's belief that the murderer of a police officer should never be released from prison irrespective of the extent of his rehabilitation during his years of incarceration. If that statute had been in effect in 1963 when those homicides were committed, Trantino never would be eligible to be paroled from prison.
Significantly, we note that most of our sister states also have enacted laws, all within the past thirty years, increasing sentences for those who murder police officers.*fn2 That such laws did not exist in New Jersey or in other states in 1963 is attributable to the criminal sentencing philosophy that prevailed throughout the nation during the nineteen-fifties and sixties, and reflected the view then expressed by the United States Supreme Court that "[r]etribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence." Williams v. New York, 337 U.S. 241, 248, 93 L. Ed. 1337, 69 S. Ct. 1079, 1084 (1949).
The Parole Board, represented by the Attorney General, acknowledges that the Ex Post Facto Clause of the United States Constitution, U.S. Const. art. I, § 9, par.3, prohibits the application to respondent of New Jersey's current statute mandating life imprisonment without parole for those convicted of murdering a police officer in the line of duty. Accordingly, the law in effect in 1963 when the murders were committed, supplemented by the Parole Act of 1979, L. 1979, c. 441, N.J.S.A. 30:4-123-45 to -69, is the source of law that governs respondent's eligibility for parole today.
Pursuant to the law then in effect, N.J.S.A. 2A:113-4 (repealed), Trantino was sentenced to death based on his conviction for first-degree murder. That statute had provided that the penalty for first-degree murder was death unless the jury recommended life imprisonment. In 1965 this Court unanimously upheld his conviction and death sentence. Trantino I, supra, 44 N.J. at 371. In 1972, on the basis of the United States Supreme Court's opinion in United States v. Jackson, 390 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209 (1968), this Court concluded "that the United States Supreme Court has declared the death penalty to be unconstitutional under our statute." State v. Funicello, 60 N.J. 60, 67 (1972), cert. denied sub. nom. New Jersey v. Presha, 408 U.S. 942, 33 L. Ed. 2d 766, 92 S. Ct. 2849 (1972). Because of the United States Supreme Court's decision that effectively invalidated New Jersey's death penalty statute, this Court determined that the defendant in Funicello, and the defendants "in all the other [cases] in which the death sentence was imposed," 60 N.J. at 68, would be "sentenced to life imprisonment . . . as of the date the death sentence was initially imposed," and would be "entitled to the same credits as if initially sentenced to life imprisonment." Id. at 67-68(2). Pursuant to the law prevailing in New Jersey at that time, no more severe sentence could have been imposed after the death penalty was invalidated.
The 1979 Parole Act, N.J.S.A. 30:4-123.51(j), expressly provides that the primary parole eligibility date for inmates sentenced to life imprisonment under the law in effect when Trantino's crimes were committed is to be determined in accordance with the provisions of the former parole act, L. 1948, c. 84. Pursuant to that statute, defendants sentenced to life imprisonment became eligible for parole after twenty-five years, less deductions for commutation time and work credits. See N.J.S.A. 30:4-123.11 (repealed) ("Any prisoner serving a sentence of life shall be eligible for consideration for release on parole after having served twenty-five years of his sentence, less commutation time for good behavior and time credits earned and allowed by reason of diligent application to work assignments"). Accordingly, when this Court first had occasion to address Trantino's eligibility for parole, Trantino II, supra, 89 N.J. 347, we acknowledged that Trantino first became eligible for parole in 1979. Id. at 352. That fact was uncontested.
We also recognized in Trantino II, id. at 366, that the standard governing the grant of parole under the 1979 Act is that inmates eligible for parole "shall be released on parole at the time of parole eligibility, unless [it is shown] by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime . . . if released on parole at such time." N.J.S.A. 30:4-123-53. Accordingly, the critical and controlling question in this appeal is whether a preponderance of the credible evidence in the record supports the Parole Board's determination that there is a substantial likelihood that Trantino will commit a crime if he is released on parole.
A summary of the Parole Board's dispositions of Trantino's prior efforts to achieve parole status will provide a context for our review of the evidence considered by the Parole Board.
Trantino first became eligible for parole consideration in 1979. Operating under the former parole statute, the Parole Board denied his first parole application in 1979, and denied a second application in April 1980 on the ground that "the punitive aspect of this sentence has not been satisfied." Trantino II, supra, 89 N.J. at 353. In June 1980, in a parole proceeding conducted under the current parole law, L. 1979, c. 441, a single Board member sitting as a hearing officer recommended parole, finding "no substantial likelihood [of future criminal conduct]." Id. Pursuant to N.J.S.A. 30:4-123.55b, the Board's Chairman affirmed the hearing officer's recommendation and approved parole release effective August 12, 1980, subject to conditions, including intensive supervision and restitution to the victims' families in an amount to be fixed by the sentencing court. Trantino II, supra, 89 N.J. at 353-54.
After the Law Division declined to fix the amount of restitution, the Parole Board vacated its earlier release order and then established a new release date of December 23, 1980, again subject to restitution as a special condition. Simultaneously, the Board appealed the Law Division's order declining to fix restitution, and Trantino appealed from the Board's December 1980 decision reimposing restitution as a condition of parole. The Appellate Division affirmed the Law Division's order declining to fix an amount for restitution and reversed the Board's December 1980 decision reimposing restitution as a condition of parole. In re Parole Application of Thomas Trantino, 177 N.J. Super. 499, 521-23 (App. Div. 1981). This Court granted both the Board's and Trantino's petitions for certification. In re Parole Application of Thomas Trantino, 87 N.J. 385 (1981). We held that although restitution lawfully may be imposed as a condition of parole under the Parole Act of 1979, the Board's perception of the scope of restitution was "much too imprecise and broad" and that the Board was obligated to establish specific criteria to guide and limit the sentencing court's determination of the amount of restitution to be paid. Trantino II, supra, 89 N.J. at 361-63.
We also noted the substantial difference in sentencing philosophies between the Code of Criminal Justice, N.J.S.A. 2C:1- 1 to 104-8, and the provisions of Title 2A under which Trantino was sentenced, observing that although inmates sentenced under the Code presumptively will have satisfied the punitive aspects of their sentences when first becoming eligible for parole, that may not be the case for inmates sentenced under Title 2A. Id. at 370. Accordingly, in remanding the matter to the Parole Board we required the Board to "reassess the punitive aspects of Trantino's sentence in considering the extent of his rehabilitation and his fitness for parole." Id. at 373. We also noted that "public outrage over an imminent parole determination, such as that which has occurred in this case, has no place in a parole proceeding and is to be given no weight in a parole decision." Id. at 376. Finally, we held that "the Parole Board is authorized to reconsider and redetermine Trantino's fitness for parole. . . . 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 Trantino parole." Id. at 377.
On remand, the Parole Board held a new hearing resulting in the denial of Trantino's parole application and the imposition of a ten-year future eligibility term (FET). In announcing its determination in October 1982, the Parole Board Chairman explained to Trantino that upon completion of the ten-year future eligibility term, less commutation and work credits, the punitive aspect of Trantino's sentence would be considered to be fulfilled. According to the Board Chairman, the Board concluded that the punitive aspect of Trantino's life sentence as a Title 2A prisoner should be approximately equal to the twenty-five year parole ineligibility period imposed on a Title 2C life-sentenced prisoner. See N.J.S.A. 2C:43-7(c). Accordingly, the Board Chairman encouraged Trantino to assume that after serving twenty- five years in prison (1963-1988) he would be presumptively eligible for parole unless "through [aberrant] behavior you were to do something that gave rise to its reconsideration.*fn3
In 1988, when the ten-year FET, less credits, had been served, a two-member panel of the Board recommended parole release. However, a majority of the Board voted to deny parole and imposed a six-year FET, apparently on the basis of Trantino's unwillingness to participate in drug counseling or long-term psychotherapy. In an unpublished opinion, the Appellate Division upheld that determination by the Parole Board.
Trantino next became eligible for parole in November 1990, and the Parole Board denied parole and imposed a four-year FET. In May 1991, however, the Board vacated that decision, resulting in a new hearing in September 1991 after which the Board again denied parole and imposed a three-year FET, "with recommendation that DOC (Department of Corrections) place Mr. Trantino in a halfway house." In its formal decision denying parole issued October 9, 1991 the Board acknowledged "the positive efforts Mr. Trantino has made during his incarceration, specifically his participation in psychological counseling and substance abuse programs since his last hearing." However, the Board determined that Trantino "can still further benefit from individual and group counseling thus giving him a greater opportunity to achieve his rehabilitative potential," concluding that "rehabilitation has not yet been sufficiently achieved and therefore the punitive aspect of his sentence has not been satisfied." Board members Andrew Consovoy and Luis Garcia dissented from the denial of parole. In its October 1991 decision the Parole Board made the following recommendations:
It is suggested that Mr. Trantino continue his participation in supportive programs available within the institution to better prepare himself for his eventual return to the community and thereby reduce the likelihood of his return to criminal activity upon his release. The Full Board urges Mr. 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 III, supra, 296 N.J. Super. at 477 (emphasis added).]
Trantino promptly requested that the Superintendent of Riverfront State Prison authorize his transfer to a halfway house. The Superintendent orally disapproved that request in December 1991, and confirmed his denial in writing in April 1992. Id. at 449.
Trantino next became eligible for parole in November 1992. In its opinion addressing the Parole Board's 1996 ruling denying Trantino parole and imposing a ten-year FET, Trantino III, supra, 296 N.J. Super. 437, the Appellate Division majority described the result of Trantino's 1992 efforts to achieve parole. The court stated:
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, "[y]ou'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."
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.*fn4 [Id. at 449-51.]
In its December 17, 1993 decision imposing a three-year FET, the Parole Board panel stated:
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. . . . [W]e 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.
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. [Id. at 453-54 (footnote omitted)(emphasis added).]
Consistent with the Parole Board's express findings, in November 1993, and again in January 1994, Trantino applied to the Department of Corrections for transfer to a halfway house. Those requests were denied in February 1994. A June 1995 letter from the Administrator of Riverfront prison explained that the denial was based on the receipt of threats to kill Trantino if he were placed in a halfway house, the circumstances of the offense, the risk of possible adverse community reaction, and the objection of a member of the Legislature.*fn5
Trantino again applied for parole in September 1994, but the hearing panel denied parole and imposed a three-year FET. In its April 17, 1995 decision explaining the reasons for the September 1994 denial of parole, the panel acknowledged that Trantino "has made enormous progress toward reaching his full rehabilitative potential in the 30 years of his incarceration," but concluded that Trantino "has not reached his full rehabilitative potential, therefore the punitive aspect of his sentence has not been satisfied, and that a substantial likelihood that he will commit a crime if released on parole at this time continues to exist, and parole is denied." (We note that the Board's finding concerning the punitive aspect of Trantino's sentence directly contradicted Chairman Dietz's statement in 1982 that after imposition of a ten year FET "the punitive aspect of the sentence . . . is resolved.") On April 26, 1995, the full Board denied Trantino's appeals from the Board Panel determinations of November 12, 1993 and September 1, 1994. However, on August 30, 1995 the Parole Board vacated its April 26, 1995 decision and scheduled a new parole hearing during the following month.
After a hearing on September 14, 1995, a two-member Board panel denied parole and informed Trantino that it intended to "exceed the guidelines" and establish a future eligibility term greater than thirty-six months. Although the Panel acknowledged "the great strides you have made towards achieving your rehabilitative potential over the course of the last thirty-two years," the Panel primarily based its denial of parole on Trantino's failure to remember certain aspects of the crimes. The decision stated:
It is the Panel's belief that your failure to remember certain details regarding the murder is inhibiting you from reaching your rehabilitative potential. In sum, the Adult Panel is of the position that until you can remember specific events regarding the murder, including firing the gun that killed Sgt. Voto, you will not be able to fully accept your role in the crime and will not achieve your rehabilitative potential. Therefore, the Panel believes there is a substantial likelihood you will commit a crime if released on parole. The Adult Panel is of the belief that based on the severity of the crime for which you were sentenced, your prior criminal record, and your need for long term counseling, a future eligibility date established pursuant to N.J.A.C. 10A:71-3.21(a) is clearly inappropriate. Therefore, the Adult Panel is referring your case to a three member panel for establishment of a future eligibility date beyond code guidelines, pursuant to N.J.A.C. 10A:71- 3.21(d). It is the Adult Panel's belief that a future eligibility term pursuant to N.J.A.C. 10A:71-3.21(d) will allow you the opportunity to undergo long-term psychological counseling. Hopefully, this counseling will aid you in your attempt to remember specific details regarding the shooting of Sgt. Voto and other events that took place immediately before and after the murders.
The Adult Panel is aware that a different Board Panel determined at your parole hearing on November 12, 1993 that you had reached your rehabilitative potential within the confines of prison and that your progress toward real and not superficial rehabilitation could only be maintained by placement in a halfway house as an inmate. You have attempted on numerous occasions to be placed in a halfway house as an inmate. The Department of Corrections has continually denied you placement into a halfway house. While this Adult Panel believes placement of you into a halfway house would be beneficial to you in your goal to reach your rehabilitative potential, it is this Panel's determination that certainly this is not the only means by which you can achieve this goal. It is this Panel's position that you can eventually reach this goal through long term psychological counseling in an institutional setting. [Trantino III, supra, 296 N.J. Super. at 458-59 (emphasis added).]
In April 1996 the full Parole Board voted to impose a ten- year future eligibility term. In the interim, the Appellate Division reinstated Trantino's appeal from the Board's 1993 and 1994 dispositions, and permitted Trantino also to challenge the Board's most recent denial of parole in 1995.
A divided Appellate Division panel upheld the Parole Board's denial of parole and imposition of a ten-year FET primarily on the basis of the Board's conclusion that Trantino's inability to recall details of the crimes evidenced a lack of candor or credibility that suggested a likelihood of future criminal activity if Trantino were released on parole. Id. at 466-71. However, the Appellate Division majority emphasized the "consistent position of the Board that it cannot prudently grant parole to a long-term prisoner, convicted of a crime such as murder, before performance in a halfway house or residential facility can be thoroughly evaluated." Id. at 465. Accordingly, after concluding that the Department of Corrections' denial of Trantino's request for halfway house placement was not supported by a final determination with an adequate statement of reasons, the Appellate Division remanded the matter to the DOC for "consideration of an updated application for halfway house (or out-of-State transfer) and for findings and a statement of reasons with regard to such application." Id. at 464.
Judge Pressler, concurring in part and dissenting in part, agreed with the remand to the DOC but would have directed the DOC "forthwith to place defendant Thomas Trantino in a pre-parole halfway house or residential facility or to effect his out-of- State placement." Id. at 471 (Pressler, P.J.A.D., concurring in part and dissenting in part). She added:
In the absence of such prompt action by the Department, I would remand to the Parole Board for its prompt consideration of parole-release conditions including, if a pre-release halfway house placement is not possible, then a closely monitored post- release placement as well as such other parole conditions as the Board concludes are necessary and appropriate. I would so do because I am persuaded that the record overwhelmingly demonstrates the arbitrariness and unreasonableness of both the Department's denial of halfway house or out-of-state placement and the Parole Board's decision, responsive to that denial, to deny parole and impose a ten-year future eligibility term. [Ibid.]
Trantino appealed as of right to this Court, R. 2:2-1(a)(2), based on the dissent below. In a unanimous opinion, we affirmed that portion of the Appellate Division judgment holding that the Department of Corrections' refusal to transfer Trantino to a halfway house was not supported by an adequate statement of reasons. Trantino v. New Jersey State Parole Board, 154 N.J. 19, 22 (1998) (Trantino IV). We reversed the Appellate Division judgment upholding the Parole Board's denial of parole and fixing a ten-year FET based on our conclusion that the Board's decision was not "based on a proper standard and supported by sufficient evidence and adequate findings of fact." Id. at 23 (emphasis added). Accordingly, this Court clarified the standard governing Trantino's parole eligibility and remanded the matter to the Parole Board to reconsider the evidence and redetermine Trantino's eligibility for parole. Ibid.
We specifically noted that although the Parole Board did not ignore recidivism as a criterion of parole fitness, its most recent decisions appeared to focus on whether "Trantino had made sufficient progress toward ?reintegration into society,' was ?fully rehabilitated,' had realized ?his real rehabilitative potential,' had reached his ?true and full rehabilitative potential,' and had achieved ?real and not superficial rehabilitation' and ?complete and total rehabilitat[ion].'" Id. at 30. Accordingly, we determined that the record was unclear on whether
the Parole Board invoked a test that focuses primarily and essentially on the likelihood of criminal recidivism or whether it followed the more exacting and difficult test of full or complete rehabilitation that assures not only that an inmate will continue to lead a law-abiding life, but also that he or she will assume a responsible role in society consistent with the public welfare. [Id. at 32.]
In our opinion we commented extensively on the evidence in the record suggesting that Trantino's rehabilitation in prison was sufficient to indicate a low likelihood of recidivism. We stated:
Trantino's prison record plainly is material in determining whether he has achieved a level of rehabilitation such that he has been sufficiently deterred and there is no likelihood of recidivism. That record discloses substantial evidence of significant rehabilitation tending to demonstrate that Trantino has overcome any likelihood of recidivism. He has had no substance abuse violations in prison and no rules infractions since 1970. Trantino has already participated in sixty-nine work and recreation details that involved excursions into the community and has gone on overnight furloughs without incident. Further, he has completed seventeen programs designed to enable him to help fellow inmates and has been in individual and group psychotherapy for the past twenty-five years. Finally, Trantino's supervisors in prison have consistently rendered favorable reports.
Psychological evidence also supports a determination of substantial rehabilitation militating against the likelihood of recidivism. Dr. James Bell, one of two evaluating psychologists, said in his July 1995 report: "[W]ithin the prison system, [Trantino] has been an exemplary inmate and not only has invested in several programs to improve himself, but also has started several programs to assist youthful delinquent offenders and substance abusers." Dr. Bell further stated in his report:
Clinically, he impresses as a man who has reached a point of change come about through sincere self-inventory and aspirations to atone for the great wrong he has done in his life. He has adequate mental and emotional resources to live a socially responsible, self-reliant life. His PASS score of 66% suggests an above average possibility of post-release success.
An August 1995 evaluation by Glenn Ferguson, the other evaluating psychologist, states:
Presently, Thomas [Trantino] functions more as a staff member in the prison than as an inmate. He has developed a well-rounded and reputable support network which should enable Thomas to manage the increased stress level of independent living optimally. He has a high level of motivation for continued education, therapy and employment. His employment plans appear realistic and attainable, including technical work with his wife's copyrighting company and creative work in art and therapy. . . . The combination of well-established social supports, motivation for ongoing treatment, and age will most likely lead to a successful parole outcome. [Id. at 32-33 (citations omitted) (footnote omitted).]
Concerning the Parole Board's determination that Trantino's inability to remember details of the crime was preventing him from reaching his full rehabilitative potential, this Court observed that "there is evidence in the record that Trantino's memory loss is consistent, long-standing and genuine, and, beyond the issue of recollection, his acknowledgment of responsibility is sincere and legitimate. That Trantino acknowledges and accepts responsibility for his crimes is disclosed in the record of his numerous parole proceedings." Id. at 35. We noted that Trantino's acknowledgment of full responsibility for the crimes was corroborated by two Board psychologists, one of whom, Dr. Glenn Ferguson, in his August 1995 evaluation of Trantino, stated: "`[Trantino] has consistently claimed no recollection of the actual offense, although he accepts full responsibility for both murders, in light of eye witness testimony, and his recollection of holding a gun both prior to and after the offense.'" Id. at 35-36.
Accordingly, we held that the record did not provide an adequate evidentiary basis for the Parole Board's rejection of the conclusions of those two psychologists. Id. at 36. Further, we held that the record "does not clearly sustain the conclusion that long-term psychotherapy will eventuate in a breakthrough recollection [of the details of the crimes] or that such a recollection is necessary, given Trantino's repeated acceptance of responsibility, in order to ensure that he has achieved a level of rehabilitation that eliminates the likelihood that he will, if released, commit crimes." Id. at 38.
Finally, in remanding the matter to the Parole Board to reconsider whether there is a likelihood that Trantino will again engage in criminal activity, this Court provided specific instructions concerning the remand proceedings before the Parole Board:
In evaluating Trantino's fitness for parole under this standard, the Parole Board should give weight to the facts that Trantino is now sixty years old and, as already noted, has previously been released on sixty-nine work details and two furloughs without incident; has not violated a correctional rule in twenty-seven years; has successfully completed substance abuse counseling; has educated himself while in prison; has pursued the available vocations for prisoners; has a stable support network; was housed without incident at the Wharton Tract, a facility without perimeter guards; and has been deemed fit for transfer by the last two psychologists to evaluate him. Moreover, in light of that evidence, the length of time Trantino has served under his sentence, and the successive occasions on which he has been deemed eligible for parole, punishment is no longer a material consideration in the parole determination.
In its determination, the Board can devise pre-release conditions that will allow it to assess how Trantino handles the stresses of society that may induce or impel him to commit crimes. Those conditions could include community work details, furloughs, minimum security status, and other measures that would serve to reintroduce Trantino gradually into society and lead to his ultimate release. Alternatively, the Board may decide to impose post-release conditions, such as intensive supervision and drug testing, that would ensure that Trantino was not behaving in a way that indicates he will engage in criminal activity.
In its redetermination of parole fitness, the Parole Board may also consider halfway house treatment as a condition of parole. [Id. at 39-40.]
Proceedings on Remand to the Parole Board
Immediately following this Court's May 1998 decision reversing the Parole Board's denial of parole and imposition of a ten-year FET, and remanding for a new parole determination consistent with this Court's opinion, Trantino renewed his request for transfer to a halfway house in anticipation of his new parole hearing. Department of Correction regulations require that, prior to transfer to a halfway house, inmates must undergo a "risk/needs" assessment at one of two residential substance- abuse treatment centers under contract with DOC, and be approved for transfer by the Institutional Classification Committee (I.C.C.). See N.J.A.C. 10A:20-4.4, 4.5 and 10A:9-31. After an evaluation by a DOC psychologist in July 1998 found Trantino suitable for halfway-house placement, the Riverfront State Prison I.C.C. recommended that Trantino be transferred to Talbot Hall in Kearny, one of the residential treatment centers that screened inmates prior to halfway-house assignment. The Assistant Commissioner of DOC approved the recommendation and Trantino was transferred to Talbot Hall*fn6 on August 18, 1998.
The record reveals that immediately after Trantino's assignment to Talbot Hall numerous public officials protested the transfer, and a statement issued by the Office of the Governor expressed her "surprise" over the transfer and her request that the transfer be reviewed by the Attorney General. The Attorney General's office requested that a new psychological evaluation be conducted by Dr. Michael Welner to determine whether Trantino's assignment to Talbot Hall was appropriate. Dr. Welner issued his report on November 9, 1998, finding among other things that Trantino's risk of recidivism was low but that his prior history of substance abuse required that he again participate in an Alcoholics-Anonymous-type twelve-step program prior to community release. Three days later, on November 12, 1998, the DOC's Community Classification Committee at Talbot Hall determined, on the basis of Dr. Welner's report and various psychological tests administered at Talbot Hall, that Trantino was unsuitable for halfway house placement in part because he presented an "escape risk" and had an "unresolved substance abuse problem." Trantino was transferred that same day to South Woods, a medium security prison, with a recommendation that he be assigned to a substance abuse program. At South Woods, however, Trantino's application for enrollment in its substance abuse program was rejected because his score was substantially below the minimum requirement on an Addiction Severity Test for admission to the program, and he asserts that that rejection significantly undermined the reliability of the Talbot Hall Committee's determination. Trantino's cross-petition for certification challenges the legality of his transfer from Talbot Hall to South Woods. In an unreported opinion the Appellate Division previously has dismissed as moot the appeal asserting that that transfer was illegal.
B. Evidence Adduced at Parole Board Hearing
In view of the magnitude of the record before us, which includes not only evidence and testimony presented at the Parole Board's latest remand hearing but also the entire appellate record underlying this Court's 1998 disposition, we will focus our attention on the evidence that relates specifically to the grounds relied on by the Parole Board in denying parole. The Board based its June 9, 1999 decision to deny parole primarily on four grounds:
1. "The Parole Board is primarily concerned with your psychological profile, as reflected primarily by the testimony of Dr. Ferguson. Dr. Ferguson's testimony leads the Board Members to conclude that it is likely you would commit a crime if released on parole."
2. "The Parole Board is also concerned regarding your lack of a suitable parole plan, especially in light of Dr. Ferguson's comments."
3. "The Parole Board is also concerned with your failure to address in psychological counseling the issues that led you to engage in domestic violence with your first wife."
4. "[T]he Parole Board Members are very concerned about your long standing history of being less than candid with Board Members and psychologists about issues that are at the core of your case."
5. Although not specifically characterized as a separate ground for denial of parole, Trantino's professed intention to write a second book was sharply criticized by the Board in its decision denying parole. "Perhaps no other conversation at your hearing on June 9, 1999 exemplifies areas in which you have not made great changes, than your conversation with Mr. Gomez regarding the possibility of you writing a book if you were paroled."
We summarize the evidence in the record that is relevant to each of the grounds for denial of parole advanced by the Parole Board. We do so in reverse order because the evidence adduced in connection with the first ground, Trantino's psychological profile, is more complex than the evidence relating to the other grounds.
1. Trantino's Plan to Write Another Book At the June 9, 1999 hearing, Board member Gomez criticized Trantino's intention to write a second book.
MR. GOMEZ: The problem is basically the victims, once again, are going to suffer. You know what it is, you are going to suffer. You say you suffer about Charlee [Trantino's second wife], you don't want to hear people talk about the[m], but you are willing to write a book -
MR. GOMEZ: --And have people suffer again.
MR. TRANTINO: No, I am not willing to do that, and that is not my intention. If I try to write a book again, and it certainly wouldn't be about their families, their family members.
MR. GOMEZ: You are missing the point.
MR. TRANTINO: I am getting the point, but it's not —
MR. GOMEZ: You are profiting, you are profiting.
MR. TRANTINO: Yes, profiting from a crime.
MR. GOMEZ: You are talking about putting salt in people's wounds. You don't think that is putting salt in people's wounds?
MR. GOMEZ: It's as simple as that.
MR. TRANTINO: I was not thinking about that.
MR. GOMEZ: The last question.
MR. TRANTINO: I was thinking -
MR. GOMEZ: Continue if you want, I only have one more question.
Later during the June 9, 1999 hearing Trantino responded to
Board Member Gomez's criticism:
MR. TRANTINO: What I was thinking of was Charlee and Charlee's debt that she has and trying to do something about that.
MR. TRANTINO: And a book, now the book I'm taking very seriously what Mr. Gomez said and what you are saying here.
MR. TRANTINO: I never, it does - I have expressed this to you over many times about the families here, it really does hurt me, I had a mother, that could have been my mother, it could have just been the opposite thing, I know the sorrow that the kind of feelings they have, I wouldn't want to hurt them. What I would be doing would not be to hurt them.
MR. CONSOVOY: But that's one point, and as I say that's why you have to in or out of the prison, where ever you may go when we are done with today, you must deal with this narcissistic diagnosis and the features thereof, because that's what that is, Tom. I am not saying you meant to hurt them, you don't mean to hurt them, but the way you look at things that's how you looked at it. You were doing a good thing for Charlee. On the other hand, you were ruining -
MR. TRANTINO: I don't know.
MR. CONSOVOY: That is my point.
In addition, during Trantino's final remarks at the June 9 hearing, he stated:
What you just said bothered me a lot, about the families. It just brought up stuff, you know, I work on that, and it hurts. I don't want to hurt them. And now I have to - I am going to rethink about the book. After what you and Mr. Gomez pointed out, that bothered me a lot. I, more than anything, I'm sorry for what I did, I shot and killed two people. And it wasn't only their lives I took, their families, their families as well were affected right to this day, as you are pointing out here. And that is something that I try to live with, I try to deal with, I try to heal, I am ashamed of that.
The Board listed seven "examples of when Trantino has been less than candid with authorities or psychologists or [has mitigated] central events [in his] life or aspects of [his] personality."
(a) The Talbot Hall Incident
In February 1999 the Parole Board conducted an interview by telephone with Joseph Trabucco, the Director of psychological testing at Talbot Hall, whose qualifications include a master's degree in psychology. In September 1998, after numerous public officials had protested Trantino's assignment to Talbot Hall, Trabucco administered to Trantino a 175 question true-false test known as the MCMI-II, the result of which suggested that Trantino possessed a mild to moderate psychological dysfunction and stated that "[a]lthough violence is not a major characteristic of this inmate's behavioral repertoire, there may be occasions when violence can be provoked, although not readily." Trabucco described Trantino as "a very controlled individual, thinks about what he's saying, thinks about who he's speaking to, calculating if you will." In response to Board Chairman Consovoy's question concerning "any specific types of instances that might provoke him to violence," Trabucco related an incident that the Board deemed significant in assessing Trantino's likelihood of recidivism. Trabucco stated that in September 1998 he tested Trantino about substance abuse only on the basis of events during the preceding year, and the test result revealed no substance abuse problem. Trantino was then asked to retake the same test, this time responding on the basis of his entire lifetime. According to Trabucco, Trantino became "sort of agitated" and "definitely perturbed." He said "Why are you making me do this?" Trabucco stated that Trantino's "veneer . . . started to — to crack a little bit," and described the incident in the following manner:
His face was kind of red, he was slightly more animated and agitated. And he said, You know, I know it's not you, Mr. Trabucco, but, you know, those guys at corrections, they're out to get me. And he went into this kind of spiel about how it wasn't me that was making him take this test, but other people, and they were going to take the results and do what they wanted to do anyway. And we got him to sit down again, and then he got up the third time and was then agitated enough, now again, I didn't feel threatened, I didn't feel, you know, that he was going to hit me or anything, but he--it was the only time in this whole experience here when I--when I sensed that that veneer had cracked to some extent. He was highly animated and agitated, took his glasses off, was sort of pacing, was a very different Mr. Trantino then [sic] I think most people get to see. And--and well, he didn't take--the outcome was we didn't--we couldn't get him to sit down and take the other part of the test, and I'm not sure it mattered much in the long run anyway.
But as I look back and look at the results of the testing and his experience here, I mean I think what--what it indicated to me was, that when--when you put him in a situation, when you press him, or put him in a situation he doesn't feel in control or totally comfortable with, you begin--you begin to see this other side of--of this person, which, you know, the cool calculated responses tend to vanish, and the agitation sets in. [Trantino V, supra, 331 N.J. Super. at 589.]
Cynthia Smarook, an assessment counselor at Talbot Hall, who was interviewed by the Parole Board's executive director, confirmed Trabucco's characterization of the incident. Smarook also reported that during Trantino's stay at Talbot Hall, he was "controlled, he was polite, he was cooperative, he was actually rather chatty," and had not exhibited any prior agitation, other than the incident. When told that Trantino later denied the incident, Smarook responded that:
[H]e's either lying or it - it happened fairly quickly and he just completely put it out of his mind that - that it occurred. I don't - I can't tell whether or not he is deliberately lying about it. It - it was fairly quick before he was told he didn't have to take it based on the - the same stipulations as the rest of the population who does.
At his June 4, 1999 hearing before the Parole Board, Chairman Consovoy, without mentioning Trabucco, referred to an incident at Talbot Hall during which Trantino became "agitated" and "quite perturbed." Trantino denied that any such incident had occurred. Between the June 4 and June 9, 1999 Parole Board hearings Trantino apparently was shown a copy of Dr. Rosenfeld's report that referred to the Trabucco incident. At the June 9 hearing, when Trantino again was asked about the incident by Consovoy, with specific reference by name to Trabucco, Trantino explained his earlier denial and recounted his version of what had occurred: "[On June 4] [y]ou didn't mention Mr. Or [sic] Dr., I think he is a psychologist, Tribucco [sic].
I know the incident now, there was a woman psychologist, she went to give me a test, and I am saying this is not appropriate, and it was in this computer room. Other people were there, including Dr. Trabucco was in the back, and I just turned to him, I said, Doctor, could you help out over here. And he said what's the problem? I stated the problem and he told her that this man is in remission, he does not have to take that test, that's what he said, not whatever is said there actually, that's not what happened.
Now I might have been perturbed, certainly I was perturbed, but not angry, I was able to talk to him and he straightened it out. He said I didn't have to take it, that I am right. The man is in remission, he took the other test, all these other tests, he is okay, throw that away. That is what he said to that woman. [Id. at 597.]
Nevertheless, in its decision denying parole the Parole Board relied on Trantino's inconsistent responses on June 4 and June 9 concerning the Trabucco incident as evidencing a lack of candor that was germane to Trantino's likelihood of recidivism:
The record indicates that you became upset when asked to participate in the SASSI Test at Talbot Hall in September, 1998. At your two member Panel hearing on June 4, 1999, you denied that this event ever occurred. At your full Parole [B]oard hearing less than a week later, you admit something did happen, but denied it happened as was reflected in statements Chairman Consovoy read to you (a statement provided by Mr. Trabucco who conducted the testing). This exchange is reflected in Pages 234 through Page 236 of the June 9, 1999 hearing transcript. In the opinion of the Parole Board you have been less than candid about this incident and the Board finds the statements of Mr. Trabucco and Dr. Smarouk [sic], the two individuals who conducted the test, to be more credible than your statement regarding this incident. [Id. at 612.]
(b) Trantino's Lack of Candor Concerning the Murders of Voto and Tedesco
At the June 9, 1999 Parole Board Hearing, Chairman Consovoy questioned Trantino about his responsibility for the murders.
MR. CONSOVOY: [W]hen [Rosenfeld] says regardless of whether or not you actually fired the gun, did you fire the gun?
MR. TRANTINO: Yes, I shot and killed both men.
MR. CONSOVOY: You're sure?
MR. CONSOVOY: Okay. And whether or not there was ever any evidence that you shot Gary Tedesco it is your position that you did?
In its decision denying parole, the Parole Board referred to prior occasions in 1964, 1967, 1980, 1982, 1995, and 1998 in which Trantino claimed that he did not recall pulling the trigger and committing the murders. The Board concluded that Trantino's inconsistent testimony about whether he recalled committing the murders constituted an additional basis for denying parole:
This issue appears now to be a moot issue in light of your statement at your June 9, 1999 hearing that you are now sure that you shot and killed both individuals. The Supreme Court also stated that there was evidence that your memory loss is consistent, long standing, and genuine. With all due respect to the State Supreme Court, the Parole Board, based on a review of your entire record, does not find your claims of past memory loss as consistent or genuine. The issue at this time for the Parole Board is not whether you have made a sincere avowal of responsibility for commission of these offenses. [It is] the [sic] opinion of the Parole Board that you have sincerely claimed responsibility. The issue is rather, in the opinion of the Parole Board, that you have not been candid in the past with psychologists or Board Members regarding your memory of that night and this lack of candidness on a central issue to you is part of an ongoing pattern of deception you have exhibited with authorities.
(c) Trantino's Actions on Parole in New York
In its June 1999 decision denying parole, the Parole Board quoted from portions of Trantino's May 25, 1961 hearing before the New York State Parole Board that resulted in his parole from prison in New York in June 1961. The Board observed that Trantino "would reward the faith the New York paroling authority placed in you by returning to committing burglaries, using and abusing alcohol and narcotics, associating with criminals wanted for murder (including harboring those individuals), and ultimately slaughtering two police officers in the Angel Lounge in Lodi, New Jersey on August 25, 1963."
In his testimony before the Board in June 1999, Trantino acknowledged that while on parole in New York he failed to report as required, had quit his job, and was living at an unauthorized address. The Board also noted that during this period Trantino was consorting with known criminals and had on one occasion directed his wife to lie to his parole officer concerning his whereabouts. Based on that record testimony revealing Trantino's breach of his obligations to New York parole authorities from 1961 to 1963, the Parole Board concluded that Trantino's conduct during that period also reflected a lack of candor justifying denial of parole:
It is clear based on a review of your New York parole records, you did not follow conditions of parole placed on you by New York paroling authorities. In addition to resorting to criminal behavior with known criminal associates while on parole, records indicate you lied to parole officials in New York when you were hiding Falco and Cassarino, both wanted for murder, prior to the murder in Lodi. The Parole Board also notes your statements to New York paroling authority prior to parole release in 1961 and your subsequent failure to follow through on your commitment to the New York paroling authority, as reflected earlier in this notice of decision.
(d) Trantino's Account of the Payroll Robbery on February 16, 1956
The Parole Board also concluded that Trantino's attempt to understate the violent nature of a robbery he committed in New York in 1956 reflected a lack of candor that supported denial of parole. The Board's June 1999 decision denying parole described the circumstances of that robbery:
Records indicate on February 16, 1956, you and a co-defendant, George Fernandez, accosted a twenty-one year old dental assistant, Carmella DeVito, and stole $500.00 of payroll money from the dental office Ms. DeVito worked at. Records indicate that when Ms. DeVito approached you and your co- defendant, your co-defendant placed his hands over Ms. DeVito's eyes and mouth. You then pulled Ms. DeVito down and located a payroll envelope in her pocket. Ms. DeVito struggled and was pushed up against a wall. Ms. DeVito and your co-defendant then fell on the tile floor. Ms. DeVito screamed and then you and your co-defendant released her. You and your co-defendant would subsequently be arrested for this offense and your co-defendant would admit to committing twenty-five burglaries prior to this incident and several of the burglaries in your company. As a result of the assault, Ms. DeVito received a black eye, bruises and later suffered from somatic pains, lack of sleep and nightmares as a result of this incident. You would later be indicted for first degree robbery, first degree grand larceny and second degree assault. On June 18, 1956, as the result of a plea bargain, you were given a five to ten year sentence for second degree robbery. [Trantino V, supra, 331 N.J. Super. at 616.]
At its June 9, 1999 hearing Chairman Consovoy questioned Trantino about whether the 1956 robbery was a violent crime.
MR. CONSOVOY: Now I am going to paraphrase, tell me if I am not right, accurate or fair, that this was a snatching of a payroll?
MR. CONSOVOY: From a female?
MR. CONSOVOY: Who was going to or from the bank and this was an ...