On appeal from a final decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 17, 2008
Before Judges C.L. Miniman and King.
Inmate James Hyson appeals a final decision of the New Jersey State Parole Board (Board) denying him parole and imposing a sixty-month future eligibility term (FET). We remand for further consideration in light of Hyson's twenty-two year spotless institutional record.
Hyson, born April 11, 1952, has a criminal history beginning as a juvenile when he was sentenced to two probationary terms, one term of incarceration. He was subsequently paroled on April 13, 1970. As an adult, he was convicted of five offenses between January 4, 1971, and February 20, 1974, and had parole revoked twice. Two of the five offenses were indictable convictions. His sixth offense was the rape, robbery, and felony murder*fn1 of a seventy-nine-year-old woman on April 5, 1974. Hyson pled guilty to murder and all other charges were dismissed. He was sentenced to twenty-five to twenty-seven years in prison and was paroled on December 15, 1981, with a maximum expiration date of June 28, 1991.
About four months after he was paroled, Hyson hitchhiked home from work after drinking whiskey and beer in a bar in Mill-ville.*fn2 After he was dropped off near his home, he observed an elderly woman clearing brush from her yard. Hyson approached her, struck up a conversation, and offered to assist with the yard work. She declined and turned to enter her home, but Hyson followed and asked her for a drink of water. The woman instructed him to use the outside spigot and said she would bring him a glass. However, when she opened the door, Hyson grabbed her, forced her onto the couch, put his hand over her mouth, removed her underwear, raped her, and robbed her.
Later that day, Hyson was arrested and charged with burglary, making terroristic threats, aggravated sexual assault, sexual assault, and robbery. On August 23, 1982, he pled guilty to burglary, aggravated sexual assault, and robbery; the remaining charges were dismissed. He was later sentenced to a term of life imprisonment with no minimum term for aggravated sexual assault and fifteen concurrent years for robbery.*fn3 His parole was not revoked.
Hyson first became eligible for parole in 1997. The Board denied parole and imposed a ten-year FET, less credits received. The Board again denied him parole in 2002, 2003, and 2005, each time imposing three-year FETs. The Board explained that these denials were based upon Hyson's extensive past criminal record, parole violations, confidential reports, and failure of prior incarceration/parole to deter future criminal behavior. Each denial generally recommended that Hyson participate in substance abuse counseling, one-to-one counseling, group counseling, institutional programs geared towards curbing criminal behavior, and remain infraction free.
Hyson complied with these recommendations, and has been infraction-free since 1986. He states that he has maintained sobriety from alcohol and drugs since 1993, and from all substances including smoking since 1997. Since 1986, he has attended over 150 rehabilitative groups and courses, e.g., focus on the victim (2006), moral recognition (2006), and anger management (2005). Hyson has enrolled in psychological counseling, in both one-to-one and group sessions. He has become involved with church services, and assists as a peer leader and a mentor to other inmates in many of his rehabilitative classes, including Narcotics Anonymous and Alcoholics Anonymous. Hyson has completed eighteen college credit hours, and has received certificates from the New Jersey and United States Departments of Labor for completing a cement mason apprenticeship program. He has assisted with multiple capital improvement projects at Southern State Correctional Facility, and has received many letters of commendation and reference from state administrators, social workers, and clergy. He states that he is engaged to one of his former social workers, who lives in Elmwood Park, and hopes to marry her if he is released from prison.
Hyson received his fifth and latest parole hearing on November 20, 2006, before a two-member panel of the adult Board. The two-member panel denied parole and referred the case to a three-member panel to consider imposition of an FET outside the guidelines of twenty-seven months codified under N.J.A.C. 10A:71-3.21(a)1. The three-member panel imposed a sixty-month FET and issued a twenty-six-page Notice of Decision (Notice) on March 27, 2007, detailing the reasons for the denial.
The Notice comprehensively recited Hyson's past offenses and two parole violations. The panel placed a variety of Hyson's responses to questions posed at the hearing on the record, focusing for the most part on crimes committed in the 1970s and 1980s and his past substance-abuse problems. When asked why he "inflicted his anger immediately" on his 1982 septuagenarian victim, Hyson responded "I think that you . . . are trying to have a rational answer for irrational behavior . . . and I really can't tell you that." The panel also posed a hypothetical question in which Hyson came home to find his girlfriend with another man. Hyson responded that he would pack his bags and leave, which the panel characterized as "run[ning] away from the problem[, which] is consistent with how you handled your problems your entire life."
The panel then explained it was denying parole because, throughout Hyson's twenty-five years of incarceration, he "failed to appropriately and adequately address the causes of [his] criminal behavior through specific program participation or by other methods," and that he was "unable to demonstrate remorse and empathy for the victims of [his] violent offenses." The panel found Hyson's proposed parole plan of placement in a halfway house or, barring that, living with his fiancée and seeking work as a cement mason when released, was inadequate. It concluded that parole was not appropriate because prior opportunities on probation and parole had failed to deter Hyson's criminal behavior and had been violated in the past; that Hyson had insufficient problem resolution; that he was harboring his problems internally and had a lack of empathy and concern for others, demonstrated by the panel's interview; that he had a lack of an adequate parole plan; and confidential psychological reports and a risk assessment demonstrated he was a "high risk" for recidivism.
With regard to mitigating factors, the panel found that Hyson had participated in institutional programs specific to his behavior; had average to above average institutional reports; had a favorable institutional adjustment; had achieved minimum-custody status; and had not had a disciplinary infraction since 1986. Notably, only about two-thirds of a page in the twenty-six-page Notice was dedicated to summarizing, albeit incompletely, Hyson's two decades of therapeutic, academic, vocational, and volunteer achievements. The Notice also did not explain why the panel found a sixty-month FET was ...