"[T]he Board [must] focus its attention squarely on the likelihood of recidivism."
How later courts described this case
- "[T]he Board [must] focus its attention squarely on the likelihood of recidivism."
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-0494-22
A-1180-22
IN THE MATTER OF PETITION
FOR RULEMAKING TO AMEND
N.J.A.C. 10A:71-3.11.
____________________________
IN THE MATTER OF PETITION
FOR RULEMAKING TO AMEND
N.J.A.C. 10A:71-3.11,
N.J.A.C. 10A:71-2.2, and
N.J.A.C. 10A:71-3.20.
_____________________________
Argued April 17, 2024 – Decided May 13, 2024
Before Judges Currier, Firko and Susswein.
On appeal from the New Jersey State Parole Board.
Michael Ross Noveck, Assistant Deputy Public
Defender, argued the cause for appellants Ronald
Robbins, Joseph E. Krakora and the New Jersey Office
of the Public Defender (Jennifer Nicole Sellitti, Public
Defender, attorney; Michael Ross Noveck, of counsel
and on the briefs).
Christopher Josephson, Deputy Attorney General,
argued the cause for respondent New Jersey State
Parole Board (Matthew J. Platkin, Attorney General,
attorney; Sara M. Gregory, Assistant Attorney General,
of counsel; Christopher Josephson, on the brief).
Natalie J. Kraner argued the cause for amicus curiae
American Civil Liberties Union of New Jersey and
Formerly Incarcerated New Jersey Young Offenders
(Lowenstein Sandler, LLP, American Civil Liberties
Union of New Jersey Foundation, and the Rutgers
Criminal and Youth Justice Clinic, attorneys; Natalie J.
Kraner, Pati Candelario, Alexander Shalom, Jeanne
LoCicero, and Laura Cohen, on the brief).
Jennifer B. Condon argued the cause for amicus curiae
Center for Social Justice at Seton Hall University
School of Law (Center for Social Justice at Seton Hall
University School of Law, attorneys; Jennifer B.
Condon, on the brief).
PER CURIAM
In these consolidated appeals, petitioners Ronald Robbins, a State Prison
inmate, former Public Defender Joseph E. Krakora, and the Office of the Public
Defender (OPD) appeal from final decisions by the State Parole Board (Board)
denying their petitions to modify the Board's regulations. Petitioners propose
amendments to the administrative code that would: (1) require the Board to
consider age-based recidivism statistics showing that inmates are less likely to
commit crimes as they get older, supplementing the non-exhaustive list of
relevant factors enumerated in N.J.A.C. 10:71-3.11(b); (2) preclude the Board
from considering an inmate's youthful misconduct or otherwise treating youth
A-0494-22
2
as an aggravating factor; and (3) codify the requirements of procedural due
process set forth in caselaw when deciding whether to withhold from disclosure
confidential information—such as an inmate's psychological evaluation—
considered by the Board in making its parole determination.
We conclude the Board did not act arbitrarily, capriciously, or
unreasonably by declining to incorporate an "age curve" into its regulatory text.
Nor was the Board arbitrary, capricious, or unreasonable in declining to modify
its current regulations to categorically prohibit the Board from treating youth as
an aggravating circumstance. We are satisfied the Board acted within its broad
rulemaking prerogative by leaving intact a detailed and comprehensive
regulatory framework that requires parole determinations be made on an
individualized basis accounting for all relevant facts and circumstances,
including an inmate's age and maturity when appropriate.
The Board's rejection of the OPD's proposal to amplify the regulations
governing the release of confidential information presents a closer question.
OPD seeks to codify the procedural due process requirements set forth in
Thompson v. N. J. State Parole Bd., 210 N.J. Super. 107 (App. Div. 1986).
Petitioners and amici assert that the Board has in practical effect adopted a
policy to categorically deny access to inmate psychological reports used during
A-0494-22
3
the consideration of parole, rather than make disclosure decisions on a case-by-
case basis as contemplated in Thompson. Although that assertion is concerning,
it is not supported by evidence in the record before us, and the Board asserts its
disclosure decisions are made in accordance with Thompson.
The limited record developed in this appeal does not permit us to
scrutinize how the Board exercises its discretion when deciding whether to deny
access to confidential records. In the absence of evidence of procedural due
process violations, given the deference we must accord to the Board's discretion
to deny a rulemaking petition, we are constrained to accede to its decision to
leave the confidentiality regulations in their present form. We nonetheless stress
the procedural due process requirements set forth in Thompson must be
complied with in all cases regardless of whether those safeguards are explicitly
codified in regulatory text. With that important caveat in mind, we affirm.
I.
In June 2022, Robbins filed a petition for rulemaking asking the Board to
amend N.J.A.C. 10A:71-3.11(b) to include age-based recidivism statistics as one
of the enumerated factors to be considered at a parole hearing. The proposed
new subsection, N.J.A.C. 10A:71-3.11(b)(25), would read: "[t]he Parole Board
A-0494-22
4
shall consider [age-based] recidivism statistics as relevant evidence in all parole
release and Future Eligibility Term [(FET)] decisions." 1
In his petition, Robbins argued the New Jersey Supreme Court in Acoli v.
N.J. State Parole Bd., 250 N.J. 431 (2022), "decided, decreed, and declared, for
the very first time, the common sense principle of the law of N.J.R.E. 401 that
[age-based] recidivism statistics are relevant evidence in parole decisions." 2
Robbins described those statistics as "objective and neutral, providing a broad,
holistic, criminological, and ultimately more accurate decision making on
substantial evidence to grant or deny release and on [FETs]."
On August 31, 2022, the Board denied Robbins's petition. The Board
explained it did not interpret Acoli to require the inclusion of age-based
recidivism statistics as a parole factor in the administrative code. Rather, the
Board interpreted "Acoli, to hold that, when applicable, the [Board] shall
consider an incarcerated person's advanced age as a factor in making a parole
release decision." The Board concluded, "[t]he parole release decision remains
1
If the inmate is not released, the Board must set a future date of parole
eligibility, known as an FET. See N.J.S.A. 30:4-123.56; N.J.A.C. 10A:71-3.21.
2
N.J.R.E. 401 defines "relevant evidence" as "evidence having a tendency in
reason to prove or disprove any fact of consequence to the determination of the
action."
A-0494-22
5
an individualized assessment and an incarcerated person's age is not necessarily
a conclusive factor in a parole release decision but shall be considered when
applicable."
In September 2022, Krakora and the OPD filed a rulemaking petition
proposing three amendments to the administrative code. First, the OPD sought
to amend N.J.A.C. 10A:71-3.11(b)(7) and (24) to expressly prevent the Board
from considering a person's youth as an aggravating factor in parole decisions.
Specifically, the OPD proposed that subsection seven, which requires
consideration of the inmate's "[p]attern of less serious disciplinary infractions,"
be amended to include consideration of "whether serious infractions were
committed solely or primarily before the inmate's age of maturity (at least
[twenty-five] years old, or older for a person whose incarceration commenced
prior to the person's twenty-first birthday)."
With respect to N.J.A.C. 10A:71-3.11(b)(24), which requires
consideration of the inmate's "[s]ubsequent growth and increased maturity of the
inmate during incarceration," the OPD proposed the following sentence be
added: "[i]n evaluating this factor, the hearing officer, Board panel, or Board
shall not consider as an aggravating factor the inmate's failure to demonstrate
growth and maturity prior to the age of maturity (at least [twenty-five] years old,
A-0494-22
6
or older for a person whose incarceration commenced prior to the person's
twenty-first birthday)."
In support of those proposed revisions, the OPD petition relied on State v.
Rivera, 249 N.J. 285, 303 (2021), in which our Supreme Court stated, "youth
may be considered only as a mitigating factor in sentencing and cannot support
an aggravating factor." The OPD petition anticipated two possible violations of
this principle. First, the OPD argued the Board "could, in evaluating a young
person who is eligible for parole, determine that the person's lack of 'subsequent
growth and increased maturity' is an aggravating factor demonstrated not by
their past actions, but by (1) their youthful immaturity in committing the offense
and (2) their lack of opportunity to engage in other similar acts due to their
youth." Second, the OPD objected "to the setting of lengthy [FETs] for youthful
offenders based on behavior that was the product of youthful immaturity."
Next, the OPD petition asked for the addition of a new subsection,
N.J.A.C. 10A:71-3.11(b)(25), which would require the Board to account for
studies showing, "[t]hat the inmate's age upon release decreases the likelihood
that the inmate will commit a crime if released in light of the inverse relationship
between age and recidivism." The OPD petition relied on sentencing caselaw
and social science research, arguing the Board's "failure to consider the
A-0494-22
7
relevance of advanced age to lack of recidivism risk renders its decision making
arbitrary and capricious."
Finally, the OPD petition sought changes to the regulations governing
when inmates seeking parole may be denied access to psychological reports and
other medical records relied on by the Board. The OPD examined the legal
framework established in Thompson, which held a person seeking parole has a
qualified due process right to materials relied upon by the Board that can be
overcome only by a determination that a specific document cannot be released
due to institutional security and rehabilitation concerns. See Thompson, 210
N.J. at 126-27.
The OPD petition recounted the history of those regulations, contending
they "were originally designed to prevent public access to a person's sensitive
medical information but then devolved into an inappropriate restriction on a
person seeking parole's ability to access their own records." The OPD petition
asserted the current regulation "deviates significantly" from Thompson and
claimed the problem is "compound[ed] on parole appeals" because the Board
requires attorneys to sign a Consent Protective Order (CPO) prohibiting them
"from sharing or discussing confidential documents with their clients." The
OPD proposed revisions to align the Board's confidentiality rules with
A-0494-22
8
Thompson "by requiring all materials be disclosed to the person seeking parole
unless there is a legitimate reason for failing to disclose specific material to the
inmate or parolee," in which event the specific reason or reasons must be
"appropriately document[ed] . . . in the [Board's] files for appropriate judicial
review."
On October 26, 2022, the Board denied the OPD's petition. In rejecting
the requested modifications to N.J.A.C. 10A:71-3.11(b)(24), the Board noted
"Rivera is a criminal case and it does not directly apply to parole decisions."
The Board found no support for the OPD's argument that it would impermissibly
apply the subsection as presently written. The Board explained its
"determination of subsequent growth and maturity has been based upon factors
such as the incarcerated person's prison record, including disciplinary record
and program participation during incarceration following their conviction,
professional evaluations and the incarcerated person's presentation at parole
hearings."3
3
The Parole Act requires the Board to perform "an objective risk assessment."
N.J.S.A. 30:4-123.52(e); see N.J.A.C. 10A:71-3.11(b)(23) ("[t]he results of the
objective risk assessment instrument"). The Board commissions an in-depth
psychological assessment for the purpose of evaluating an inmate's suitability
for release. See Berta v. N.J. State Parole Bd., 473 N.J. Super. 284, 308-10
(App. Div. 2022).
A-0494-22
9
The Board concluded Rivera and Berta do not require an amendment to
the administrative code, explaining:
While the [Board] does not believe Rivera applies,
recent case law suggests that the [Board] cannot deny
parole based on the commission of remote disciplinary
infractions, whether serious or not serious Berta[], 473
N.J. Super. [at 284]. Though the temporal remoteness
of infractions may not reasonably be deemed to suggest
a likelihood of reoffending, if an incarcerated person
continues to commit infractions through the course of
the incarceration, the [Board] believes that it can
continue to consider the person's infraction history as a
factor in a parole release decision, as it demonstrates
that the person has an ongoing problem complying with
rules . . . . Though the [Board] should give lesser weight
to disciplinary infractions that are remote in time, this
goes to the weight of the [Board's] consideration, not to
whether those infractions should be considered at all.
Regarding the OPD's request for a new mitigating factor accounting for
an inmate's age, the Board stated, "there is recent case law to suggest that an
incarcerated person's advanced age must be considered in certain applicable
cases." However, the Board further reasoned,
[t]he [Board's] regulations provide for a "catch-all"
factor that reflects that the [Board] should consider all
relevant factors, thereby making it unnecessary to
include advanced age as an additional factor. Even
though Acoli and Berta have made it clear that the
[Board] must consider an incarcerated person's
advanced age when making a parole release decision in
certain cases, the decisions do not give clear guidance
when "advanced age" must be considered . . . . Parole
A-0494-22
10
release decisions, of course, remain individualized
assessments and an incarcerated person's age is not
necessarily a determinative factor in a parole release
decision.
Finally, the Board rejected the OPD's request to modify the rules
regarding the confidentiality of mental health evaluations, concluding its current
approach is consistent with Thompson and due process requirements. The Board
explained it "does note in the incarcerated person's file the basis for the
withholding of a mental health evaluation from the incarcerated person and said
basis is available for review by the Appellate Division." Further, the Board
explained it "release[s] mental health evaluations as directed pursuant to a court
order and does release mental health evaluations pursuant to a consent protective
order/agreement as contemplated by Thompson."
In October 2022, Robbins filed a notice of appeal of the Board's August
31, 2022 decision. In December 2022, the OPD filed a notice of appeal of the
Board's October 26, 2022 decision. We granted the OPD's motion to consolidate
the appeals.
We also granted requests by the American Civil Liberties Union–New
Jersey (ACLU-NJ), Formerly Incarcerated New Jersey Young Offenders
(FINJYO), and the Center for Social Justice at Seton Hall Law School (CSJ), to
appear as amicus curiae. This appeal follows.
A-0494-22
11
Petitioners Robbins, Krakora, and the OPD raise the following
contentions for our consideration in their joint brief:
POINT I
Because the [Board] Must Account for the Age-Crime
Curve in Its Parole Release Decisions, the Board's
Refusal to Amend N.J.A.C. 10A:71-3.11(b) to Require
Consideration of Age-Based Recidivism Statistics and
the Inverse Relationship Between Age and Recidivism
Was Arbitrary, Capricious, and Unreasonable.
POINT II
The [Board] Acted Arbitrarily, Capriciously, and
Unreasonably in Rejecting Amendments to N.J.A.C.
10A:71-3.11(b)(7) and N.J.A.C. 10A:71-3.11(b)(24)
That Would Prevent Use of Youth and Immaturity as an
Aggravating Factor, Based on Psychological and
Neuroscientific Research and Related New Jersey Law.
POINT III
The [Board]'s Refusal to Amend N.J.A.C. 10A:71-2.2
and N.J.A.C. 10A:71-3.20 to Permit People Seeking
Parole to Access Otherwise Confidential Records in the
Absence of a Documented, Case-Specific Reason for
Denial of Access Was Arbitrary, Capricious, and
Unreasonable in Violation of Due Process and
Thompson v. N.J. State Parole Bd., 210 N.J. Super. 107
(App. Div. 1986).
A. Thompson Established a Due Process Right for
People Seeking Parole to Access Their Own
Records, With Limited Exceptions.
A-0494-22
12
B. Since Thompson, the [Board]'s Regulations Have
Changed to a Per Se Rule of Nondisclosure That
Violates Due Process.
C. The [Board]'s Current Regulation Violates Due
Process, and the [Board]'s Refusal to Amend It Is
Arbitrary, Capricious, and Unreasonable.
Petitioners raise the following contentions in their reply brief:
POINT I
Because the [Board] Must Account for the Age-Crime
Curve in Its Parole Release Decisions, the Board's
Refusal to Amend N.J.A.C. 10A:71-3.11(b) to Require
Consideration of Age-Based Recidivism Statistics and
the Inverse Relationship Between Age and Recidivism
Was Arbitrary, Capricious, and Unreasonable.
POINT II
The [Board] Acted Arbitrarily, Capriciously, and
Unreasonably in Rejecting Amendments to N.J.A.C.
10A:71-3.11(b)(7) and N.J.A.C. 10A:71-3.11(b)(24)
That Would Prevent Use of Youth and Immaturity as an
Aggravating Factor, Based on Psychological and
Neuroscientific Research and Related New Jersey Law.
POINT III
The [Board]'s Refusal to Amend N.J.A.C. 10A:71-2.2
and N.J.A.C. 10A:71-3.20 to Permit People Seeking
Parole to Access Otherwise Confidential Records in the
Absence of a Documented, Case-Specific Reason for
Denial of Access Was Arbitrary, Capricious, and
Unreasonable in Violation of Due Process and
Thompson v. N.J. State Parole Bd., 210 N.J. Super. 107
(App. Div. 1986).
A-0494-22
13
Amici Curiae ACLU-NJ and FINJYO raise the following contentions in
their joint brief in support of OPD's proposed regulations:
POINT I
BECAUSE THE DEVELOPMENTAL SCIENCE
COURTS AND STATE LEGISLATURES ACCEPT
AND RELY UPON TO TREAT YOUTH
DIFFERENTLY AT SENTENCING ALSO APPLIES
TO YOUTHFUL OFFENDERS ONCE THEY ARE
INCARCERATED, THE [BOARD] MUST AMEND
RELEVANT REGULATIONS TO ENSURE A
PERSON'S YOUTH IS CONSIDERED A
MITIGATING FACTOR IN PAROLE DECISIONS.
A. The Same Developmental Science That Applies to
Sentencing Supports Treating Youth as a Mitigating
Factor When Evaluating Prison Disciplinary
Infractions Committed by Young People.
B. Parole Boards in Other States Across the Country
Have Guidelines That Address the "Diminished
Culpability" of Young People and Identify Youth as a
Mitigating Factor in Parole Decisions.
POINT II
THE [BOARD] MUST NOT CONSIDER YOUTH AS
AGGRAVATING WHEN EVALUATING THE
CRIME OF CONVICTION AS A FACTOR IN
PAROLE DECISIONS.
A. Developmental Science Requires That Youth Not Be
Treated as Aggravating When Considering the
Circumstances of the Crime of Conviction in Parole
Decisions.
A-0494-22
14
B. The [Board] Must Not Consider Youth as
Aggravating When Considering the Crime of
Conviction to Ensure that the Parole Process Offers
a Meaningful Opportunity for Release for Youthful
Offenders.
POINT III
THE STORIES OF [FINJYO] WHO HAVE
SUCCESSFULLY REENTERED SOCIETY
ILLUSTRATE THAT AS AN INDIVIDUAL
MATURES IN AGE, THE LIKELIHOOD OF
REOFFENDING OR INCURRING SIGNIFICANT
DISCIPLINARY INFRACTIONS DECREASES AND
THUS THE REGULATIONS GOVERNING PAROLE
SHOULD BE AMENDED TO RECOGNIZE THE
MITIGATING ASPECTS OF YOUTH.
Amicus Curiae CSJ raises the following contentions in its brief:
POINT I
The Board's Per Se Denial of Psychological and
Medical Records to People Seeking Parole Violates
Due Process and the Board's Regulations Must Be
Revised to Conform to the Constitution.
POINT II
Amicus's Experience with the Board's Approach to
Secret Evidence Exposes the Unfairness and Risk of
Inaccurate Decision-making Invited by N.J.A.C.
10A:71-2.2.
POINT III
The Board's Default Reliance upon CPOs in Parole
Proceedings Is No Substitute for Due Process and
Improperly Threatens Attorneys' Duty of Zealous
Advocacy to their Clients.
A-0494-22
15
II.
We begin our analysis by noting that at oral argument, the OPD
emphasized this is not a case brought by an inmate challenging the decision to
deny parole or challenging a specific decision to withhold a psychological report
the Board had relied on. Rather, petitioners ask us to order the Board to
promulgate specific modifications to the administrative code.
The nature of the relief sought in these proceedings invokes a narrow
corridor of judicial review. The scope of an appellate court's review of
administrative rules, regulations or policy is deferential. In re N.J. State League
of Muns. v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999); In re Petitions for
Rulemaking, N.J.A.C. 10:82-1.2 & 10:85-4.1, 117 N.J. 311, 325 (1989).
Our review is "generally limited to a determination whether that rule is
arbitrary, capricious, unreasonable, or beyond the agency's delegated powers."
In re Amend. of N.J.A.C. 8:31B-3.31 & N.J.A.C. 8:31B-3.51, 119 N.J. 531, 543-
44 (1990). As our Supreme Court reaffirmed in N.J. Ass'n of Sch. Adm'rs v.
Schundler, "[c]ourts afford an agency 'great deference' in reviewing its
'interpretation of statutes within its scope of authority and its adoption of rules
implementing' the laws for which it is responsible." 211 N.J. 535, 549 (2012)
(quoting N.J. Soc'y for Prevention of Cruelty to Animals v. N.J. Dep't of Agric.,
A-0494-22
16
196 N.J. 366, 385 (2008)). "That approach reflects the specialized expertise
agencies possess to enact technical regulations and evaluate issues that
rulemaking invites." Ibid.
In this instance, we are not reviewing the text of a challenged regulation
to determine, for example, whether it properly implements legislative policy.
Rather, we are reviewing an agency's decision to leave its existing regulatory
text in place. We stress, moreover, this is not a situation where the Board was
obliged to promulgate regulations to implement a new or amended statute as in
In re State Bd. of Educ.'s Denial of Petition to Adopt Reguls. Implementing the
N.J. High Sch. Voter Registration Law, 422 N.J. Super. 521 (App. Div. 2011).
That case implicated our de novo review of a question of statutory construction.
Id. at 530. Here, in contrast, the request for revised regulations is not based on
a new legislative policy declaration but rather social science research compiled
by petitioners.
In applying the "great deference" standard of review in the matter before
us, the central question is not whether an inmate's age at either the time of the
offense or the time of parole eligibility is relevant to the release decision as
shown by research studies. Schundler, 211 N.J. at 549. Rather, the narrow issue
framed in this litigation is whether the Board acted arbitrarily, capriciously, or
A-0494-22
17
unreasonably in exercising its rulemaking authority by declining to incorporate
social science research findings into the text of the administrative code.
As a general principle, policymaking based on developments in social and
neurological science is best left to the legislative and executive branches.
Notably, the Parole Act of 1979, N.J.S.A. 30:4-123.45 to -123.76, has not been
amended to effectuate the reforms petitioners and amici advocate. Moreover, to
the extent the judiciary has a role to play in setting or revising parole policy, our
Supreme Court is better suited than an intermediate appellate court to consider
the effects of the policy shift petitioners and amici urge us to impose on the
executive branch without the imprimatur of legislation.
As we have noted, petitioners and amici seek to build upon a foundation
of recent sentencing reforms that were predicated on scientific research on
juvenile and young adult brain development. See e.g., N.J.S.A. 2C:44-1(b)(14)
(creating a new mitigating sentencing factor when "[t]he defendant was under
[twenty-six] years of age at the time of the commission of the offense."). It is
by no means certain, however, that recent changes in sentencing laws based on
brain science compel analogous changes to the parole system. There are, after
all, important, inherent differences between the process and criteria for imposing
A-0494-22
18
an initial sentence and the subsequent decision to release an imprisoned offender
on parole supervision. In Berta, for example, we explained:
[T]he parole release decision is fundamentally different
from the decision made by a trial court when imposing
the initial sentence. Although N.J.A.C. 10A:71-
3.11(b)(5) authorizes the Parole Board to consider the
"[f]acts and circumstances of the offense" as a relevant
factor, "'the gravity of the crime' cannot serve as 'an
independent reason for continuing punishment and
denying parole' under the 1979 Act. [Application of
Trantino, 89 N.J. 347, 373-74 (1982)]. "That is because
the punitive aspects of the sentence have been satisfied
by the time the inmate is eligible for parole." Acoli,
250 N.J. at 457; Trantino [], 89 N.J. at 370.
Accordingly, the parole decision is not intended to
achieve, for example, just deserts. Nor does not it serve
the interests of general deterrence, which is one of the
foundational purposes of sentencing. See State v.
Locane, 454 N.J. Super. 98, 122 (App. Div. 2018)
(explaining that sentencing courts "focus on the
severity of the crime . . . to assure the protection of the
public and the deterrence of others. The higher the
degree of the crime, the greater the public need for
protection and the more need for deterrence[]" (quoting
State v. Megargel, 143 N.J. 484, 500 (1996))). The
parole release decision, rather, revolves solely around
the likelihood that the inmate, if released, would
commit a future crime. See McGowan v. N.J. State
Parole Bd., 347 N.J. Super. 544, 565 (App. Div. 2002)
("[T]he Board [must] focus its attention squarely on the
likelihood of recidivism.").
Relatedly, in State v. Kiriakakis, our Supreme Court emphasized the New
Jersey Code of Criminal Justice has the "paramount goal of uniformity in
A-0494-22
19
sentencing, ensuring 'that similarly situated defendants receive comparable
sentences.'" 235 N.J. 420, 437 (2018) (internal citations omitted). Parole
decisions, in contrast, do not further the goal of uniformity; rather, they entail
highly individualized assessments based largely on an inmate's personal
behavior and attitude while incarcerated. See Berta, 473 N.J. Super. at 305-06
(noting that overcoming the presumption of parole is a "highly predictive"
determination that must take account "the aggregate of all the factors which may
have pertinence") (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359,
360 (1973)).
We add, at the risk of stating the obvious, sentencing is largely about
culpability and, ultimately, punishment. Parole is not. In Berta, for example,
we stressed that "an FET must not be imposed as a form of punishment;
and . . . the decision to impose an FET beyond the presumptive FET, like the
underlying decision to deny parole, must be tied directly to the goal of reducing
the likelihood of future criminal behavior." Id. at 323.
The point simply is that given the inherent differences between sentencing
and parole, petitioners' reliance on penological principles established in
sentencing cases may be misplaced, or at least overstated. We do not mean to
suggest that age is not relevant to the parole decision, which focuses on the
A-0494-22
20
likelihood an inmate would commit new crimes if released into the community
on parole supervision. No one disputes there is an inverse correlation between
age and recidivism. While there may be new empirical studies to confirm that
correlation, and recent brain development research to show why adolescents and
young adults are more likely to commit crimes, it is hardly a recent discovery
that convicted offenders "age out," to use common parlance. Forty years ago in
State v. Davis, our Supreme Court recognized "age, as a demographic variable,
has consistently been found to be strongly related to subsequent criminal
activity." 96 N.J. 611, 618 (1984). And in Acoli, the Court explained, "[s]tudies
have shown that as individuals age, their propensity to commit crime decreases."
250 N.J. at 469.
Petitioners rely heavily on Acoli to support their proposal to add a new
parole factor focusing on age. In Acoli, the Court rejected the Board's finding
there was a substantial likelihood the seventy-nine-year-old inmate would
commit new crimes if paroled, concluding that finding was unsupported by
evidence. Id. at 428, 430. Of particular relevance to this appeal, the Court
commented, "[n]othing in the Parole Board's decision suggests that the Board
considered in any meaningful way the studies on the age-crime curve in denying
parole to Acoli." Id. at 448. Nevertheless, the Acoli Court did not direct the
A-0494-22
21
Board to engage in rulemaking to amend the administrative code to add a new
parole factor accounting for age. The Court was well aware of Acoli's age, and
it noted the age-curve studies cited by the defendant. However, the Court did
not mandate consideration of the age-crime curve throughout the age spectrum
in a determination of parole.
Subsequently, in Berta, we reversed and remanded the Board's denial of
parole to a seventy-one-year-old inmate. 473 N.J. Super. at 289-90. Citing
Acoli, we explained, "[a]lthough Berta is significantly younger than [Acoli], he
nonetheless is old enough that his age is a relevant consideration in predicting
the likelihood of recidivism." Id. at 321-22. Accordingly, we instructed the
Board "to account specifically for Berta's age, along with all relevant mitigating
circumstances, in determining whether—and, if need be, explaining why—the
preponderance of the evidence established a substantial likelihood that he will
re-offend." Id. at 322. In doing so we explained that social science evidence
may be relevant but also made clear "[w]e do not mean to suggest that the
Board's assessment of inherently subjective circumstances . . . must be supported
by peer-reviewed social science." Id. at 320 n.18. In short, nothing in Berta
suggests the age-recidivism correlation must be accounted for in the text of the
administrative code.
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We further emphasize that N.J.A.C. 10A:71-3.11(b) expressly provides
the Board shall consider not only the enumerated factors listed in that
subsection, but "in addition, may consider any other factors deemed relevant."
As Acoli and Berta make clear, in any case where the Board fails to account for
age when age is relevant, an inmate may appeal the denial of parole and assert
that ground as error. In light of that remedy, and in the absence of legislation
compelling the Board to consider a parole candidate's age, we decline to second
guess the Board's decision to retain the current list of enumerated parole factors
in the administrative code.
III.
We turn next to the OPD's contention the Board acted arbitrarily,
capriciously, and unreasonably by rejecting its proposed amendments to "avoid
the risk of inappropriately treating youthful misconduct, and the lack of time to
demonstrate increased maturity that mitigates the risk of future misconduct, as
an aggravating factor in parole release decisions." Once again, the OPD and
amici extrapolate principles developed in sentencing caselaw to support a
proposed new policy that youth can never be considered as an aggravating factor
militating against the presumption of parole or for an FET longer than the
presumptive FET.
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The OPD relies heavily on our Supreme Court's decision in Rivera. In
that case, the nineteen-year-old defendant pled guilty to first-degree aggravated
manslaughter and related offenses. Rivera, 249 N.J. at 291-92. The sentencing
court gave "minimal weight" to mitigating factor seven 4 considering the
defendant's young age, reasoning "if she had not been captured in this particular
instance, her mind frame and the way [of] her thinking and her relationship with
[her ex-boyfriend], could very well have resulted in additional crimes being
committed." Id. at 295. The sentencing court "gave great weight to the fact that
the risk she'll commit another offense, aggravating factor three." 5 Ibid.
The Supreme Court reversed and remanded for resentencing, recognizing
that a "'defendant's relative youth would ordinarily insure to [their] benefit'" in
sentencing. Id. at 301 (quoting State v. Dunbar, 108 N.J. 80, 95 (1987))
(highlighting the addition of mitigating factor fourteen, N.J.S.A. 2C:44 -
1(b)(14), which reads, "[t]he defendant was under [twenty-six] years of age at
the time of the commission of the offense"). The Court concluded "the
4
N.J.S.A. 2C:44-1(b)(7), which reads, "[t]he defendant has no history of prior
delinquency or criminal activity of has led a law-abiding life for a substantial
period of time before the commission of the present offense."
5
N.J.S.A. 2C:44-1(a)(3), which reads, "[t]he risk that the defendant will commit
another offense."
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24
sentencing court engaged in impermissible speculation that [the] defendant
would have engaged in other criminal conduct but did not have the opportunity
to do so because of her youth." Id. at 303. The Court added,
[i]n conclusion, the presumption that a defendant's
youth may have prevented the defendant from having a
criminal record cannot support a finding of aggravating
factor three. We therefore hold that youth may be
considered only as a mitigating factor in sentencing and
cannot support an aggravating factor.
[Ibid. (emphasis added).]
Read in context with the sentences that precede the underscored sentence,
it appears the Court in Rivera was principally concerned with the inappropriate
practice of inferring that a particular defendant would have committed
additional offenses if they were afforded more time to accrue a criminal history.
That inference runs diametrically counter to the presumption of innocence,
essentially assuming that a defendant must have committed multiple unspecified
crimes that were not even charged much less proven.
But even putting aside that inappropriate inference, we take note the
Legislature amended the penal code to create a new mitigating sentencing factor
when a crime is committed by a person under twenty-six years of age. The
Legislature did not create a corresponding aggravating factor when the crime is
committed by a more mature offender. We thus accept petitioners' interpretation
A-0494-22
25
of Rivera that age can be used at a sentencing hearing as a predictor of
recidivism in only one direction—one that favors a defendant.
The critical question raised in this appeal is whether that sentencing
principle also applies in the context of parole. As we noted in the preceding
section, there are marked differences between sentencing and parole
determinations.
We deem it noteworthy the administrative code was amended in 2021 to
include factor twenty-four, which recognizes as relevant the "[s]ubsequent
growth and increased maturity of the inmate during incarceration." N.J.A.C.
10A:71-3.11(b)(24). That factor offers an opportunity for inmates to argue on
a case-by-case basis that their personal history while incarcerated militates in
favor of parole.
In Berta, we specifically cautioned the Board against overreliance on
temporally remote institutional infractions when applying factor twenty -four,
commenting "[t]he Board has presented no empirical or even anecdotal evidence
to support the counter-intuitive notion that a temporally remote pattern of
persistent infractions is a better predictor of future recidivism than a far more
sustained recent pattern of infraction-free conduct." 473 N.J. Super. at 314.
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26
We are unpersuaded by petitioners' argument this parole factor will be
misused unless it is amended to expressly and categorically preclude the Board
from considering youth as an aggravating circumstance. The OPD and amici
acknowledge they cannot identify a single case where the Board considered an
inmate's youth inappropriately. If such a situation should ever arise, an
aggrieved inmate would have the right to appeal the denial of parole and the
setting of a lengthy FET. Because that remedy is available to address improper
consideration of an inmate's subsequent growth and increased maturity during
incarceration, we conclude the Board did not act arbitrarily, capriciously, or
unreasonably in declining to adopt the proposed amendments to N.J.A.C.
10A:71-3.11(b)(24).
IV.
We turn finally to OPD's contention the Board was arbitrary, capricious,
and unreasonable in denying its proposal to amend and supplement N.J.A.C.
10A:71-2.2(c), which governs the release of confidential information, such as
psychological reports, that are used in the parole decision-making process.
N.J.A.C. 10A:71-2.2(c) currently reads:
Inmates or parolees shall be afforded disclosure of
adverse material or information considered at a hearing,
provided such material is not classified as confidential
by the Board or the Department [of Corrections]. If
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disclosure is withheld, the reasons for nondisclosure
shall be noted in the Board's files, and such material or
information shall be identified as confidential.
Additionally, N.J.A.C. 10A:22-2.7(d) governs inmates' access to their own
mental health records:
Copies of mental health records related to routine
mental health care, treatment and counseling shall be
provided to inmates. However, copies of mental health
records generated by professional mental health staff,
such as evaluative or administrative assessment reports,
or reports that, if disclosed, would compromise the
safety of the inmate or others, or the security or orderly
operation of the correctional facility, shall not be
provided to inmates without court order or consent
protective agreement.
The gravamen of petitioners' argument is that as presently written, these
regulations permit the Board to disregard the due process requirements spelled
out in Thompson. There, an inmate appealed after he was denied parole. 210
N.J. Super. at 111. He argued the Board made several errors in denying parole
and by imposing a twelve-year FET, including that the Board improperly
withheld from disclosure documents it considered in making its determinations.
Ibid.
We acknowledged the Board needs to use confidential information in
reaching parole release decisions. Id. at 123. We also acknowledged:
A-0494-22
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The safe operation of a prison must be taken into
account in determining the extent of legal process due
a prisoner in the consideration of his parole release.
Disclosures threatening to institutional security must be
avoided. They may include evaluations and anonymous
reports of fellow prisoners and of custodial staff
members. Disclosure of therapeutic matters also should
be avoided if it would interfere with prisoner
rehabilitation and relationships with therapists.
[Ibid.]
The regulation in effect when Thompson was decided required disclosure
to inmates or parolees,
of adverse material considered at a hearing, provided
such material is not classified as confidential by the
Department [of Corrections] and provided disclosure
would not threaten the life or physical safety of any
person, interfere with law enforcement proceedings or
result in the disclosure of professional diagnostic
evaluations which would adversely affect the inmate's
rehabilitation or the future delivery of rehabilitative
services. If disclosure is withheld, the reason for
nondisclosure shall be noted in the Board's files, and
such information shall be identified as confidential.
[Id. at 118 (quoting N.J.A.C. 10A:71-2.1(c)).6]
Ultimately, we held N.J.A.C. 10A:71-2.1(c) was facially valid, noting it
adopted a procedure to "sufficiently protect the prisoner's due process rights
6
As we explain, N.J.A.C. 10A:71-2.1 was later recodified as N.J.A.C. 10A:71-
2.2.
A-0494-22
29
with the least intrusion on the Department of Correction's legitimate concern for
confidentiality." Id. at 124-26. Importantly for purposes of the present appeal,
we instructed:
When any document in a parole file is administratively
removed from the prisoner's copy of the file, N.J.A.C.
10A:71-2.1(c) [the predecessor of N.J.A.C. 10A:71-
2.2(c)] requires the document to be identified as
confidential and the reason for nondisclosure to be
noted in the Board's file. We will require the Board,
after making a parole decision adverse to the prisoner,
to state in its decision whether any document marked
confidential played any substantial role in producing
the adverse decision, and, if so, to record in its file
which of them did so. In the event of an appeal, the
Attorney General will include in the Statement of Items
Comprising the Record the Board's statement on the
matter, which may be worded in such a way as to
effectively preserve the confidentiality of the withheld
materials.
....
If the Board states that confidential materials played a
substantial role in producing the adverse decision in a
case appealed to this court, we will undertake to review
the materials and determine the propriety of the
decision to withhold them. If we conclude that
nondisclosure was improper, the remedy might be a
remand for reconsideration without the withheld
materials, a remand for reconsideration after disclosure
to the prisoner of the withheld materials, or, perhaps,
an exercise of our original jurisdiction. The remedy
will fit the needs of the individual case.
[Id. at 126.]
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30
N.J.A.C. 10A:71-2.1 has been amended since Thompson was decided.
Language that confidential material should be disclosed when "disclosure would
not threaten the life or physical safety of any person, interfere with law
enforcement proceedings or result in the disclosure of professional diagnostic
evaluations which would adversely affect the inmate's rehabilitation or the
future delivery of rehabilitative services" was removed. 20 N.J.R. 2129(a)
(Sept. 6, 1988).7 After the passage of the Open Public Records Act (OPRA),
N.J.S.A. 47:1A-1 to 13.3, the regulation was amended again and recodified as
N.J.A.C. 10A:71-2.2. See 43 N.J.R. 2144(b) (Aug. 15, 2011); see 44 N.J.R.
270(a) (Feb. 6, 2012).
The OPD and amici argue the post-Thompson revisions render the
regulatory framework vulnerable to due process violations. They also contend
the Board has adopted a de facto policy to deny disclosure of confidential
information in all cases. As we have already stressed, any such categorical
denial policy would constitute an abdication of discretion as required in
Thompson and would thus be arbitrary, capricious, and unreasonable. We stated
7
We note that language concerning disclosure that "would compromise the
safety of the inmate or others, or the security or orderly operation of the
correctional facility" remains in N.J.A.C. 10A:22-2.7(d).
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31
unequivocally in Thompson, "[a] Parole Board rule or policy flatly prohibiting
prisoner access to parole files would no longer be sustainable." 210 N.J. Super.
at 122. We reaffirm that admonition.
The Board argues that N.J.A.C. 10:22-2.7(a), as presently written, "calls
for a case-by-case analysis of whether the materials would compromise safety,
security, or the orderly operation of the facility" and therefore satisfies the due
process requirements spelled out in Thompson. The Board emphasizes that in
Thompson, we acknowledged "[d]ue process is a flexible and dynamic concept.
It calls for such procedural protections as the particular situation demands." 210
N.J. Super. at 123.
Despite the Board's assurances, we are troubled by what was revealed at
oral argument. No advocate could recall a single instance where disclosure was
granted by the Board. That said, there is no evidence in the sparse record before
us to support or contradict either party's claims as to what happens with respect
to disclosure decisions. In State Bd. of Educ.'s Denial, we acknowledged "we
evaluate the issues before us based upon the limited administrative record
developed in connection with the petition for rulemaking and the denial of the
petition." 422 N.J. Super. at 527.
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32
Had this been an appeal from a denial of disclosure, as in Thompson, we
would have a record with which to scrutinize whether the Board complied with
that precedential decision or instead violated the inmate's due process rights.
But no such evidence has been presented to us in this appeal.
In sum, there is no credible evidence in the record the Board was violating
the due process rights of inmates seeking parole by improperly withholding
disclosure of relevant confidential information. Therefore, we are not persuaded
the Board acted arbitrarily, capriciously, or unreasonably when it denied
petitioners' request to amend its regulations to codify the procedural due process
requirements that were announced in Thompson. See Schundler, 211 N.J. at
549.
Affirmed.
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