"Merry-Go-Round" Delay by Remand to the Full Board from a
Successful Appeal and Reversal of a Board Panel Denial of Parole
In Acoli v. New Jersey State Parole Board, 224 N.J. 213 (2016) the New Jersey Supreme Court reviewed the reversal of a denial of parole that was ordered by the Appellate Division. A Three Member Panel of the Parole Board denied parole. That decision was affirmed by the Full Board on the Administrative Appeal to the Full Board. From that final decision of the Agency, Acoli filed the appeal to the Appellate Division. In an unpublished decision the Appellate Division reversed the denial of parole and ordered:
The Board must now expeditiously set conditions for parole, including considering Dr. Goorwitz's recommendation of placement in a halfway house facility in anticipation of release.
The New Jersey Supreme Court reviewed, in detail, the procedural steps taken for review of a denial of parole by the New Jersey State Parole Board. The New Jersey Supreme Court held that when the Appellate Division reverses a parole denial by a Parole Board Panel, the Appellate Division is not to order parole, but rather, the court must remand the matter to the Full Board for another hearing on parole eligibility. In dissent, Justice Barry T. Albin, noted:
Under the majority's new formulation, after the full Parole Board denies parole to a murder convict in a final agency determination, following an earlier denial by a Board panel, the Appellate Division can render only an advisory decision—even when the record utterly fails to show a substantial likelihood that the inmate will commit another offense if released on parole. That approach ignores our existing jurisprudence. The majority requires that the Appellate Division must remand to the full Board for an evidentiary hearing. If the Parole Board conducted a thorough review the first time, however, we cannot expect the Parole Board will change the view it expressed in a nine-page, single-spaced decision. Instead, we have the makings of a show hearing. Acoli will be given the opportunity to appear before the full Parole Board to repeat what he has said earlier and to be called lacking in credibility based on his in-person presentation. The victim's family also has the opportunity to repeat what the Parole Board has read or reviewed through videotaped statements. Then, a parole denial will follow, a new round of appeals, and the Appellate Division can revisit the matter when Acoli is an octogenarian. The tortured interpretation of the statutory scheme creates a merry-go-round that will extend the incarceration of Acoli—but for no rational or just purpose. In Trantino, this Court committed the judiciary to the task of ensuring that administrative agencies not thwart the law in unpopular cases.
Id. at 224 N.J. at 240 (emphasis added). Regardless of Justice Albin's thoughtful analysis, the current state of the law now requires that when the Appellate Division reverses a parole denial by a Board Panel, the Appellate Division must now remand to the Full Board for another hearing. Inmates and Counsel better be prepared to create a full and compelling record, understanding that when appealing from a denial of parole by a Board Panel there will be litigation of not one, but two appeals to the Appellate Division.
The futility of a reversal and remand to the Full Board is especially true when the parole Board primarily bases its decision on “lack of credibility”, “lack of remorse,” and “lack of insight.” What results is merely another opportunity for the Full Board to try to establish a basis to justify the Board’s earlier arbitrary conduct, resulting in a second round of appeals.
Unfortunately, now when the Appellate Division reverses a denial of parole by a Board Panel, there is the new procedural requirement of remand to the Full Board for another hearing. This "merry-go-round” simply delays release and creates additional costly litigation that most inmates cannot afford.
Capable of Repetition Yet Evading Review – Another Procedural Merry-Go-Round
Delays in Hearings and Eligibility Dates that Prevent a Final Record
Upon Which the Appellate Division May Issue a Final Decision
The delay in review and the resulting merry-go-round process of reversal and remand finds voice in a different context in the unpublished opinion of Stout v. N.J. State Parole Bd., unpublished, Docket Nos. A-0034-14T1, A-3623-14T1 (App. Div., November 15, 2016). In Stout, each time a pro se client reached the Appellate Division Stout was again eligible for parole and the Parole Board conducted an additional hearing, thus delaying review, and creating a new record upon which the Appellate Division would have to consider. The court noted its frustration at this particular merry-go-round, of the tortured procedural history, and sought to put an end to that merry-go-round by Ordering:
Because effective review of these matters is obviously being thwarted by this repeating cycle, we decline to dismiss the appeal in A3623-14 at this time, despite it also having been arguably rendered moot. Instead, we will hold this matter in abeyance pending the Board's final decision on the sixty-month FET [Future Eligibility Term] which began to run on December 3, 2015. When a timely notice of appeal is filed from that final decision, we will accelerate the matter and consider it together with the appeal in A-3623-14 with the aim of providing meaningful appellate review of these cases in a live controversy. . . .
It is obvious to us, that given the time necessary to perfect both an internal appeal to the Parole Board and one to this court, we could continue in a cycle which has now thwarted effective appellate review of this case for several years. We will not allow that to continue. . . . .
Accordingly, we exercise our discretion to defer decision in A-3623-14 until notice of appeal is filed from a final decision in the matter currently pending before the Parole Board. Counsel for the Board is to advise by letter of the Parole Board's final decision and of the filing of a notice of appeal in that matter. We will then issue a scheduling order accelerating the case for consideration with this appeal during the current term. We also direct that counsel for the Parole Board keep us apprised of any delay in the internal appeal process that might affect our ability to consider both matters, as we intend, in this term. . . . .
We retain jurisdiction and defer disposition of the appeal in A-3623-14 for consolidation with the matter presently pending before the Board upon the filing of a notice of appeal in that case. [emphasis added].
To put an end to this tortured cycle of delay that was preventing review, the Appellate Division consolidated the appeals, pending the anticipated decision by the Parole Board, ordered an expedited appeal, and retained jurisdiction.
The Merry-Go-Round of Delay After Reversal of a Parole Denial by the Appellate Division
There are also some cases where Full Parole Board has demonstrated it will not follow the directions of the Appellate Division on remand after a reversal. This conduct results in the Appellate Division having, on a second appeal, to direct the Full Parole Board to Order an inmate’s release on parole. A remand to the Parole Board that results in another parole denial, based upon an almost identical record, merely delays parole and improperly forces the Appellate Court to act as a “super parole board.”
An example of the Parole Board’s inability to fairly reconsider parole eligibility after a reversal and remand by the Appellate Division is found in the case of Klingebiel v. N.J. State Parole Bd., 2007 N.J. Super. Unpub. LEXIS 1046 (App. Div. Jan. 31, 2007), where the Appellate Division recognized the issue and provided:
The matter is remanded to the Parole Board for further consideration and for a new decision relating to appellant's parole (and FET if parole is denied) under the proper criteria after evaluating and considering the subjects we have addressed. . . . . We decline to fix a date by which the remand proceedings shall be completed in light of appellant's challenges to the psychological evaluations and the possible desire for updates. However, we anticipate that the administrative review will be completed expeditiously, and appellant may move for an accelerated appeal if parole or transfer to a halfway house is not granted. . . . Remanded. The Appellate Division retains jurisdiction. [emphasis added].
Not surprisingly, despite the clear direction and guidance from the Appellate Division, the full Parole Board again denied parole on the same basis, on essentially the same record, forcing the Appellate Division to do that which the Parole Board was incapable, that is, follow the law. On the second appeal, the court held:
The record does not support the further denial of parole and imposition of a 144-month FET, id. at 175-94, and the Board must now expeditiously review Klingebiel's parole plan and set conditions for parole including placement in a halfway house facility in anticipation of release, id. at 194-98.
Klingebiel v. New Jersey State Parole Bd., 2008 N.J. Super. Unpub. LEXIS 3018 (App. Div. Aug. 11, 2008).
Given the Board's failure or reluctance to grant parole even upon reversal and remand, at the time of oral argument from a denial of parole, counsel should request that if the Appellate Judges intend to reverse, that a time limit be set for the Board's reconsideration, that the Board be directed to follow the courts directions, and that the court retain jurisdiction. In the future, when the Appellate Division reverses a denial of parole by a Board Panel and remands the matter to the Full Board the court may be well advised to follow the procedure used in the Klingebiel case, set forth the court's directions, order expedited review, and retain jurisdiction.
As reflected in the Stout case, such a procedure is also appropriate and necessary where the length of a Future Eligibility Term will render substantive appellate review impossible.
Procedural Delays Thwart Meaningful Appellate Review and are a Denial of Due Process
Our courts should not permit any procedure that results in delayed hearings, the mooting out substantive issues and/or the creation of a merry-go-round of appeals that delay and thwart judicial review. Due process compels a procedure that allows a timely and meaningful substantive review.
Several situations may occur that moot out or unreasonably delay parole appeals:
1) when the Future Eligibility Term date may be too short of a duration to permit completing litigation through the administrative and appellate appeal process;
2) when there is the likelihood that the Board will engage in the same arbitrary action on reversal and remand;
3) where the Parole Board’s arbitrary conduct is such that it is likely the Board will not follow the directions of the Appellate Division after a reversal; and
4) where the Parole Board fails to schedule timely hearings consistent with an inmate’s parole eligibility.
In New Jersey State Parole Board v. Cestari, 224 N.J.Super. 534, 544 (App. Div. 1988), certif. denied 111 N.J. 649 (1988), the Appellate Division reversed a denial of parole. The court unequivocally indicated that it is “imperative” that the Board comply with all parole eligibility deadlines. The court clearly stated that failure to comply with deadlines and provide timely hearings “infringe on the rights of inmates who are entitled to be released on parole and also aggravate the problems of overcrowding in our prison system.” Ibid.
On any appeal from the denial of parole, both counsel and the courts should be mindful of the delay that results from the delay in the Board's scheduling of hearings, the time frame for the procedural levels of review in the New Jersey Administrative Code, the impact of a Future Eligibility Term that has been imposed, and the time it takes for a matter to proceed through the Appellate Division of the New Jersey Superior Court.
On any reversal of a parole denial by the Appellate Division, the court should give serious consideration to: 1) setting time limits for the Parole Board’s reconsideration on remand; 2) retaining jurisdiction; and 3) directing that a further denial be subject to an accelerated schedule in the Appellate Division.
Relevant Sources for Consideration:
Acoli v. New Jersey State Parole Board, 224 N.J. 213 (2016);
Acoli v. New Jersey State Parole Board, 2014 N.J. Super. Unpub. LEXIS 2340, (App. Div. September 29, 2014);
Klingebiel v. N.J. State Parole Bd., 2007 N.J. Super. Unpub. LEXIS 1046 (App. Div. Jan. 31, 2007);
Klingebiel v. New Jersey State Parole Board, No. A-5341-04, 2008 N.J. Super. Unpub. LEXIS 3018 (N.J. App. Div. Aug. 11, 2008);
New Jersey State Parole Board v. Cestari, 224 N.J.Super. 534, 544 (App. Div. 1988), certif. denied 111 N.J. 649 (1988);
Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), (A review of the historical developments of the mootness doctrine);
Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911), (The earliest case to define the "capable of repetition, yet evading review" doctrine);
Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998);
Stout v. N.J. State Parole Bd., unpublished, Docket Nos. A-0034-14T1, A-3623-14T1 (N.J. Super. App. Div., November 15, 2016);
Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974) (Cyclical issues preventing review);
Eric Neisser, “Parole Delayed is Parole Denied, and Expensive,” 123 N.J.L.J. 1037 (April 27, 1989)