Opinion
DOCKET NO. A-2772-11T4
03-11-2013
JAMES SMITH, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
James Smith, appellant pro se. Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Hoffman.
On appeal from the New Jersey State Parole Board.
James Smith, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief). PER CURIAM
Plaintiff James Smith appeals from the New Jersey State Parole Board's December 21, 2011 final decision denying parole and establishing a future parole eligibility term (FET) of sixty months. We affirm the denial of parole, but reverse and remand for reconsideration of the FET.
I.
In April 1970, after pleading guilty to the July 5, 1969 shotgun murders of two Camden police officers, Smith was sentenced to two consecutive terms of life imprisonment. At the time Smith committed these crimes he was twenty-one years old; in late March 2013, he will turn sixty-five years old. Smith has been continually incarcerated for almost forty-four years.
At the time of sentencing, Smith had never been convicted of any offense as an adult. He had, however, several juvenile adjudications, the last when he was thirteen years old.
During his four-decade incarceration, Smith was cited on three occasions for engaging in prohibited acts, only one of which was a serious "asterisk" infraction. See N.J.A.C. 10A:4-4.1(a) ("Prohibited acts preceded by an asterisk (*) are considered the most serious and result in the most severe sanctions []."). The last discipline, meted out in March 1997, was for "being in an unauthorized area." See N.J.A.C. 10A:4-4.1(a)(.402).
The December 21, 2011 denial of parole was the seventh time Smith had failed to win release after becoming eligible for parole for the first time in 1993. At Smith's fifth and sixth parole proceedings, in October 2007 and July 2009, the Parole Board denied parole and established FETs of thirty-six months.
As part of the present parole review, Smith underwent a mental health evaluation in January 2011. That evaluation reported a 2007 pre-parole evaluation with a "[m]edium risk of reoffending." A 2004 evaluation indicated a "[l]ow/moderate risk of reoffending." The 2011 evaluation noted: "The inmate scored 26 on the [standardized Level of Service Inventory-Revised test]. Based on a sample of inmates studied in New Jersey, this indicates a medium risk for recidivism with a 28% chance of re-arrest and a 21% chance of reconviction within two years of release." Additionally, it concluded, "this inmate appears to be a low to medium risk for future violence."
The report also stated, "Inmate Smith does have a significant number of serious physical difficulties as he is limited to a wheelchair. He noted he has significant cardiac difficulties, back problems, high blood pressure and diabetes."
In May 2011, a two-person panel denied parole. It declared, "The [p]anel has determined a substantial likelihood exists that you would commit a new crime if released on parole at this time." Although noting six mitigating factors, the panel check-marked the following reasons for denial:
Prior criminal record noted.The panel suggested that Smith participate in "[i]nstitutional programs geared toward criminal behavior"; "[b]ehavior modification"; and "[o]ne to one counseling."
Nature of criminal record increasingly more serious.
Prior opportunity(ies) on . . . probation/parole . . . has (have) failed to deter criminal behavior.
Prior opportunity(ies) on . . . probation . . . has (have) been violated in the past.
Prior incarceration(s) did not deter criminal behavior.
Insufficient problem(s) resolution. Specifically [X] Lack of insight into criminal behavior; . . . [X] Minimizes conduct; . . . [X] Other[:] Inmate has not gained any additional comprehension of his crime and behavior after so may years. He continues to focus on himself. He states — the biggest what if is "If I wasn't there" —— Not ever considering that maybe it might be — "If I didn't pull the trigger. If I didn't shoot the officer[s] or if I controlled my rage."
A third member was added to the panel to compute Smith's FET. In August 2011, the panel determined that a sixty-month FET was appropriate for the following reason: "Extended FET to provide enough time to address concerns of the panel since last denial we noted no infractions." Later, in September 2011, the panel wrote, "it is clear that [Smith] continue[s] to remain a substantial threat to public safety." Furthermore, it stated:
The three-member Board panel believes that during [Smith's] forty-one (41) years of incarceration [he has]:
been unable to identify the causes of [his] violent behavior, therefore failing to
develop adequate insight into [his] violent personality characteristic; and
failed to develop adequate insight into [his] criminal personality characteristic. During [the] hearing [he] provided only generic, obvious and formulaic statements to the Board panel such as [he] committed the murder of two uniformed police officers because [he was] "young" and "stupid." Such explanations by [him] demonstrate [he] still cannot sufficiently explain the underlying motivations that impelled [him] to react in a deadly and violent manner; and
been unable to demonstrate true remorse and empathy for the two officers that [he] murdered. By altering the true facts and circumstances of the events of July 5, 1969, specifically by falsely asserting that the officers fired the initial shot, you have led the three-member Board panel to conclude that you have an apathetic and indifferent attitude towards your deadly actions.
Citing the same rationales expressed by its panels, the full Parole Board affirmed the denial of parole and sixty-month FET on December 21, 2011. This appeal followed.
II.
On appeal, Smith presents the following points for our consideration:
POINT I: THE DECISION OF THE PAROLE BOARD TO DENY PAROLE AND IMPOSE A LONGER FUTURE ELIGIBILITY TERM THAN PREVIOUSLY IMPOSED, WITHOUT ANY NEW, NEGATIVE INTERVENING FACTORS, IS A VIOLATION OF DUE PROCESS AND MUST BE REVERSED.We are unpersuaded by Smith's arguments, except for those addressed to the duration of the FET.
POINT II: APPELLANT HAS BEEN DENIED HIS CONSTITUTIONAL RIGHT OF DUE PROCESS BY THE
BOARD'S FAILURES TO PROVIDE HIM WITH ANNUAL REVIEWS, PURSUANT TO THE ADMINISTRATIVE CODE.
POINT III: THE NEW JERSEY PAROLE BOARD'S UNFETTERED DISCRETION TO DEVIATE FROM ADMINISTRATIVE GUIDELINES WITH NO SET TIMETABLE ALLOWS AN ARBITRARY, CAPRICIOUS AND MECHANICAL OPERATION OF THE STATUTE WHICH RESULTS IN VIOLATIONS OF THE STATUTES, CONSTITUTIONS OF NEW JERSEY AND THE UNITED STATES, AND REQUIRES REVIEW BY THIS COURT.
The principles governing judicial review of decisions of the Parole Board are well settled, making our task quite limited. It is "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd. (Trantino V), 166 N.J. 113, 200 (2001). "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables . . . .'" Id. at 201 (alteration in original) (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Ibid. (citing Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 358-59 (1973)). Consequently, we may reverse the Parole Board's decision only if it is "arbitrary and capricious." Ibid. Furthermore, we do not disturb the Board's factual findings if they "'could reasonably have been reached on sufficient credible evidence in the whole record.'" Id. at 172 (quoting Trantino v. N.J. State Parole Bd. (Trantino IV), 154 N.J. 19, 24 (1998)).
Applying that deferential standard of review, we find no basis to disturb the Parole Board's decision to deny parole in this case. The decision to deny parole was not arbitrary and capricious and was supported by ample evidence, including that Smith is serving two consecutive life sentences, he exhibited insufficient insight into his violent personality characteristics, and he minimized his conduct that resulted in the convictions. See N.J.A.C. 10A:71-3.11.
Because Smith's crimes were committed in 1969, he was entitled to release on parole unless the Parole Board determined by a preponderance of the evidence that there is "a substantial likelihood" that he would commit a crime if released on parole. Trantino V, supra, 166 N.J. at 126; see N.J.S.A. 30:4-123.53(a); N.J.A.C. 10A:71-3.10(a). Unless "there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made," N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (quoting 613 Corp. v. Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988), the Parole Board's decision will prevail. We find no such mistake in this case, at least regarding the question of whether Smith should have been released on parole. Where, as here, the decision concerns a prediction as to an inmate's future behavior, a prediction fraught with subjectivity, our jurisprudence mandates broad discretion in the Parole Board's decision-making process. Puchalski v. N.J. State Parole Bd., 104 N.J. Super. 294, 300 (App. Div.), aff'd, 55 N.J. 113 (1969), cert. denied, 398 U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970).
We do not share the same view regarding the length of the FET. The exercise of discretion involved in setting an FET, like the exercise of discretion in granting or denying parole, is not unbridled. It is limited by statute and regulations. N.J.S.A. 30:4-123.56 provides, in pertinent part:
a. The board shall develop a schedule of future parole eligibility dates for adult inmates denied release at their eligibility date. In developing such schedule, particular emphasis shall be placed on the severity of the offense for which he was denied parole and on the characteristics of the offender, such as, but not limited to, the prior criminal record of the inmate and the need for continued incapacitation of the inmate.The schedule of presumptive FETs established by the parole Board and the standards for deviation therefrom are set forth in N.J.A.C. 10A:71-3.21. The standard FET for murder is twenty-seven months, which may be increased only if it is "clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior." N.J.A.C. 10A:71-3.21(d).
b. If the release on the eligibility date is denied, the board panel which
conducted the hearing shall refer to the schedule published pursuant to subsection a., and include in its statement denying parole notice of the date of future parole consideration. If such date differs from the date otherwise established by the schedule, the board panel shall include particular reasons therefor.
Thus, where N.J.S.A. 30:4-123.56(b) requires "particular reasons" for an FET "date [that] differs from the date otherwise established by the schedule," the decision must be capable of judicial review. We have several analytical problems with the FET's duration as set by the Parole Board. First, there is no logical explanation for why, at this time, an increase in Smith's FET was required. We do not suggest that the Parole Board must pay slavish fidelity to the FETs set by earlier Parole Boards, but the current decision must, at least, explain why a much longer FET is now required. It is not a sufficient explanation that as Smith's incarceration lengthens without insightful progress, so too must his FET increase in duration. Also, at the very least, the Parole Board must reconcile the present sixty-month FET with the increasingly shorter FETs imposed throughout the history of Smith's seven parole applications.
Moreover, the Parole Board has not explained the effects, if any, of Smith's aging, his overall health, and the circumstance that he is wheelchair-bound. These are significant factors that must be addressed in any analysis of recidivism. The duration of the FET must be reasonably and rationally related to reduction of the risk of recidivism that justifies denial of parole. On remand, the FET should be reconsidered, and explained in a way that avoids conclusory statements, while hewing to the objective facts in the record.
Reversed and remanded for reconsideration of the FET in conformity with this opinion. We do not retain jurisdiction.
We reject Smith's other arguments, including his due process claims and grievances about the purported lack of annual reviews, as being wholly without merit. R. 2:11-3(e)(1)(E).
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I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION