Sundiata Acoli v. New Jersey State Parole Board(075308) , 224 N.J. 213 ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Sundiata Acoli (f/k/a Clark Edward Squire) v. New Jersey State Parole Board (A-52-14) (075308)
Argued October 13, 2015 -- Decided February 23, 2016
LaVECCHIA, J., writing for a majority of the Court.
This appeal requires the Court to address the statutory process governing parole, and to determine whether
it was error for an appellate panel to order parole where the full Parole Board did not conduct an in-person
assessment and hearing of a convicted murderer.
In 1974, Sundiata Acoli was convicted of murder; atrocious assault and battery; assault and battery; assault
with an offensive weapon; assault with intent to kill; illegal possession of a weapon; and armed robbery. The trial
court imposed an aggregate sentence of life plus twenty-four to thirty years. In 2010, at the age of seventy-three,
and after serving almost thirty-seven years of his sentence, Acoli became eligible for parole for the third time. A
parole hearing officer performed an initial review of Acoli’s file, and the case was referred to a Parole Board panel
for a hearing. After interviewing Acoli at length, the two-member Board panel determined that “a substantial
likelihood exists that [Acoli] would commit a new crime if released on parole at this time.” The two-member panel
transferred the case to a three-member Board panel to establish a future eligibility term -- that is, when Acoli could
reapply for parole. The three-member panel set a future eligibility term of 120 months.
Following the administrative process for review, Acoli filed an appeal with the full Parole Board. The full
Board conducted a review based on the record as developed before the panels, commonly known as a paper hearing.
In that review, the Parole Board considered the record developed by the hearing officer and the two- and three-
member panels, but the Board did not hear testimony itself or otherwise create its own record. The full Board
approved the denial of parole to Acoli and the establishment of a 120-month future eligibility term. The Parole
Board identified its decision as a final agency decision for the purposes of appellate review.
Acoli appealed, and the Appellate Division reversed, concluding that the Board’s basis for denying parole
constituted arbitrary and capricious action. The panel ordered that the Parole Board “expeditiously set conditions
for [Acoli’s] parole.” The Board filed a motion for reconsideration, arguing that the panel should have remanded
the case to the Parole Board for a full hearing, rather than ordering parole. According to the Board, that result was
compelled by N.J.S.A. 30:4-123.55(f), which required that the full fifteen-member Parole Board conduct a hearing
before paroling an inmate who has been convicted of murder. The Appellate Division denied the motion. The panel
reasoned that N.J.S.A. 30:4-123.55(f) is triggered only when a two-member Board panel recommends parole.
The Court granted the Parole Board’s petition for certification, 221 N.J. 220 (2015), and motion for a stay.
HELD: The administrative scheme for parole envisioned that a convicted murderer would undergo a full hearing
before the Parole Board prior to securing release from incarceration. In Acoli’s circumstances, the appropriate
remedy is a remand to the full Parole Board for completion of the administrative parole process. That process in its
totality requires a full hearing before the Parole Board on his suitability for parole release and shall permit the
victims of his criminal acts to be heard, if they wish, by the Board prior to a decision on his parole.
1. The State Parole Board is the agency charged with the responsibility of deciding whether an inmate satisfies the
criteria for parole release under the Parole Act of 1979. Judicial review of the Parole Board’s decisions is guided by
the arbitrary and capricious standard that constrains other administrative action. (pp. 9-11)
2. The Parole Act and its implementing regulations set forth the process that normally governs parole
determinations. For most crimes, correctional personnel prepare a report that is filed with a Parole Board panel.
Then a designated hearing officer reviews that report, along with other supporting documentation. If the hearing
officer determines that there is a basis for denial of parole, or that a hearing is otherwise necessary, the case must be
referred to a panel of the Board for an informal hearing. N.J.S.A. 30:4-123.55(c). After the hearing, the Board
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panel can either “certify the parole release of the inmate” or “deny parole and file . . . a statement setting forth the
decision,” N.J.S.A. 30:4-123.55(d). If the Board panel denies parole, the inmate may appeal to the full Parole
Board, which may affirm, modify, or reverse the Board panel’s decision, or remand for further findings. (pp. 11-13)
3. The Parole Act creates an alternative parole track for inmates convicted of murder. For inmates serving a term
for murder and other serious offenses, a hearing officer cannot recommend parole; the individual hearing officer
must refer the case to a Board panel for a hearing. In the case of an inmate convicted of murder, even after the
hearing, the panel is without authority to certify parole; it can only recommend parole. When a Board panel
recommends parole, referral to the full Board is automatic. Parole cannot be certified “until a majority of the full
parole board, after conducting a hearing, concurs in that recommendation.” N.J.S.A. 30:4-123.55(f). That alternate
track grew out of 1989 and 1993 amendments to the Parole Act, addressing the parole process for murder inmates
and victim rights, respectively. (pp. 13-16)
4. Acoli maintains that a full hearing is required only when the two-member panel recommends parole to a
convicted murderer. That literal reading misses the overall import of the consequences of the legislative outcome
that the 1989 amendatory language sought to achieve, namely to ensure that no convicted murderer would be
released without having had a full Board hearing to consider the murder inmate’s grant of parole. At the very least,
the language is ambiguous in expressing the sense of this amendment and its operation in all settings involving the
parole release of a convicted murderer, making resort to legislative history to resolve the question raised by the
ambiguity appropriate. Here the legislative history does not support the constrained reading advanced by Acoli.
Instead, the Board’s proposed interpretation finds support from the general understanding of the amendment’s
import contained in contemporaneous legislative history. See, e.g., Office of the Governor, News Release (June 29,
1989) (explaining on Governor’s signing of bill into law that new legislation “requires the full Parole Board to
review parole recommendations for inmates convicted of first-degree murder”); Senate Judiciary Committee,
Statement to Assembly No. 2772 (signaling same expectation). (pp. 16-20)
5. Moreover, generally, when construing language of a statutory scheme, deference is given to the interpretation of
statutory language by the agency charged with the expertise and responsibility to administer the scheme. Here that
agency -- the Board -- expected that, if ever its affirmance of a two-member panel’s decision to deny release to a
convicted murderer were reversed on judicial review, the full Board would have the opportunity to conduct its final
and full Parole Board hearing that is implicitly required by N.J.S.A. 30:4-123.55(f), including the opportunity to
interview the inmate in that setting. The Board’s interpretation of what the Legislature expected of it in the
execution of its delegated predictive task is reasonable and thus entitled to deference by the courts. (pp. 20-22)
6. The Appellate Division here declined to remand to the Parole Board for a full hearing. The panel, essentially,
saw no point to that step, having itself evaluated Acoli’s bases for asserting that he is ready for release and
determining that there has been no convincing reason presented to date to require his further incarceration. That
remedy basically substituted the appellate panel’s judgment for that of the agency charged with the expertise to
make such highly predictive, individualistic determinations -- the full Parole Board. (p. 23)
7. Finally, in 1993, the Legislature pointedly added reference to the rights of victims. That language supports the
conclusion that, prior to a murder inmate’s parole release, the Legislature expected that the full Board would
conduct a hearing with the inmate present for examination, and that the victim(s) would receive notice of that
hearing and be given the opportunity to address the Board and to witness the full Board’s interaction with the
incarcerated murderer prior to his or her approval for release. Under the truncated review that occurred here, and on
which the appellate panel based its order requiring the Board to set conditions for Acoli’s release, that language
would be substantially neutered, if not rendered meaningless. (pp. 23-24).
The remedy imposed by the Appellate Division is REVERSED, and the matter is remanded for further
proceedings.
JUSTICE ALBIN, DISSENTING, expresses the view that the plain and unambiguous language of
N.J.S.A. 30:4-123.55(f) requires a full evidentiary hearing by the Parole Board only when a Board panel
recommends that a murder inmate be paroled; nothing in the language of that subsection or the legislative history
suggests that the Legislature intended to address anything other than the circumstance of a Board panel’s decision to
recommend release of a convicted murderer. The statutes applicable to cases in which the Board panel denies
parole, N.J.S.A. 30:4-123.55(c) and -123.58, do not mandate that the full Parole Board conduct an evidentiary
2
hearing.
JUSTICES PATTERSON and SOLOMON and JUDGE CUFF (temporarily assigned) join in
JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion. CHIEF JUSTICE
RABNER and JUSTICE FERNANDEZ-VINA did not participate.
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SUPREME COURT OF NEW JERSEY
A-52 September Term 2014
075308
SUNDIATA ACOLI (f/k/a CLARK
EDWARD SQUIRE),
Petitioner-Respondent,
v.
NEW JERSEY STATE PAROLE
BOARD,
Respondent-Appellant.
Argued October 13, 2015 – Decided February 23, 2016
On certification to the Superior Court,
Appellate Division.
Lisa A. Puglisi, Assistant Attorney General,
argued the cause for appellant (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel).
Bruce I. Afran argued the cause for
respondent.
Alexander R. Shalom argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey Foundation (Edward L. Barocas,
Legal Director, attorney).
JUSTICE LaVECCHIA delivered the opinion of the Court.
After a two-member panel of the Parole Board denied parole
to petitioner Sundiata Acoli, a convicted murderer who twice
before had been denied parole, Acoli filed an internal
administrative appeal. That administrative appeal entitled him
1
to a review by the full Parole Board of the record that had been
developed before the Board panel, as well as any additional
material submitted by Acoli. Because he had not been
recommended for parole, the full Board did not conduct an in-
person assessment of Acoli consistent with its regulations
governing the parole process. The Parole Board affirmed the
denial of parole and the extended future parole eligibility date
established for Acoli.
Acoli appealed to the Appellate Division, and, in an
unpublished opinion, the appellate panel reversed the Parole
Board. The Appellate Division determined that, based on the
administrative record developed, the Parole Board’s affirmance
of the denial of parole was arbitrary and capricious. The
appellate panel ordered the Parole Board to “expeditiously set
conditions for parole.”
We granted the Parole Board’s petition for certification,
which argues only that it was error, under the statutory process
governing parole, for the Appellate Division to have proceeded
directly to ordering Acoli’s parole. Construction of the
statutes governing the parole process leads us to conclude that
the Appellate Division acted prematurely in ordering Acoli’s
parole release.
As we perceive the legislative intent expressed through the
parole statute, the administrative scheme for parole envisioned
2
that a convicted murderer would undergo a full hearing before
the Parole Board prior to securing release from incarceration.
Submitting the decision of a two-member panel’s denial of parole
to a truncated Board review of a murder inmate’s alleged errors
does not substitute for the full Board in-person review and
hearing of a convicted murderer prior to his or her parole
release. Accordingly, we hold that the appropriate remedy in
Acoli’s circumstances is a remand to the full Parole Board for
completion of the administrative parole process. That process
in its totality requires a full hearing before the Parole Board
on his suitability for parole release and shall permit the
victims of Acoli’s criminal acts to be heard, if they wish, by
the Board prior to a decision on his parole. We reverse and
remand for proceedings consistent with this opinion.
I.
We begin with a summary of the relevant facts and the
procedural path that this appeal has taken. Foremost, the
procedural history sets the stage for the statutory construction
issue at the heart of this appeal.
Stemming from his involvement in the 1973 roadside murder
of State Trooper Werner Foerster and assault of Trooper James
Harper along the New Jersey Turnpike, Acoli was convicted in
1974 of murder; atrocious assault and battery; assault and
battery; assault with an offensive weapon; assault with intent
3
to kill; illegal possession of a weapon; and armed robbery.
Under the sentencing provisions in place at the time, the trial
court sentenced Acoli to a life term for the murder conviction
and consecutive sentences of ten to twelve years of imprisonment
for his conviction for assault with intent to kill; two to three
years of imprisonment for illegal possession of a weapon; and
twelve to fifteen years of imprisonment for armed robbery.
Taken together, he received an aggregate sentence of life plus
twenty-four to thirty years.
In 2010, at the age of seventy-three, and after serving
almost thirty-seven years of his sentence, Acoli became eligible
for parole for the third time.1 A parole hearing officer
performed an initial review of Acoli’s file, and the case was
referred to a Parole Board panel for a hearing. After
interviewing Acoli at length, the two-member Board panel
determined that “a substantial likelihood exists that [Acoli]
would commit a new crime if released on parole at this time.”
Because of that determination, the two-member panel transferred
the case to a three-member Board panel to establish a future
eligibility term -- that is, when Acoli could reapply for parole
-- under administrative guidelines. The three-member panel set
a future eligibility term of 120 months.
1 Acoli previously had been denied parole in 1993 and 2004.
4
Following the administrative process for review, Acoli
filed an appeal with the full Parole Board. The full Board
conducted a review based on the record as developed before the
panels, commonly known as a paper hearing. In that review, the
Parole Board considered the record developed by the hearing
officer and the two- and three-member panels, but the Board did
not hear testimony itself or otherwise create its own record.
With that as the record before it, the full Board (minus the
Board members who had participated in earlier panel decisions)
approved the denial of parole to Acoli and the establishment of
a 120-month future eligibility term. The Board’s findings were
set forth in a nine-page written decision that essentially
adopted the Board panels’ determinations.
The Parole Board identified its decision as a final agency
decision for the purposes of appellate review. See R. 2:2-
3(a)(2). Acoli appealed, and the Appellate Division reversed.
The Appellate Division concluded that the Board’s basis for
denying Acoli parole constituted arbitrary and capricious
action, and the panel ordered that the Parole Board
“expeditiously set conditions for [Acoli’s] parole.”
The Board filed a motion for reconsideration. It asked the
panel to reassess its remedy and, further, requested a stay
pending reconsideration. The Board argued that, rather than
ordering parole, the Appellate Division should have remanded the
5
case to the Parole Board for a full hearing. According to the
Board, that result was compelled by N.J.S.A. 30:4-123.55(f),
which required that the full fifteen-member Parole Board conduct
a hearing before paroling an inmate who has been convicted of
murder.
Concluding that the Board misconstrued N.J.S.A. 30:4-
123.55(f), the Appellate Division denied the motion for
reconsideration in a written order. According to the appellate
panel, N.J.S.A. 30:4-123.55(f) is triggered only when a two-
member Board panel recommends parole. Viewing that subsection
to be designed as a curb on a rogue two-member panel that might
improperly release a convicted murderer, the appellate panel
dismissed the subsection as inapplicable to Acoli’s
circumstances. To the appellate panel, nothing in N.J.S.A.
30:4-123.55(f) mandated a plenary hearing before the full Parole
Board “if the inmate was not certified for parole by an assigned
member or the board panel prior to the Board considering an
appeal from a denial of parole.” Accordingly, the appellate
panel saw no reason to disturb its prior decision and dismissed
as moot the Board’s stay application.
The Parole Board filed a motion for a stay before this
Court, pending this Court’s determination on its petition for
certification. We granted the stay and the Board’s petition for
certification. Acoli v. N.J. State Parole Bd., 221 N.J. 220
6
(2015). We also granted amicus curiae status to the American
Civil Liberties Union of New Jersey (ACLU-NJ).
II.
A.
The Board maintains that the Legislature directed that
before an inmate serving a sentence for murder can be paroled,
the full Board must certify parole, by a majority vote, after a
hearing. That legislative aim, the Board says, was thwarted by
the Appellate Division’s narrow construction of N.J.S.A. 30:4-
123.55(f), which would require a full Board hearing only when
the two-member panel recommends parole. Accordingly, the Board
asks this Court to remand to the Board for a full hearing.
The Board emphasizes the distinctions between the
administrative paper appeal (the type of appeal that occurred
here) and the full evidentiary hearing. To the Board, the two
proceedings are not interchangeable. The full hearing provides
each Board member with the chance to question the inmate and
hear his or her responses, using those responses as aids in
assessing whether the inmate is likely to commit a crime if
released. However, the administrative appeal is simply a paper
review of the record before the Board panel, its decision, and
the inmate’s objections to it.
Last, the Board argues that the Appellate Division deprived
the victims of their right to appear before the fifteen-member
7
Board. Although the victims may have had a chance to appear
before the two-member panel, the Board contends that the
Legislature specifically granted victims the right to provide
input before the full Board, guiding its parole consideration of
an incarcerated convicted murderer.
B.
Focusing on the plain language of N.J.S.A. 30:4-123.55(f),
Acoli argues that the subsection applies only when a two-member
Board panel recommends parole for an incarcerated convicted
murderer. According to Acoli, the Appellate Division correctly
determined that N.J.S.A. 30:4-123.55(f) did not apply in his
circumstances. Acoli contends that the Legislature’s purpose
undergirding that provision is to prevent a two-member Board
panel, acting alone, from paroling an inmate serving a sentence
for murder. He urges this Court to find no ambiguity in the
statute and maintains that to grant the Board’s requested relief
would attribute to N.J.S.A. 30:4-123.55(f) an intent that runs
contrary to its plain language.
The ACLU-NJ makes a similar argument, maintaining that the
plain language of N.J.S.A. 30:4-123.55(f) renders it
inapplicable here. The ACLU-NJ divides the roads ordinarily
taken for parole release into three general categories: (1) the
Board panel could certify parole, triggering an inmate’s
release; (2) if the Board panel denies parole, the inmate can
8
appeal that denial to the full Board, which could then certify
release; and (3) an appellate court could find the Board’s
denial so arbitrary that the court intervenes and grants parole.
The ACLU-NJ explains that N.J.S.A. 30:4-123.55(f) cuts off the
first path -- a Board panel certifying parole -- for inmates
convicted of murder. However, the ACLU-NJ asserts that the
subsection left untouched the second and third routes to parole.
Emphasizing the words of N.J.S.A. 30:4-123.55(f), the ACLU-
NJ states that the subsection applies only when a Board panel
recommends a murder inmate for parole. Because the Board panel
here denied Acoli’s parole request, the ACLU-NJ argues that the
subsection is plainly inapplicable and urges affirmance of the
Appellate Division judgment.
III.
We begin with the structure of the Parole Board and the
parole process. The State Parole Board is composed of a chair,
fourteen associate members, and three alternate members.
N.J.S.A. 30:4-123.47(a). Appointed by the Governor with the
advice and consent of the Senate, those members are appointed to
bring expertise in “law, sociology, criminal justice, juvenile
justice or related branches of the social sciences.” Ibid.
Like other administrative agencies that employ specialized
knowledge to administer a regulatory scheme, the Parole Board is
the “agency charged with the responsibility of deciding whether
9
an inmate satisfies the criteria for parole release under the
Parole Act of 1979.” In re Application of Hawley, 98 N.J. 108,
112 (1984). Drawing on the diverse backgrounds of its members,
the Parole Board makes “highly predictive and individualized
discretionary appraisals.” Beckworth v. N.J. State Parole Bd.,
62 N.J. 348, 359 (1973).
Those appraisals must realistically be recognized to be
inherently imprecise, as they are based on “‘discretionary
assessment[s] of a multiplicity of imponderables, entailing
primarily what a man is and what he may become rather than
simply what he has done.’” 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) (quoting Sanford H. Kadish, The Advocate and
the Expert -- Counsel in the Peno-Correctional Process, 45 Minn.
L. Rev. 803, 813 (1961)); see also Trantino v. N.J. State Parole
Bd., 166 N.J. 113, 201 (2001) (Baime, J.A.D., dissenting)
(“Stripped to its essentials, a parole board’s decision concerns
a prediction as to an inmate’s future behavior, a
prognostication necessarily fraught with subjectivity.”). But
that imprecision does not allow parole determinations to escape
judicial scrutiny. Judicial review of the Parole Board’s
decisions is guided by the arbitrary and capricious standard
that constrains other administrative action. See Hawley, supra,
98 N.J. at 112-13.
10
It is settled law that the parole of an inmate may come
about through appellate review of the parole process when that
process has been completed and the Board has been shown to have
acted arbitrarily in denying parole. In Trantino, supra, this
Court confronted the Parole Board’s argument that “the actual
granting or withholding of parole is a function reposing
exclusively in the Parole Board, and there is no such thing as
judicial parole.” 166 N.J. at 173 (internal quotation marks
omitted). Although the Parole Board rarely acts so far outside
of its discretion as to invite judicial intervention, we
recognized in Trantino that the power to reverse the agency and
order that parole be granted “may be encompassed within the
province of judicial review.” Ibid.
That said, the Parole Act and its implementing regulations
set forth the process that normally governs parole
determinations. See N.J.S.A. 30:4-123.45 to -123.69; N.J.A.C.
10A:71-3.1 to -4.3.
For most crimes, as an inmate’s parole eligibility date
approaches, correctional personnel prepare a pre-parole report
that is filed with a Parole Board panel. N.J.S.A. 30:4-
123.54(a). Then a “designated hearing officer” reviews that
report, along with other supporting documentation, and
determines “whether there is a basis for denial of parole” or
whether “additional information providing a basis for denial of
11
parole would be developed or produced at a hearing.” N.J.S.A.
30:4-123.55(a).
If the hearing officer finds no basis to deny parole and no
need to develop more information at a hearing, he or she then
submits a written recommendation “to the assigned member of the
[B]oard panel that parole release be granted.” Ibid. If the
Board panel member concurs, parole is certified. N.J.S.A. 30:4-
123.55(b).
But if the hearing officer “determines that there is a
basis for denial of parole, or that a hearing is otherwise
necessary,” the case must be referred to a panel of the Board
for a hearing. N.J.S.A. 30:4-123.55(c). The hearing is
informal. Ibid. The Board panel can receive “as evidence any
relevant and reliable documents or videotaped or in person
testimony, including that of the victim of the crime or the
members of the family of a murder victim if the victim or a
family member so desires.” Ibid. After the hearing, which also
can be ordered if a panel member disagrees with the hearing
officer’s recommendation, see N.J.A.C. 10A:71-3.16(d), the Board
panel can either “(1) certify the parole release of the inmate”
or “(2) deny parole and file . . . a statement setting forth the
decision,” N.J.S.A. 30:4-123.55(d).
If the Board panel denies parole, the inmate may appeal in
writing that denial decision to the full Parole Board. N.J.S.A.
12
30:4-123.58(a); N.J.A.C. 10A:71-4.2(a). Under that procedure,
in contrast to the process when the panel recommends parole of a
convicted murderer, an in-person review of the inmate by the
full Board is not part of the structure of this review. Cf.
N.J.A.C. 10A:71-3.19(c) (setting procedure to ensure murder
inmate’s presence at full Board review when two-member panel
recommends parole of murder inmate under N.J.A.C. 10A:71-
3.18(c)). In the review of a denial of parole, the full
fifteen-member Board, minus the Board panel members that
participated in the hearing, decides the appeal. N.J.S.A. 30:4-
123.58(a). The Parole Board may affirm, modify, or reverse the
Board panel’s decision, or it can remand for further findings.
N.J.A.C. 10A:71-4.2(f).
Importantly, the Parole Act creates an alternative parole
track for inmates convicted of murder. For inmates serving a
term for murder and other serious offenses, a hearing officer
cannot recommend parole; the individual hearing officer must
refer the case to a Board panel for a hearing. N.J.A.C. 10A:71-
3.15(b). In the case of an inmate convicted of murder, even
after the hearing, the panel is without authority to certify
parole; it can only recommend parole. N.J.A.C. 10A:71-3.18(c).
When a Board panel recommends parole, referral to the full Board
is automatic. Ibid. Parole cannot be certified “until a
13
majority of the full parole board, after conducting a hearing,
concurs in that recommendation.” N.J.S.A. 30:4-123.55(f).
That alternate track grew out of 1989 and 1993 amendments
to the Parole Act. Reflecting those amendments, N.J.S.A. 30:4-
123.55(f) currently provides:
Notwithstanding the provision of any other law
to the contrary, if an inmate incarcerated for
murder is recommended for parole by the
assigned board member or the appropriate board
panel, parole shall not be certified until a
majority of the full parole board, after
conducting a hearing, concurs in that
recommendation. The board shall notify the
victim’s family of that hearing and family
members shall be afforded the opportunity to
testify in person or to submit written or
videotaped statements.
The first sentence of the subsection, addressing the parole
process for murder inmates, was enacted in 1989, see L. 1989, c.
115, § 1, and the second sentence on victim rights came in 1993,
see L. 1993, c. 222, § 1.
In a statement issued when it considered the 1989
amendment, the Senate Judiciary Committee detailed the parole
process and the effect that the 1989 amendment would have:
Under present procedures, whenever any inmate
nears his parole eligibility date, a hearing
officer is assigned to review that inmate’s
record. If the hearing officer determines
that no basis for denial of parole exists, he
recommends to the parole board member assigned
to that case that the inmate be released. If
the board member concurs in that
recommendation, parole is certified.
14
If the hearing officer does not recommend
parole or if the assigned board member does
not certify a parole recommendation, a parole
hearing is held by the appropriate board
panel. After that hearing, the board panel
either certifies or denies parole.
Under this bill, whenever an inmate
incarcerated for murder is recommended for
parole, parole shall not be certified until a
majority of the full parole board, after
conducting a hearing, concurs in that
recommendation.
[Senate Judiciary Committee, Statement to
Assembly No. 2772 (1989).]
That amendment was signed into law in June 1989 by Governor
Thomas H. Kean.
The Legislature amended the statute yet again in 1993 to
address the hearing conducted by the full Board when considering
the release of a convicted murderer, adding the following
language: “The board shall notify the victim’s family of that
hearing and family members shall be afforded the opportunity to
testify in person or to submit written statements.” L. 1993, c.
222, § 1. The Sponsor’s Statement accompanying the legislation
explained:
Under present law, the full Parole Board is
required to hold a hearing prior to certifying
the parole of an inmate incarcerated for
murder. This bill would permit the family of
the murder victim to testify in person or
submit written documents at that hearing.
[Sponsor’s Statement to S. No. 1243 (1992).]
15
With that background to the parole process in mind, we turn
to the matter before us.
IV.
In the performance of administrative law actions and
determinations, process matters. An administrative agency
exercises its delegated authority and applies its intended
expertise pursuant to the Legislature’s enabling act that frames
the performance of the agency’s assigned tasks. The prescribed
process includes “the means by which the Legislature expects the
agency to act.” See 37 New Jersey Practice, Administrative Law
and Practice § 1.6, at 10 (Steven L. Lefelt et al.) (2d ed.
2000). The parole scheme operates within that general
construct.
The decision to grant or deny parole has been granted to a
legislatively created administrative body comprised of persons
having a combined background deemed suitable by the Legislature
to make exceedingly difficult predictive pronouncements about an
individual’s likelihood to reoffend. See N.J.S.A. 30:4-
123.47(a). The process created by the Legislature for that body
to follow is one that reflects the trust reposed in the body of
individuals selected to serve as the decision makers for an
agency cast with responsibility and authority to make difficult
predictive determinations. See Hawley, supra, 98 N.J. at 112
(stating that, under Parole Act of 1979, Parole Board is tasked
16
with serious responsibility of determining “whether an inmate
satisfies the criteria for parole release”); Beckworth, supra,
62 N.J. at 359 (noting that Board is expected to draw from
members’ diverse backgrounds when making “highly predictive and
individualized discretionary appraisals”).
Here, the administrative process calls for stepped decision
making. In this instance, we are called on to discern how that
administrative process was intended to work, inclusive of
judicial review, in the context of a sequence of events not
faced before by this Court under the present statutory
configuration.2 Our task here, as in every matter involving
statutory construction, is the same: “‘to divine and effectuate
the Legislature’s intent.’” Perez v. Zagami, 218 N.J. 202, 209
(2014) (quoting State v. Buckley, 216 N.J. 249, 263 (2013)).
The best evidence of that intent is the plain language of
the statute, which thus serves as the starting point for
statutory review. Id. at 209-10. However, if there is
ambiguity lurking in the statute’s plain language such that its
application in particular circumstances “is not clear” or “is
susceptible to more than one plausible meaning,” the Court may
2 The Board represents that in the twenty-five years since the
enactment of N.J.S.A. 30:4-123.55(f), in cases where appellate
courts ordered the parole of a murder inmate, the full Parole
Board had conducted a full hearing. That historical fact is not
disputed.
17
look beyond the statutory text to extrinsic sources to aid in
understanding the Legislature’s will. State v. Olivero, 221
N.J. 632, 639 (2015) (internal quotation marks omitted).
Our focus is drawn then, as it must be, to the legislative
amendments that created the current provision codified as
N.J.S.A. 30:4-123.55(f), which deserves repeating in full:
Notwithstanding the provision of any other law
to the contrary, if an inmate incarcerated for
murder is recommended for parole by the
assigned board member or the appropriate board
panel, parole shall not be certified until a
majority of the full parole board, after
conducting a hearing, concurs in that
recommendation. The board shall notify the
victim’s family of that hearing and family
members shall be afforded the opportunity to
testify in person or to submit written or
videotaped statements.
Although that subsection clearly and expressly prevented
the parole of a convicted murderer by the sole action of a
simple two-member panel of the full Board, as Acoli and amicus
the ACLU-NJ have argued, we are hard pressed to view the
legislative language as restrictively as they do in the setting
of this appeal. They maintain that a full hearing is required
only when the two-member panel recommends parole to a convicted
murderer. However, that literal reading of the language misses
the overall import of the consequences of the legislative
outcome that the 1989 amendatory language sought to achieve,
namely to ensure that no convicted murderer would be released
18
without having had a full Board hearing to consider the murder
inmate’s grant of parole.
Although not expressly stated in that manner in the 1989
amendatory language when the Legislature was reacting to a panel
of the Board recommending parole without any full Board review
of that result, that animating principle is implicit in the
increased procedural hurdles that the Legislature saw fit to
insert into the then-existing parole process for inmates
incarcerated for murder. At the very least, the language is
ambiguous in expressing the sense of this amendment and its
operation in all settings involving the parole release of a
convicted murderer, making resort to legislative history to
resolve the question raised by the ambiguity appropriate.
Here the legislative history that is available does not
support the constrained reading, advanced by Acoli and by the
ACLU-NJ, of the 1989 amendatory language contained in the first
sentence of subsection (f). Instead, the Board’s proposed
interpretation finds support from the general understanding of
the amendment’s import contained in contemporaneous legislative
history. See, e.g., Office of the Governor, News Release (June
29, 1989) (explaining on Governor’s signing of bill into law
that new legislation “requires the full Parole Board to review
parole recommendations for inmates convicted of first-degree
19
murder”); Senate Judiciary Committee, Statement to Assembly No.
2772 (signaling same expectation).
Moreover, generally, when construing language of a
statutory scheme, deference is given to the interpretation of
statutory language by the agency charged with the expertise and
responsibility to administer the scheme. See US Bank, N.A. v.
Hough, 210 N.J. 187, 199 (2012) (explaining that when plain
language leads to more than one reasonable interpretation,
extrinsic evidence may be considered, and that such evidence
includes agency’s interpretation of statute it is tasked with
administering). Here that agency -- the Board -- maintains that
it operated under the expectation that, if ever the Board’s
affirmance of a two-member panel’s decision to deny release to a
convicted murderer were reversed on judicial review, the full
Board would have the opportunity to conduct its final and full
Parole Board hearing that is implicitly required by N.J.S.A.
30:4-123.55(f), including the opportunity to interview the
inmate in that setting.
The Board points to the lack of that full review here and
argues, persuasively, that its absence is significant and
contrary to the legislative design for careful and thorough
review at all administrative levels prior to parole release of
murder inmates. The Parole Board maintains that there are
differences between a review on the papers and a plenary
20
hearing. One reviews a denial by the two-member panel, and, in
the other, the full Board is itself considering whether to
approve the grant of parole to a convicted murderer. We accept
that those hearings are different in nature and kind, the latter
calling on the dynamic in-person interaction of the full Board’s
members with the convicted murderer to assess collectively the
inmate’s suitability for parole. In that exchange, the diverse
backgrounds and expertise of the individual Board members may be
utilized and inform the considered judgment of the decisional
body.
It makes little administrative sense to expect the full
Board to conduct the equivalent of a full Board review for
release of a convicted murderer whenever a two-member panel
withholds parole. To convert every such appeal to a full-blown
review would waste Board personnel and fiscal resources.
Rather, it is reasonable for the Board to focus its attention on
the inmate’s reasons for criticizing the two-member panel’s
record and decision and have that limited review be subject to
judicial review before the Board is required to conduct a
resource-intensive full hearing.
We recognize that the agency’s implementing regulations did
not specify such a step, as it had never before occurred (all
prior judicial parole orders of murderers having come after the
full Board had conducted a full review). However, the
21
regulatory scheme in its totality underscores the need for
ensuring a murder inmate’s appearance at a full Board
examination prior to securing parole release, see N.J.A.C.
10A:71-3.19(c), and specifies the extensive actions that the
Board and the Department of Corrections must take in order to
satisfy that important step in the process. In light of the
rarity of that circumstance, we do not place much weight on the
failure for such an occurrence to be spelled out in the
administrative regulations. The Board’s interpretation of what
the Legislature expected of it in the execution of its delegated
predictive task is reasonable and thus entitled to deference by
the courts. In re Election Law Enf’t Comm’n Advisory Op. No.
01-2008, 201 N.J. 254, 262 (2010) (“We will defer to an agency’s
interpretation of both a statute and implementing regulation,
within the sphere of the agency’s authority, unless the
interpretation is ‘plainly unreasonable.’” (quoting Reilly v.
AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 485 (2008))).
That supports showing patience, exercising judicial
restraint, and allowing the administrative process to reach its
conclusion. By virtue of our remand, we ensure that subsequent
judicial review, if critical of the substance of that ultimate
determination by the Parole Board under the applicable standard
of review, does not impermissibly result in a judicial
substitution of a decision reposed by the Legislature with the
22
Parole Board. The Appellate Division here declined to remand to
the Parole Board for a full hearing, as was requested on
reconsideration by the Parole Board. The panel, essentially,
saw no point to that step, having itself evaluated Acoli’s bases
for asserting that he is ready for release and determining that
there has been no convincing reason presented to date to require
his further incarceration. That remedy basically substituted
the appellate panel’s judgment for that of the agency charged
with the expertise to make such highly predictive,
individualistic determinations –- the full Parole Board. We are
reluctant to agree with the appellate panel that such a
determination should have been made without having allowed the
completion of all steps that the Legislature deemed necessary in
the deliberation on paroling a convicted murderer.
Finally, we note that statutory construction abhors an
interpretation that would render meaningless words within a
statute. Jersey Cent. Power & Light Co. v. Melcar Util. Co.,
212 N.J. 576, 587 (2013) (observing as “bedrock assumption” that
Legislature does not include meaningless language). “[E]very
effort should be made to avoid rendering any part of the statute
superfluous.” State in Interest of K.O., 217 N.J. 83, 91
(2014). In 1993, the Legislature pointedly added reference to
the rights of victims, stating
23
The board shall notify the victim’s family of
that hearing and family members shall be
afforded the opportunity to testify in person
or to submit written statements.
[L. 1993, c. 222, § 1.]
That language supports the conclusion that, prior to a
murder inmate’s parole release, the Legislature expected that
the full Board would conduct a hearing (1) with the inmate
present for examination, not a paper review of the record below,
and that (2) the victim or victims would receive notice of that
hearing and be given the opportunity to address the Board and to
witness the full Board’s interaction with the incarcerated
murderer prior to his or her approval for release. Under the
truncated review that occurred here, and on which the Appellate
Division based its order requiring the Board to set conditions
for Acoli’s release, that language would be substantially
neutered, if not rendered meaningless. It is not equivalent to
point to a victim’s right to submit material to the two-member
panel that would then be part of the paper-record review
conducted by the full Board on a recommendation of parole
denial.
In sum, the Appellate Division’s remedy missed a step by
not remanding to the full Board for a full hearing and
assessment of Acoli’s suitability for parole release. We
express no view on what the outcome of that full assessment
24
should be. Whatever it shall be, there will be a right of
appeal to the Appellate Division. If Acoli is denied parole,
then that would be the appropriate time at which the Appellate
Division might have occasion to consider whether the unusual
remedy of judicially ordered parole of a convicted murderer
might be in order. However, that possibility must await
completion of the parole process in its entirety.
V.
The remedy imposed by the Appellate Division is reversed,
and the matter is remanded for further proceedings consistent
with this opinion.3
JUSTICES PATTERSON and SOLOMON and JUDGE CUFF (temporarily
assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN
filed a separate, dissenting opinion. CHIEF JUSTICE RABNER and
JUSTICE FERNANDEZ-VINA did not participate.
3 It is difficult to reconcile the charged nature of the
dissent’s language with the commonplace remedy of a remand to
complete an administrative process, as ordered in this matter.
To the extent that the dissent is so impassioned because it is
Acoli whose case is remanded, we add only this. It was the
procedural setting of this case that gave rise to an issue of
first impression. Our resolution of that issue will govern the
parole process for all inmates incarcerated for murder, not only
Acoli.
25
SUPREME COURT OF NEW JERSEY
A-52 September Term 2014
075308
SUNDIATA ACOLI (f/k/a CLARK
EDWARD SQUIRE),
Petitioner-Respondent,
v.
NEW JERSEY STATE PAROLE
BOARD,
Respondent-Appellant.
JUSTICE ALBIN, dissenting.
Fifteen years ago, this Court stated that “[n]o matter how
great the pressure, agencies of government cannot ignore the law
in special cases.” Trantino v. N.J. State Parole Bd., 166 N.J.
113, 197 (2001). The Court made that statement because the New
Jersey Parole Board, in a controversial case, repeatedly refused
to parole an inmate despite the governing statute that called
for his release. See id. at 121, 189. The inmate, Thomas
Trantino, had brazenly and brutally killed two police officers
thirty-seven years earlier. See id. at 121-22. The Court knew
that the public would “find it incomprehensible that the law
requires parole release of an inmate who was responsible for the
murder of two police officers.” Id. at 196. It nevertheless
ordered Trantino’s release because, after almost four decades in
prison, there was no longer a substantial likelihood that he
1
would commit another offense. Id. at 190. The Court emphasized
that the “case [was] more about the rule of law than it [was]
about Thomas Trantino,” and that the law must apply “equally to
all persons, the bad as well as the good.” Id. at 197-98
(quoting Catena v. Seidl, 68 N.J. 224, 228 (1975)). The Court
concluded with these words: “If ever courts permit agencies of
government to create exceptions to the rule of law, applying it
for the many but exempting the disfavored, we will have
irreparably damaged the foundation of our democracy.” Id. at
198.
The present case tests whether our Court is willing to keep
faith with the guiding principles set forth in Trantino.
Sundiata Acoli, now seventy-nine years old, committed
infamous crimes forty-two years ago -- the murder of one New
Jersey State Trooper and the atrocious assault and battery of
another. He was sentenced to a term of life plus twenty-four to
thirty-years imprisonment. Based on the law in effect when he
committed those abhorrent crimes, he has been eligible for
parole. The Parole Board denied Acoli parole in 1993, 2004, and
2011. On the last occasion, as on earlier ones, the Parole
Board maintained that there was a substantial likelihood that
Acoli would commit another crime if released.
The Appellate Division reversed, finding no support in the
record for the conclusion that Acoli posed a threat if paroled.
2
The Appellate Division determined that the Board’s denial of
parole was therefore arbitrary and capricious and ordered the
Board to release Acoli after setting appropriate conditions.
In ordering Acoli’s release, the appellate panel simply
followed the plain words of the governing parole statute and
gave this notorious inmate the protection of the law. The
courageous appellate panel clearly recognized that its decision
would not be popular and might be misunderstood, but was willing
to suffer the public’s opprobrium because the law commanded the
result.
The Board does not challenge the Appellate Division’s
finding that the denial of parole lacked evidential support.
Instead, the Board argues without any statutory support that the
Appellate Division must (1) remand to the Board to hear directly
from Acoli, although the Board evidently had no desire to hear
from him when it last convened, and (2) allow the victim’s
family members to be heard, although they were given the
opportunity to register their opinions through written or
videotaped statements.
In accepting the Board’s argument and overturning the
Appellate Division, the majority ignores a plainly written
statute and our jurisprudence governing appeals from a final
decision of a state agency. See N.J.S.A. 30:4-123.55; In re
Appeal of Certain Sections of Unif. Admin. Procedure Rules, 90
3
N.J. 85, 96 (1982) (“The final decision constitutes the ultimate
regulatory result.”). The majority’s strained and unreasonable
interpretation of our law will keep Acoli in prison for more
hearings and more appeals -- without in any way altering the
Appellate Division’s unchallenged legal conclusion that Acoli
poses no danger to the public. The now forty-two-year record in
this case will not meaningfully change on remand; nor is it
reasonable to expect that the Board’s decision will change. But
the majority decrees that these pointless steps be taken.
Acoli committed the most heinous crime: the murder of a
law enforcement officer -- a crime, which, if committed today,
would result in a life sentence without parole eligibility.
N.J.S.A. 2C:11-3(b)(2). But even the most despised inmate is
entitled to the protection and enforcement of the law. That was
the lesson in Trantino. That is a lesson, sadly, forgotten
today. Because Acoli has not been given the benefit of the
statute as written, I respectfully dissent.
I.
The Parole Act, N.J.S.A. 30:4-123.45 to -123.69, provides
two pathways in the parole process for inmates sentenced to
prison for murder. Both paths begin the same way. A pre-parole
report, which includes any statements submitted by the victim’s
relatives, is forwarded to a panel of the Parole Board.
N.J.S.A. 30:4-123.54(a), (b)(2); N.J.A.C. 10A:71-3.7(c)-(d). A
4
hearing officer then reviews the pre-parole report and any
related material and refers the case to a Board panel. N.J.A.C.
10A:71-3.15(a)(1), (b). The Board panel must notify the
victim’s relatives of their right to testify or submit written
or videotaped statements at the hearing. N.J.S.A. 30:4-
123.54(b)(2). Next, a Board panel reviews the pre-parole report
and conducts a hearing. N.J.S.A. 30:4-123.55(c); N.J.A.C.
10A:71-3.16(a). At the hearing, the Board panel “receive[s] as
evidence any relevant and reliable documents or videotaped or in
person testimony, including that of the victim of the crime or
the members of the family of a murder victim if the victim or a
family member so desires.” Ibid.
Pathway one is when the Board panel denies parole. In that
circumstance, the inmate may appeal to the full Parole Board for
a review of the panel decision. N.J.S.A. 30:4-123.58(a);
N.J.A.C. 10A:71-4.1(a). The inmate and victim’s relatives have
no statutory right to appear in person before the full Parole
Board, although they are provided the opportunity to be heard
before the Board panel. See N.J.S.A. 30:4-123.55(c). The full
Board, however, has the inherent authority to permit the inmate
and the victim’s relatives to make statements or give testimony
before rendering a decision. If the full Parole Board denies
parole in a final agency determination, the inmate has the right
of appeal. See Trantino, supra, 166 N.J. at 173.
5
The Appellate Division is authorized to correct arbitrary
decisions of the Parole Board and, when necessary, to order the
release of a prisoner held in violation of the law. Ibid. That
power is the essence of judicial review. It ensures that the
rule of law is not sacrificed to the caprice of government
actors rendering decisions that cannot be justified by the
record or governing statutes. Ibid. Under the law applicable
to Acoli, parole could be denied only if a preponderance of the
evidence established a “substantial likelihood” the individual
would commit a crime if released. See N.J.S.A. 30:4-123.53(a)
(1979), amended by N.J.S.A. 30:4-123.53(a) (1997) and N.J.S.A.
30:4-123.56(c) (1979), amended by N.J.S.A. 30:4-123.56(c)
(1997).
Pathway two is when a Board panel recommends that an inmate
incarcerated for murder be released on parole. In that
circumstance, the case is referred automatically to the full
Parole Board. N.J.S.A. 30:4-123.55(f); N.J.A.C. 10A:71-3.18(c).
When the Board panel recommends release, N.J.S.A. 30:4-123.55(f)
directs that “parole shall not be certified until a majority of
the full parole board, after conducting a hearing, concurs in
that recommendation.” That statute also provides that the
victim’s family shall be notified of the hearing and “be
afforded the opportunity to testify in person or to submit
written or videotaped statements.” Ibid.
6
Subparagraph (f) was enacted as an amendment to N.J.S.A.
30:4-123.55 to prevent a two-member Board panel from paroling an
inmate incarcerated for murder without review by the full Parole
Board. See Senate Judiciary Committee, Statement to Assembly
No. 2772 (Feb. 23, 1989). In enacting subparagraph (f) (pathway
two), the Legislature was aware that a final determination by
the Parole Board under pathway one was subject to judicial
review and could be reversed if arbitrary and capricious, and
that the court was empowered to order parole. See, e.g., N.J.
State Parole Bd. v. Cestari, 224 N.J. Super. 534, 551 (App.
Div.), certif. denied, 111 N.J. 649 (1988) (ordering parole in
1988); Mallamaci v. Dietz, 146 N.J. Super. 15, 22-23 (App. Div.
1976) (ordering parole in 1976). In other words, subparagraph
(f) has no bearing on pathway one. Nothing in the language of
subparagraph (f) or the legislative history suggests that the
Legislature intended to address anything other than the
circumstance of a board panel’s decision to recommend release of
a convicted murderer.
II.
A.
The law pertaining to pathway one governs the outcome of
this case.
In 2010, for the third time, Acoli was eligible for parole.
A “pre-parole report” was prepared, see N.J.S.A. 30:4-123.54(a);
7
N.J.A.C. 10A:71-3.7(c)-(f); the victim’s family members were
advised of their right “to provide a written or videotaped
statement” or testify before the Parole Board panel, see
N.J.S.A. 30:4-123.54(b)(2); and the Board panel met with Acoli
and reviewed his file along with the victim-impact statements,
see N.J.S.A. 30:4-123.55(c). The two-member Board Panel denied
parole. With the addition of a third member, the Board Panel
imposed a future parole eligibility term of ten years, making
Acoli eligible for parole at the age of eighty-three.
Acoli appealed to the full Parole Board in accordance with
N.J.S.A. 30:4-123.58(a) and N.J.A.C. 10A:71-4.1(a). Although
Acoli had no right to appear before the Parole Board to present
his case, the Board had the authority to conduct a personal
interview of him. Acoli did not receive an invitation to appear
before the Board. The full Parole Board reviewed Acoli’s
complete file covering the entirety of Acoli’s incarceration.
Acoli’s hearing on the written record, before the full Board,
conformed with the applicable statutes and regulations.
In a “Notice of Final Agency Decision,” dated February 23,
2011, the full Parole Board denied Acoli parole, finding a
substantial likelihood that Acoli, if released, would commit
another offense. The Board based its decision on (1) Acoli’s
conviction of the murder of Trooper Foerster in 1973 and earlier
minor charges, for which he received probationary sentences; (2)
8
his purported lack of insight into his criminal behavior
committed thirty-seven years earlier; (3) his account of events
about the Trooper Foerster murder, which the Board found “not
credible”; and (4) his refusal or inability to accept the
State’s version of what occurred. The Board found that Acoli’s
“answers made it difficult to understand how and why his
thinking has transitioned from violent to non-violent thinking”
in the years since his incarceration in 1973. Acoli had been a
member of the Black Panther party in the 1960’s and 1970’s but,
while in prison, renounced the use of violence as a means of
bringing about societal change. Last, the Board attributed to
Acoli “impulsive and questionable judgment” because he
personally called the psychologist to ask her when his
psychological evaluation would be conducted for his pre-parole
report.
B.
The Appellate Division concluded that a “thorough scrutiny
of the record” did not “support the Board’s stated reasons for
denial of parole, namely that if released Acoli would be likely
to commit another crime.” This conclusion is not disputed. The
appellate panel made the following observations: (1) Acoli has
not committed a single disciplinary infraction since 1996, and
accumulated only minor infractions since 1979; (2) his
institutional progress report indicated that he “‘has displayed
9
a positive rapport with both staff and inmates’”; (3) Acoli
“completed at least 100 different programs for self-improvement
as well as vocational training”; (4) Acoli was a prisoner
representative for the correctional facility’s social resource
organization, and as a result of “his positive institutional
record, he became a member of the Honors Unit program”; and (5)
in 2008, prison staff reported that Acoli had “demonstrated
adequate coping skills . . . and ability to establish positive
interaction with others,” and that he was expected “to be able
to transition to the community if paroled.”
The appellate panel also referenced the pre-parole mental
health evaluation conducted by Lois D. Goorwitz, Ph.D. Dr.
Goorwitz noted that Acoli “‘expressed regret and remorse about
his involvement in the death of the state trooper’” and
“‘appeared to be answering honestly.’” Dr. Goorwitz also found
Acoli “‘to be very cooperative, self[-]reflective, thoughtful,
and non[-]defensive in his responses to the questions posed to
him.’” (alteration in original). She concluded that “‘there
were “NO psychological contraindications to granting parole.”’”
The panel expressed that it was “appalled by Acoli’s senseless
crimes” but that the Parole Board’s decision was wholly
contradicted by the record and that “Acoli has paid the penalty
under the laws of this State for his crimes.” Because the
Appellate Division determined that “[t]he record simply does not
10
support further denial of parole,” it directed the Parole Board
to take the appropriate steps leading to Acoli’s release.
C.
The Appellate Division also denied the Parole Board’s
motion for reconsideration. The appellate panel rejected the
Board’s argument that its final parole decision was not, in
fact, final because Acoli was not granted “a full evidentiary
hearing” under N.J.S.A. 30:4-123.55(f). The appellate panel
noted that the plain and unambiguous language of N.J.S.A. 30:4-
123.55(f) requires a full evidentiary hearing by the Parole
Board only when a Board panel recommends that a murder inmate be
paroled. The Appellate Division pointed out that N.J.S.A. 30:4-
123.55(f) does not apply to inmates, such as Acoli, who are
denied parole by a Board panel. The statutes applicable to
cases in which the Board panel denies parole, N.J.S.A. 30:4-
123.55(c) and -123.58, do not mandate that the full Parole Board
conduct an evidentiary hearing. The appellate panel indicated
that, “in a nine-page ‘Notice of Final Agency Decision,’ the
Board methodically reviewed the evidence and determined that . .
. there was a substantial likelihood that [Acoli] would commit a
crime if released,” and unanimously elected to deny Acoli
parole. The appellate panel stated that the Parole Board’s
assertion that the Appellate Division’s reversal of the full
Board’s final decision was the equivalent of a Parole Board
11
panel recommending parole, thus triggering a remand for an
evidentiary hearing, was “patently incorrect.”
III.
The Appellate Division’s straightforward application of the
law cannot be faulted. A majority of this Court has rewritten
the plain, unambiguous language of the statute to reach an
outcome that it believes the Legislature would find reasonable.
That is a new canon of statutory interpretation. Nothing in the
statutory text supports the majority’s decision. Moreover, as
suggested by the Appellate Division, the majority’s result
upends the meaning of a final administrative determination.
Presumably, when the full Parole Board denies parole to a
murder inmate, the Board has completed a comprehensive review of
the record, including the inmate’s interview, the victim-impact
statements, the inmate’s history of institutional adjustment and
progress, psychological reports, and all other relevant
material. See N.J.S.A. 30:4-123.58(a); N.J.A.C. 10A:71-4.1(a).
This is not and should not be a pro forma undertaking.
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
12
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.
Trantino, supra, 166 N.J. at 197. In that case, we held that
the law cannot bend to the strong winds of public opinion.
Perhaps few will shed a tear that Acoli will spend more years in
prison -- without any legal justification -- for the murder of a
police officer. But this case is about more than one
13
individual. It is about the integrity of our justice system.
The rule of law must apply even to the most disfavored member of
society.
The precepts articulated in Trantino are as relevant today
as they were fifteen years ago. By reversing the Appellate
Division, the majority has forsaken those precepts. I therefore
respectfully dissent.
14
SUPREME COURT OF NEW JERSEY
NO. A-52 SEPTEMBER TERM 2014
ON CERTIFICATION FROM Appellate Division, Superior Court
SUNDIATA ACOLI (f/k/a CLARK EDWARD
SQUIRE),
Petitioner-Respondent,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent-Appellant.
DECIDED February 23, 2016
PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY Justice Albin
REVERSE AND
CHECKLIST DISSENT
REMAND
CHIEF JUSTICE RABNER -----------------
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA -----------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 4 1