EUGENE BERTA VS.NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1889-20
EUGENE BERTA,
Appellant,
APPROVED FOR PUBLICATION
v. August 2, 2022
APPELLATE DIVISION
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
_____________________
Argued June 2, 2022 – Decided August 2, 2022
Before Judges Hoffman, Geiger, and Susswein.
On appeal from the New Jersey State Parole Board.
Kevin S. Finckenauer, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Kevin S.
Finckenauer, of counsel and on the briefs).
Susanne Davies, Deputy Attorney General, argued the
cause for respondent (Matthew J. Platkin, Acting
Attorney General, attorney; Sookie Bae-Park, Assistant
Attorney General, of counsel; Suzanne Davies, on the
brief).
The opinion of the court was delivered by
SUSSWEIN, J.A.D.
State prison inmate Eugene Berta appeals the January 27, 2021 final
decision of the New Jersey State Parole Board denying parole and imposing a
seventy-two-month future eligibility term (FET). Berta, who was seventy-one
years old when the final agency decision before us was rendered, is serving a
life term for the murder of his girlfriend. The crime was committed during the
summer of 1983. He was tried, convicted, and sentenced in 1984, and completed
the court-imposed thirty-year period of parole ineligibility in September 2014.
Berta's initial application for parole was denied in 2015 and the Board imposed
a 120-month FET. He once again became eligible for parole in March 2020.
The Board's decision to deny parole a second time relies principally on
three supposedly negative circumstances: (1) Berta was "committed to
incarceration for multiple offenses"; (2) he has a "serious" and "persistent"
history of institutional disciplinary infractions; and (3) his continued denial of
guilt constitutes "insufficient problem resolution." After carefully reviewing the
record in light of the governing legal principles, we reverse and remand for the
Parole Board to reconsider its decision. If the Parole Board on remand
determines that Berta should not be released, it must thoroughly explain the
reasons for overcoming the presumption of parole and for imposing an FET
beyond the twenty-seven-month presumptive FET.
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We conclude that the Board improperly relied on the first purportedly
negative circumstance. Berta's jury trial convictions for murder and possession
of a firearm for an unlawful purpose were merged at the sentencing hearing and
thus he was not committed to state prison based on multiple offenses. As to
Berta's record of institutional infractions, we believe the Board was
unreasonable in characterizing Berta's infraction history as persistent given that
he has been infraction-free for nearly twenty years. Even affording due
deference to the Board's expertise, we do not believe Berta's overall infraction
history can reasonably be interpreted to suggest a likelihood of reoffending.
As to Berta's denial of guilt, the Board has yet to satisfactorily explain
why that circumstance, viewed in context with his overall rehabilitative efforts,
establishes by a preponderance of the evidence that he is substantially likely to
re-offend. While Berta's ongoing refusal to accept responsibility for the murder
he committed is a relevant circumstance, we hold that admitting guilt is not a
categorical prerequisite to parole. Accordingly, the Board shoulders the burden
to explain why Berta's refusal to acknowledge his guilt foreshadows that he will
commit a future crime. It is not enough for the Board to state a conclusion.
Rather, the Board must explain how it reached its conclusion that Berta is
substantially likely to reoffend. This explanation is especially necessary in light
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of the two in-depth psychological evaluations that suggest, to the contrary, that
Berta presents only a low risk of re-offense.
I.
We discern the following pertinent facts from the record. We first
summarize the circumstances of the crime, Berta's institutional record during his
lengthy incarceration, and the psychological evaluations conducted in
anticipation of his eligibility for parole.
A.
At the time of the murder, Berta was a thirty-five-year-old married father
of five who earned his living as a self-employed electrician. He and his second
wife had a "semi-open" marriage, in that each was free to pursue extramarital
affairs.
The victim, C.W.,1 was a registered nurse. She and Berta had an on-and-
off affair over the course of ten years. Their relationship was described as
"tumultuous[,] . . . characterized by long-standing emotional abuse[] and
financial exploitation."
1
We use initials both out of respect for the victim and in accordance with Rule
1:38-3(c)(12).
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Witnesses testified at trial that the victim expected Berta to divorce his
wife and marry her. She was upset by the fact that Berta was not keeping his
promise to do so, and told several friends that she and Berta were "going away
together so that they could talk out their problems."
Although Berta and the victim had planned to go on a week-long vacation,
he instead went on the vacation with another affair partner, P.B. P.B. testified
that on the night of July 9, 1983, while the two were vacationing in Minnesota,
Berta "produced a handgun[,]" which he told her "he always carried . . . with
him." She testified that, after asking her to confirm that she loved him, Berta
told her "I just killed [three] 2 people, I'll blow your God damn brains out." P.B.
also testified that Berta told her she "did not have to worry about [C.W.] as she
was completely out of the picture."
On July 16, 1983, the victim's nude body was found in the bathtub of her
home, partially immersed in water. The official cause of her death was cerebral
laceration and hemorrhage due to fractured skull, which was, in turn, the result
of a single gunshot to the back of the head. The investigation revealed that the
murder occurred on July 8, 1983, in the basement of the home.
2
Berta was not charged with killing anyone other than C.W.
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Berta was arrested and charged with knowing/purposeful murder, N.J.S.A.
2C:11-3, and second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a). He was released on bail and remained free during the
thirteen-month period between his arrest and trial. So far as the record shows,
he was not charged with committing an offense while on bail awaiting trial.
On October 2, 1984, the jury found Berta guilty of both offenses. The
trial judge merged the two crimes for purposes of sentencing. Berta had no prior
adult convictions or juvenile adjudications of delinquency. 3 The trial court
sentenced him to life imprisonment subject to a mandatory minimum period of
parole ineligibility fixed at thirty years.
Berta first became eligible for parole on September 24, 2014. The Board
denied his initial parole application and imposed a 120-month FET. We
affirmed the final decision of the Board in an unpublished decision. Berta v.
N.J. State Parole Bd., No. A-2306-15, 2017 WL 4818714 (App. Div. Oct. 26,
2017).
The FET expired and Berta became eligible for parole on January 31,
2020. Hearing Officer Theodore Sadiwnyk compiled Berta's pre-parole case
3
The record shows that in April 1973, Berta was arrested for simple assault and
criminal mischief. Those charges were dismissed, however, and did not result
in a conviction.
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assessment. That report documented the following factors: "[n]o prior offense
record"; "[i]nfraction free since last panel"; "[p]articipation in program(s)
specific to behavior"; "participation in institutional program(s)"; "[i]nstitutional
reports reflect favorable institutional adjustment"; "[a]ttempt made to enroll and
participate in program(s) but was not admitted"; "[m]inimum custody status
achieved and maintained"; and "[r]isk assessment evaluation"; as well as the
"[f]acts and [c]ircumstances of the offense(s)[, s]pecifically: MURDER" and
Berta's "[i]nsufficient problem(s) resolution[, s]pecifically: denial of [the]
offense[,]" as demonstrated by "interview" and "confidential
material/professional report[.]"
During the course of thirty-six years of imprisonment, Berta accumulated
seven disciplinary infractions. 4 Six of those occurred within the first five years
4
Berta's complete disciplinary record following his 1984 incarceration consists
of the following infractions:
May 2, 1986 .256 Refusing to Obey
August 14, 1986 .210 Possession not Authorized
September 19, 1986 .210 Possession not Authorized
October 6, 1986 .709 Failure to Comply
July 21, 1987 *.205 Misuse of Authorized Medication
April 19, 1988 .256 Refusing to Obey
October 30, 2002 .210 Possession not Authorized
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of his incarceration, including one asterisk offense, 5 *.205, Misuse of
Authorized Medication, committed in July 1987. The most recent infraction,
dated October 30, 2002, was a non-asterisk offense for .210—"anything not
authorized for inmate possession." That latest infraction "was reheard and
LOCT6 was removed."
Berta was not charged with an infraction between April 1988 and the October
2002 infraction. Nor was Berta disciplined during the period between his first
and second parole hearings.
The pre-parole case assessment shows that while in prison, Berta worked as
"a master electrician and essential member of the maintenance team . . . ." He
also engages in counseling with the prison chaplain, Reverend Dr. Lawrence
Akins. Reverend Akins wrote a letter in support of Berta's application for
parole. The letter praised Berta's active participation in re-entry programs,
group counseling, and the Catholic worship community, calling his institutional
life "exemplary[.]" Of particular note, Reverend Akins observed that,
5
Under the Department of Correction's regulations on inmate discipline,
N.J.A.C. 10A:4-4.1, "[a]sterisk offenses" are prohibited acts considered to be
the most serious violations, resulting in the most severe sanctions.
6
"LOCT" refers to Loss of Commutation Credit, commonly referred to as "good
time" credit.
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"[b]ecause of his inclination to openly reflect upon his past behavior and
negative choices, [Berta] became a conversational catalyst for the rest of the
. . . group." Reverend Akins explained that Berta had
come to understand the critical nature of accepting
personal responsibility for one's choices as a vital step
for those striving to progress beyond criminal behavior
to engage in productive and fulfilling lives. I believe
Mr. Berta has worked diligently towards genuine,
holistic rehabilitation, and will ultimately resume a
positive role as a returning citizen if afforded the
opportunity.
The pre-parole case assessment shows that Berta actively pursued
educational opportunities during his incarceration. He stayed abreast of changes
to the electrical codes in anticipation that he would continue his work as an
electrician while on parole. In 2019, he earned an Associate's degree in Liberal
Arts from Raritan Valley Community College. He also began working towards
a Bachelor's degree in Social Justice from Rutgers University through the New
Jersey-Step Program.
Although Berta has no history of substance abuse, he also runs the prison's
Alcoholics Anonymous program. Berta told the two-member panel: "I felt it
(AA) would help me because I was[] . . . running around having affairs so I
figured I would take the program . . . ." Berta denied having a problem with
sexual addiction or issues "with impulses to gratify [his] sexual needs."
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In advance of both the initial parole hearing and the second parole hearing
now before us, the State commissioned in-depth psychological assessments for
the purpose of evaluating Berta's suitability for release. Dr. Julia Van Pelt
evaluated Berta on May 30, 2014. Dr. Richard Mucowski conducted a
psychological evaluation and issued a report with his findings on September 24,
2019.
The two reports made similar findings and reached similar conclusions. On
the Level of Service Inventory–Revised (LSI-R), a worksheet designed to
predict the risk of an inmate's likelihood to reoffend if released, Berta scored a
ten when examined by Dr. Van Pelt, and an eleven when subsequently examined
by Dr. Mucowski. Dr. Mucowski's Clinical Summary of In-Depth Psychological
Examination noted that those scores are "in the low range . . . ." Dr. Mucowski
emphasized in his report that Berta presented only a "low risk" of re-offense,
explaining that an LSI-R score of eleven indicates "a low risk for recidivism
with a 20% chance of re-arrest and a 13.3% chance of reconviction within two
years of release."
Dr. Mucowski also administered MCMI III and STAXI II assessments. He
described the STAXI II as "a [fifty-seven-]item . . . scaled assessment instrument
that addresses an individual's level of . . . anger . . . ." On that test, Dr. Mucowski
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found that Berta's "results show that he scored like individuals who are over
controlled in how they present themselves publicly."
Dr. Mucowski described the MCMI III assessment as "a personality
inventory that utilizes corrections norms to offer a description of possible
clinical syndromes as well as enduring and pervasive personality traits that
underlie his emotional, cognitive and interpersonal presentation." Based on that
assessment, Dr. Mucowski noted that Berta's profile indicates his responses to
the items were "valid" but "distort[ed] . . . ." Based on Berta's "significant effort
to present himself in a very positive light, a socially acceptable front and
resistance to admit personal shortcomings," Dr. Mucowski explained that
"individuals with constellations of scores similar to Mr. Berta's" may try to
appear "composed, virtuous and conventional" and might "maintain a passively
cooperative attitude, follow regulations carefully, try to avoid trouble, and
attempt to make themselves helpful for staff." However, Dr. Mucowski warned
"[t]he reader . . . not [to] be fooled" because Berta's outward presentation "is a
show" that "hides his narcissism." Because "[c]ondemnation [and disapproval]
from others . . . cause him much discomfort," a person with a profile like Berta's
"avoids negativism by appearing to be weak, accommodating and overly
respectful especially with those in authority."
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Dr. Mucowski nonetheless acknowledged that the MCMI III assessment
"reveal[ed] NO major disturbances in the functioning of petitioner's psyche."
The report predicted that "[w]ith conformity and sociability as his most
prominent traits, Mr. Berta will adhere to the expectations of authorities such as
prison administrators . . . ."
Dr. Mucowski added that during the evaluation, Berta had "amazingly
denied his guilt for taking the life of his victim and former paramour[,] saying:
'I cannot bring myself to admit to a crime that I did not do." Dr. Mucowski
included in his report an excerpt from Dr. Van Pelt's 2014 report documenting
the only instance in which Berta admitted his guilt. Dr. Van Pelt's report had
indicated that Berta shared with her that
[H]e was a womanizer, had a mistress, and on one
dreadful day made a terrible mistake and ruined [two]
families. When asked to clarify the affected people, the
inmate said, "mine and [C.W.'s]." Mr. Berta further
explained, "We ha[d] been having a disagreement and
it became violent." Inquired if their confrontations
tended to escalate into the physical level, he denied it
being the case and added, "I just killed her." The
inmate continued, "She wanted to go on a trip with me,
move, and then live on a farm together. She insisted on
going but I insisted she did not. I shot her in the head.
The weapon was hers. She had a pistol in her house.
At first I was in a state of shock and went on a trip. I
ended up going with another girlfriend. In the moment
of total stupidity I ruined my life and [C.W.'s]."
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By all other accounts, however, Berta has otherwise steadfastly maintained his
innocence.
Dr. Van Pelt's 2014 examination also revealed that, while Berta ostensibly
led "a very pro-social life" and had been "held in high regard by his community,
it appear[ed] that most of his [good works] had been predominantly fueled by
the strong psychopathic traits of [Berta's] personality, including but not limited
to elaborate deceit, manipulation, and domination." Dr. Van Pelt's report also
highlighted Berta's "persistently shallow and superficial affect during the trial
. . . ." Dr. Van Pelt also noted Berta's institutional record contained "notations
made of [Berta] being particularly fond of guns in his past, cruelty towards
animals, and inclination to prey whenever possible upon vulnerable people
around him" which manifested in Berta "often taking advantage of multiple
women at a time, sexually and monetarily."
Dr. Mucowski agreed with Dr. Van Pelt's prior conclusion that Berta
possessed "psychopathic traits" and "came to the same conclusion" that Berta
"presents as . . . Antisocial Personality Disorder, with Pronounced Obsessive
Compulsive and Psychopathic Features."
Taking into consideration Dr. Van Pelt's comments, Dr. Mucowski
recommended that the Board "confront Mr. Berta on his inconsistency regarding
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his admission of guilt for his crime to Dr. Van Pelt and his denial of the crime
to Dr. Mucowski." In the final analysis, however, and notwithstanding the
"psychopathic" traits that had been revealed, Dr. Mucowski concluded that
"there are no psychological contraindications to grant [Berta] parole or other
custody status changes, as per discretion of DOC." Dr. Mucowski concluded
that, considering Berta's age, his community support (evidenced by the multiple
character letters submitted in support of his release), "the likelihood of [Berta]
successfully completing a projected term of parole appears positive due to lack
of known supervision non-compliance issues." Importantly for purposes of this
appeal, neither Dr. Mucowski nor Dr. Van Pelt opined that there is a substantial
likelihood that Berta would commit a crime if released on parole.
B.
We next summarize the procedural history leading to the January 27, 2021
final agency decision denying parole and establishing a seventy-two-month
FET. On February 5, 2020, Berta appeared virtually before a two-member panel.
The panel denied parole, determining that "a substantial likelihood exists that
[Berta] would commit a new crime if released on parole at this time." The two -
member panel referred the case "to a three-member Panel for the establishment
of a FET that may be in excess of institutional guidelines."
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The Initial Notice of Decision issued by the two-member panel relied upon
the same factors that had been compiled in the pre-parole case assessment. As
to the mitigating factors, the Initial Notice of Decision specified: "[n]o prior
offense record"; [i]nfraction free since last panel"; [p]articipation in program(s)
specific to behavior"; "[p]articipation in institutional program(s)";
"[i]nstitutional reports reflect favorable institutional adjustment"; "[a]ttempt
made to enroll and participate in program(s) but was not admitted"; "[m]inimal
custody status achieved/maintained"; and "[r]isk assessment evaluation."
The Initial Notice of Decision stated two reasons for denying parole: (1) the
facts and circumstances of the offense of first-degree murder; (2) insufficient
problem resolution, specifically denial of offenses. It additionally noted that
Berta admitted to a sexual addiction which has remained untreated and that he
"showed no remorse for the victim which seemed unreasonable no matter how
she was murdered." The Initial Notice of Decision stated that "[i]nsufficient
problem resolution" was demonstrated by the "interview" and "documentation
in case file[.]"
The Initial Notice of Decision further explained that the Board's task was
to "assess whether you have an understanding to the criminal thinking related to
the [m]urder offense. At the hearing, you presented as an individual who denies
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any culpability for the crime. You did so regardless of the documented record
and a jury finding of guilt."
The Initial Notice of Decision concluded that Berta would not be released
on parole because he had not yet "conduct[ed] an introspection to adequately
understand all components to [his] psyche and the triggers and stressors that
make [him] think or want to think in such a manner. [Berta] must come to an
understanding [of] the dynamics to [his] negative thinking."
On April 3, 2020, in response to Berta's letter contesting the factual
conclusions of the two-member panel, that panel amended its initial decision to
include two additional factors to support the denial of parole: (1) that Berta was
"committed to incarceration for multiple offenses" because of the merged
murder and possession of a weapon for unlawful purpose offenses; and (2) the
seven institutional disciplinary infractions Berta had committed, describing
them as "numerous, persistent, [and] serious[.]" Under the section discussing
"[i]nsufficient problem(s) resolution[,]" the notice was amended to remove the
reference to Berta's sexual addiction and the reference to a "lack of remorse."
In place of the original explanation, the amended Initial Notice of Decision
noted as "other" that "[i]nmate acknowledges that in the time leading up to the
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murder, he was 'out of control' as that relates to interpersonal issues. Inmate
needs to address these issues."
Thereafter, a three-member panel concurred with the conclusions of the
two-member panel. The principal reason for affirming the parole denial was
Berta's continued refusal to admit his guilt. The three-member panel imposed
an FET of seventy-two months.
On October 26, 2020, Berta filed an administrative appeal to the full
Board. On February 27, 2021, the Parole Board voted unanimously to deny the
appeal. In its Notice of Final Agency Decision, the Board summarized Berta's
arguments on appeal:
You contend that the Board panel failed to consider
material facts. Specifically, you claim that the Board
panel failed to consider that you have maintained your
innocence ever since your arrest as you were out of
town at the time of the murder and that you were
convicted on circumstantial evidence; that you have
already served thirty-six years; that you are seventy-
one (71) years old and have health issues; that you have
participated in almost every therapeutic program
offered in the institution and since your last hearing you
have completed Focus on the Victim, Cage Your Rage,
Smart Recovery and Thinking for a Change, that you
have earned an Associate's Degree; and that you have
continued your involvement with the 12-Step Recovery
Program to address your moral and ethical thinking but
that you never stated that you were addicted to sex.
You also allege that the Board failed to consider that in
thirty-five years in custody you committed only seven
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(7) infractions; that your last infraction, .210
Possession not Authorized, was eighteen (18) years ago
in 2002 and is a minor infraction; and that your only
asterisk infraction, *.205 Misuse Authorized
Medication was in 1987, which was related to an
expired bubble pack of medication.
The Board then responded to each contention. The Board explained:
[A]s reasons for parole denial: facts and circumstances
of offense, specifically, Murder, first degree;
committed to incarceration for multiple offenses; and
institutional infractions are numerous, persistent, and
serious in nature (last infraction: October 30, 2002—
.210). Furthermore, based on your responses to
questions posed by the Board panel at the time of your
hearing and the documentation in the case file, the
Board panel determined that you exhibit insufficient
problem resolution, specifically, that you deny the
crime. The Board panel noted, "Inmate acknowledges
that in the time leading up to the murder he was 'out of
control' as that relates to interpersonal issues. Inmate
needs to address these issues.
In response to Berta's contention that the Board panel had failed to
consider the full breadth of his rehabilitative efforts while in prison, the Board
found "that the Board panel reviewed [his] entire record in rendering its
decision. [Berta's] age and program participation are a matter of record, were
noted on the Case Summary at the time of [his] Initial Hearing, and were
considered by the Board panel."
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Regarding Berta's acknowledgment that he was "out of control" at the time
of the crime, the Board found that Berta "discussed that [his] sexual behavior
was out of control and that [he] hurt a lot of people and that [he] found [his]
involvement in the [Twelve]-Step program to be helpful in addressing [his]
issues."
In sum, the Board rejected Berta's argument that it had failed to consider
all relevant positive evidence in the record pertaining to his suitability for
release. The Board explained that it had
appropriately noted as mitigation on the Notice of
Decision[:] no prior offense record; infraction free
since last panel; participation in programs specific to
behavior; participation in institutional programs;
institutional reports reflect favorable institutional
adjustment; attempt made to enroll and participate in
programs by was not admitted; minimum custody status
achieved and maintained; and risk assessment
evaluation.
"As a result of" having included the above listed mitigating factors in its
initial Notice of Decision, the Board found that "the Board panel did not solely
base its decision to deny parole on the negative aspects in the record," but rather
"based its decision on the entire record governed by the factors set forth in the
statutory requirements and N.J.A.C. 10A:71-3.11."
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In response to Berta's contention that the Board panel unfairly
characterized his disciplinary record, the Board explained that it "has the
authority and the responsibility to consider [his] commission of serious
disciplinary infractions" 7 in its parole determination. The Board found Berta's
contentions "without merit" because "the Board panel appropriately considered
[his] institutional disciplinary charge of .210 Possession not Authorized which
[he] committed on October 30, 2002 and that [he has] acquired a total of seven
(7) additional institutional infractions."
The Board also "concur[red]" with the seventy-two month FET imposed
by the three-member Board panel "due to [Berta's] lack of satisfactory progress
in reducing the likelihood of future criminal behavior . . . ."
This appeal followed. Defendant raises the following contentions for our
consideration:
POINT I
IT WAS AN UNCONSTITUTIONAL EX POST
FACTO VIOLATION FOR THE PAROLE BOARD
TO CONSIDER INFORMATION OTHER THAN
"NEW INFORMATION" WITHIN THE MEANING
OF THE APPLICABLE 1979 PAROLE ACT IN
7
We note that although the Board refers to serious infractions in the plural, the
record shows that Berta committed only one asterisk offense, *.205–Misuse of
Authorized Medication, which occurred in 1987.
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DENYING MR. BERTA'S PAROLE. (Not Raised
Below).
POINT II
IT WAS IMPROPER FOR THE PAROLE BOARD TO
CONSIDER AS AN AGGRAVATING FACTOR
"COMMITTED TO INCARCERATION FOR
MULTIPLE OFFENSES" SIMPLY BECAUSE MR.
BERTA HAD A POSSESSION OFFENSE WHICH
MERGED WITH HIS MURDER CONVICTION.
POINT III
DENYING MR. BERTA PAROLE PURELY
BECAUSE HE MAINTAINS THAT HE IS
INNOCENT OF THE OFFENSES FOR WHICH HE IS
INCARCERATED VIOLATES HIS
CONSTITUTIONAL DUE PROCESS RIGHTS.
POINT IV
EVEN IF EVERY FACTOR CONSIDERED BY THE
BOARD IS DEEMED APPROPRIATE, THE SUM OF
THOSE FACTORS FAIL TO PROVE BY A
PREPONDERANCE OF THE EVIDENCE THAT
THERE IS A SUBSTANTIAL LIKELIHOOD MR.
BERTA WILL COMMIT AN OFFENSE IF
RELEASED.
POINT V
THIS COURT SHOULD ORDER MR. BERTA'S
IMMEDIATE RELEASE, WHICH IT IS
EMPOWERED TO DO. RETROACTIVE
APPLICATION OF N.J.S.A. 30:4-123.55(F) TO
REQUIRE A REMAND FOR A REHEARING
WOULD BE AN UNCONSTITUTIONAL EX POST
FACTO VIOLATION.
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POINT VI
THE PAROLE BOARD ACTED ARBITRARILY
AND CAPRICIOUSLY IN ESTABLISHING A
FUTURE ELIGIBILITY TERM INCONSISTENT
WITH ITS OWN REGULATIONS.
II.
We begin our analysis by acknowledging the legal principles governing
this appeal. The scope of our review is narrow. As a general matter, we will
disturb an agency's adjudicatory decision only if we determine that the decision
is "arbitrary, capricious or unreasonable" or is unsupported "by substantial
credible evidence in the record as a whole." Henry v. Rahway State Prison, 81
N.J. 571, 579–80 (1980) (citing Campbell v. Dep't of Civ. Serv., 39 N.J. 556,
562 (1963)). In determining whether an agency action is arbitrary, capricious,
or unreasonable, we examine:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.
[In re Carter, 191 N.J. 474, 482–83 (2007) (quoting
Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
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Relatedly, we are deferential to an agency's expertise. See Murray v. State
Health Benefits Comm'n, 337 N.J. Super. 435, 442 (App. Div. 2001) (quotation
marks omitted) (quoting In re Vineland Chem. Co., 243 N.J. Super. 285, 307
(App. Div. 1990)) ("[W]here there is substantial evidence in the record to
support more than one regulatory conclusion, it is the agency's choice which
governs."). With respect to the Parole Board's expertise, we acknowledge that
one of its core functions is to evaluate inmates and to make reasoned predictions
as to how they will perform if released from prison under the Board's
supervision. As our Supreme Court has explained, the Parole Board is "the
administrative agency charged with the responsibility of deciding whether 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).
Although we owe substantial deference to the Board, we emphasize that
"our review is not 'perfunctory,' nor is it 'our function . . . merely [to]
rubberstamp an agency's decision[.]'" Blanchard v. N.J. Dep't of Corrs., 461
N.J. Super. 231, 237–38 (alterations in original) (quoting Figueroa v. N.J. Dep't
of Corrs., 414 N.J. Super. 186, 191 (App. Div. 2010)). Rather, "[w]e are
constrained to engage in a 'careful and principled consideration of the agency
A-1889-20
23
record and findings.'" Ibid. (quoting Williams v. Dep't of Corrs., 330 N.J. Super.
197, 204 (App. Div. 2000)).
Importantly, we require an agency to explain its reasoning because that is
"[o]ne of the best procedural protections against arbitrary exercise of
discretionary power . . . ." Monks v. N.J. State Parole Bd., 58 N.J. 238, 245
(1971) (quoting Kenneth Culp Davis, Administrative Law § 16.12, at 585 (Supp.
1970)). Absent a sufficient statement of reasons, we cannot ascertain whether
the Board's decision is justified or arbitrary and capricious. See Mejia v. N.J.
Dep't of Corrs., 446 N.J. Super. 369, 378–79 (App. Div. 2016) (reversing and
remanding penalty for institutional infraction for failure to provide reasons for
particular sanction); Balagun v. N.J. Dep't of Corrs., 361 N.J. Super. 199, 203
(App. Div. 2003) (requiring agency to "disclose its reasons for any decision,
even those based upon expertise, so that a proper, searching, and careful review
by this court may be undertaken").
We stress, moreover, that our obligation to afford substantial deference to
an agency's adjudicatory decision does not force us to turn a blind eye to a post -
hoc justification—that is, a reason devised to justify a decision that was already
made as a fait accompli for other unstated reasons. Our task is to be neutral
A-1889-20
24
reviewers of agency decisions, not apologists for them, and thus nothing
prevents us from piercing the veil of an unsupported decision.
Berta's parole is governed by the version of the Parole Act of 1979 (Parole
Act or Act), in effect when his crime was committed. The present crime was
committed before significant revisions to the Act were adopted in 1997. 8 The
statutory text that applies in this case provides that Berta "shall be released on
parole at the time of parole eligibility, unless [it is shown] by a preponderance
of the evidence that there is a substantial likelihood that the inmate will commit
a crime . . . if released on parole at such time." Acoli v. N.J. State Parole Bd.,
250 N.J. 431, 455 (2022); see N.J.S.A. 30:4-123.53 (1979). As the Court
recently explained in Acoli,
"Likelihood" is defined as a "probability," or "the
appearance of probable success," and substantial" is
defined as "considerable in amount" or "being that
specified to a large degree." Webster's Third
International Dictionary 1310, 2280 (1981). Requiring
that the Board show that there is a substantial
"probability" that an inmate will reoffend is a fairly
high predictive bar that must be vaulted—even though
such assessment will defy scientific rigor and involves
a certain degree of subjectivity.
8
Under the current version of N.J.S.A. 30:4-123.53, the Board may deny parole
if it is shown by a preponderance of the evidence that an "inmate has failed to
cooperate in his or her own rehabilitation or that there is a reasonable
expectation that the inmate will violate conditions of parole imposed pursuant
to [N.J.S.A. 30:4-123.59] if released on parole at that time."
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25
This much we can say about the term "substantial
likelihood." Assessing the risk that a parole-eligible
candidate will reoffend requires a finding that is more
than a mere probability and considerably less than a
certainty. To be sure, the mere "potential" that an
inmate if released may reoffend is not sufficient. See
State Parole Bd. v. Cestari, 224 N.J. Super. 534, 550
(1988). Only when the risk of reoffending rises to "a
substantial likelihood" may a parole-eligible inmate be
denied parole. Ibid.[250 N.J. at 455–56.].
Under the governing statutory and regulatory framework, once a
defendant becomes eligible for parole, he or she is entitled to "a presumption in
favor of parole," In re Trantino, 89 N.J. 347, 356 (1982) (Trantino II), and the
burden is on "the State to prove that the prisoner is a recidivist and should not
be released." Trantino v. N.J. State Parole Bd. 166 N.J. 113, 197 (2002)
(Trantino VI) (quoting N.J. State Parole Bd. v. Byrne, 93 N.J. 192, 205 (1983)).
We stress that the presumption of parole is a foundational principle that
undergirds the parole release decision and guides our resolution of this appeal.
We add that the 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'
A-1889-20
26
cannot serve as 'an independent reason for continuing punishment and denying
parole' under the 1979 Act. Trantino II, 89 N.J. at 373–74. "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 II, 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.").
Overcoming the presumption of parole is a "highly predictive"
determination, Thompson v. N.J. State Parole Bd., 210 N.J. Super. 107, 115
(App. Div. 1986) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359
A-1889-20
27
(1973)), which must take into account "the aggregate of all of the factors which
may have any pertinence." Beckworth, 62 N.J. at 360. N.J.A.C. 10A:71–3.11(b)
contains a non-exhaustive list of factors that the Board must consider in
determining whether an inmate should be released on parole. Among those
enumerated pertinent factors are "[s]tatements by the inmate reflecting on the
likelihood that he or she will commit another crime; the failure to cooperate in
his or her own rehabilitation; or the reasonable expectation that he or she will
violate conditions of parole[,]" as well as "any other factors deemed relevant[.]"
N.J.A.C. 10A:71–3.11(b)(17).
In this case, we address not just the Board's decision to deny parole but
also its decision to impose a seventy-two-month FET. An inmate serving a
murder sentence is presumptively assigned a twenty-seven-month FET after a
denial of parole. See N.J.A.C. 10A:71–3.21(a)(1). Pursuant to N.J.A.C.
10A:71-3.21(d), the Board is authorized to set a higher FET "if the future parole
eligibility date which would be established pursuant to [N.J.A.C. 10A:71 -
3.21(a)] is clearly inappropriate due to the inmate's lack of satisfactory progress
in reducing the likelihood of future behavior." (emphasis added). N.J.A.C.
10A:71-3.21(d) also provides that the FET "may be increased or decreased by
up to nine months when, in the opinion of the Board panel, the severity of the
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28
crime for which the inmate was denied parole and the prior criminal record or
other characteristics of the inmate warrant such adjustment."
III.
In Acoli, our Supreme Court recently reaffirmed foundational principles
that guide appellate review of Parole Board decisions for inmates who are
subject to the pre-1997 version of the Parole Act. 250 N.J. at 454–55. Acoli is
especially instructive for purposes of this appeal because that case hinged on the
Board's finding that Acoli "lacks insight into the conduct that led him to his
involvement in the crimes he committed in 1973 and that he still refuses to take
responsibility for his acts." 250 N.J. at 443. That critical finding in Acoli is
similar in important respects to the Board's finding in the case before us: that
Berta's unwillingness to admit his guilt constitutes "negative thinking" and
"insufficient problem resolution" that militates against his release.9
9
We note the distinctly different circumstances that distinguish Berta's refusal
to admit his guilt from Acoli's refusal to accept responsibility. As the dissenting
justices stressed, not only did Acoli maintain before the Parole Board that he did
not commit the murder of a State Trooper, he took the additional step of
speculating that the Trooper could have been killed by "friendly fire."
Furthermore, Acoli "cast himself as the victim in the incident and recounted a
theory that the evidence completely discredits." Acoli, 250 N.J. at 482–83
(Solomon, J., dissenting). We add that Acoli's acceptance of responsibility was
relevant to whether he was sincere in his renunciation of violence as a means to
achieve social change. That circumstance is not present in the matter before us.
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29
Given these similarities, we deem it appropriate to review the Acoli
decision in detail. We do so because we are convinced that the Supreme Court
intended to provide guidance and instruction—to the Parole Board and appellate
courts as well—on how to resolve remaining cases in the pipeline that apply the
parole standards under the pre-1997 version of the Parole Act. The Court
ultimately concluded that the Board had abused its discretion in failing to grant
Acoli parole in accordance with N.J.S.A. 30:4-123.53 because its "decision . . .
[was] not supported by substantial evidence in the record or by a reasonable
weighing of the relevant factors in N.J.A.C. 10A:71-3.11(b)." Acoli, 250 N.J.
at 448.
Acoli had been convicted of participating in notorious crimes, shooting
and wounding one New Jersey State Trooper and murdering a second Trooper
during a routine traffic stop. Id. at 440. Acoli was sentenced to life
imprisonment plus twenty-four to thirty years. Id. at 440–41. He first became
eligible for parole in 1993. Id. at 441. The Board denied parole on every
subsequent occasion he became eligible for release. Id. at 428.
Acoli committed no disciplinary infractions during the last twenty-five
years of his imprisonment. Id. at 467. At the time of his latest appeal, he was
on "honor status." Ibid. During his time in prison, Acoli participated in over
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30
120 rehabilitative and behavioral programs, underwent counseling and learned
a new trade. Id. at 464. Positive testimonials from the Federal Bureau of Prisons
praised Acoli's coping skills, noting his psychological progress and positive
rapport with others. Id. at 468.
Acoli's institutional record contained numerous psychological reports and
evaluations. Id. at 441. In preparation for his third parole hearing, "the State
assigned Dr. Lois D. Goorwitz, a licensed psychologist, to assess Acoli's
institutional progress." Id. at 443. Dr. Goorwitz remarked in her report that
Acoli "was 'very cooperative, self[-]reflective, thoughtful, and non[-
]defensive.'" Ibid. (alterations in original). The Court noted:
Dr. Goorwitz found "NO psychological
contraindications to granting parole." . . . She assessed
his risk of recidivism as "moderate," only twenty-eight
percent. Dr. Goorwitz emphasized that Acoli's "mental
health treatment" and the maturity he gained through
the years had resulted not only "in significant self[-
]growth," but also in his "ability to take responsibility
for his crimes." She also stressed that he had
"significantly changed views on politics and the use of
violence." She concluded that "it is time to seriously
consider [Acoli] for parole."
[Id. at 444 (alterations in original).]
In anticipation of his fourth parole eligibility hearing, slated for 2016, "the
Board retained the services of Dr. Julia Van Pelt, for the purpose of conducting
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31
and in-depth psychological evaluation and issuing a report of Berta's
psychological state. Id. at 446. Although Acoli's institutional record had
remained unblemished during the six-year interim since he last became eligible
for parole,
Dr. Van Pelt arrived at completely different
conclusions from those reached by Dr. Goorwitz. The
same exact responses that Dr. Goorwitz credited as
sincere six years earlier, Dr. Van Pelt rejected as
inauthentic. After listening to Acoli's account of what
occurred in 1973, Dr. Van Pelt opined that Acoli failed
to take responsibility for his actions. She did not accept
as genuine Acoli's expressions of remorse and his
verbal renunciation of violence as a vehicle for social
change. In Dr. Van Pelt's view, Acoli had an "inability
. . . to at least superficially condemn violence" and
appears to "at least passively condone aggression."
[Ibid. (alteration in original).]
Ultimately, "Dr. Van Pelt assessed Acoli as presenting a low to moderate
risk of recidivism. She did not render an opinion that there was a substantial
likelihood that Acoli would reoffend if released." Ibid. However, she did opine
that Acoli would "struggle to abide by the restrictions of parole . . . ." Id. at 435.
During his parole hearing, the Board subjected Acoli to six hours of
questioning. Id. at 461. "Acoli fielded hundreds of questions, most of which
required him to repeat again and again his recollection of the events" in the early
morning of the day he committed his crime, May 2, 1972. Ibid. The Court noted
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32
that "[a]lmost no inquiry was made about his exemplary record over the last
twenty-five years, his successful completion of programs, his institutional
achievements, his fading health, or his prospects in the future." Id. at 437.
The Board again denied parole, finding in its Notice of Decision that Acoli
had made "negligible gains in understanding [his] past behaviors, values and
attitudes" because of his refusal to "surrender views about 'social justice'" during
his parole hearing. Id. at 466. The Board ignored multiple favorable
psychological reports, including Dr. Goorwitz's 2010 recommendation that the
Board "seriously consider" Acoli's release because "there were 'NO
psychological contraindications to granting parole[.]" Id. at 468. The Notice of
Decision did not explain why it weighed Dr. Van Pelt's negative report so much
more heavily than Dr. Goorwitz's positive one. Ibid. Nor did it address the
significance of Acoli's age, which predicted an extremely low likelihood of
recidivism. Id. at 469.
Based on these circumstances, the Supreme Court determined that in
denying parole, the Board had "taken refuge in threadbare findings that Acoli
lacks insight into the conduct that led him to his involvement in the crimes he
committed in 1973 and that he still refuses to take responsibility for his acts."
Id. at 460. The Court added that in finding that there was a substantial likelihood
A-1889-20
33
that Acoli would reoffend if released on parole, the Board "overvalued the sole
unfavorable psychological report and completely disregarded the positive
psychological assessments"; "gave little weight to Acoli's exemplary
institutional record and model-inmate status over twenty-five years"; and "gave
no consideration to the age-crime curve—that as an inmate approaches later
stages of life, the likelihood of committing a crime greatly diminishes." Ibid.
The Court also determined that the Board in its response to Acoli's appeal
"paid lip service to" N.J.A.C. 10A:71-3.11(b) by "cursorily enumerat[ing] some
generic mitigating factors" and failing to "substantively address Acoli's twenty -
plus year exemplary institutional record." Id. at 465.
The Court added:
In the end, however, even Dr. Van Pelt's report does not
support the Board's denial of parole. Her low-to-
moderate-risk assessment concerning the likelihood of
Acoli's recidivism does not equate to a substantial
likelihood of committing a crime. A single unfavorable
psychological evaluation finding only the "potential" to
reoffend is insufficient to support the denial of parole.
See Cestari, 224 N.J. Super. at 550. The Board,
moreover, may not rely on a single unfavorable
psychological report, in disregard of evidence
favorable to parole, to reach a preferred outcome. See
Trantino VI, 166 N.J. at 174, 188; see also Cestari, 224
N.J. Super. at 550.
[Id. at 469.]
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34
The Court thus concluded that
the Parole Board's decision to deny Acoli parole is not
supported by substantial evidence in the record or by a
reasonable weighing of the relevant factors in N.J.A.C.
10A:71-3.11(b) that govern parole. See Trantino IV,
154 N.J. at 24. Even under the most deferential
standard of review, the Board has failed to prove by a
preponderance of the evidence that there is a substantial
likelihood that, if released on parole, Acoli will commit
a crime. Indeed, the Board's decision is so wide of the
mark and "manifestly mistaken" that the "interests of
justice" require our intervention. See Trantino VI, 166
N.J. at 192 (quoting P.F. v. Div. of Dev. Disabilities,
139 N.J. 522, 530 (1995)).
[Id. at 470.]
IV.
Turning to the matter before us, we first address Berta's contention that it
was improper for the Board to consider as an aggravating factor that he was
imprisoned for committing multiple offenses. 10 In this instance, a jury found
Berta guilty of murder and possession of a firearm for an unlawful purpose. The
firearm was the murder weapon and the unlawful purpose for which it was
10
We address defendant's contentions out of order from the points raised in his
brief because our resolution of his "multiple offense" contention and our
conclusion that the Board improperly considered his disciplinary infraction
history as an aggravating factor make it unnecessary for us to reach the argument
raised in his first Point that his rights under the ex post facto clause were violated
by the Board's consideration of information that existed before its initial
decision to deny parole in 2010. See infra section VI.
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35
possessed was to commit the murder. Although the Parole Board acknowledged
that the two jury trial convictions had been merged for sentencing purposes, it
nonetheless concluded that Berta had been committed to incarceration for
multiple offenses, militating against parole. We disagree with that conclusion.
The list of enumerated relevant factors set forth in N.J.A.C. 10A:71-3.11
does not include that the inmate was committed to incarceration for multiple
offenses. We recognize, however, that the list is not exhaustive and that the
regulation expressly provides that "in addition, [the Parole Board] may consider
any other factors deemed relevant." N.J.A.C. 10A:71-3.11(b). However, we do
not believe it is appropriate for the Parole Board to have determined that Berta
was committed to incarceration for "multiple offenses" that had been merged for
sentencing purposes by the trial court. We note that another enumerated factor
authorizes the Board to consider a "[s]tatement by the court reflecting the
reasons for the sentence imposed." N.J.A.C. 10A:71-3.11(b)(20). In this
instance, the Board effectively disregarded the trial court's explicit, well -
reasoned determination that the two convictions must be merged.
Aside from essentially disregarding the trial court's ruling, it is simply
inaccurate to say that Berta was "committed to incarceration for multiple
A-1889-20
36
offenses."11 This is not a situation where a defendant is convicted of multiple
crimes, separate sentences are imposed by the trial court on each conviction, and
the court orders those sentences to be served concurrently. See N.J.S.A. 2C:44-
5 (explaining when sentences run concurrently or consecutively, as determined
by the sentencing court). Berta was committed to incarceration by the trial court
by means of the Judgment of Conviction (JOC), which shows that the offenses
were merged. The merger of the jury trial convictions, in other words, occurred
before the commitment to incarceration.
We are constrained to note that the two-member panel added this supposed
aggravating circumstance only after Berta had challenged the Initial Notice of
Decision. We accept that a panel has the authority to amplify its initial decision
in response to an inmate's challenge to findings and circumstances that had been
made by and relied upon by the panel. In this instance, however, the panel was
neither explaining nor amplifying the findings it had already made, but rather
introduced two entirely new circumstances into the mix. That might suggest
that the panel was looking for new reasons to justify a "preferred outcome," to
borrow the phraseology the Court used in Acoli. 250 N.J. at 469. In any event,
11
The three-member panel's August 7, 2020 Narrative Notice of Decision cites
as a factor, "COMMITTED TO INCARCERATION FOR MULTIPLE
OFFENSES."
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37
we conclude the Parole Board was manifestly mistaken in citing to and relying
on the fact that Berta had been committed to incarceration for multiple offenses.
See Trantino VI, 166 N.J. at 192.
V.
We next consider whether the Parole Board properly considered Berta's
record of institutional infractions as an aggravating circumstance militating
against parole. 12 On April 3, 2020, the two-member panel amended its decision
to add as a reason for denial that Berta had "institutional infractions: numerous,
12
We note that Berta in his appellate brief does not devote a separate point to
challenging the Board's consideration of his disciplinary record. However, in
Point IV of his brief, Berta contends that "the record relied on by the Board . . .
fails to supply the preponderance of evidence necessary for demonstrating a
'substantial likelihood' of future criminal conduct." He then lists the "several
reasons [that] were given for the denial of Mr. Berta's parole," including "(3)
that he committed 'numerous,' 'persistent,' and 'serious' infractions while in
prison . . . ." Berta argues, "[t]hese factors, taken together, are woefully
insufficient to justify the Parole Board decision." He also contends, "[w]ith
respect to the second and third reasons given for Mr. Berta's parole denial
(incarceration on multiple offenses and the various prison infractions) . . . , they
are improper and should not have been considered." (emphasis added).
We therefore address whether the Board properly considered Berta's
record of disciplinary infraction as part of the preponderance of the evidence the
Board relied upon to deny parole. We note that our conclusion that the Board
improperly found Berta's institutional infraction history constitutes an
aggravating circumstance supports our determination in section VI that Berta's
ex post facto contention is not ripe for our consideration. See supra note 4.
A-1889-20
38
persistent, serious." Although we are mindful of the Board's expertise in
evaluating the significance of an inmate's institutional record, we deem it
appropriate to be especially careful when scrutinizing a new reason for denying
parole that was not part of the pre-parole case assessment 13 and that was added
to the mix only after an inmate challenges an Initial Notice of Decision. We
believe that in those circumstances, in applying the deferential standard of
review, closer appellate scrutiny is warranted to guard against post-hoc
justifications designed to achieve a "preferred outcome." Cf. id. at 469.
As we have noted, Berta accumulated a total of seven disciplinary
infractions. Six of those occurred within the first five years of his incarceration,
including the sole infraction deemed to be an asterisk offense, *.205 Misuse of
Authorized Medication, which was committed in July 1987. Berta's last
infraction, dated October 30, 2002, was a non-asterisk offense, .210 Possession
not Authorized. That infraction was reheard and lost commutation credits were
restored.
13
The pre-parole case assessment's only reference to Berta's institutional
infraction record, beyond listing the offenses and corresponding dates, is that he
was "[i]nfraction free since last panel." That report also indicates that Berta's
"[i]nstitutional reports reflect favorable institutional adjustment."
A-1889-20
39
Berta was not disciplined during the period between his first and second
parole hearings. Indeed, so far as the record shows, he has not been charged
with or convicted of an institutional infraction for nearly twenty years.
We are satisfied that Berta's disciplinary history, viewed in its entirety and
considering the temporal remoteness of the infractions, cannot reasonably be
deemed to suggest a likelihood of reoffending, and thus should not have been
considered to be a negative circumstance militating against parole. While there
was a pattern of infractions at the beginning of Berta's incarceration, only one
infraction rose to the level of an asterisk offense, and that infraction, committed
in July 1987, "was related to an expired bubble pack of medication."
But even were we to accept that Berta's infraction history is serious, we
deem it inaccurate and unreasonable to characterize the infractions as persistent.
The word persistent implies continuing without change. That term hardly
describes Berta's overall history of infractions, at least in a negative sense. We
presume Berta's recent infraction-free history is more probative of the likelihood
of re-offense than his temporally remote infraction history. The 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
A-1889-20
40
infraction-free conduct. See infra note 18 (recognizing that reference to social
science studies can be relevant in determining whether an agency decision is
supported by substantial credible evidence). The whole point of prison-based
"correctional" programs, after all, is to change the thinking and behavior of
persons convicted of serious crimes warranting imprisonment. We believe a
sustained improvement in institutional behavior is a positive circumstance that
should be rewarded so as to provide incentive for inmates to refrain from
committing infractions. For purposes of this appeal, we believe a more recent
pattern of sustained infraction-free conduct suggests that an inmate will be
willing and able to comply with parole rules just as he or she has learned to
comply with prison rules.
Nothing in the Board's Final Decision explains why, based on the Board's
expertise, that seemingly common-sense principle is wrong. In the absence of
any explanation contradicting that precept, we hold that the Board was
unreasonable in relying on Berta's disciplinary record to support the conclusion
that he is substantially likely to commit a new offense if released on parole. 14
14
We note that the pattern of Berta's compliance with institutional rules is
similar to the pattern in Acoli. Both Berta and Acoli accumulated infractions
early in the course of their life sentences, followed by a sustained period of
infraction-free behavior. See Acoli, 250 N.J. at 441. Both had only one serious
A-1889-20
41
In sum, the Board's Final Decision refers in a conclusory fashion to Berta's
institutional infraction record but does not explain why, viewed as a whole, that
record constitutes a negative factor rather than a positive or neutral one. We
thus conclude that the Board's consideration of Berta's disciplinary record —
added to the mix seemingly as an afterthought—was arbitrary and unreasonable.
VI.
We turn next to Berta's contention that the Board violated his rights under
the ex post facto clause by considering negative information other than "new
information" added since he was first denied parole. Under the Parole Act as it
existed when the murder in this case was committed, the Board could deny
parole after an initial denial only based upon new information added to the
record since the preceding parole hearing. 15 The Act was amended in 1997 to
infraction. (Acoli was administratively convicted of attempted escape, which
would seem to be an especially serious infraction). Ibid. Neither committed an
infraction in the last twenty years. See id. at 443.
15
Specifically, the original version of the 1979 Parole Act read:
An inmate shall be released on parole on the new parole
eligibility date unless new information filed pursuant to
a procedure identical to that set forth in [N.J.S.A. 30:4-
123.54 (pre-parole report)] indicates by a
preponderance of the evidence that there is a substantial
likelihood that the inmate will commit a crime under
the laws of this State if released on parole at such time.
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42
remove that restriction so that, now, the Board may consider all available
information. N.J.S.A. 30:4-123.56(c). Berta argues that the second denial of
parole—the matter before us in this appeal—relies on facts constituting negative
circumstances that had previously been considered at the first hearing.
In Trantino v. N.J. State Parole Bd. (Trantino V), we held that the
retroactive application of the 1997 amendment to N.J.S.A. 30:4-123.56(c) "did
not violate the ex post facto clause since this change in the law is a procedural
modification that does not constitute a substantive change in the parole release
criteria." 331 N.J. Super. 577, 610–11 (App. Div. 2000) (citing State v.
Muhammad, 145 N.J. 23, 56–57 (1996)). We added, "[m]oreover, we are
persuaded that much of the additional information considered by the Board at
the remand hearings was, arguably, "new information" and could be considered
by the Board even under the pre-1997 version of N.J.S.A. 30:4-123.56(c)." Id.
at 611.
Berta now claims that our decision in Trantino V has been overruled by
Holmes v. Christie, 14 F.4th 250 (3d Cir. 2021). In that case, which involves a
civil rights claim pursuant to 42 U.S.C. §1983, the Third Circuit Court of
[N.J.S.A. 30:4-123.56(c) (1979) (emphasis
added).]
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43
Appeals held that retroactive application of the 1997 amendment would violate
the ex post facto clause if discovery were to show "that the Board implemented
the all-information provision in a way that created a significant risk of
prolonging [the inmate's] incarceration,"—a "fact-sensitive inquiry." Id. at 260
(quoting Richardson v. Pa. Bd. of Prob. & Parole, 423 F.3d 282, 291 (3d Cir.
2005)).
In the matter before us, the negative information relied on by the Board
that does not constitute "new information" 16 relates specifically to the Board's
findings that Berta was committed to incarceration for multiple offenses and that
he has a serious and persistent history of institutional infractions, all of which
occurred before the first parole hearing. We have already determined that both
of those negative circumstances were improperly considered and may not be
considered on remand.
In these circumstances, we decline to address Berta's constitutional
argument because we have already precluded the Board from considering these
16
For purposes of the "as applied" ex post facto analysis in Holmes, we believe
Berta's continuing refusal to admit his guilt constitutes "new information"
developed since his initial denial of parole. The record before us makes clear
that the Board's most recent conclusion that Berta demonstrated insufficient
problem resolution was based on his present (i.e., post-initial hearing) denial of
guilt, not on his historical protestations of innocence.
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two negative circumstances, relying on non-constitutional grounds. See Comm.
to Recall Menendez v. Wells, 204 N.J. 79, 95 (2010) (As a general principle,
courts "strive to avoid reaching constitutional questions unless required to do
so"); Randolph Town Ctr., L.P. v. Cnty. of Morris, 186 N.J. 78, 80 (2006)
("Courts should not reach a constitutional question unless its resolution is
imperative to the disposition of litigation."). Applying that principle of
constitutional avoidance, we offer no opinion on whether Holmes overturned
Trantino V.
VII.
We next address Berta's contention that it was inappropriate for the Board
to base its decision on the fact that he maintains his innocence. In addressing
this argument, we are mindful that history shows that innocent persons can be
convicted and sentenced for murders they did not commit. Nor do we dispute
Berta's assertion that inmates who profess their innocence may face a
Kafkaesque dilemma when they become eligible for parole: abandon their claim
of innocence or else risk denial of parole on the grounds that they have not
accepted responsibility and thus have not sufficiently resolved the problems that
lead to criminal behavior. See Daniel S. Medwed, The Innocent Prisoner's
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Dilemma: Consequences of Failing to Admit Guilt at Parole Hearings, 93 Iowa
L. Rev. 491, 529 (2008).
We nonetheless stress that, for purposes of this appeal, we presume that
Berta is guilty of the horrific crime for which he was convicted. We reject
Berta's argument that the Parole Board's consideration of his denial of guilt
violates his due process rights, and we decline Berta's request that we adopt a
per se rule that would categorically preclude the Parole Board from considering
this circumstance.
We likewise decline Berta's invitation to "adopt a per se rule that an
assertion of innocence as to the underlying offenses, in and of itself, is not
sufficient to demonstrate a substantial likelihood of re-offense under the 1979
Act." Although we do not adopt any such categorical rule, we reiterate that an
admission of guilt is not a prerequisite to parole, and thus ongoing refusal to
admit guilt cannot be treated as a categorical bar to parole. Acoli, 250 N.J. at
452. Confession may well be good for the soul, but it is not a precondition to
release from prison. See N.J.A.C. 10A:71-2.11. Nor is the refusal to admit guilt
a talisman before which the statutory presumption of parole evaporates. We
stress that while an inmate's "insufficient problem resolution" is a relevan t
circumstance that may be considered by the Board as part of the totality of
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positive and negative relevant circumstances, problem resolution is not an end
unto itself. Rather, in the context of the parole decision-making framework, it
is a means to reduce the likelihood of re-offense. We thus hold that an inmate's
contention that he or she is innocent of the crime(s) for which he or she has been
imprisoned may be considered, but only insofar as it pertains to the foundational
question of whether there is a substantial likelihood that he or she will reoffend.
To the extent the Board may have tacitly adopted a de facto policy not to grant
parole to inmates who refuse to admit to committing the crime(s) for which they
were convicted and incarcerated, we hold that any such categorical policy would
violate the presumption of parole and thus constitute an abuse of discretion.
But, even accepting that "insufficient problem resolution" or "negative
thinking" can be a relevant consideration, our principal concern in this case is
that the Board has not explained why Berta's refusal to acknowledge his guilt
translates into a substantial likelihood that he would re-offend. The Board's
analysis is superficial and conclusory. While we acknowledge the Board's
expertise in addressing inherently subjective questions, we need not defer to
what is tantamount to a "net" opinion, that is, one that does not explain the basis
for the conclusion. Cf. Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)
(citations omitted) (The net opinion rule "forbids the admission into evidence of
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an expert's conclusions that are not supported by factual evidence or other data."
The "operative rule . . . requires an expert to give the why and wherefore of his
or her opinion, rather than a mere conclusion."). The fact that the assessment of
an inmate's negative attitudes and problem resolution is inherently subjective
does not exempt that assessment from meaningful appellate review. Nor does
the deferential nature of our review excuse the Board from explaining why its
subjective assessment supports the ultimate conclusion that there is a substantial
likelihood that the inmate will reoffend.
Neither of the two psychologists retained by the Board opined that there
is a substantial likelihood that Berta will reoffend. Indeed, the battery of
psychological evaluations they performed concluded otherwise. Notably, the
LSI-R score indicates a low risk for recidivism. 17 The latest MCMI III
evaluation indicates that Berta would "adhere to the expectations of authorities
such as prison administrators." Dr. Mucowski's 2019 psychological report
indicates that there are "NO psychological contraindications to grant parole,"
and he concluded that "the likelihood of [Berta] successfully completing a
projected term of parole appears positive."
17
In Acoli, Dr. Van Pelt found a "low-to-moderate risk of recidivism,"
prompting the Court to comment that such a finding "does not equate to a
substantial likelihood of committing a crime." 250 N.J. at 469.
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If the Board is to part company with these professional assessments, it
must explain the reasons for doing so given that it bears the burden of
overcoming the presumption of parole by a preponderance of the evidence. We
note in this regard that the Board has cited no social science research to support
its conclusion that Berta's refusal to admit his guilt presages future criminal
activity.18 Cf. Deal v. Mass. Parole Bd., 142 N.E.3d. 77, 88 (2020) (Gants, C.J.,
concurring) (citing sex offender recidivism studies concluding that denial of
guilt "had little or no relationship with recidivism"); Medwed, 93 Iowa L. Rev.
at 536 (noting that in a study of 144 inmates who were labeled "high-risk" due
to their denial of having committed offenses, only one reoffended, in
comparison to seventeen reoffenders out of group of ninety-seven "non-
deniers").
In Acoli, the Court chastised the Board for having "taken refuge in
threadbare findings that Acoli lacks insight into the conduct that led him to his
involvement in the crimes he committed in 1973 and that he still refuses to take
18
We do not mean to suggest that the Board's assessment of inherently
subjective circumstances—such as negative thinking or insufficient problem
resolution—must be supported by peer-reviewed social science. Our point,
rather, is that an agency's reliance upon social science research to support its
conclusion may be relevant to our own determination of whether an agency
decision is supported by substantial credible evidence.
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responsibility for his acts." 250 N.J. at 460 (emphasis added). The Board's
findings in the matter before us are similarly threadbare, at least with respect to
the nexus between Berta's refusal to accept responsibility for the murder he
committed and the likelihood he will commit a new crime after all these years.
Because psychological evaluations are individualized and intensely fact-
sensitive, and because this is only the second time that Berta was denied parole,
in contrast to the litany of denials in Acoli,19 we choose to provide the Board an
opportunity to explain why, considering the totality of relevant circumstances
militating in favor of parole, Berta's ongoing protestation of innocence supports
the conclusion by a preponderance of the evidence that there is a substantial
likelihood that he will reoffend. We emphasize that we are not usurping the
Board's role as factfinder with respect to Berta's attitude, problem resolution, or
acceptance of responsibility. Rather, our task is to hold the Board accountable
for fulfilling that function by requiring it to explain how it assessed these
subjective circumstances and arrived at its conclusion with respect to the risk of
re-offense. We believe Acoli, which was decided while the present matter was
on appeal, sent a clear message that the Board will heed going forward. For that
19
In Acoli, the inmate was denied parole four times before the Court eventually
ordered his release.
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reason, we do not retain jurisdiction. We expect the Board to act in good faith
in fulfilling its responsibilities on remand, and that if it determines that Berta's
refusal to admit guilt—the sole remaining negative circumstance after our
decision—does not establish by a preponderance of the evidence that Berta is
substantially likely to reoffend, it will grant him parole of its own accord and
without the need for further appellate review. We direct that the remand be
completed within sixty days.
We add that the Court in Acoli noted that "advanced age . . . is another
highly relevant factor in determining whether the Board abused its discretion in
denying parole." 250 N.J. at 469. The Court commented that "[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." 250 N.J. at
470. Although Berta is significantly younger than Sundiata Acoli, he
nonetheless is old enough that his age is a relevant consideration in predicting
the likelihood of recidivism. The Court in Acoli explained:
Studies have shown that as individuals age, their
propensity to commit crime decreases and, in
particular, that elderly individuals released from prison
tend to recidivate at extremely low rates.
Significantly, inmates released at age sixty-five
or older had only a 6.5 percent rate of incurring a new
conviction and only a 4.1 percent rate of
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reincarceration. Acoli is in an advanced age group for
which there is not a comparable statistical cohort.
Suffice it to say, a 4.1 percent rate of reincarceration—
without regard to any other factors that might militate
toward denying parole—can hardly equate to a
substantial likelihood of reoffending.
[Id. at 469–70 (citations omitted).]
Accordingly, we instruct 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 establishes a
substantial likelihood that he will re-offend.
VIII.
Finally, we address Berta's contention that the Board improperly imposed
a seventy-two-month FET. Most published precedents focus on the propriety of
the Board's decision to deny parole, not on the propriety of the FET established
at the time parole is denied. We believe the Board's obligation to explain the
reasons for imposing an FET longer than the presumptive FET is no less
important than its obligation to explain the reasons for overcoming the
presumption of parole. We conclude that, in this instance, the Board failed to
adequately explain why it fixed an FET almost three times as long as the
presumptive twenty-seven-month FET imposed by N.J.A.C. 10A:71-3.21(a).
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As we have noted, pursuant to N.J.A.C. 10A:71-3.21(d), the Board is
authorized to set a higher FET "if the future parole eligibility date which would
be established pursuant to [N.J.A.C. 10A:71-3.21(a)] is clearly inappropriate
due to the inmate's lack of satisfactory progress in reducing the likelihood of
future behavior." (emphasis added). We view the "clearly inappropriate"
standard to be a high threshold to vault. The presumption that convicted
murderers denied parole should be given a twenty-seven-month FET is not to be
dispensed with for light or transient reasons. We hold that to impose a higher
FET, the Board must overcome the presumption by explaining why a twenty-
seven-month FET is clearly inappropriate. Cf. Monks, 58 N.J. at 245 (noting
that requiring the Parole Board to explain its reasoning is "[o]ne of the best
procedural protections against arbitrary exercise of discretionary power.").
Furthermore, we hold that the Board must explain not only why the presumptive
FET is clearly inappropriate, but also why the FET that was actually imposed is
necessary and appropriate. The Board cannot simply pick a number out of thin
air.
At the risk of undue repetition, we stress that: (1) an FET must not be
imposed as a form of punishment; and (2) the decision to impose an FET beyond
the presumptive FET, like the underlying decision to deny parole, must be tied
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directly to the goal of reducing the likelihood of future criminal behavior. In
practical effect, an FET is comparable to a term of parole ineligibility imposed
by a court. But unlike sentencing judges—who impose mandatory or
discretionary periods of parole ineligibility for purposes of punishment —the
Parole Board may only impose a de facto term of parole ineligibility as may be
needed to reduce the likelihood of future criminal behavior.
As we have noted, the "punitive aspect" of an inmate's sentence has
already been satisfied by the time he or she first becomes eligible for parole.
See Acoli, 250 N.J. at 457 (citing Trantino II, 89 N.J. at 373–74). Relatedly,
"[a]n inmate's progress or lack of progress toward rehabilitation is relevant only
to the extent it bears on whether there is a substantial likelihood that he [or she]
will reoffend if released." Ibid. (explaining N.J.A.C. 10A:71-3.11(b)(9) (failure
"to cooperate in his or her own rehabilitation")). We emphasize in this regard
that N.J.A.C. 10A:71-3.21(d) authorizes the Board to set a higher FET "if the
future parole eligibility date which would be established pursuant to [N.J.A.C.
10A:71-3.21(a)] is clearly inappropriate due to the inmate's lack of satisfactory
progress in reducing the likelihood of future behavior." (emphasis added).
In this instance, the Board adopted the finding of the three-member panel
that "the factors supporting the denial of parole, collectively, are of such a
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serious nature as to warrant the setting of a future eligibility term which differs
from the presumptive term of twenty-seven (27) months (± [nine] months)." 20
The Board, in other words, essentially incorporated the reasons it had relied
upon to deny parole, labeled those collective reasons as "serious" in nature, and
then re-purposed them to nearly triple the presumptive FET. The Board's
analysis with respect to the FET thus suffers from the same flaws that we have
already identified with respect to the Board's underlying decision to deny parole.
20
We note the Board also embraced the findings of the three-member Board
panel that:
after thirty-five (35) years of incarceration:
• You have identified a contributory factor of your
criminal thinking. Your desire for self-gratification led
to the Murder offense occurring. The Board panel finds
you must develop a deeper understanding as to why
personal gratification dictated your life. You behaved
in such a manner no matter what the consequences were
or who you affected in a negative way. You must
conduct an introspection to understand the emotional
and psychological dynamics of your thinking; and
• You present as not having made adequate progress in
the rehabilitative process. The Board panel notes your
participation in programming/counseling including
Alcoholics Anonymous, Focus On The Victim,
Thinking For a Change, Cage Your Rage, STARS and
college programs. However, the Board panel finds that
further programming will assist you in gaining a better
understanding to your thinking.
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Indeed, the Board's decision to impose a seventy-two-month FET compounds
the deficiencies in its analysis and articulation of the parole-release decision.
As we have noted, the record clearly shows that in setting an FET beyond
the presumptive FET, the Board incorporated and relied upon the "factors
supporting the denial of parole, collectively[.]" We thus presume the FET
decision was strongly influenced, if not driven, by Berta's refusal to admit his
guilt. We are concerned that this circumstance might suggest that regardless of
any rehabilitative programs Berta participates in, he will not be released from
prison unless and until he abandons his claim of innocence. For the reasons we
explained in section VIII of this opinion, that result is not acceptable, especially
in the absence of social science evidence to support the proposition tacitly relied
upon by the Board that denial of guilt correlates to the risk of re-offense. See
supra note 18. We reiterate that Berta's admission that he committed the murder
is not a prerequisite to parole. Nor is it a prerequisite to imposing the
presumptive FET. As to both the in-or-out and length-of-stay decisions, the
Board carries the burden of overcoming a presumption. The Board has an
obligation to precisely and transparently explain the reasons for overcoming
both presumptions so as to permit meaningful appellate review of both
decisions. As we have noted, absent a sufficient statement of reasons, we cannot
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ascertain whether either decision is justified or arbitrary and capricious. Cf.
Mejia, 446 N.J. Super. at 378–79.
In sum, it would be inappropriate to impose a lengthy FET to essentially
coerce Berta to admit his guilt. Any such use of the FET decision-making
process needlessly amplifies the dilemma faced by inmates who maintain their
innocence. See Medwed, 93 Iowa L. Rev. at 491. In the final analysis, we will
not permit the Board to use Berta's ongoing refusal to admit guilt as an artifice
to convert his life sentence into a sentence of life without parole.
Reversed and remanded for proceedings consistent with this opinion. We
do not retain jurisdiction.
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__________________________________
GEIGER, J.A.D., concurring.
While I agree with the analysis and result in the court's opinion, I write
separately to further address the seventy-two-month future eligibility term
(FET) imposed by the State Parole Board (Board). This lengthy FET follows
the previous 120-month FET imposed by the Board. In each instance, the
lengthy FETs were based on palpably thin grounds described in detail in the
court's opinion.
As in Acoli v. N.J. State Parole Bd., 250 N.J. 431 (2022) and State v.
Thomas, 470 N.J. Super. 167 (App. Div. 2022), Berta has been an infraction-
free, model prisoner for almost twenty years. His single asterisk offense, which
did not involve violence or the threat of violence, occurred in 1987. He has not
incurred any other infraction since October 30, 2002. Stated briefly, Berta has
achieved and maintained minimum custody status without incident. He has
taken courses, earned a college degree, and has served as the facility's inmate
electrician for years. The psychological evaluations conducted at the request of
the Board conclude that Berta is unlikely to commit new offenses if released.
Yet, the Board has cumulatively imposed FETs totaling sixteen years.
We apply a deferential standard of review to the denial of parole and
imposition of an extended FET. We determine if the Board's decision was an
abuse of discretion. The result is that we rarely overturn the Board's decision to
deny parole and to impose an extended FET.
The sentencing court imposed a thirty-year period of parole ineligibility.
Berta has long since completed that period. Despite behaving as a model
prisoner since 2002 and having no prior criminal convictions or adjudications
of delinquency, much less prior violations of parole or probation, the Board's
actions had cumulative real-time consequences that effectively extended his
parole ineligibility period for sixteen years.
The role of the Board is not to modify sentences. Similarly, the intended
purpose of imposing a FET is not punishment. See State Parole Bd. v. Byrne,
93 N.J. 192, 205 (1983) ("Inmates serving sentences under the Code . . . have
presumptively satisfied all punitive aspects of their sentences at the time they
become eligible for parole.") (quoting In re Parole Application of Trantino, 89
N.J. 347, 370 (1982)). Yet, for seemingly marginal reasons, the Board's actions
appear to cross those boundaries. The Board rendered these decisions under a
procedural framework where the inmate appears before the Board unrepresented
by counsel and without the ability to cross-examine the Board's experts, present
his own expert testimony, discover the contents of confidential psychological
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evaluations, or participate in an adversarial proceeding. See Thomas, 470 N.J.
Super. at 194-95.
The issue largely unaddressed by our case law is the degree of discretion
afforded to the Board in imposing lengthy FETs under the current framework.
Considering the limited rights afforded to inmates to present their case for parole
to the Board and to challenge the evidence relied upon by the Board in setting
an FET, coupled with our deferential standard of review based on the resulting
limited record developed before the Board, one must question whether the
inmate's right to due process is satisfied. This issue is particularly troublesome
when the FET imposed far exceeds the ordinary twenty-seven-month FET limit
for murder cases under N.J.A.C. 10A:71-3.21(a)(1) and is well beyond the
additional nine months that may added to an FET under N.J.A.C. 10A:71-
3.21(d).
Mindful that setting new policies is largely the function of the Legislature
and our Supreme Court, I respectfully suggest that our Supreme Court examine
the Board's largely unbridled discretion to impose extended FETs, whether
inmates should be afforded greater procedural rights before extended FETs are
imposed, and whether the imposition of extended FETs warrants closer scrutiny
under a less deferential standard of review.
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Absent such protections, the imposition of lengthy FETs may well violate
the fundamental fairness doctrine. As we explained in Thomas:
"The fundamental fairness doctrine is an integral
part of the due process guarantee of Article I, Paragraph
1 of the New Jersey Constitution, which protects
against arbitrary and unjust governmental action."
State v. Njango, 247 N.J. 533, 537 (2021); accord
Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 239
(2008). "The doctrine serves as 'an augmentation of
existing constitutional protections or as an independent
source of protection against state action.'" State v.
Melvin, 248 N.J. 321, 348 (2021) (quoting Doe v.
Poritz, 142 N.J. 1, 108 (1995)). It advances "fairness
and fulfillment of reasonable expectations" relating to
"constitutional and common law goals." Njango, 247
N.J. at 549 (quoting State v. Vega-Larregui, 246 N.J.
94, 132 (2021)).
[470 N.J. Super. at 200.]
The absence of adequate procedural safeguards implicates the fundamental
fairness doctrine when the Board imposes FETs longer than twenty-seven
months for reasons other than institutional infractions in the preceding ten years
of confinement, a lengthy prior criminal or juvenile history, prior violations of
parole or probation, or a psychiatric diagnosis or psychological risk assessment
indicative of a propensity to reoffend.
Moreover, Berta has now been incarcerated for more than thirty-eight
years for his crime. Berta's "advanced age" — he is now seventy-three — "is
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another highly relevant factor . . . ." Acoli, 250 N.J. at 469. "Studies have
shown that as individuals age, their propensity to commit crime decreases and,
in particular, that elderly individuals released from prison tend to recidivate at
extremely low rates." Ibid.; see also State v. Davis, 96 N.J. 611, 618 (1984)
("[A]ge as a demographic variable, has consistently been found to be strongly
related to subsequent criminal activity."). "Significantly, inmates released at
age sixty-five or older [have] only a 6.5 percent rate of incurring a new
conviction and only a 4.1 percent rate of reincarceration[.]" Acoli, 250 N.J. at
470 (citing U.S. Sent'g Comm'n, The Effects of Aging on Recidivism Among
Federal Offenders 23 (2017) (finding that "[o]lder offenders were substantially
less likely than younger offenders to recidivate following release")). Here, as
in Acoli, "[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 [Berta]." Ibid.
In my view, an extended FET must be based on substantial credible
evidence in the record that objectively demonstrates that its duration directly
relates to the amount of time necessary to address the reasons identified for
denying parole. In turn, appellate review of an extended FET warrants a higher
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degree of scrutiny by a reviewing court than afforded under the deferential
standard of review we are currently obligated to apply.
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