STATE OF NEW JERSEY VS. F.E.D. (79-01-1131, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2554-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v.
August 16, 2021
APPELLATE DIVISION
F.E.D.,
Defendant-Appellant.
________________________
Argued June 9, 2021 – Decided August 16, 2021
Before Judges Ostrer, Accurso, and Enright.
On appeal from the Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 79-01-
1131.
Alison Gifford, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Alison Gifford and Lucy
Gray-Stack, Assistant Deputy Public Defender, of
counsel and on the briefs).
Frank J. Ducoat, Special Deputy Attorney General/
Acting Assistant Prosecutor, argued the cause for
respondent (Theodore N. Stephens II, Acting Essex
County Prosecutor, attorney; Frank J. Ducoat, of
counsel and on the brief).
The opinion of the court was delivered by
OSTRER, P.J.A.D.
Effective February 1, 2021, the Legislature removed the Parole Board's
power to grant "medical parole" to terminally ill or permanently incapacitated
inmates, and, instead, empowered the courts to grant such inmates
"compassionate release." L. 2020, c. 106, § 1 (codified at N.J.S.A. 30:4-
123.51e); see also N.J.S.A. 30:4-123.51c (2001) (repealed by L. 2020, c. 106,
§ 3) (medical parole). F.E.D., seventy-two and suffering from heart disease,
took advantage of the new law; convicted of three murders and serving two life
sentences since 1982, F.E.D. petitioned the court for compassionate release. 1
During the subsequent hearing, he asserted he satisfied the three
prerequisites for such discretionary relief: he suffered from a "permanent
1
We use initials because N.J.S.A. 30:4-123.51e(e)(4) declares: "The
information contained in the petition and the contents of any comments
submitted by a recipient in response thereto shall be confidential and shall not
be disclosed to any person who is not authorized to receive or review the
information or comments." It is practically impossible to write this opinion
without addressing such information. Rule 1:38-1A does permit us to refer to
"information in court records even when those records are excluded from
public access," but it is unclear if the rule applies to records that statutes,
rather than rules, exclude from public access. In any event, a directive
requires us to adhere to the statutory provision. See Administrative Directive
#04–21, "Criminal — Procedures for Compassionate Release Pursuant to
N.J.S.A. 30:4-123.51e," at 2 (Feb. 1, 2021) ("The petition, responses, and
information related to the petition . . . shall be confidential pursuant to
N.J.S.A. 30:4-123.51e(e)(4)."). We withhold comment on the wisdom of the
Legislature's decision to limit public disclosure of prisoners' early release
petitions, and on the constitutionality of a statute restricting the content of
judicial opinions, see Winberry v. Salisbury, 5 N.J. 240, 255 (1950).
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physical incapacity" (that is, a condition that "did not exist at the time of
sentencing," and rendered him "permanently unable to perform activities of
basic daily living" and in need of "24-hour care"); he was "physically
incapable" of reoffending; and his release "would not pose a threat to public
safety." See N.J.S.A. 30:4-123.51e(d), (f), (l). After the hearing, the court
denied his petition, finding that he did not satisfy the first and third
requirements (without discussing the second requirement).
F.E.D. contends on appeal that the court misinterpreted the statute and
found, contrary to the factual record, that he still posed a risk to the public.
His arguments are unavailing. To petition for compassionate release, F.E.D.
had to present a valid "Certificate of Eligibility for Compassionate Release"
from the Department of Corrections, attesting that he suffered from a terminal
disease or a permanent physical incapacity. F.E.D.'s certificate was invalid;
the medical diagnoses on which the certificate relied did not conclude that
F.E.D. was terminally ill or unable to perform activities of basic daily living.
Because the court could not even consider F.E.D.'s petition without a valid
certificate of eligibility, we do not decide if the court abused its discretion
when it found that F.E.D. failed to show, by clear and convincing evidence,
that he would not pose a threat to public safety.
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I.
We start by summarizing the compassionate-release statute. Accepting a
recommendation of the New Jersey Criminal Sentencing & Disposition
Commission, Annual Report: November 2019 30-33 (2019) [hereinafter
Sentencing Commission Report], the Legislature empowered courts to grant
qualifying inmates "compassionate release" regardless of their parole -
eligibility date, see N.J.S.A. 30:4-123.51e(f)(1) (stating that such release is
"[n]otwithstanding" N.J.S.A. 30:4-123.53). As the Commission proposed,
Sentencing Commission Report at 31, the statute retains the medical-parole
statute's criteria for release, but it adopts procedures to hasten decision -
making. Compare N.J.S.A. 30:4-123.51c (2001) (repealed by L. 2020, c. 106,
§ 3) (medical parole) with N.J.S.A. 30:4-123.51e (compassionate release).
The Legislature also lifted the medical-parole-law's exclusion of inmates
convicted of murder, manslaughter and some other serious crimes. Compare
N.J.S.A. 30:4-123.51c (2001) with N.J.S.A. 30:4-123.51e.
Before petitioning the court for release, an inmate must procure a
certificate of eligibility from the Corrections Department. "No petition for
compassionate release may be submitted to the court unless . . . accompanied
by a Certificate of Eligibility for Compassionate Release." N.J.S.A. 30:4 -
123.51e(f)(2). And the Department must "promptly issue" the certificate if
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two department-designated physicians "determine[] that an inmate is suffering
from a terminal condition, disease or syndrome, or permanent physical
incapacity." N.J.S.A. 30:4-123.51e(b), (d)(2). A "terminal condition, disease
or syndrome" means "that an inmate has six months or less to live," and a
"permanent physical incapacity" means "that an inmate has a medical
condition that renders the inmate permanently unable to perform activities of
basic daily living, results in the inmate requiring 24-hour care, and did not
exist at the time of sentencing." N.J.S.A. 30:4-123.51e(l).
Armed with the certificate (and the Public Defender's help, if needed,
N.J.S.A. 30:4-123.51e(d)(3)), the inmate may petition the court, upon notice to
the prosecutor and the inmate's victims. N.J.S.A. 30:4-123.51e(e)(2). The
prosecutor and the victims may, within tight timeframes, voice opposition.
N.J.S.A. 30:4-123.51e(e)(3) to (7).
Then, the court "may" grant "compassionate release" — but only if the
court "finds[,] by clear and convincing evidence[,] that the inmate is so
debilitated or incapacitated by the terminal condition, disease or syndrome, or
permanent physical incapacity as to be permanently physically incapable of
committing a crime if released." N.J.S.A. 30:4-123.51e(f)(1). With inmates
who are only physically incapacitated, the court must also find that "the
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5
conditions established" for the inmate's release "would not pose a threat to
public safety." 2 Ibid.
And even if the inmate overcomes all those hurdles, the statute, by
stating that "the court may order . . . compassionate release," grants the trial
court discretion to deny it. N.J.S.A. 30:4-123.51e(f)(1) (emphasis added); see
Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318, 325 (2000) ("[T]he word
'may' ordinarily is permissive.").
Compassionately released inmates must also obey the usual parole
conditions; if they do not, they may be sanctioned. See N.J.S.A. 30:4-
123.51e(a) (stating that compassionately released inmates "shall be subject to
custody, supervision, and conditions" under N.J.S.A. 30:4-123.59, and
sanctions under N.J.S.A. 30:4-123.60 to 65); and N.J.S.A. 30:4-123.51e(i)
(referring to "conditions imposed pursuant to" N.J.S.A. 30:4-123.59). Also, if
the inmate's condition so improves that he or she would not qualify for
compassionate release, then the inmate may be returned to custody. N.J.S.A.
30:4-123.51e(j).
2
Those conditions appear in "the inmate's release plan," which also addresses
the inmate's housing and medical-care needs. Ibid.; N.J.S.A. 30:4-123.51e(h).
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II.
In F.E.D.'s March 17, 2021 petition for compassionate release, he
included a certificate of eligibility, signed by the Corrections Department
Commissioner, stating that F.E.D. was "eligible and m[et] the requirement for
Compassionate Release" because he was "diagnosed with a terminal condition,
disease or syndrome, or a permanent physical incapacity" — specifically,
"[s]evere dilated cardiomyopathy with unclear etiology; an ejection fraction of
10% - 15%; [and] underlying atrial appendage clot due to atrial fibrillation."
The commissioner signed the certificate following the written
recommendation of the department's "Managing Physician/Psychiatrist,"
Hesham Soliman, M.D. 3 Referring to the "two Physician attestations required
under the law," Dr. Soliman said, "I see a medical condition that would be
fatal in the near future or [a] permanent physical disability" — not, as the
statute requires, a terminal condition resulting in death in "six months or less"
or a "permanent physical incapacity" (emphasis added). Although Dr. Soliman
wrote that "[F.E.D.] requires home health care" (or, if that was unavailable,
3
Although the statute contemplates no formal role for the department's
medical director in the compassionate-release process, the department has
proposed regulations requiring "the health services unit medical director" to
"make a medical determination of eligibility or ineligibility" based on two
physician's diagnoses "and issue a memo to the Commissioner . . . detailing the
same." 53 N.J.R. 675(a) (May 3, 2021) (proposing N.J.A.C. 10A:16-8.6(a)).
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nursing-home care), he did not specify that F.E.D. could not perform activities
of basic daily living and required twenty-four-hour care.
The two physicians' written diagnoses (or "attestations," per Dr.
Soliman), prepared in mid-February 2021, addressed F.E.D.'s "Diagnosis,"
"Prognosis," "Continued Care Needs," and "Physical/Mental Limitations (if
any)."4 The physicians, Sharmalie Perera, M.D., and Barrington Lynch, M.D.,
diagnosed F.E.D. with cardiomyopathy with an ejection fraction of ten to
fifteen percent; atrial flutter or atrial fibrillation; and heart failure. Dr. Perera
also noted that F.E.D. had coronary-artery disease and had received an arterial
stent in December 2020, and Dr. Lynch indicated that F.E.D. could improve
with "a transitional Automatic Implantable Cardioverter Defibrillator"
followed by a heart transplant "as a permanent solution." Both physicians
stated that F.E.D.'s prognosis was poor, but neither physician opined about
F.E.D.'s life expectancy. Also, neither physician stated that F.E.D. was
"permanently unable to perform activities of basic daily living" and requi red
"24-hour care," see N.J.S.A. 30:4-123.51e(l), although they agreed that F.E.D.
should wear a "life vest" to prevent "lethal ventricular fibrillation arrest."
4
These four categories loosely match those dictated by the department's
existing medical-parole regulations, N.J.A.C. 10A:71-3.53(e)(1) to (4), and the
proposed compassionate-release regulations, 53 N.J.R. 675(a) (May 3, 2021)
(proposing N.J.A.C. 10A:16-8.5(a)(1) to (4)).
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The physicians also agreed that F.E.D. should continue to live in the
infirmary. Dr. Perera said so "due to [F.E.D.'s] diminished physical function";
F.E.D. was "[a]ble to do ADL's [activities of daily living] but [it] takes a long
time," and he had to "stop" to "rest after walking [a] short distance due to
difficulty breathing." Dr. Lynch said F.E.D. should live in the infirmary "due
to diminished ability" — not inability — "in instrumental activities of daily
living."5 Both physicians said F.E.D.'s condition disabled him from working
or exercising.
Referring to F.E.D.'s aftercare (his care if released), the physicians said
that he would need "significant help" (Dr. Lynch) or "assistance" (Dr. Perera)
with laundry, grocery shopping, meal preparation and house cleaning. But,
neither physician said that F.E.D. currently needed an aide for basic activities
like toileting, bathing, eating, or dressing. Dr. Lynch said that F.E.D. would
need a walker only "as his condition deteriorate[s]"; Dr. Perera agreed, saying
that F.E.D. "may need [a] walker or [a] wheel chair [sic] when breathing
pro[b]lems worsen."
The prosecutor opposed F.E.D.'s petition. At the subsequent plenary
hearing, the prosecutor presented no witnesses, but several witnesses testified
on F.E.D.'s behalf, and F.E.D. presented numerous letters supporting his
5
The modifier "instrumental" is significant, as we discuss below.
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release. F.E.D.'s wife testified about her willingness to house and care for
F.E.D., and two former fellow inmates discussed F.E.D.'s rehabilitation and
how he helped other inmates' rehabilitation, including their own. F.E.D.
himself said he was sorry for his crimes and had become rehabilitated. And,
although Dr. Lynch and Dr. Perera did not testify, Dr. Soliman and an outside
cardiologist who treated F.E.D., Mark Soffer, M.D., testified about F.E.D.'s
serious condition.
Dr. Soffer described F.E.D.'s heart condition, but he declined to assess
F.E.D.'s ability to perform activities of daily living. Dr. Soffer explained that
in late 2020, F.E.D. suffered from heart failure (measured by a low ejection
fraction — that is, "how well the left ventricle . . . the main pumping chamber
of the heart, squeezes"). He was short of breath, and his legs were swollen.
He also suffered from arrhythmia, which may have added to his problems.
By January 2021, after wearing a life vest (which shocked his heart as
needed to treat irregular rhythm) and receiving a stent to treat coronary -artery
disease, F.E.D.'s condition had "significantly improved"; "he was breathing
much better" and "was minimally short of breath." According to a March 2021
echocardiogram, his ejection fraction had improved from ten-to-fifteen percent
to twenty-five-to-thirty percent, but was still under the fifty-five percent norm.
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But on May 12, 2021, the day before the court hearing, F.E.D. told Dr.
Soffer that he became "short of breath" when he lay down in bed, and "very
short of breath" when he walked short distances. He also told Dr. Soffer that
his life vest shocked him once in February. During that meeting, Dr. Soffer
observed that the swelling in F.E.D.'s legs had "almost completely gone";
however, F.E.D. was breathing abnormally fast.
Using a widely accepted statistical model, Dr. Soffer opined that
F.E.D.'s one-year and five-year mortality rates were fourteen and fifty-five
percent, which would drop to eleven and forty-nine percent if he received an
implanted defibrillator. Dr. Soffer diagnosed F.E.D. with "Class 3 Stage C
heart failure," meaning he was symptomatic "at . . . low levels of activity or at
rest."
Dr. Soliman concluded that F.E.D. satisfied the preconditions for
compassionate release. The physician said that F.E.D.'s severe
cardiomyopathy made the "likelihood of . . . a terminal condition in the next
six months . . . possible." He also noted that F.E.D. remained in the infirmary.
Dr. Soliman maintained that, despite the improvement Dr. Soffer had
observed, F.E.D. qualified for compassionate release, because his severe
cardiomyopathy persisted and his ejection fraction could worsen.
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Regarding activities of daily living, Dr. Soliman testified that F.E.D.
"does not ambulate, and his ADL . . . is limited." He ambiguously said that
F.E.D. "cannot take care of himself in bathing" and "[o]n a limited basis he can
take . . . a little more time to do it." He then noted that, according to Drs.
Lynch and Perera, F.E.D. was "very limited in doing his ADLs." Asked if
F.E.D. would need "24-hour care," Dr. Soliman said, "He would need some
assistance in getting around. . . . I would say that . . . if his staging gets worse,
he will need nursing home -- skilled nursing home." But presently, "he may be
able to have somebody help him with his ADLs. And that means that
somebody would take him to the bathroom, somebody would wheel him
around . . . if he was to leave the . . . house."
In summation, F.E.D.'s counsel argued that F.E.D. suffered from a
permanent physical incapacity because he had lived in the infirmary for
months, could "barely walk," lost "his breath if he walked a few steps," and
needed help with laundry, grocery shopping, bathing, and cleaning. 6 And
although F.E.D. had improved recently, his condition would persist. Counsel
also argued that F.E.D. was "physically incapable of committing a crime"
under the statute. According to counsel, F.E.D. satisfied this condition
6
Counsel did not argue that F.E.D suffers from a "terminal condition, disease
or syndrome."
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because he was unable to commit "crimes that require some level of
physicality and that pose a threat to public safety." Lastly, referring to the
character witnesses, F.E.D.'s own testimony and institutional record, and
F.E.D.'s age, counsel argued that F.E.D. would not pose a threat to public
safety if released.
By contrast, the State contended F.E.D. did not suffer a "permanent
physical incapacity" as the statute defined it, because the record did not
demonstrate he was unable to perform activities of basic daily living. Pointing
to F.E.D.'s serious and extensive criminal behavior, the State also argued that
he remained a threat to public safety.
In denying F.E.D.'s petition, the trial court found that F.E.D. did not
prove by clear and convincing evidence he had a "permanent physical
incapacity" under the statute. Noting that the statute did not define "activities
of basic daily living," the judge found instructive Medicaid long-term-care
requirements, which describe "activities of daily living" as including "bathing,
dressing, toileting, locomotion, transfers, eating and mobility." The judge
noted that neither Dr. Lynch nor Dr. Perera opined that F.E.D. was "unable to
perform . . . activities of basic daily living."
Because F.E.D. did not prove he had a permanent physical incapacity,
the court did not decide if such an incapacity made him "permanently
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physically incapable of committing a crime if released." But the court did
decide F.E.D. had not proved that "the conditions . . . under which [he] would
be released would not pose a threat to public safety." The court considered the
reference to a threat to public safety to be categorical. By contrast, the regular
parole statute refers to "a reasonable expectation that [an] inmate will violate
conditions of parole," N.J.S.A. 30:4-123.53(a) (emphasis added), and the
Criminal Justice Reform Act refers to release conditions that "reasonably
assure . . . the protection of the safety of any other person or the community,"
N.J.S.A. 2A:162-19 (emphasis added).
To guide its decision, the court analyzed several of the factors that guide
the Parole Board in deciding whether to grant regular parole. See N.J.A.C.
10A:71-3.11. Although "recent positive evidence" corroborated F.E.D.'s
rehabilitation, the court ultimately gave greater weight to F.E.D.'s extensive
record of criminal behavior — including violent criminal behavior —
beginning in his teens; the nature and circumstances of the three homicides for
which he was convicted; and F.E.D.'s statement in his pre-sentence report that
he might kill again.
This appeal, which we accelerated, followed.
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III.
Arguing that the court should have granted him compassionate release,
F.E.D. presents three contentions: (1) he suffers from a "permanent physical
incapacity" because he requires substantial assistance to perform activities of
basic daily living; (2) he would pose no threat to public safety, because he has
rehabilitated himself and is in poor health, his age is inversely correlated wi th
recidivism, and he would have a strong support system; and (3) he is
permanently physically incapable of reoffending. 7
A.
We begin with the threshold question: whether F.E.D. suffers from a
permanent physical incapacity. 8 Because the statute delegates that question to
the Corrections Department in the first instance — by requiring that two
designated physicians make that diagnosis, and by requiring the department to
issue the essential certificate of eligibility once they do — we conclude that a
trial court owes some deference to the agency's determination. Rather than
determine anew if an inmate has a permanent physical incapacity, then, a trial
7
As noted, the trial court did not reach that third issue.
8
Because F.E.D. does not assert that he has a terminal illness, we consider the
issue waived, see Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div.
2011), and avoid knotty related issues (such as the percentage required to
establish "that an inmate has six months or less to live" when applying models
like the one Dr. Soffer used).
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court must determine whether the agency's decision conforms with the law, is
supported by credible evidence and is not unreasonable — in other words,
whether it is arbitrary or capricious. See In re State & Sch. Emps.' Health
Benefits Comm'ns' Implementation of Yucht, 233 N.J. 267, 280 (2018)
(defining arbitrary and capricious standard).
Notably, the statute does not expressly instruct the court to decide anew
if a petitioner meets the permanent-physical-incapacity requirement. Rather,
the statute instructs the court to decide — given the inmate's permanent
physical incapacity — if the inmate is physically incapable of committing a
crime, and if the inmate poses a threat to public safety. For example, the court
must decide if the "inmate is so debilitated or incapacitated by the terminal
condition, disease or syndrome, or permanent physical incapacity as to be
permanently physically incapable of committing a crime if released." N.J.S.A.
30:4A-123.51e(f)(1) (emphasis added). And the court must consider "a threat
to public safety" "in the case of a permanent physical incapacity." Ibid. At the
same time, the statute does not expressly command a trial court to accept the
agency's eligibility determination without scrutiny.
Because the law is unclear, we refer to the legislative history. See State
v. Munafo, 222 N.J. 480, 488 (2015) ("If the language is unclear, courts can
turn to extrinsic evidence for guidance, including a law's legislative history.").
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The bill and committee statements are silent on the question; however, the
Sentencing Commission Report provides guidance. See State v. Molchor, 464
N.J. Super. 274, 290 (App. Div. 2020) ("[W]e may look for guidance to the
statements of intent that a study commission expressed in recommending [a]
statute's enactment"), aff'd sub nom. State v. Lopez-Carrera, 245 N.J. 596(2021).
The commission stated that "[a]fter a hearing, the court could order the
inmate's release upon a finding that . . . [t]he certificate of eligibility was valid
and its issuance was proper." Sentencing Commission Report at 31.
Therefore, the commission clearly contemplated that courts would review the
department's determination, neither deciding eligibility anew nor blindly
accepting the agency's decision.
By reviewing the agency's eligibility decision — as opposed to deciding
eligibility anew — the court furthers the overarching legislative goal of
expediting review of compassionate-release applications. See Sentencing
Commission Report at 32 (attributing prior medical-parole law's limited use (in
part) to delays in processing applications, and proposing measures to reduc e
delays); A. L. & Pub. Safety Comm. Statement to A. 2370, at 2 (July 20, 2020)
(noting that the bill provides for expedited hearings on compassionate-release
petitions). Deciding eligibility anew would fly in the face of this goal by
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inevitably adding time to the process. Judicial review also increases efficiency
by granting primary authority to those physicians best situated to assess the
inmate.9
Nonetheless, as with judicial review of agency determinations in other
contexts, we are "in no way bound by the agency's interpretation of a statute or
its determination of a strictly legal issue," Mayflower Sec. Co. v. Bureau of
Sec., 64 N.J. 85, 93 (1973), although we afford deference "to the interpretation
of the agency charged with applying" a statute, Hargrove v. Sleepy's, LLC, 220
N.J. 289, 301-02 (2015). Nor are we bound by the trial court's statutory
interpretation. In re Civil Commitment of W.W., 245 N.J. 438, 448 (2021).
B.
Although the trial judge did not expressly apply this standard of review,
he correctly rejected the commissioner's threshold eligibility determination. In
reviewing the trial court's determination, we begin by agreeing with the trial
court that "activities of basic daily living" involve the rudimentary tasks of
"bathing, dressing, toileting, locomotion, transfers, eating and mobility" (as
opposed to, for example, shopping, cooking meals, laundering clothes, and
house cleaning).
9
We presume that if an inmate requested, but was denied, the requisite
physicians' diagnoses or the certificate of eligibility, the inmate could seek our
review of that denial as a final agency decision. See R. 2:2-3(a)(2).
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The statute does not define the phrase "activities of basic daily living."
Nor did the prior medical-parole statute, N.J.S.A. 30:4-123.51c (2001)
(repealed by L. 2020, c. 106, § 3), its implementing regulations, N.J.A.C.
10A:71-3.53, or the department's proposed regulation implementing the
compassionate-release statute, 53 N.J.R. 675(a) (May 3, 2021). And the
legislative history is as silent as the statute on the term's meaning.
But we deem persuasive the definition California has adopted to
implement a strikingly similar statutory scheme for medical parole.
California's law provides that an eligible inmate "shall" receive medical parole
if (1) the head physician at the inmate's institution determines "that the
prisoner is permanently medically incapacitated with a medical condition that
renders him or her permanently unable to perform activities of basic daily
living, and results in the prisoner requiring 24-hour care, and that
incapacitation did not exist at the time of sentencing" and (2) the parole board
"determines that the conditions under which he or she would be released would
not reasonably pose a threat to public safety." Cal. Penal Code § 3550(Deering).10 California's implementing regulations state that "[a]ctivities of
10
New Jersey's medical-parole law appears to have followed the California
model, although the legislative history does not say so expressly. California
authorized medical parole for permanently incapacitated inmates in 2010. See
2010 Cal. Stats. ch. 405. New Jersey first authorized medical parole for such
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basic daily living are breathing, eating, bathing, dressing, transferring,
elimination, arm use, or physical ambulation." Cal. Code Regs. tit. 15, §
3359.1(a)(1)(2021).
We recognize that various other New Jersey laws and regulations define
the phrase "activities of daily living"; however, the Legislature chose not to
import those definitions into the compassionate-release statute. Such
definitions should be considered in the light of the underlying goal of the
statutory scheme in which they are found. It is one thing to consider a person's
capacity to perform certain activities in defining consumers of "approved adult
family care homes," 11 or in determining if persons may receive insurance
____________________
inmates in 2017; until then, medical parole had been limited to terminally ill
inmates. See L. 2017, c. 235, § 1; A. L. & Pub. Safety Comm. Statement to A.
1661, at 1 (Feb. 4, 2016). The New Jersey statute, unlike the California one,
"maintain[ed] the Parole Board's discretion in determining whether an inmate
should be released on medical parole," A. Appropriations Comm. Statement to
A. 1661, at 2 (June 20, 2016), and also omits the word "reasonably" in the
phrase "would not reasonably pose a threat to public safety." We return to that
distinction in our discussion of the trial court's finding regarding the threat to
public safety.
11
See N.J.S.A. 26:2Y-3 (defining "adult family care" as a "24-hour per day
living arrangement for persons who . . . need assistance with activities of daily
living" and defining "activities of daily living" as "functions and tasks for self -
care which are performed either independently or with supervision or
assistance, which include, but are not limited to, mobility, transferring,
walking, grooming, bathing, dressing and undressing, eating, and toileting").
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benefits,12 enter certain viatical settlements, 13 or receive nursing-facility
services.14 It is another thing to use an inmate's performance of "activities of
basic daily living" to assess his or her ability to reoffend or threaten public
safety. Nonetheless, these various formulations support the trial court's
decision that "activities of basic daily living" include only rudimentary but
indispensable tasks like bathing, dressing, toileting, locomotion, transfers,
eating and mobility. Including the modifier "basic" before "daily living" also
reflects an intention to cover only the most fundamental daily activities —
12
Some individuals may receive family-leave-insurance benefits if they must
care for certain family members who are "incapable of self-care." A person is
incapable of self-care if he or she cannot independently perform three or more
"activities of daily living" or "instrumental activities of daily living ," where
the former includes "adaptive activities such as caring appropriately for one's
grooming and hygiene, bathing, dressing and eating" and the latter include s
"cooking, cleaning, shopping, taking public transportation, paying bills,
maintaining a residence, using telephones and directories, using a post office,
etc." N.J.A.C. 12:15-1.1A. The distinction between "instrumental activities of
daily living" and "basic activities of daily living" also appears in other places.
See N.J.S.A. 26:2H-5.25 (regarding after-care assistance); Peter F. Edemekong
et al., Activities of Daily Living, NCBI (2021) https://www.ncbi.
nlm.nih.gov/books/NBK470404.
13
See N.J.S.A. 17B:30B-2 (defining "[c]hronically ill" persons to include
persons "unable to perform at least two activities of daily living, including, but
not limited, to eating, toileting, transferring, bathing, dressing or continence").
14
See N.J.A.C. 8:85-2.1(a)(1) (noting that nursing-facility residents "are
dependent in several activities of daily living (bathing, dressing, toilet use,
transfer, locomotion, bed mobility, and eating)").
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certainly not activities like shopping, house cleaning, food preparation and
laundry.
F.E.D. contends that a person who can perform an activity of basic daily
living only with another's help is "unable to perform" it. That may be so, but
we disagree with his contention that requiring assistance with "several" or
"nearly all" "activities of basic daily living" satisfies the statute. That would
be a vague standard indeed, one we doubt the Legislature intended. And if a
person who cannot perform some "activities of basic daily living" satisfies the
statute, does it matter which activities those are?
F.E.D. argues that some is enough, because the Medicaid program
authorizes nursing-home care for persons who need "hands on assistance with
three or more activities of daily living," 15 and the compassionate-release
statute is linked to Medicaid — that is, it requires that inmates receive help
applying "for medical assistance benefits under the Medicaid program."
N.J.S.A. 30:4-123.51e(h)(3). But the statute's bare reference to help applying
for Medicaid is too weak a signal that the Legislature intended to import
Medicaid's long-term-care standard of needing help with three activities of
15
For this information, F.E.D. quotes Medicaid Managed Long Term Servs. &
Supports, State of N.J., Dep't of Hum. Servs., Div. of Med. Assistance &
Health Servs., https://www.nj.gov/humanservices/dmahs/home/mltss.html (last
visited July 29, 2021).
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daily living. If the Legislature intended to refer to less than all activities, it
could have done so. Cf. N.J.S.A. 17:30B-2 (setting the number at two);
N.J.A.C. 12:15-1.1A (setting the number at three). By stating that a person is
"unable to perform activities of basic daily living," the Legislature meant
"unable to perform any activity of basic daily living."
We also reject F.E.D.'s contention that "legislative history," in the form
of sponsors' post-enactment press statement, supports his interpretation. 16
True, two of the statute's sponsors acknowledged that the medical-parole
system resulted in the release of few "gravely ill inmates" and that the new
legislation was intended to "show true compassion to those with profound
medical needs." Press Release, Governor Murphy Signs Sentencing Reform
Legislation (Oct. 19, 2020), https://www.nj.gov/governor/news/news/562020/
20201019d.shtml (joint statement of Assemblyman Gary Schaer and
Assemblywoman Verlina Reynolds-Jackson). Yet, the Sentencing
16
A sponsor's post-enactment statement is a shaky foundation on which to rest
a statutory interpretation. By that time, the legislator's job is complete and the
opportunity for fellow legislators to respond has passed. See State v. Bey (I),
112 N.J. 45, 98 (1988) ("[P]ost-enactment . . . statements should not normally
inform the construction and application of a precedent statute"); N.J. Coal. of
Health Care Pros., Inc. v. N.J. Dep't of Banking & Ins., 323 N.J. Super. 207,
255-56 (App. Div. 1999). By contrast, a Governor's signing statement carries
weight because a Governor, in issuing it, exercises his or her role in the
legislative process. See Perez v. Rent-A-Center, Inc., 186 N.J. 188, 215
(2006) (considering Governor's signing statement in determining legislative
intent).
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Commission proposed to increase the number of releasees not by relaxing the
medical-parole standards, but by streamlining procedure and tightening
timeframes. Sentencing Commission Report at 31-32 (discussing medical-
parole standards, proposing that Legislature "establish similar standards" for
compassionate release, and noting that "one significant reason" medical parole
was "rarely used" was because of procedural delays). The Legislature based
the statute on the commission's recommendations, S. Judiciary Comm.
Statement to First Reprint of A. 2370, at 1 (Aug. 24, 2020); it also expanded
the pool of potential beneficiaries by making convicted murderers and
kidnappers, among others, eligible, cf. N.J.S.A. 30:4-123.51c(a)(3) (2001)
(repealed by L. 2020, c. 106, § 3) (excluding certain offenders from medical
parole).17
C.
Applying this understanding of the statute and the court's role, we affirm
the court's denial of F.E.D.'s petition. We do so because the commissioner's
certificate of eligibility was invalid. It did not conform to the law's
requirement that two physicians diagnose F.E.D. with a "permanent physical
17
The Commission and the Legislature intended to reduce the Corrections
Department's costs of caring for terminally ill and permanently incapacitated
inmates. Sentencing Commission Report at 33. However, a fiscal estimate
predicted, at best, modest savings. A. Appropriations Comm. Statement to A.
2370, at 6 (July 27, 2020).
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incapacity as defined." See N.J.S.A. 30:4-123.51e(b), (d)(2). Specifically, the
diagnoses did not determine that F.E.D. was "permanently unable to perform
activities of basic daily living." See N.J.S.A. 30:4-123.51e(l).
Rather than find F.E.D. unable to perform activities of daily living, Dr.
Perera affirmatively found that he could "do ADL's," although they "take[] a
long time." 18 Dr. Lynch did not expressly address "activities of basic daily
living," but he noted that F.E.D. should be housed in the infirmary "due to
diminished ability in instrumental activities of daily living" (emphasis added).
As we have noted, "instrumental activities of daily living" are distinct from
"basic activities of daily living" and include tasks like shopping, cooking and
cleaning.
And Dr. Lynch's statement that F.E.D. would need a "[w]heeled [w]alker
for fall prevention as his condition deteriorate[s]" indicated that F.E.D. was
currently capable of ambulating (a basic activity of daily living) without one.
18
We acknowledge that some may argue that if it takes a person too long to
perform a task — like donning socks and shoes, or managing a fork or spoon
— one might say (although the two physicians did not) that the person was
"unable to perform" the task under the statute. Measuring the ability to
perform activities of daily living is, evidently, a specialized task of
occupational therapists. See Mary Law & Lori Letts, A Critical Review of
Scales of Activities of Daily Living, 43 Am. J. Occupational Therapy 522, 522
(Aug. 1989). But the record does not address nuances in how to assess and
measure a person's ability to perform activities of daily living — particularly
when the goal is not to assess needs for occupational therapy or care, but to
assess the person's ability to commit crimes.
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That statement was consistent with Dr. Perera's finding that F.E.D. "may need
[a] walker or wheel chair [sic] when breathing pro[b]lems worsen." In short,
the two physicians did not make the predicate findings for issuing the
certificate of eligibility.
Dr. Soliman's testimony is no substitute for the physicians' diagnoses.
The statute requires the department to issue a certificate of eligibility based on
the two physicians' assessment. Although the statute does not preclude the
medical director from reviewing the diagnoses and conveying them to the
commissioner, the medical director is not the best witness to convey those
diagnoses to the court. 19
In sum, the certificate of eligibility was invalid because the physicians
did not find that F.E.D. was "unable to perform activities of basic daily
living." Without a valid certificate, the court lacked authority to consider
release. N.J.S.A. 30:4-123.51e(f)(2). Therefore, the court correctly denied
F.E.D.'s petition. 20
19
Conceivably, the medical director's testimony may bear on other aspects of
the statute. We shall not try to define the appropriate scope of such testimony
here.
20
The court did not address the other findings needed to conclude that a
person has a "permanent physical incapacity": that the person requires "24-
hour care" and that the condition did not exist at the time of sentencing.
N.J.S.A. 30:4-123.51e(l). Therefore, we do not decide if Dr. Perera's
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D.
Pressing beyond its non-eligibility finding, the trial court also rejected
F.E.D.'s claim that his release conditions would not threaten public safety. We
need not say if the court was correct on that issue; F.E.D.'s petition was not
properly before the court in the first place. However, without mapping all of
the statute's uncharted territory, we offer these limited observations.
Were we to review the trial court's public-safety decision, we would
review it for an abuse of discretion. Like parole decisions, the court's decision
to grant or deny compassionate release depends on "inherently imprecise"
appraisals. See Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222 (2016). The
predictive nature of the court's decision-making is also akin to pre-trial
detention decisions, where a court must decide whether conditions could
control the risk that a released arrestee would threaten safety, obstruct justice,
____________________
statement that F.E.D. needed to be in the infirmary "due to diminished physical
function" was equivalent to saying he needed "24-hour care," especially if life
on a prison block requires "physical function" unlike life in other residential
settings. Nor do we decide if Dr. Lynch addressed the twenty-four-hour-care
requirement by stating that F.E.D. needed "[c]ontinued [h]ousing in the
[i]nfirmary [u]nit," especially since Lynch's recommendation was due to
F.E.D.'s "diminished ability in instrumental activities of daily living." As to
whether the condition existed at the time of sentencing, the physicians ought to
have addressed the issue, but did not. However, no one disputes that F.E.D.'s
heart condition arose years after his sentencing as a thirty-three-year-old man.
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or not appear — decisions we review for an abuse of discretion. State v. S.N.,
231 N.J. 497, 515 (2018).
The statute, as noted, already specifies that a physically incapacitated
inmate be physically incapable of committing a crime; the no-threat-to-public-
safety requirement is an additional prerequisite that applies to physically
incapacitated, but not terminally ill, inmates. Assuming that the no-threat-to-
public-safety requirement is not mere surplusage, see Feuer v. Merck & Co.,
455 N.J. Super. 69, 79 n.2 (App. Div. 2018), aff'd o.b., 238 N.J. 27 (2019), the
statute contemplates that a person who is "physically incapable" of committing
a crime may still pose a threat to public safety. How that is so, is not so clear.
F.E.D. contends that, to avoid "preclud[ing] [all] inmate[s] from being
released," the "physical[] incapab[ility]" standard should be read to encompass
only crimes "requiring some level of physicality," and to exclude crimes like
"downloading child pornography or mailing a bad check." 21 That, of course,
would leave petitions by inmates who committed those latter two crimes as
grist for the threat-to-public-safety mill. But it would also narrowly —
perhaps too narrowly — construe the only test that applies to terminally ill
inmates.
21
It is unclear how this test would help F.E.D. If he is physically capable of
eating with a knife or fork, he (presumably) is physically capable of criminally
assaulting someone with it.
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We are not convinced that the Legislature intended "physical[]
incapab[ility]" to be so limited. First, the plain language of the statute does
not support such a limitation. Second, the statute's legislative history reflects
an intention to create a strict standard. The 1996 study commission that
recommended the original medical-parole law, L. 1997, c. 214, contemplated
parole for inmates who could "not physically pose a threat of committing
another crime if released." Study Comm'n on Parole, Report of the Study
Commission on Parole (1996) at 22-24 (emphasis removed). But the
Legislature evidently went farther in requiring that inmates be "permanently
physically incapable of committing a crime." A. L. & Pub. Safety Comm.
Statement to A. Comm. Substitute for A. 22, at 1 (March 3, 1997).
Perhaps "physically incapable" refers to an inmate's personal, unassisted
physical capacity to commit a crime. If so, persons who suffer from severe
dementia or paralysis or otherwise lack control of muscular or neurological
function may be "physically incapable" of using a computer or writing a bad
check (as well as firing a weapon or stealing a car). 22 However, a person with
quadriplegia, if communicative (though that requires some physicality, too),
22
We acknowledge that this is a narrow group. One study contends that the
"permanently medically incapacitated" standard is "unduly, and even cruelly,
restrictive," and advocates for alternative criteria. Mary Price, Everywhere and
Nowhere – Compassionate Release in the States 13, 16-20 (2018). However, it is
not our role to alter the standard the Legislature has adopted.
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could enlist another to commit a crime on his or her behalf. In such a case, the
"threat of public safety" test may prove its worth. See In re Martinez, 148 Cal.
Rptr. 3d 657, 675, 679 (Ct. App. 2012) (concluding that a quadriplegic inmate
did not "reasonably pose a threat to public safety" and ordering parole board to
release him on medical parole).
In any case, here, the trial court construed the "threat to public safety"
strictly, noting that the statute omits the word "reasonable" — unlike the
parole law, which refers to "a reasonable expectation" someone will violate
parole, N.J.S.A. 30:4-123.53(a), or the Criminal Justice Reform Act, which
refers to release conditions that "reasonably assure" public safety, N.J.S.A.
2A:162-19.
The California Court of Appeal, in construing its state's medical -parole
law for physically incapacitated inmates, attached great importance to the
presence of the word "reasonably." In re Martinez, 148 Cal. Rptr. 3d at 664-
668. Unlike the New Jersey statute, the California law allows medical parole
if the inmate does not "reasonably pose a threat to public safety." Cal. Penal
Code § 3550 (Deering) (emphasis added). The Court of Appeal distinguished
the medical-parole law from a law that did not use "reasonably" and that
permitted resentencing of physically incapacitated inmates only if they posed
no threat to public safety. In re Martinez, 148 Cal. Rptr. 3d at 664-668. The
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court held that the quadriplegic medical-parole candidate did not reasonably
pose a threat to public safety. He was unlikely to enlist others to commit
crimes on his behalf, notwithstanding the parole board's fears that he would.
So, the court held that he was entitled to medical parole. Id. at 673, 675, 679.
See also Sarah L. Cooper & Cory Bernard, Medical Parole-Related Petitions in
U.S. Courts: Support for Reforming Compassionate Release, 54 Creighton L.
Rev. 173, 185-86 (2021) (reviewing Martinez and suggesting "that the
assessment of a prisoner's risk to public safety should be nuanced and
evidence-informed, reflecting that ill health likely lessens that risk").
These are knotty issues, to be sure. We defer deciding how much
"physicality" is required to be "physically incapable of committing a crime,"
and how much "threat to public safety" is enough to bar compassionate release,
to a case requiring those decisions.
E.
In sum, we affirm the trial court's order denying F.E.D.'s compassionate
release. Although F.E.D.'s rehabilitation efforts are laudable and his medical
condition serious, our role is to interpret the statute; we must affirm the
decision below because the certificate of eligibility, which depended on
medical diagnoses lacking essential findings, was invalid.
Affirmed.
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