B.J. v. New Jersey State Parole Board ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3779-21
B.J.,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
_______________________
Argued February 28, 2024 – Decided March 26, 2024
Before Judges Accurso, Gummer, and Walcott-
Henderson.
On appeal from the New Jersey State Parole Board.
Scott Michael Welfel, Assistant Deputy Public
Defender, argued the cause for appellant (Jennifer
Nicole Sellitti, Public Defender, attorney; Scott
Michael Welfel, of counsel and on the briefs).
Christopher Josephson, Deputy Attorney General,
argued the cause for respondent (Matthew J. Platkin,
Attorney General, attorney; Janet Greenberg Cohen,
Assistant Attorney General, of counsel; Christopher
Josephson, on the brief).
PER CURIAM
B.J. has served over thirty-two years in prison for a double felony-murder
conviction.1 He appeals from the March 30, 2022 final agency decision of the
New Jersey State Parole Board (Board), denying his application for parole and
imposing an eight-year (ninety-six-month) future eligibility term (FET). We
vacate the Board's decision and remand for a new hearing before the full Board
and a new decision by the Board consistent with the Supreme Court's
instructions in Acoli v. New Jersey State Parole Board, 250 N.J. 431 (2022).
I.
B.J. is currently fifty-four years old. In 1991, he and another man shot
and killed two employees of a gas station they were robbing.2 A jury found B.J.
guilty of second-degree conspiracy, N.J.S.A. 2C:5-2, and two counts each of:
first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree aggravated
manslaughter, N.J.S.A. 2C:11-4(a); first-degree robbery, N.J.S.A. 2C:15-1;
second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
1
We use initials to protect appellant's privacy interests because the appeal
requires that we discuss his mental-health records.
2
Neither B.J. nor the Board provided us with the trial transcripts, but the basic
facts surrounding the murders were established at trial and are summarized in
reports included in the record.
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2
4(a); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b).
He subsequently pleaded guilty to third-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(c), and third-degree receiving stolen property,
N.J.S.A. 2C:20-7. He was sentenced to an aggregate term of life imprisonment,
with a mandatory minimum term of thirty years.
B.J. became eligible for parole in August 2021. In anticipation of his
parole eligibility, in February 2021, Jan Segal, Ph.D., conducted a mental health
parole evaluation of B.J. As part of his evaluation, Dr. Segal conducted a Level
of Service Inventory-Revised (LSI-R) assessment. Based on an LSI-R score of
twenty-two, Dr. Segal determined B.J. presented "a moderate risk for recidivism
with a 28% chance of re-arrest and a 17.1% chance of reconviction within two
years of release." He described B.J.'s "Risk of Reoffending" as "Medium" and
his "risk for future violence" to be "moderate." However, Dr. Segal concluded
B.J.'s "likelihood" of "successfully completing a projected term of parole" was
"generally fair."
In his written report, Dr. Segal characterized B.J.'s early adjustment to
incarceration as "clearly problematic," but his "more recent adjustment [a]s
satisfactory with clearly satisfactory motivation for programming." That finding
is supported by B.J.'s prison record. During his incarceration, B.J. was
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disciplined for eighteen infractions. Only five of those infractions were
"asterisk" infractions, which are "prohibited acts considered to be the most
serious violations, resulting in the most severe sanctions." Berta v. N.J. State
Parole Bd., 473 N.J. Super. 284, 293 n.5 (App. Div. 2022). The vast majority
of B.J.'s infractions occurred in the early years of his incarceration. Fourteen of
the eighteen infractions occurred during the years 1992 through 1998. Of the
four remaining infractions, only one of them was an asterisk infraction: the use
of marijuana in 2009. According to B.J., he used the marijuana then in an effort
to escape from reality after a family member had died. His most recent
infraction, refusing to obey, occurred nearly ten years ago in 2014 when,
according to B.J., he had an anxiety attack after being placed in a small transport
van without being given anti-anxiety medicine to treat his documented
claustrophobia.
Dr. Segal acknowledged B.J. "has earned his GED and has multiple,
relevant programming accomplishments with more recent prosocial behavior
noted." From February 2000 through May 2019, B.J. participated in the
following programs: Human Biology (2000); Food Service Training Program
(2001); African American History (2001); General Educational Development
(2006); The Stock Market Game (2006); Moral Recognition Therapy (2004
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4
through 2006); Living In Balance (2009); Thinking for a Change (2011);
Workforce Learning Link (2012 through 2014); Helping Offenders Parent
Effectively (2013); Cage Your Rage For Men (2013); Successful Employment
and Lawful Living (2014); Barber Styling (2016); Your Role in the Green
Environment LEED (2016); Smart Recovery (2017); Core Curriculum:
Introductory Craft Skills (2017); Carpentry Level One (2017); Construction Site
Safety Orientation (2017); Change Your Patterns and Change Your Life (2017
through 2018); and Focus on the Victim (2019). B.J. was also employed during
his incarceration, holding various jobs in the prison kitchen and in a clothing
shop located in the prison.
Dr. Segal described B.J. as "present[ing] as generally stable with no
evidence of a major mood, anxiety, or thought disorder." According to Dr.
Segal, B.J.'s age "is usually commensurate with decreased impulsivity,
reactivity and likely lessened criminality." Although he noted some
"[a]ntisocial personality traits," Dr. Segal found B.J. did "not appear to be
exhibiting any psychiatric concerns that require mental health treatment" and
had "no acute psychiatric symptoms to be considered if [he] is released." Noting
B.J.'s claustrophobia, Dr. Segal recommended but did not require that he "seek
counseling to help with breathing and improving self-control strategies to help
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manag[e] himself if in enclose[d] spaces." He found B.J. had "developed some
relevant work skills while" incarcerated and that his parole plans were "feasible
but require confirmation."
Dr. Segal indicated B.J. had a history of cannabis use when he was a
teenager; had "acknowledge[d] that at least some of his crimes were committed
after having smoked marijuana"; had had only "one use related infraction,"
which had occurred in 2009; and had participated in a substance-abuse program
while he was incarcerated. 3 In his list of "[r]ecommendations while in prison,"
Dr. Segal did not include participation in a substance-abuse program.4
Nevertheless, Dr. Segal recommended that "[i]f paroled," B.J. participate in
"[m]andatory random drug testing" and a "[r]egular 12-step program." Dr. Segal
found B.J. "has cannabis use problems" even though the record contained no
evidence of marijuana use for over ten years and B.J. had participated in a
substance-abuse program after his "one use related infraction."
3
In fact, B.J. had participated in two substance-abuse programs while he was
incarcerated.
4
He did not recommend B.J. participate in a substance-abuse program while
incarcerated even though in the LSI-R assessment, Dr. Segal reported that B.J.
had a "[d]rug problem, currently," scoring it as a one, meaning "[a] relatively
unsatisfactory situation with a need for improvement."
A-3779-21
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B.J. submitted to the Board his parole release plan. As part of the release
plan, he submitted an "Inmate Statement" in which he acknowledged he had "no
excuse for the devastation [he had] cause[d] these men['s] families an[d] at that
age all [he had been] thinking about was instant gratification." In his statement,
he credited prison for saving his life because "[i]t allowed [him] the opportunity
to see how senseless, stupid, careless, arrogant, selfish, and inconsiderate [he]
was as a young adult." If released, B.J. planned to live with his mother and two
siblings and to pursue employment. The Board received letters from two
business owners stating they would provide B.J. with employment on his release
as well as three additional letters in support of his parole.
On June 28, 2021, a two-member panel of the Board held a parole-
eligibility hearing. During the eligibility hearing, a panel member asked B.J.
why at the age of twenty-one he had been "out there livin' that lifestyle and
rippin' and runnin'." B.J. explained, "you're not really caring about the person
or that person's property when you have a criminal mind set . . . . my whole
lifestyle was being a criminal." The other panel member responded: "I mean it
still is in a way, isn't it?" B.J. tried to answer him, stating "No. Because now ,
being I have learned from Focus on the Victim and – and any type of criminal
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behavior my mind set - - ." Before he could finish his answer, the panel member
interrupted him, asking another question.
When a panel member asked him to explain why he had "just started to
take [his] foot off . . . the accelerator like a couple of years ago,"5 B.J. attempted
to respond, stating:
Again, I take -- I take full ownership. But again, I had
been trying to get -- I [had] been . . . gettin' in programs,
I [have] been tryin'. I mean alternate thinking, instead
of -- instead of -- I have (indiscernible) because when I
was (indiscernible) in South Woods, right
(indiscernible) some of the guys were doin'
(indiscernible).
But before he could finish his answer, the other panel member interrupted him
and asked a different question.
After B.J. conceded marijuana use "was probably really big" in his life
when he was "a young man," a panel member asked him if he meant "[u]p to and
including in your 40s?" -- apparently referencing the 2009 infraction. Before
B.J. could respond to that question, the other panel member asked a different
question.
5
Presumably, the panel member meant to ask why B.J. had not stopped sooner
having infractions while incarcerated. Although the panel member seemed to
think B.J.'s latest infraction had occurred "a couple of years ago," in fact his last
infraction had occurred about six-and-one-half years ago.
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8
The two-member panel denied B.J. parole, issuing on June 28, 2021, an
initial decision consisting of checkmarks on a standard checklist sheet with
minimal commentary by the panel. In its decision, the panel checked that it had
"determined a substantial likelihood exists that [B.J.] would commit a new crime
if released on parole at this time." The panel checked six mitigating factors:
participation in programs specific to behavior, participation in institutional
programs, institutional reports reflect favorable institutional adjustment, attempt
made to enroll and participate in programs but was not admitted, minimum
custody status achieved or maintained, and commutation time restored.
The panel checked as reasons for its denial several factors related to the
crimes for which he was incarcerated, factors related to his failure to remain
crime-free during a prior probationary period that had taken place decades
before, his institutional infractions, Dr. Segal's report, and "insufficient
problem(s) resolution," which was based on findings of "lack of insight into
criminal behavior" and a failure to "sufficiently address[]" a "substance abuse
problem." The panel concluded B.J. "is progressing but still shows a need for
more programming, maturity and change of attitude towards laws." The panel
referred the case to a three-member panel "for the establishment of a FET that
may be in excess of administrative guidelines."
A-3779-21
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After receiving the decision, B.J. submitted a four-page letter to the
Board, expressing his remorse for the pain he had caused the victims' family
members, detailing his efforts at redemption, and expressing his willingness to
take or retake any programs.
The two-member panel issued an amended decision dated August 13,
2021, "to clarify the factors that were in the record . . . and that were relied upon
. . . ." The panel added factors related to B.J.'s institutional infractions and the
failure of his prior incarcerations and probationary periods, which had taken
place over thirty years before the panel issued its decisions, to deter criminal
behavior.
On October 6, 2021, the three-member panel convened and set a ninety-
six-month FET. It issued a written explanation of its decision on November 9,
2021. Citing the same reasons for its decision as the two-member panel had
cited for denying parole, the panel concluded "the factors supporting the denial
of parole, collectively, are of such a serious nature as to warrant the
establishment of a future eligibility term which differs from the presumptive
term of twenty-seven months."
The three-member panel faulted B.J. for his "lack [of] insight into [his]
criminal behavior" and for "not sufficiently address[ing his] substance abuse
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problem." The panel concluded B.J. had a "substance abuse problem" even
though a recent case assessment was devoid of any finding he had a substance-
abuse problem. On the assessment, the "occasional use of cannabis and alcohol"
was noted, substance abuse was found not to be a part of B.J.'s criminal history,
and the offense for which he was incarcerated was deemed not to have been
committed while he was under the influence. The assessment contained a
checklist of "factors considered," similar to the checklist contained in the two-
member panel's decision; "substance abuse problem has not been sufficiently
addressed" was not checked on the case assessment. The two-member and
three-member panels apparently did not consider the findings made in the case
assessment but instead relied on Dr. Segal's report, which, at best, contained
mixed and contradictory information concerning his views of B.J.'s purported
substance abuse.
Regarding B.J.'s purported lack of insight into his criminal behavior, the
three-member panel focused on his interview by the two-member panel during
the parole-eligibility hearing. The three-member panel stated B.J. had
"indicated to the [two-member] panel that [he] do[es] not 'blame them (victims)
for they tried to stop the armed robbery so I wouldn't take any of the money.'"
We do not see that language in the transcript of the eligibility hearing.
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According to the three-member panel, when the two-member panel asked B.J. if
he still thought "in that manner," apparently meaning with a criminal mind set,
B.J. answered, "no, because now being I've done Focus On the Victim."
According to the transcript, B.J. had started to answer, saying "No. Because
now, being I have learned from Focus on the Victim and - - and any type of
criminal behavior my mind set --" but was interrupted by another question from
a panel member and was thereby prevented from finishing his answer.
The three-member panel stated B.J. had "side stepped" "pointed or
reflective" questions from the two-member panel about his "violent past" and
that, regarding the murders for which he had been convicted, B.J. had "inferred
[sic] that once the victims rushed towards [him] the only option was to shoot
them." But B.J. didn't actually say to the two-member panel his "only option"
was to shoot the victims.
Regarding B.J.'s plan to reside with his mother, the three-member panel
incorrectly described his mother as "disabled and in a wheelchair 'she's not able
to defend herself or take care of herself.' Also living at the residence are your
sister and brother, who assist your mother daily." But B.J. had told the
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two-member panel his sister, not his mother, was disabled and confined to a
wheelchair.6
The three-member panel found B.J. had "present[ed] as not understanding
the dynamics to [his] criminal thinking" because he had failed to:
articulate any specifics about [his] criminal mindset.
[He] did not articulate the genesis of [his] criminal
thinking, [his] motivations to behave in a criminal
manner beginning as a juvenile or what innate details
to [his] personality defects impelled [him] to continue
to behave in a criminal manner even after interaction
with the criminal justice system.
The panel further concluded B.J. had failed to make "adequate progress in the
rehabilitative process to ensure criminal behavior and decision-making does not
occur again in the future."
The three-member panel briefly referenced in its decision B.J.'s
"participation in programs," identifying specifically only four of the programs
he had successfully completed. The panel made no mention of the unrebutted
letters others had submitted in support of his parole.
Citing specifically B.J.'s infraction history and its findings that he lacked
"understanding [of] the dynamics to [his] criminal thinking" and had failed to
6
The panel issued an amended decision correcting that error after B.J. had
appealed the decision, pointing out that error.
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make "adequate progress in the rehabilitative process," the three-member panel
concluded "the factors supporting the denial of parole, collectively, are of such
a serious nature as to warrant the establishment of a [FET] which differs from
the presumptive term . . . ." The panel imposed a ninety-six-month FET, over
three times the presumptive FET of twenty-seven months. See N.J.A.C. 10A:71-
3.21(a)(1) (setting a presumptive FET of twenty-seven months for an inmate
serving a sentence for murder).
B.J. administratively appealed the two-member panel's parole denial and
the three-member panel's FET decision to the full Board. In his appeal, B.J.
contended the panels had failed to consider or give appropriate weight to certain
material facts, including his age and immaturity at the time of the murders, that
most of his institutional infractions were classified as less serious and occu rred
during the early part of his incarceration, his last serious infraction occurred in
2009, he had completed numerous courses, he had taken responsibility for his
criminal actions, and he had a parole plan that included living with his
able-bodied mother and promises of employment.
The Board considered his appeal during a meeting held on March 30,
2022, and issued a written decision that day affirming both decisions. The Board
concurred in the panels' findings, including that B.J. "still lacks insight into his
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criminal behavior and has not sufficiently addressed his substance abuse
problem." This appeal followed.
On appeal, B.J. argues the Board's findings, including that he was
substantially likely to commit a crime if released, were not supported by
substantial evidence in the record. B.J. also challenges the ninety-six-month
FET as an excessive deviation beyond the standard twenty-seven-month FET.
A review of the record convinces us the Board did not provide B.J. with a fair
hearing. We therefore vacate the Board's decision and remand for a new hearing
before the full Board.
II.
An appellate court's review of Board decisions is limited and deferential.
Acoli, 250 N.J. at 439. Board decisions are "highly 'individualized discretionary
appraisals.'" Trantino v. N.J. State Parole Bd. (Trantino VI), 166 N.J. 113, 173
(2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)).
Accordingly, courts overturn Board decisions only if they are arbitrary and
capricious. Ibid. In that regard, Board factual findings will not be disturbed if
they "could reasonably have been reached on sufficient credible evidence in the
whole record." Hare v. N.J. State Parole Bd., 368 N.J. Super. 175, 179 (App.
Div. 2004) (citing Trantino VI, 166 N.J. at 172). We accord that deference
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because "[t]he decision of a parole board involves 'discretionary assessment[s]
of a multiplicity of imponderables.'" Trantino VI, 166 N.J. at 201 (Baime, J.,
dissenting) (second alteration in original) (quoting Greenholtz v. Inmates of
Neb. Penal & Corr. Complex, 442 U.S. 1, 10 (1979)).
"The discretionary power exercised by the Parole Board, however, is not
unlimited or absolute." Acoli, 250 N.J. at 455. "[W]hen a parole decision is so
far wide of the mark or so manifestly mistaken under the governing statutory
standard, intervention is required in the interests of justice." Ibid. (citing
Trantino VI, 166 N.J. at 192). A Board decision will not be sustained if it
violates legislative policy, is not supported by substantial evidence in the record,
or "could not reasonably have been made on a showing of the relevant factors."
Ibid. (quoting Trantino v. N.J. State Parole Bd. (Trantino IV), 154 N.J. 19, 24
(1998)).
The Parole Act of 1979, N.J.S.A. 30:4-123.45 to -123.76, which governs
B.J.'s parole, states a prisoner "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 under the law of this
State if released on parole at such time." Ibid. (quoting Trantino VI, 166 N.J. at
126 (alternations and omissions in original) (quoting N.J.S.A. 30:4-123.53
A-3779-21
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(1979))). Thus, when an inmate becomes eligible for parole, there is a
"presumption in favor of parole," In re Application of Trantino (Trantino II),
89 N.J. 347, 356 (1982), and the State must "prove that the prisoner is a
recidivist and should not be released," Acoli, 250 N.J. at 456 (quoting N.J. State
Parole Bd. v. Byrne, 93 N.J. 192, 205 (1983)). "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." Acoli, 250 N.J. at 456.
"Only when the risk of the reoffending rises to 'a substantial likelihood' may a
parole-eligible inmate be denied parole." Ibid. (quoting N.J. State Parole Bd. v.
Cestari, 224 N.J. Super. 534, 550 (App. Div. 1988)).
Under the 1979 Parole Act, the Board must assess numerous factors in
determining whether the person is ready for parole. Ibid. N.J.A.C. 10A:71-
3.11(a) states the grant or denial of parole must "be based on the aggregate of
all pertinent factors." That regulation sets forth a list of twenty-four factors that
the Board shall consider, in addition to other factors the Board may deem
relevant. Id. at 457 (citing N.J.A.C. 10A:71-3.11(b)).
The Court in Acoli recently explained:
Some of those factors include: facts and circumstances
related to the underlying crime; offenses and
disciplinary infractions committed while incarcerated;
participation in institutional programs and academic or
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vocational education programs; documentation
reflecting personal goals, personal strengths or
motivation for law-abiding behavior; mental and
emotional health; parole plans; availability of
community resources or support services; statements by
the inmate reflecting on the likelihood that he [or she]
will commit another crime; the failure to rehabilitate;
history of employment and education; and statement or
testimony of any victim.
[Ibid.]
Although parole hearings are "informal," N.J.A.C. 10A:71-3.13(a), the
Board must follow certain procedures in conducting the hearings and the inmates
have certain rights in connection with the hearings. For example, "[t]he hearing
officer, Board panel or Board shall receive as evidence any relevant and reliable
documents or testimony," N.J.A.C. 10A:71-3.13(c), and "[t]he inmate shall have
the right to rebut any evidence and shall have the right to present evidence on
his or her own behalf," N.J.A.C. 10A:71-3.13(e).
The hearing officer, Board panel, or Board must base a parole decision
"solely on the evidence presented at the hearing," N.J.A.C. 10A:71-3.13(j),
including "material supplied by the inmate and reports and material which may
be submitted by any persons or agencies which have knowledge of the inmate,"
N.J.A.C. 10A:71-3.11(a). They may not rely on selective portions of the record
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that support a determination of likely recidivism while overlooking or
undervaluing conflicting information. Trantino VI, 166 N.J. at 189-90.
The hearing officer, Board panel, or Board must consider the applicable
factors enumerated in N.J.A.C. 10A:71-3.11(b) in making a parole decision.
McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 561 (App. Div. 2002).
One of those factors is "[p]articipation in institutional programs which could
have led to the improvement of problems diagnosed at admission or during
incarceration," including "academic or vocational education programs" and
"work assignments that provide on-the-job training . . . ." N.J.A.C. 10A:71-
3.11(b).
Even giving the Board's and panels' decisions all the deference they are
due, we are constrained to remand this matter for a new hearing. Having
reviewed the record, we conclude those decisions resulted from an unfair
process in which B.J. did not have a full opportunity to respond to the panel
member's questions and the Board and its members selectively relied on Dr.
Segal's internally-inconsistent evaluation while failing to consider other
information. We are convinced the panels' and the Board's conclusions that
defendant "lacks insight into his criminal behavior and has not sufficiently
addressed his substance abuse problem" were reached through a process that did
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not give defendant a fair opportunity to demonstrate otherwise – not that it was
his burden to do so. See Acoli, 250 N.J. at 456 (finding it is the State's burden
"to prove that the prisoner is a recidivist and should not be released" (quoting
Byrne, 93 N.J. at 205)).
The Board's and the panels' determination that B.J. lacked insight into his
criminal behavior appears to be based largely on the questioning conducted of
him by the two-member panel during the parole eligibility hearing. The
transcript of that proceeding demonstrates the panel members repeatedly
interrupted B.J. while he was attempting to respond to questions that went
directly to the issue of his insight into his criminal behavior. We are left
wondering if the panel members and the Board would have been satisfied with
his responses had the panel members permitted him to complete his answers to
their questions instead of repeatedly interrupting him. We recognize the
informal nature of the proceedings before the Board, N.J.A.C. 10A:71-3.13(a),
but an inmate has the right to present evidence on his own behalf, N.J.A.C.
10A:71-3.13(e), especially in response to critical questions raised by the panel
members.
Without any explanation of how and whether they had considered and
addressed the inconsistencies within Dr. Segal's evaluation and between his
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evaluation and other information in the record, it isn't possible to make sense of
the Board's and panels' conclusion B.J. has a substance-abuse problem he has
failed to address sufficiently. Dr. Segal, the Board, and the panels concluded
B.J. has a substance-abuse problem even though: the record is devoid of any
evidence B.J. had used marijuana during the twelve years before his parole-
eligibility date, he had not incurred any "use related" infractions during the first
seventeen years of his incarceration, the one and only "use related" infraction
had occurred in 2009, he had participated in two substance-abuse programs since
that infraction, on the recent case assessment "substance abuse problem has not
been sufficiently addressed" was not checked, and even Dr. Segal had not
recommended that B.J. participate in a substance-abuse program while
incarcerated. If B.J. had an insufficiently-addressed substance-abuse problem,
wouldn't Dr. Segal have recommended he participate in a substance-abuse
program while incarcerated?
With no apparent effort to address those inconsistencies in the record, we
are left with the conclusion the Board and the panels improperly relied on
selective portions of the record that support a determination of likely recidivism
while overlooking or undervaluing conflicting information. Trantino VI, 166
N.J. at 189-90. And we have reason to believe the Board and the panels did so
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in other ways as well. For example, the three-member panel made scant mention
in its decision of the programs B.J. had successfully completed; neither the two-
person nor the three-person panel mentioned the unrebutted letters others had
submitted in support of his parole. The limited or non-existing references made
to those programs and letters does not allow us to review and conclude the panels
and the Board conducted the analysis required by the 1979 Parole Act. And
although the Board can and should consider B.J.'s institutional infractions, it
also should consider the fact that the vast majority of those infractions,
particularly the serious infractions, occurred in the early part of his
incarceration. It isn't clear from their decisions that the Board or panels gave
any consideration to that fact.
The Board's and the panels' focus on B.J.'s institutional infractions, his
juvenile record, his commission of crimes while on probation decades ago, and
the nature of the crimes for which he is currently incarcerated makes us
concerned that the Board and the panels improperly considered the punitive
aspects of B.J.'s sentence, see Trantino II, 89 N.J. at 372, instead of "focus[ing
their] attention squarely on the likelihood of recidivism." McGowan, 347 N.J.
Super. at 565.
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We are equally unconvinced the Board and the panels applied the
appropriate standard in rendering their decisions. Dr. Segal determined B.J.
presented "a moderate risk for recidivism with a 28% chance of re-arrest and a
17.1% chance of reconviction within two years of release" and described B.J.'s
"Risk for Reoffending" as "Medium." However, he also concluded B.J.'s
"likelihood" of "successfully completing a projected term of parole" was
"generally fair." How can someone with a "generally fair" likelihood of
"successfully completing a projected term of parole" be deemed at the same time
to have a "Medium" risk of reoffending? Is a "moderate risk for recidivism" the
equivalent of "a substantial likelihood" of reoffending? We respectfully remind
the Board that "[o]nly when the risk of reoffending rises to 'a substantial
likelihood' may a parole-eligible inmate be denied parole." See Acoli, 250 N.J.
at 456 (quoting Cestari, 224 N.J. Super. at 550).
For all of those reasons, we vacate the Board's decision and remand the
matter to the Board, directing that within sixty days the Board conduct a new
hearing and render a new decision that addresses the concerns raised in this
opinion and the various factors set forth in the Board's regulations and is
consistent with the Supreme Court's instructions in Acoli, 250 N.J. 431.
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In light of our remand, we need not engage in an excessive analysis of the
ninety-six-month FET imposed by the Board. After denying parole, the Board
must establish an FET. N.J.A.C. 10A:71-3.18(a)(2). When the Board denies
parole for a person serving a life sentence, the standard FET is twenty-seven
months. N.J.A.C. 10A:71-3.21(a)(1). The Board, however, can exceed the FET
guideline if it determines that the presumption "is clearly inappropriate due to
the inmate's lack of satisfactory progress in reducing the likelihood of future
criminal behavior." N.J.A.C. 10A:71-3.21(d).
The three-member panel that established the eight-year FET did not
adequately articulate the reasons for imposing an FET that was over three times
the presumptive FET. It simply parroted the findings of the two-member panel
without explaining why those findings justified an FET that significantly
exceeded the presumptive FET. Consequently, on remand, if the Board decides
to deny B.J. parole, it must also reconsider the appropriate FET and explain the
reasons for an FET beyond the statutory presumption of twenty-seven months.
For the reasons outlined above, we vacate the March 30, 2022 Board
decision, remand the matter to the Board, and direct that within sixty days the
full Board conduct a new hearing and render a new decision. We direct the
Board to give B.J. a fair opportunity to respond fully to any questions posed by
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Board members and "to rebut any evidence and . . . to present evidence on his
. . . own behalf," consistent with N.J.A.C. 10A:71-3.13(e). We also direct the
Board to base its reconsideration of this case on the facts and the governing law,
which includes, as set forth above (1) a presumption in favor of parole and (2)
the burden on the State to prove, by a preponderance of the evidence, that there
is a substantial likelihood the inmate will commit a crime if released on parole.
The Board shall issue a complete and meaningful explanation of the reasons for
whatever action it takes.
Vacated and remanded. We do not retain jurisdiction.
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