While the Parole Board consists of Members who act in good faith, who try to do the right thing, there is a natural human reluctance to parole an individual who has been convicted of a serious and/or violent crime. It is up to the individual and his attorney to present a Parole Plan and create a record that will not only convince the Parole Board that the individual is ready for parole, but if paroled, the individual will not reoffend and not harm anyone.
Parole Board members face difficult decisions, as the prediction of future behavior, compliance with conditions of parole, or whether a person will re-offend is not a science. If a Board Member makes the wrong decision and releases an individual who goes on to commit another crime, or worse yet, hurts someone, that Board Member must live with that decision both professionally and personally. There is a natural reaction of Board Members to be conservative and err on the side caution in determining whether to release an individual on parole.
When the underlying crime is particularly brutal the Board may see it as an obligation to keep the individual segregated from society regardless of the individual’s parole plan, efforts at rehabilitation, and performance as an inmate. Unfortunately, in the difficult cases for the Board, the cases with particularly brutal facts, the Board may seek to parse the record and disregard substantial information that supports parole. The Board has been repeatedly reversed in situations where the record overwhelmingly supported parole, but the underlying crime so offended the Board that it actively sought to justify the denial of parole.
In Trantino v. New Jersey State Parole Board, 166 N.J. 113 (2001), the New Jersey Supreme Court expressly prohibited “the Parole Board’s unjustifiable and ‘obvious overlooking or undervaluation of crucial evidence’.” Id. at 192. On a parole appeal, the record is everything.
On this record there exists no doubt that the Parole Board’s finding that Trantino was substantially likely to recidivate was based not on a preponderance of the evidence in the record, but rather on the Board’s selective and arbitrary reliance on only those portions of the record that could possibly support the Board’s conclusion.
Id. at 189.
In Trantino, the Supreme Court specifically noted that the “Parole Board was obligated, in considering Trantino’s application for parole, to render its decision not on the basis of the testimony of a single expert, or selected experts, but rather by application of ‘the statutory criteria to all relevant evidence.’” Id. at 175 (citation omitted). It is error for the Board to work from a pre-conceived result - a denial - and then crafting a justification for that determination.
Frequently such denials are based upon one several hour session of before a Three Member Panel or the full Board with subsequent conclusions by the Board that the individual suffers from “insufficient problem resolution”, “lack of insight”, and need for “one on one counseling.” Frequently, such “one on one” counseling is either not available or the individual is determined not to qualify clinically to receive such services. The classic “Catch-22” requiring an individual to participate in services that they are not eligible or do not qualify.
The burden for reversing a denial by the Parole Board is high. In New Jersey State Parole Board v. Cestari, 224 N.J.Super. 534, 543-544 (App. Div. 1988), certif. denied 111 N.J. 649 (1988) the Appellate Division defined the standard of its review as follows:
A denial of parole is subject to judicial review for arbitrariness [citation omitted] . The question whether there is a substantial likelihood an inmate will commit another crime if released, although predictive of future conduct rather than a finding as to past conduct, is essentially factual in nature. Therefore, a reviewing court must determine whether this factual finding could reasonably have been reached on sufficient credible evidence in the whole record. [citation omitted] Under this standard, the agency's decision will be set aside "if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made." "This sense of 'wrongness' arises in several ways, among which are the lack of inherently credible supporting evidence, the obvious overlooking or under valuation of crucial evidence or a clearly unjust result." Thus, if the record does not contain sufficient evidence that there is a substantial likelihood an inmate will commit another offense if released, the denial of parole must be found to have been arbitrary and capricious.
It is up to the inmate and his counsel to create a compelling record, in the first instance to assure the Parole Board that the decision to release is correct and a “safe” choice. Even more important is the necessity to create a compelling record so that if an appeal to the New Jersey Superior Court, Appellate Division, is necessary, the court has a basis to conclude that the Parole Board’s denial of parole was “arbitrary.” New Jersey State Parole Board v. Cestari, 224 N.J.Super. 534, 543-544 (App. Div. 1988), certif. denied 111 N.J. 649 (1988); Roland Gebert V. New Jersey State Parole Board, No. A-5435-12T3, (App. Div. October 23, 2014); Bailiff v. New Jersey State Parole Bd., No. A-3127-11T2, 2014 N.J. Super. Unpub. LEXIS 95 (App. Div. Jan. 16, 2014) ; Melvins v. New Jersey State Parole Bd., No. A-1761-08, 2010 N.J. Super. Unpub. LEXIS 1948 (App. Div. Aug. 12, 2010); Klingebiel v. New Jersey State Parole Board, No. A-5341-04, 2008 N.J. Super. Unpub. LEXIS 3018 (N.J. App. Div. Aug. 11, 2008); K.P v. New Jersey State Parole Board, No. A-1470-01, 2002 N.J. Super. Unpub. LEXIS 1 (N.J. App. Div. Apr. 26, 2002).
While the burden is on the Board to determine by a preponderance of the evidence that an individual will not comply with conditions of parole or will likely commit another offense – the Board’s decision is given great deference by the Appellate Division and reversal will only occur when the Appellate court determines that Board’s actions to have been “arbitrary.” As a practical matter, the burden, in reality, rests with the individual seeking parole to demonstrate that if released, they will comply with conditions of parole and if paroled that they will not commit another crime.
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