NJ Supreme Court Gives Prisoners Right to Appeal if Turned Down for COVID-19 Release

But court said it does not have authority to order expansion of Murphy administration’s release program
Chief Justice Stuart Rabner wrote the decision.

New Jersey prisoners denied a medical furlough or parole in connection with the COVID-19 pandemic have the right to appeal these determinations and courts must decide on individual appeals within a week of their filings, the state Supreme Court ordered Friday.

The unanimous decision, written by Chief Justice Stuart Rabner, does not go as far as attorney advocates for inmates had sought in one respect, but it does allow for a potentially broader release of prisoners than Gov. Phil Murphy’s April 10 executive order permits.

The court said it did not have the authority to order the expanded release, including of those whose sentences expire within a year, as requested by ACLU-NJ and the state public defender’s office. But the court’s ruling does add to Murphy’s order a system of due process giving inmates the right to advocate for release and, if denied, appeal to a judge. It also holds that all prisoners — even those not covered by the original order — may seek release due to the unprecedented impact of the novel coronavirus.

As of Friday, according to the state Department of Corrections, the virus had infected 2,361 inmates, about 13% of the total inmate population, and 777 staff, about 10%. The virus has killed 46 prisoners —the highest prison death rate in the nation — and an estimated three staffers.

“Executive Order 124 does not cover all state prison inmates,” Rabner wrote in the 46-page decision. “An inmate with a serious illness who has ten years left on his sentence and will not be eligible for parole soon — and is not covered by the order — can apply directly to the court for relief today.” The court found that an existing court rule, known as 3:21-10(b)(2), that allows courts to alter an inmate’s sentence based on health or other changed circumstances “gives all inmates an opportunity to seek direct relief in court.”

Advocates said they were pleased with the decision.

Decision ‘will save lives’

“We’re grateful to the court for issuing this necessary decision, which will save lives, both inside prison walls and outside of them,” said Alexander Shalom, ACLU-NJ’s director of Supreme Court advocacy. “We asked the court for a process that is fair, that is efficient, and that meets the urgency of the moment, and today’s unanimous ruling did just that.”

Credit: Jackie Finn-Irwin
East Jersey State Prison, where state officials have reported several inmates have died due to COVID-19.

ACLU-NJ and the public defender filed papers on April 8 asking the Supreme Court to order the release of certain prisoners — including those within a year of the end of their sentences, those eligible for parole or at risk of complications from COVID-19 — due to the elevated risk to inmates because of their inability to practice social distancing. Two days later, Murphy issued his executive order, allowing furloughs or parole for nonviolent offenders with underlying medical conditions and age 60 or older, those with medical conditions or at least age 60, those denied parole within the last year and those within 90 days of release.

But last month, the advocating attorneys criticized the DOC and State Parole Board, saying they were moving too slowly and pressed the court to act. The court heard arguments on May 27.

In its decision, the court cited the separation of powers among the branches of government in declining to order inmate releases, saying the authority to furlough or parole prisoners lies with the executive branch.

“Although a court rule authorizes judges to amend a sentence and release an individual because of illness or infirmity, Rule 3:21-10(b)(2), neither the rule nor the other sources raised provide the authority for the courts to establish and oversee a broad-based program to release or furlough inmates in state prison,” the ruling states.

Court said prisoners have right to due process

The ruling draws a distinction between the release of county jail inmates it approved via a consent order on March 22, writing, “Unlike in this matter, the Executive voiced no concerns about separation of powers.” The state Attorney General’s Office agreed to the release of about 700 jail inmates who were being held on low-level offenses.

The court called the process Murphy’s order created “commendable” but also said it needs to provide due process to inmates considered for release.

“The Executive Order creates a legitimate and sufficient expectation of eligibility for a furlough, subject to health and safety concerns, for the 3000 inmates who appear on the lists the DOC generated,” Rabner wrote, adding that that means the prisoners are “entitled to some measure of constitutional protection.”

The state had argued that inmates were not entitled to due process because their furlough to emergency medical home confinement was akin to a change in a housing assignment, which is not appealable.

The court disagreed with the ACLU and public defender that the DOC and parole board have acted too slowly to release individuals, although Friday’s decision urges both to move as fast as possible as they continue to consider releases and carry out the court-ordered due process.

DOC required to provide more information

The decision states that DOC Commissioner Marcus Hicks approved an internal management procedure to implement Murphy’s order a month after the governor issued it.

During that time, the public defender’s office said the DOC refused its offer to help in the process and said it could get no information from officials about who was on the lists of those eligible for release that the order required be drafted.

The ruling requires the DOC to provide that information now to the public defender so that attorneys who have volunteered can assist inmates seeking furlough.

“We are pleased the Supreme Court has addressed due process concerns,” said Public Defender Joseph E. Krakora. “The order has empowered us to engage in meaningful advocacy on behalf of many state prison inmates and we will work with our partners in the justice system to expedite the process.”

According to the decision, an additional 407 inmates were furloughed or paroled under the governor’s order as of June 1, with 70 of those occurring between May 26 and June 1. That’s about 18% of 2,500 who were both eligible and sought consideration for release. DOC’s inmate website shows 161 currently on home confinement, though the court decision indicates 208 had been released on furlough — some have been ordered returned for violating the conditions of their furlough. Another 45 were paroled between May 26 and June 1, bringing the total to 219, according to the decision.

More input from prisoners

Under the court’s ruling, anyone who was denied release to date can appeal. This means the DOC will have to provide each person with a statement of reasons why an application for furlough is rejected, something the department had not done. Inmates will have an opportunity to respond to any problems cited in the DOC’s rejection — for instance, if the housing to which an inmate sought to be furloughed was deemed inappropriate — and the commissioner will have to review an inmate’s attempt to solve such issues.

“The Review Committee and DOC have been tasked with reviewing thousands of individual cases on an expedited basis, with minimal input from the inmate,” Rabner wrote. “Even with the best of intentions, mistakes are inevitable. And no one can rule out entirely the possibility of arbitrary decisions. Yet no such shortcomings can be detected if the DOC does not tell inmates why they have been denied release.”

Murphy’s order requires the DOC to update its eligibility lists weekly, and going forward, the court ordered that inmates be allowed to present a written statement in support of their application for furlough, as well as the chance to correct any problems preventing release.

The court stated that all inmates — both those eligible for release under Murphy’s order and those ineligible but with underlying health conditions that put them in particular danger from COVID-19 — can appeal to the courts for release immediately.

“Qualifying inmates need not wait for the DOC to decide whether or not they will be released pursuant to the order before proceeding in the courts,” said Jennifer Sellitti of the public defender’s office.

She noted that the decision also “echoes what we’ve been saying all along … and sets forth a process by which petitions filed in the courts must be heard expeditiously.”

Risks of COVID-19 ‘amplified in jail settings’

“Because of the risks COVID-19 poses, which are amplified in jail settings, each day matters,” the ruling states, and orders judges to rule within six days of receiving an appeal from a prisoner.

Some inmate advocates were pleased that the court at least provided for swift appeals as part of Murphy’s executive order, but also called for lawmakers to take additional action to protect more inmates.

“This decision will breathe some life into a floundering executive order by affording due process to prisoners,” said the Rev Amos Caley, prison oversight campaign director of the organization Salvation and Social Justice. “Advocates and families will be relieved to know that their incarcerated loved ones will be finally notified about their eligibility, and to appeal any unjust denial of furlough. This decision will not solve the larger problem of widespread institutional neglect by the DOC, but any step toward transparency and the safeguarding of human rights is a step in the right direction.”

Both he and Shalom called for the Legislature to pass S-2519/A-4235, which would provide “public health emergency credits” to some inmates that would in effect reduce inmates’ sentences by as much as a year for any single public health emergency.

“The crisis playing out in New Jersey’s prisons demands immediate action from every level of government,” Shalom said. “The court did its part, and now other branches of government must take up the mantle.”

Others were disappointed and called for other actions, including grants of gubernatorial clemency to release individuals and a provision for “geriatric parole” for some inmates age 65 and older who have served at least a third of their sentences, as embodied in the bill A-1254.

“It is tragic that the N.J. Supreme Court has now foreclosed a route for the collective relief of state prisoners and referred the plaintiffs back to the executive and legislative branches,” said Jean Ross of People’s Organization for Progress. “Keeping in mind the need for swift action, this leaves the constitutional option of gubernatorial executive clemency or emergency legislation to expedite parole and remove barriers to administrative release.”