In a recent decision, the Supreme Court denied a motion by the American Civil Liberties Union of New Jersey and the state Public Defender's Office seeking to expedite parole hearings and allow furloughs of certain inmates in state prisons and juvenile facilities due to COVID-19.

In a unanimous decision, the court gave deference to the executive and legislative branches, with the former largely possessing the authority to decide whether to grant parole or furlough to inmates, and the latter empowering the Parole Board to make decisions about parole and the Department of Corrections commissioner on whether to furlough inmates.

"Although a court rule authorizes judges to amend a sentence and release an individual defendant because of illness or infirmity, neither the rule nor the other sources raised provide authority for the courts to establish and oversee a broad-based program to release or furlough inmates in state prison," wrote Chief Justice Stuart Rabner, who delivered the 46-page opinion on June 5. "We therefore respectfully decline to grant the relief requested by the Public Defender and the ACLU."

The court also noted that an Eighth Amendment challenge, alleging cruel and unusual punishment, wasn't raised.

Public Defender Joseph Krakora argued the case before the court on May 27.

"The Court said, 'Listen, we're not going to grant the relief that we really don't have the authority to grant,'" Krakora said on Thursday. "But it basically adopted all of our arguments as to why the Executive Order denied the inmates due process. We were very happy the Court recognized that."

Alexander Shalom, director of Supreme Court advocacy for the ACLU-NJ, also said the ruling was a positive step.

"We're grateful to the court for issuing this necessary decision, which will save lives, both inside prison walls and outside of them," said Shalom. "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."

Stephanie Cohen, assistant attorney general, represented the state, the Department of Corrections and the Parole Board. Lee Moore, spokesman for the Attorney General's Office, said the office had no comment.

Joseph Paravecchia, assistant Mercer County prosecutor, represented the County Prosecutors Association of New Jersey. Paravecchia wasn't available for comment.

On March 22, two weeks after Murphy declared a public and health safety emergency for the state, the court entered a consent order that led to the release of nearly 700 inmates within five days. The order was the result of the public defender, ACLU-NJ, Attorney General's Office, and the County Prosecutors Association submitting an application for an order to show cause.

On April 8, the public defender and ACLU-NJ proposed a second order to show cause and sought modifications, such as allowing inmates to advocate for their own release, allowing participation of volunteer attorneys from the Public Defender's Office, requiring statements of reasons for Department of Corrections decisions denying release, and mandating expedited review of applications for release. They said New Jersey has the highest rate of COVID-19 in prisons among the states.

A remote joint hearing between the Assembly Judiciary Committee and Assembly Law and Public Safety Committee on Wednesday heard testimony over reasons for the rapid spread of COVID-19 in correctional facilities. Advocates for inmates' rights said the cramped, enclosed quarters make them breeding grounds for the virus.

The court's June 5 decision applies to Murphy's April 10 executive order, which made a portion of the state's prison population eligible for release due to the rapid spread of the coronavirus in these facilities.

The ACLU-NJ and public defender asked the judiciary to provide a framework for the early release of several groups, including adults and juveniles serving a sentence that will expire in the next year; individuals eligible for parole; and any defendant who is particularly vulnerable to COVID-19.

Rabner said Executive Order 124 by the governor, issued two days after the ACLU-NJ and public defender sought relief from the court, covered what they sought. Under the order, those at least 60 years of age, who possess an underlying medical condition, who were denied parole within the last year, or whose sentence will end within 90 days or will be eligible for parole within the same three-month time frame, would be considered for parole or medical furlough.

The order "created a mechanism to identify inmates in state prison to be considered for parole for a medical furlough," said Rabner, "and creates a sufficient expectation of eligibility for release through a furlough program to call for certain due process protections."

Executive Order 124 provides two tracks for release: (1) directing the Parole Board to expedite its consideration of inmates for parole; and (2) the commissioner of the Department of Corrections to decide whether to grant a medical furlough, an "emergency medical temporary home confinement" for certain inmates.

Consistent with existing law, the Parole Board provided inmates with an individualized statement of reasons for cases in which it denied parole. Inmates denied a medical furlough received a two-sentence form letter from the DOC commissioner notifying them of the outcome, but not setting forth any reasons.

The court did add protections, though, including allowing inmates the opportunity to present a written statement in support of their request to be furloughed, and requiring the DOC commissioner to provide a statement of reasons to inmates who are denied a medical furlough—to comport with due process.

The court noted that inmates may challenge the DOC's action, a final agency decision, by seeking review before the Appellate Division. Individual inmates may also seek relief independently under Rule 3:21-10(b)(2) without first having to exhaust the remedies available under the executive order.

Juveniles in the custody of the Juvenile Justice Commission may seek relief from the court on an individual basis. But the judiciary retains jurisdiction over the disposition of juvenile matters, and courts can change or modify an order of disposition for a juvenile at any time, the court said.

The court disagreed with the state attorney general's argument that "furlough review is an administrative classification process" and is therefore not subject to due process, like a decision to transfer an inmate from one prison to another.

"We disagree with the proposition at the core of the above argument," Rabner wrote.

The court said that although inmates have no constitutional right to parole, eligibility for parole under state law can create a "protectible liberty interest if a state statute creates a legitimate or sufficient expectation of eligibility for parole."

Executive Order 124 creates that liberty interest, said the court.

Rabner cited State Parole Board v. Byrne, a 1983 decision where the Supreme Court held that New Jersey's Parole Act creates a sufficient expectancy of parole eligibility to entitle prisoners to some measure of constitutional protection with respect to parole eligibility decisions.

"We have not granted the full relief the Public Defender and ACLU sought," said Rabner. "The Executive and Legislative Branches retain the authority to enact policy changes in response to the spread of COVID-19 in state prisons and juvenile facilities."

The court concluded that an adversarial hearing with counsel and a detailed statement of reasons is not required, and instead required notice, an opportunity to be heard and respond, and a written statement of reasons and ordered steps to expedite any court proceedings.

The chief justice urged the DOC and Parole Board to likewise expedite their ongoing responsibilities under the order due to the health urgency the pandemic presents.