NJ Justices Give Inmates Voice In Virus Release Process

By Jeannie O'Sullivan
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Law360 (June 5, 2020, 6:41 PM EDT) -- New Jersey inmates seeking release due to the COVID-19 pandemic will have more say in the decision-making process as well as the ability to appeal unfavorable outcomes in court, the state Supreme Court ruled Friday in a case brought by advocates for prisoners.

Gov. Phil Murphy's April mandate establishing a process for inmate release consideration, in which the New Jersey Department of Corrections commissioner has the final say, created a "commendable path" for prisoners during the global health crisis, the justices said. However, due process protections were needed.

The American Civil Liberties Union of New Jersey, the New Jersey Office of the Public Defender and others had challenged Murphy's Executive Order 124, saying prisoners seeking medical furlough weren't given the opportunity to support their release bids either orally or through writing, nor were they provided reasons when the bids were rejected.

"We hold that because the order creates a sufficient expectation of eligibility for release through a furlough program, the order calls for certain due process protections," Chief Justice Stuart J. Rabner wrote for the unanimous court.

The opinion remands the matter so the order can be modified to add the due process protections.

Inmates seeking medical furlough may now present a written statement in support of their request "in the same way that prosecutors and victims are allowed to express their views," the opinion said. Volunteer lawyers and public defenders can assist, according to the opinion.

The state's DOC commissioner must provide a statement of reasons to inmates denied medical furlough "to help guard against mistakes and arbitrary decision making and allow for meaningful judicial review if it is sought," the opinion said.

Also, inmates will be given the opportunity to respond to rejections in order to address the commissioner's concerns and cure any shortfalls, and the commissioner must consider the response before issuing a final decision, the opinion said.

Final decisions may be challenged in the Appellate Division, the opinion said.

Juvenile inmate cases are overseen by the state judiciary, so they can seek relief through the courts, the opinion said.

One "overriding concern" the justices expressed was timeliness.

"Because of the risks COVID-19 poses, which are amplified in jail settings, each day matters," the opinion said. "To the extent this opinion calls for trial judges to rule on motions and the Appellate Division to review agency decisions, we exercise the court's supervisory authority to require that applications be heard and decided in a matter of days."

Since Murphy handed down Executive Order 124, roughly 3,000 Garden State inmates have been deemed eligible for release due to the virus, according to testimony during oral argument last month. At the time, 607 were approved for release, while 2,156 have received curt denials, according to statements made in court.

The advocates cited figures from the criminal justice think tank The Marshall Project, which keeps a running tab of coronavirus deaths in state prisons. As of Friday, the The Marshall Project reported that the pandemic had claimed the lives of 46 inmates in New Jersey and sickened a total of 2,062.

ACLU attorney Alexander Shalom hailed the decision, which he said would save lives both in and out of prison.

"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," Shalom said in a statement.

A representative for the New Jersey Office of the Attorney General, which represented the DOC and the Parole Board, declined to comment. Representatives for the other parties did not immediately respond to a request for comment.

The New Jersey Office of the Public Defender is represented in-house by Joseph E. Krakora, Joseph J. Russo, Laura B. Lasota and Alison Perrone.

ACLU-NJ is represented in-house by Alexander Shalom and Jeanne LoCicero.

The New Jersey Office of the Attorney General, the Department of Corrections and the Parole Board are represented by Gurbir S. Grewal, Stephanie J. Cohen, Kai W. Marshall-Otto, Tim Sheehan and Michael T. Moran of the state's attorney general's office.

The County Prosecutors Association of New Jersey is represented in-house by Joseph B. Paravecchia.

The Rutgers Criminal and Youth Justice Clinic is represented in-house by Laura A. Cohen.

The case is In the Matter of the Request to Modify Prison Sentences, Expedite Parole Hearings, and Identify Vulnerable Prisoners, case number 084412, before the Supreme Court of the State of New Jersey.

--Editing by Abbie Sarfo.

For a reprint of this article, please contact reprints@law360.com.

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