N.J.S.A. 30:4-123.14 (repealed); In re Trantino Parole
Application, 89 N.J. at 355.
The standard governing the grant of parole under the
1979 Act is that inmates eligible for parole “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 if released on parole. N.J.S.A. 30:4-123-
53; Trantino v. New Jersey State Parole Board, 166 N.J.
113, 126 (2001); Trantino v. New Jersey State Parole Bd.,
154 N.J. 19, 27, 31 (1998); In Re Trantino Parole
Application, 89 N.J. at 377. The 1979 Act thus posits the
likelihood of future criminal conduct as the
determinative test for parole eligibility and effectively
establishes a presumption in favor of parole. In re
Trantino Parole Application, 89 N.J. at 355-356.
The parole standard was revised in 1997 to require
release on parole unless the evidence “indicates by a
preponderance of the evidence that the inmate failed to
cooperate in his or her own rehabilitation or that there is
a reasonable expectation that the inmate will violate
conditions of parole ... if released on parole at that time.”
N.J.S.A. 30:4-123.53a. The 1997 amendment does not
apply to inmates sentenced before August 18,1997, the
date of enactment. Trantino v New Jersey State Parole
Board, 331 N.J.Super. 577, 605 (App. Div. 2000), aff’d
166 N.J. 113 (2001); Williams v. New Jersey State Parole
Board, 336 N.J.Super. 1, 7 fn.3 (App. Div. 2000).
In Thompson v. New Jersey State Parole Board, 210
N.J. Super. 107 (App. Div. 1986), the Appellate Division
rejected defendant’s ex post facto argument and found that
the 1979 Parole Act’s regulations did apply to pre-Code
prisoners. The court found that the continuing
obligation of the Parole Board to consider the punitive
aspects of a pre-Code sentence did not represent a change
in the law, but rather a continuation of pre-Code
conditions, without the imposition of more onerous
terms. See Royster v. Fauver, 775 F.2d 527 (3d Cir.
1985).
The Thompson Court also held that a prisoner does
not have the right to see confidential materials in his
parole files. However, in order to protect a prisoner’s due
process rights with respect to this information, the Court
outlined certain procedures for the consideration of this
material by the Parole Board:
- When any document in a parole file is
administratively removed from a prisoner’s copy of the
file, N.J.A.C. 10A:71-2.1(c), it must be identified as
confidential and the reason for nondisclosure must be
noted in the Board’s file.- After making a parole decision adverse to the
prisoner, the Board shall state in its decision whether any
confidential document played any substantial role in its
decision and identify this document in its file. - If the Board states that none of the confidential
material played a substantial role in producing the
adverse decision, that is the end of the matter. Good faith
is presumed and the appellate court will not review the
documents. - In cases where the confidential material played a
substantial role in producing the adverse decision and an
appeal is taken, the Appellate Division will review the
material and determine the propriety of the decision to
withhold those items from the prisoner.
If the court finds that nondisclosure was improper,
the possible remedies include a remand for reconsidera-
tion without the documents in question, reconsideration
with disclosure to the prisoner, or an exercise of the
appellate court’s jurisdiction.In Royster v. Fauver, 775 F.2d 527 (3d Cir. 1985),
the Third Circuit held that the application of the New
Jersey Parole Act of 1979 to a pre-Code prisoner’s parole
application was not an ex post facto violation because the
standards of the 1979 and 1948 Parole Acts were
identical with respect to inmates convicted before 1979.
The court also found that regulations promulgated
pursuant to the 1979 Act did not constitute an ex post
facto violation because they did not prejudice the prisoner
in any way.VI. PAROLE NOTIFICATION TO PROSECU-
TORS & VICTIMS
The Parole Board is required by statute to notify the
county prosecutor, the Attorney General and any other
criminal justice agency whose information and comment
may be relevant as to the necessity or desirability of an
inmate’s parole at least 30 days prior to parole
consideration. N.J.S.A. 30:4-123.45(b)(5). In this
process, the prosecutor is not an adversary, but rather his
role “is to inform the Board.” In Re Trantino Parole
Application, 89 N.J. at 375, 376. Prosecutors and other
interested persons who request to participate in the
parole hearing remain subject to the discretion and
control of the Board, but should be allowed to submit
evidence, give testimony, examine witnesses and present