Trantino v. New Jersey State Parole Board

HUMPHREYS, J.A.D.

(concurring).

I concur in the result substantially for the reasons in Judge Stern’s comprehensive opinion. I write separately to express my conviction that the Parole Board’s decision to deny parole to Thomas Trantino was the correct decision, correctly arrived at in accordance with law and due process. I disagree with my dissenting colleague’s view that the citizens who comprise the New Jersey State Parole Board have in “every adverse administrative decision” since 1990 violated their public duty and because of public outrage and political pressure, denied parole to a criminal who merits it.

I

The Supreme Court in its 1982 decision laid down specific guidelines for the Parole Board to follow in determining whether Trantino should be paroled. The Court said the Parole Board:

must determine if the punitive aspects of Trantino’s sentence have been satisfied such that he is truly rehabilitated and is not likely to commit crimes in the future. On this point—the sufficiency of punishment—the Parole Board may consider the kind of sentence that the inmate would likely have received under the present Code of Criminal Justice for the climes which he committed. If the Board determines that Trantino has not been punished sufficiently and, for that reason, as well as any others, it might appear by a preponderance of the evidence that there is a substantial likelihood of future criminal activity if he is released, the Parole Board must deny Trantino parole.
[In re Trantino Parole Application, 89 N.J. 347, 377, 446 A.2d 104 (1982) (emphasis added).]

My review of this voluminous record satisfies me that the Parole Board has made a conscientious effort to comply with the above mandate of the Supreme Court. We should not lightly assume that public officials have year after year forsaken their oath of office. On the contrary, decisions and actions of public officials are presumed to be valid. See Levin v. Township Committee, 57 *491N.J. 506, 537, 274 A.2d 1 (1971); In re D.J.M., 158 N.J.Super. 497, 501, 386 A.2d 870 (App.Div.1978).

We should also recognize that parole decisions are often not easy to make. Determining in this case whether “the punitive aspects of Trantino’s sentence have been satisfied such that he is not likely to commit crimes in the future” is far from an exact science. This is especially true in the case of criminals such as Trantino who have been sentenced to life imprisonment for committing particularly heinous crimes. It is easy to say that such a criminal has been rehabilitated in prison and may safely be released. However, this is only a prediction. If the prediction proves wrong, the public is placed in grave danger.

Further, the Board’s decision must be considered in the context of Trantino’s crimes. He was convicted of murdering two police officers after first torturing and humiliating them. See In re Trantino, supra, 89 N.J. at 352, 446 A.2d 104. The murders “were particularly brutal in that the two officers were forced to strip partially, pistol-whipped into near unconsciousness and then, despite their desperate pleas to be spared, repeatedly shot.” Ibid. The Court described the murders as “particularly heinous,” and “as cold-bloodedly vicious and wantonly brutal as other notorious capital cases.” Id. at 374, 446 A.2d 104.

One of Trantino’s victims was the father of three children. The other victim was a young police officer trainee who was about to embark on a career as a police officer.

The murders were not a one-time drug induced act by an otherwise law abiding citizen. The murders occurred in the wake of an armed robbery committed by Trantino and an accomplice on two elderly women in their home. When the murders occurred, the two criminals were “celebrating the success of their criminal exploits in a Lodi nightclub....” Id. at 352, 446 A.2d 104.

Trantino’s crimes strike at the vitals of public safety. His murders merited then and now the penalty of death or a life in prison.

*492Trantino’s background does not augur well for his ability to live a crime-free life if released on parole. Although a young man at the time he murdered the police officers, he had already accumulated a substantial offense history. He had just been released on parole from a lengthy sentence for robbery. His record and background are those of a street thug who preys on the weak and helpless. To release such a person to the community is an awesome decision fraught with danger.

II

Furthermore, Trantino’s assertion that he must be released now must be weighed in the light of basic legal principles. First, Trantino has no federal “constitutional or inherent right” to be released before the expiration of his life sentence. See Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S.Ct. 2460, 2464, 69 L. Ed.2d 158, 164 (1981); Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L. Ed.2d 668, 675 (1979). “[Gjiven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty____ That the State holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained.” Greenholtz, supra, 442 U.S. at 7, 11, 99 S.Ct. at 2104, 2105, 60 L. Ed.2d at 675, 677-78 (emphasis added).

Nor is there anything in the New Jersey Constitution which gives a prison inmate a right to be paroled. New Jersey State Parole Board v. Byrne, 93 N.J. 192, 208, 460 A.2d 103 (1983). “Parole is not a constitutional right but an act of leniency or grace and a device for the protection of society through the rehabilitation of the offender.” In re Trantino, supra, 89 N.J. at 363 n. 5, 446 A.2d 104 (quoting State v. Davis, 175 N.J.Super. 130, 145, 417 A.2d 1075 (App.Div.) certif. denied, 85 N.J. 136, 425 A.2d 291 (1980)). Similarly, Trantino does not have any constitutional right to be transferred to a halfway house. See Connecticut Board of Pardons v. Dumschat, supra, 452 U.S. at 465, 101 S.Ct. at 2464, 69 L. Ed.2d at 165; Greenholtz, supra, 442 U.S. at 11, 99 S.Ct. at *4932105, 60 L. Ed.2d at 677-78; Meachum v. Fano, 427 U.S. 215, 228, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451, 461 (1976).

In exercising its sensitive and extremely important authority, the Parole Board is vested with broad discretionary powers. Monks v. New Jersey State Parole Board, 58 N.J. 238, 242, 277 A.2d 193 (1971). Parole Board determinations “unlike the determinations of the usual administrative agencies” are “impregnated with highly predictive and individualized discretionary appraisals.” Beckworth v. New Jersey State Parole Board, 62 N.J. 348, 359, 301 A.2d 727 (1973). The Parole Board is “expressly charged by the Legislature to withhold release when it does not have the opinion that there is reasonable probability that the inmate will be law abiding....” Id. at 360, 301 A.2d 727.

Judicial review of a Parole Board decision is quite limited. As stated by Judge, later Justice, William Brennan, Jr., “[t]he grant or denial of parole is a matter for the exercise of proper judgment by the paroling authority and is not in any way a judicial function. Judicial review of an action such as that before us here is limited essentially to a determination whether it was taken within the statutory powers of the parole authority, properly applied.” White v. Parole Board, 17 N.J.Super. 580, 586, 86 A.2d 422 (App.Div.1952) (citations omitted) (emphasis added).

The limited nature of judicial review of parole decisions is emphasized by the fact that in only two of the fifty-nine reported decisions in this State in the last half century, has the Court ordered, as the dissent would do, the release of a criminal because the Court disagreed with the Parole Board’s decision on the merits. See New Jersey State Parole Board v. Cestari, 224 N.J.Super 534, 540 A.2d 1334 (App.Div.), certif. denied, 111 N.J. 649, 546 A.2d 558 (1988); Mallamaci v. Dietz, 146 N.J.Super 15, 368 A.2d 947 (App.Div.1976). One of the decisions, Cestari, supra, involved a post-Code inmate who had previously “led a completely law abiding life.” 224 N.J.Super. at 538, 540 A.2d 1334. In the other, Mallamaci, supra, the inmate had been prematurely paroled because of a clerical error. After spending seven months on *494parole without incident, he was returned to prison. The court found that under these and other circumstances, his parole should not have been revoked. Mallamaci, supra, 146 N.J.Super. at 22, 368 A.2d 947.

Neither of these eases bears any resemblance to the issue before us, whether to overturn the Parole Board’s decision not to parole a criminal who is serving a life sentence for murdering two police officers.

The circumspection with which the judiciary approaches parole decisions is exemplified by the leading case of Beckworth, supra, 62 N.J. at 348, 301 A.2d 727. In Beckworth, the inmate was serving a fifteen to twenty year sentence for murder. He was repeatedly denied parole despite his contention that he had an “excellent institutional adjustment.” The Parole Board said that it was unable to find a reasonable probability that if the inmate were released on parole, he would assume his proper and rightful place in society without violating the law.

The Supreme Court upheld the Parole Board’s decision. The Court said “we are in no position whatever (sic) to say that it should have made such finding or that his denial of parole was in any sense arbitrary or an abuse of its broad discretion.” Id. at 354, 301 A.2d 727. Justice Sullivan, in his concurring opinion in Beckworth, said that “judicial review of Parole Board matters is' limited to a consideration of whether guidelines and principles have been substantially satisfied, and ordinarily will not involve the review of the merits of the Parole Board decision.” Id. at 368, 301 A.2d 727 (Sullivan, J., concurring).

The dissent points to Trantino’s recent progress in prison as grounds for his release. However, the apparent rehabilitation of a prison inmate does not mean that the inmate must be released on parole. Punishment is an important aspect of the criminal law. As stated by the New Jersey Supreme Court:

[p]unishment serves broad societal purposes and needs relating to general deterrence, which entails deterring other persons from committing crimes. Punishment also serves the ends of individual deterrence, which entails dissuading the individu*495al offender from committing future crimes. In this respect, the punitive aspect of a sentence is relevant to rehabilitation in the sense that it tends to ensure that the individual inmate will not be likely to commit future crimes____ Punishment and rehabilitation are not antagonists.
[In re Trantino, supra, 89 N.J. at 371, 446 A.2d 104 (citations omitted).]

In In re Trantino, supra, the Court cited State v. Lancaster, 550 P.2d 1257, 1259 (Alaska 1976), for the proposition that

the fact that a criminal should be rehabilitated, if possible, does not mean that he should escape punishment for his misdeeds. The very opposite may be true. Penalties must be imposed in most instances, in order to make rehabilitation effective, as well as to protect the public and deter others from engaging in criminal conduct.
[ 89 N.J. at 372, 446 A.2d 104.]

Consequently, the punitive aspects of a pre-Code inmate’s sentence are “extremely relevant in terms of the inmate’s rehabilitation.” Id. at 372-73, 446 A.2d 104. While the Parole Board in dealing with pre-Code sentences of criminals such as Trantino

may not determine parole release or fitness solely on grounds of the adequacy of the punishment reflected in the inmate’s prison term, the Board must consider whether the punitive aspects of the sentence have been satisfied in terms of the rehabilitative potential of the inmate. Thus, on remand in this case, the Board must reassess the punitive aspects of Trantino’s sentence in considering the extent of his rehabilitation and his fitness for parole.
[ Id. at 373, 446 A.2d 104.]

Additionally, the gravity of Trantino’s underlying crimes is “the main factor that creates a need for punishment.” Although it may not be the “sole” reason for continuing punishment and denying parole, “the Parole Board must nevertheless weigh the seriousness of the crime as an element in determining whether the extent of his punishment has been adequate to insure his individual progress toward rehabilitation.” Id. at 373-74, 446 A.2d 104.

Further, “in considering Trantino’s fitness for parole and release, the egregiousness of his crime and the harsh sentence imposed obligate the Parole Board to weigh most scrupulously and conscientiously whether Trantino has been punished sufficiently for it to conclude with confidence that he has been rehabilitated *496and will not commit future crimes.” In re Trantino, supra, 89 N.J. at 374, 446 A.2d 104 (emphasis added).

In making its parole decision, the Parole Board may consider the current penalties for Trantino’s crimes:

[o]n this point—the sufficiency of punishment—the Parole Board may consider the kind, of sentence that the inmate would likely have received under the present Code of Criminal Justice for the crimes which he committed. If the Board determines that Trantino has not been punished sufficiently and, for that reason, as well as any others; it appears by a preponderance of the evidence that there is a substantial likelihood of future criminal activity if he is released, the Parole Board must deny Trantino parole.
[Id. at 377, 446 A.2d 104 (emphasis added).]

The Supreme Court noted that under the Code,

since Trantino was guilty of two murders, he might also have received a second sentence, to run consecutively, of either life imprisonment or 30 years with a minimum term of 15 years before becoming parole eligible. Thus, if he had been sentenced under the code, Trantino might have had to stay in prison for 40 or perhaps even 50 years before he would become eligible for parole.
lid. at 375 n. 9,446 A.2d 104.]

Today, the sentence that Trantino would receive would be even more severe. If Trantino had committed the murders after the 1982 amendment of the Code, see Laws of New Jersey, 1982, ch. Ill, § 1, and escaped the death penalty, he would likely have received two consecutive life sentences carrying a parole ineligibility of a minimum of sixty years. If today he murdered one police officer and was not sentenced to death, his minimum sentence would be imprisonment for life without parole. See Law Enforcement Officers’ Protection Act, 1996 N.J. Sess. Law Serv. 115 (West) (amending N.J.S.A 2C:ll-3). Moreover, criminals who have committed lesser crimes than murder may be sentenced under current law to life imprisonment without parole under the Persistent Offenders Accountability Act (commonly referred to as the “Three Strikes and You’re In Act”). N.J.S.A 2C:43-7.1(a).

Thus, putting this matter in proper perspective, Trantino, a cruel murderer of two police officers, was sentenced to life imprisonment. He is demanding parole release after thirty-three years in' prison. Criminals who have committed much less serious *497crimes will be spending their entire lives in prison. The Parole Board is entitled to give these facts significant weight in reaching a decision.

Ill

I do not agree with my dissenting colleague that an inmate sentenced under the pre-Code statute must be paroled when the inmate has reached the assigned parole eligibility date unless “new information” is presented to the Parole Board. The Supreme Court in In re Trantino, supra, said that the difference between pre-Code inmates, such as Trantino, and post-Code inmates was “glaringly apparent” because:

inmates serving sentences under the Code—post-Code inmates—will have presumptively satisfied all punitive aspects of their sentences at the time they became eligible for parole. This is not true of pre-Code inmates. The punitive aspects of their sentences will not necessarily have been fulfilled by the time parole eligibility has occurred.
[Id. at 369-70, 446 A.2d 104.]

Consequently, the Supreme Court held that the Parole Board must decide a pre-Code inmate’s fitness for parole by determining whether the punitive aspects of the inmate’s sentence have been satisfied “such that he is truly rehabilitated and is not likely to commit crimes in the future.” Id. at 377, 446 A.2d 104. The view of the dissent, arguably supported by one sentence in the State’s reply brief, is fundamentally inconsistent with the Supreme Court’s decision in In re Trantino. Consider the following example. Assume that the Parole Board is deciding whether to parole a pre-Code inmate on his eligibility date and no “new information” has been supplied. Assume further that the Parole Board is fully satisfied that the punitive aspects of this inmate’s sentence have not been satisfied, that the inmate has not been rehabilitated and that if released, the inmate is likely to commit future crimes. Under the dissent’s view, the Parole Board apparently must release this inmate. I find nothing in the Supreme Court’s 1982 decision in In re Trantino which even hints that such a grotesque *498result would be countenanced. Nor can I glean any intention on the part of the Legislature to so tie the Parole Board’s hands.

The mischief in the dissent’s construction of the statute extends beyond this case. The State says that there are approximately ten inmates convicted of first degree murder who are presently serving similar sentences in the New Jersey prison system. Under the dissent’s construction of the statute, these ten inmates, assuming no new information, apparently must be paroled when they reach their parole eligibility dates regardless of the danger they may pose to public safety. Indeed, under the dissent’s view of the statute, they may be entitled to release now on the ground that they should have been paroled at an earlier eligibility date.

Statutes are to be read “sensibly rather than literally and the controlling legislative intent is to be presumed as ‘consonant to reason and good discretion.’” Schierstead v. City of Brigantine, 29 N.J. 220, 230, 148 A.2d 591 (1959). Where a “literal reading of the statute leads to absurd consequences ‘the court must restrain the words’ and seek the true legislative intent.” Id. at 231, 148 A.2d 591; see also Roig v. Kelsey, 135 N.J. 500, 515, 641 A.2d 248 (1994) (ascertaining legislative intent is the paramount judicial goal; once determined, legislative intent overrides any literal reading of a statute).

A sensible construction of N.J.S.A. 30:4-123.53 is that the statute applies only to post-Code inmates. The punitive aspects of the sentences of these inmates, as the Supreme Court said in In re Trantino, supra, have been determined by the sentencing court; hence these inmates are entitled to parole in the absence of new information. This section of the statute was not, however, intended to give, in the absence of new information, those inmates sentenced prior to the Code a free “get out of jail” card when they become parole eligible upon serving the customary one-fifth of their sentence. This sensible construction avoids absurdities, is consistent with the decision in In re Trantino, supra, and is consonant with reason and good discretion.

*499In any event, new information was presented to the Parole Board as set forth in Judge Stern’s opinion. (Majority, pp. 466-467, 687 A.2d at p. 291). As Judge Stern points out, the Board’s conclusions are supported by psychological reports and by Trantino’s shifting position on what happened that dreadful night at the Lodi nightclub.

Additional support for the Board’s views on Trantino’s eclectic memory can be found in the 1985 decision of United States District Court Judge Frederick Lacey. He found after an evidentiary hearing that:

Trantino has maintained at various times either: that he cannot at all recall the crime, or that he remembers he “did not kill the policemen” and is “innocent” because he left the bar before the murders, or most recently at the habeas hearing, that he has some “doubt” of his self-proclaimed innocence.
[United States ex rel. Trantino v. O’Lone, Civ. 84-2828 at 30 (D.N.J. May 31, 1985).]

Trantino’s present position appears to be that either Falco, not he, shot the police officers, (Majority, p. 441, 687 A.2d at p. 276), or that he must have killed the police officers because the witnesses said he did and, therefore, he will not argue the issue any more. The Parole Board is entitled to question the genuineness of Trantino’s present equivocal position and factor that doubt into its decision as to whether Trantino needs further intensive psychotherapy. The Board is also entitled to consider the many warnings contained in psychological reports. (See infra p. 500, 687 A.2d at p. 309).

IV

The record clearly demonstrates the soundness of the Parole Board’s decision to deny parole to Trantino. The Parole Board was specifically directed by the Supreme Court in Trantino’s case “to seek affirmatively all relevant evidence and to permit the participation of interested parties, subject to procedural regulations designed to control and direct the parole proceedings properly.” In re Trantino, supra, 89 N.J. at 377, 446 A.2d 104. The Parole Board did just that.

*500The Parole Board was told by the Supreme Court that it must deny parole to Trantino unless it could conclude “with confidence” that he had been punished sufficiently so that he has been “truly rehabilitated” and will not commit future crimes. In re Trantino, supra, 89 N.J. at 374, 377, 446 A.2d 104. If it appeared that Trantino had not been punished sufficiently and for that reason “as well as any others” that there was a substantial likelihood of future criminal activity, the Supreme Court said that the Parole Board “must deny” Trantino’s parole. Id. at 377, 446 A.2d 104.

After a thorough study, ample consideration, and in a comprehensive and reasoned decision, the Boai’d denied parole to Trantino, an inmate who had committed particularly heinous crimes. The Board reasonably concluded that in the absence of further intensive psychiatric therapy it could not determine that Trantino had achieved his rehabilitative potential so that the Board could conclude with confidence that he had been rehabilitated and would not commit future crimes.

Further support for these conclusions is found in various psychological reports. For example, Trantino’s “fundamental personality is of a narcissistic and anti-social type, and this will likely remain unchanged throughout his life.” (1992 report). If Trantino were paroled and there is a “weakening in the support network” or he were to “relapse into substance abuse, [this] could lead to disastrous results.” (1991 report). Trantino will “always be at some risk for impulsive or violent behaviour” (1991 report). If he was in a “depressed and hopeless mood,” was “drinking to excess,” had “access to a weapon” and was “confronted by someone in an insulting or rejecting way, his potential for violence could be considered quite high.” (1991 report). Trantino’s chances of leading a crime free life if paroled are “fair,” (1991 report), or “fair to good.” (1990 report). Continued psychotherapy is recommended to “address issues of conflict resolution, anxiety and depression,” (1995 report).

The Board’s decision to deny parole reached after thorough review and consideration is one to which the judiciary should pay *501great deference. Parole Boards, not judges, are vested with discretion to release criminals from prison before completion of their sentence. The Parole Board’s decision to deny parole to this murderer was well based and was not arbitrary, capricious or unreasonable.