An Order to Show Cause to Address the Release of Certain Individuals Serving Sentences in State Prisons and Juvenile Facilities

Annotate this Case

The Office of the Public Defender and the American Civil Liberties Union of New Jersey (ACLU) applied directly to the New Jersey Supreme Court for relief relating to the spread of the novel coronavirus in state prison and juvenile facility settings. They essentially asked the Judiciary to order a framework for the early release of several groups. Under the proposed framework, judges or court-appointed special masters would decide whether to grant release or a furlough in individual cases. Two days after the Public Defender and ACLU wrote to the Court, the New Jersey Governor issued Executive Order 124 creating a mechanism to identify inmates in state prison to be considered for parole or a medical furlough. The Supreme Court determined Executive Order 124 created a sufficient expectation of eligibility for release through a furlough program to call for certain due process protections. Inmates may challenge the DOC’s action, a final agency decision, by seeking review before the Appellate Division. The agency’s decision is entitled to deference on appeal. Individual inmates may also seek relief independently under Rule 3:21-10(b)(2). They do not have to exhaust the remedies available under the Executive Order before they may file a motion in court. As to sentences imposed on juveniles who are in the custody of the Juvenile Justice Commission (JJC), those individuals may seek relief from the court on an individual basis. To the extent the opinion called for trial judges to rule on motions and the Appellate Division to review agency decisions, the Supreme Court exercised its supervisory authority to require that applications be heard and decided in a matter of days and urged the Commissioner and the Parole Board to act as expeditiously as possible.

SYLLABUS

This syllabus is not part of the opinion of the Court. It has been prepared by the Office of
the Clerk for the convenience of the reader. It has been neither reviewed nor approved by
the Court. In the interest of brevity, portions of an opinion may not have been
summarized.

An Order to Show Cause to Address the Release of Certain Individuals
Serving Sentences in State Prisons and Juvenile Facilities
(M-1093-19) (084412)

Argued May 27, 2020 -- Decided June 5, 2020

RABNER, C.J., writing for the Court.

The Court considers issues relating to the impact of the coronavirus on individuals
in state prison and juvenile facilities. The Office of the Public Defender and the
American Civil Liberties Union of New Jersey (ACLU) applied directly to the Court for
relief relating to the spread of the virus in both settings. They essentially asked the
Judiciary to order a framework for the early release of several groups. Under the
proposed framework, judges or court-appointed special masters would decide whether to
grant release or a furlough in individual cases.

Two days after the Public Defender and ACLU wrote to the Court, the Governor
issued Executive Order 124. The Order created a mechanism to identify inmates in state
prison to be considered for parole or a medical furlough. It provides two tracks for
review, directing the Parole Board to expedite its consideration of inmates for parole and
the Commissioner of the Department of Corrections (DOC) to decide whether to grant a
medical furlough -- an “emergency medical temporary home confinement.” As of May
26, 2020, 607 inmates had been approved for home confinement or parole, and 337 had
been released. By June 1, 2020, an additional 70 had been released.

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 Commissioner that
notified them of the outcome but did not set forth any reasons. Inmates denied parole
have an avenue for appeal; inmates denied a medical furlough under the Executive Order
do not.

The decision whether to grant parole or to furlough an inmate rests largely with
the Executive Branch. Although a court rule authorizes judges to amend a sentence and
release an individual defendant because of illness or infirmity, R. 3:21-10(b)(2), neither
the rule nor the other sources raised provide authority for the courts to establish and
1
oversee a broad-based program to release or furlough inmates in state prison. The Court
therefore respectfully declines to grant the relief requested by the Public Defender and
the ACLU.

As to the two tracks the Executive Order created to consider inmates for release,
the Parole Board has been considering inmates in a manner consistent with existing
practices. That includes various due process protections that attach to the parole process.
Through a different process, the Commissioner, with help from the Review Committee,
has been addressing medical furloughs.

HELD: Executive Order 124 creates a sufficient expectation of eligibility for release
through a furlough program to call for certain due process protections. The Court adds to
the Executive Order the protections summarized on pages 6 to 7 and detailed on pages 33
to 36 of the opinion to comport with due process. The Court also notes that inmates may
challenge the DOC’s action, a final agency decision, by seeking review before the
Appellate Division. The agency’s decision is entitled to deference on appeal. Individual
inmates may also seek relief independently under Rule 3:21-10(b)(2). They do not have
to exhaust the remedies available under the Executive Order before they may file a
motion in court. As to sentences imposed on juveniles who are in the custody of the
Juvenile Justice Commission (JJC), those individuals may seek relief from the court on
an individual basis. To the extent the opinion calls for trial judges to rule on motions and
the Appellate Division to review agency decisions, the Court exercises its supervisory
authority to require that applications be heard and decided in a matter of days and urges
the Commissioner and the Parole Board to act as expeditiously as possible.

Section I of the Court’s opinion discusses the requested Order to Show Cause,
which was proposed by the Public Defender and the ACLU. (pp. 8-10) The opinion next
discusses Executive Order 124. (pp. 10-14) One month after the Order was issued, the
Commissioner approved an Internal Management Procedure (IMP) to implement the
Order. The Court reviews the IMP, notes measures DOC has adopted in correctional
facilities to protect inmates and staff from COVID-19, and cites results from the
Executive Order as reported by the Attorney General. (pp. 14-17)

Section II of the opinion considers the relief the Public Defender and ACLU seek
relating to state prison inmates. The Court notes that the Executive Branch, and not the
Judiciary, has primary control over the custody and care of adult inmates, the parole
process, and inmate furloughs. (p. 18) The Court considers the sources that the Public
Defender and ACLU have identified as conferring authority for the courts to act and finds
no basis for a broad-based judicial furlough process in either State v. Boone, 262 N.J.
Super. 220 (Law Div. 1992), or in Rule 3:21-10(b)(2). (pp. 19-21) Although the Court
finds no source of authority for the Judiciary to direct a broader furlough program in the
Rule, however, the Court notes that the Rule empowers individual inmates to apply for
release from jail based on their physical condition. (p. 21) The Court agrees with the
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Public Defender, ACLU, and Attorney General that inmates are not required to exhaust
the administrative process under Executive Order 124 before they can apply for relief
under Rule 3:21-10(b)(2). (pp. 21-22) The Court finds that Rule 3:21-10(b)(2) gives all
inmates an opportunity to seek direct relief in court and requires an expedited briefing
schedule for such motions, a return date within five days of filing, and a decision within
the next three days. (p. 23) The Court declines to grant the relief requested and notes no Eighth Amendment challenge was raised. (pp. 23-24)

Section III of the Court’s opinion considers the 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. (pp. 24-
25) The Court disagrees and instead looks for guidance from the body of law relating to
parole. (p. 26) Reviewing relevant case law, the Court explains 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. (pp. 26-28) In State Parole Board v. Byrne, 93 N.J. 192, 203
(1983), the 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. (pp. 28-29) The Court examines the language of
Executive Order 124 and finds that it creates a liberty interest in the furlough decision for
the inmates it covers and that those inmates are therefore entitled to some measure of
constitutional protection. (pp. 29-31)

Section IV of the opinion addresses what process is due under the circumstances.
After performing the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 335
(1976), the Court concludes that an adversarial hearing with counsel and a detailed
statement of reasons is not required. (pp. 31-33) Instead, as in Byrne, the Court requires
notice, an opportunity to be heard and respond, and a written statement of reasons. (p.
33) On pages 33 to 36, the Court describes those requirements in detail. The Court then
notes that the agency’s decision is subject to appellate review under a deferential
standard, and sets forth an expedited timeframe for Appellate Division proceedings. (pp.
36-38) The Court declines to compel the Commissioner or the Parole Board to act within
a defined number of days, noting that the record does not demonstrate that the agency has
neglected to implement the Executive Order. (pp. 38-40) The Court urges both the
Commissioner and the Board to act expeditiously, orders some specific measures going
forward, and strongly encourages them to publish and regularly update relevant data.
(pp. 41-42)

Section V considers the relief requested as to juveniles under the custody of the
JJC. The Judiciary retains jurisdiction over the disposition of juvenile matters, and courts
can change or modify an order of disposition at any time. (pp. 42-43) The Court reviews
the impact of the coronavirus on JJC facilities and notes that youths in JJC custody can
apply to the court and ask for their disposition to be modified. (pp. 43-44) The Court
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provides guidance for such proceedings and requires an expedited schedule. (pp. 42-44)
The Court does not address the request that all custodial terms on certain juveniles be
modified to “time served” because that argument was advanced exclusively by an amicus
curiae. (p. 45)

The Court concludes that the arguments raised do not provide a basis for the
requested relief and recognizes the role the other branches of government have. 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 matter is remanded to the DOC for further proceedings.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.

4
SUPREME COURT OF NEW JERSEY
M-1
093 September Term 2019
084412

In the Matter of the Request to
Modify Prison Sentences, Expedite
Parole Hearings, and Identify
Vulnerable Prisoners

On an Order to Show Cause to Address the Release
of Certain Individuals Serving Sentences in State
Prisons and Juvenile Facilities.

Argued Decided
May 27, 2020 June 5, 2020

Joseph E. Krakora, Public Defender, argued the cause for
the Office of the Public Defender (Joseph E. Krakora,
Public Defender, attorney; Joseph E. Krakora, Joseph J.
Russo, Assistant Public Defender, Alison Perrone, First
Assistant Deputy Public Defender, and Laura B. Lasota,
Assistant Deputy Public Defender, on the briefs).

Alexander Shalom argued the cause for the American
Civil Liberties Union of New Jersey (American Civil
Liberties Union of New Jersey Foundation, attorneys;
Alexander Shalom and Jeanne LoCicero, on the briefs).

Laura Cohen argued the cause for amicus curiae Rutgers
Criminal and Youth Justice Clinic (Rutgers Criminal and
Youth Justice Clinic, attorneys; Laura Cohen, Elana Wilf,
and Tyler Dougherty, on the brief).

Stephanie J. Cohen, Assistant Attorney General, argued
the cause for the Office of the Attorney General, the
Department of Corrections, and the State Parole Board
(Gurbir S. Grewal, Attorney General, attorney; Stephanie

1
J. Cohen, Kai W. Marshall-Otto, Deputy Attorney
General, Tim Sheehan, Deputy Attorney General, and
Michael T. Moran, Deputy Attorney General, on the
briefs).

Joseph Paravecchia, Assistant Mercer County Prosecutor,
argued the cause for the County Prosecutors Association
of New Jersey (Angelo J. Onofri, President, County
Prosecutors Association, attorney; Joseph Paravecchia,
Laura Sunyak, Assistant Mercer County Prosecutor, John
McNamara, Jr., Chief Assistant Morris County
Prosecutor, Jeffrey L. Weinstein, Assistant Hunterdon
County Prosecutor, Jaimee M. Chasmer, Assistant Bergen
County Prosecutor, and Frank J. Ducoat, Assistant Essex
County Prosecutor, on the brief).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

The COVID-19 pandemic has presented many serious challenges. We

now consider issues relating to the impact of the coronavirus on individuals in

state prison and juvenile facilities.

As of June 1, 2020, out of a total population of 15,302 inmates in state

prison, 1720 had tested positive for the virus, about 192 had been hospitalized,

and 46 had died. Up to 737 out of 8008 staff members had also tested positive.

Although no residents under the custody of the Juvenile Justice Commission

2
have died, 28 residents out of a total population of 274 had tested positive. 1

Those statistics speak for themselves and reveal how critical the situation is.

The Office of the Public Defender and the American Civil Liberties

Union of New Jersey (ACLU) applied directly to the Court for relief relating

to the spread of the virus in both settings. They essentially asked the Judiciary

to order a framework for the early release of several groups: 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. Under the proposed framework, judges or court-appointed special

masters would decide whether to grant release or a furlough in individual cases

after considering any objections.

On April 10, 2020, two days after the Public Defender and ACLU wrote

to the Court, the Governor issued Executive Order 124. The Order created a

mechanism to identify inmates in state prison to be considered for parole or a

medical furlough: inmates who are at least sixty years old; who possess an

underlying medical condition that increases their risk of death or serious injury

from COVID-19; who were denied parole within the last year; whose sentence

1
Unless otherwise noted, the Attorney General provided the statistics that
appear in this opinion in the form of certifications from officials at the
Department of Corrections, the State Parole Board, and the Juvenile Justice
Commission.
3
will end within ninety days; or who will be eligible for parole within ninety

days.

The Executive Order provides two tracks for review. It directs the

Parole Board to expedite its consideration of inmates for parole. It also directs

the Commissioner of the Department of Corrections (DOC) to decide whether

to grant a medical furlough -- an “emergency medical temporary home

confinement” -- if he “is satisfied that the proposed conditions of confinement

appropriately safeguard the health and safety of the inmate, the general public,

and any victims of the inmate’s offense.” In making that decision, the

Commissioner must consider recommendations prepared by the newly created

Emergency Medical Review Committee (Review Committee). Its

recommendations include the views of the prosecutor and the victim or next of

kin in each case, but not the position of the inmate.

Pursuant to the Executive Order, 3050 inmates were identified for

consideration. Hundreds of them declined to be considered, which reduced the

total number to 2500. As of May 26, 2020, 607 inmates had been approved for

home confinement or parole, and 337 had been released. By June 1, 2020, an

additional 70 had been released.

Consistent with existing law, the Parole Board provided inmates with an

individualized statement of reasons for cases in which it denied parole.

4
Inmates denied a medical furlough received a two-sentence form letter from

the Commissioner that notified them of the outcome but did not set forth any

reasons. Inmates denied parole have an avenue for appeal; inmates denied a

medical furlough under the Executive Order do not.

The decision whether to grant parole or to furlough an inmate rests

largely with the Executive Branch. The Legislature empowered the Parole

Board to make decisions about parole, see N.J.S.A. 30:4-123.45 to -123.76,

and gave the Commissioner authority to decide whether to furlough inmates,

see N.J.S.A. 30:4-91.3. Although a court rule authorizes judges to amend a

sentence and release an individual defendant because of illness or infirmity, R.

3:21-10(b)(2), 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. We therefore respectfully decline to grant the

relief requested by the Public Defender and the ACLU.

As to the two tracks the Executive Order created to consider inmates for

release, the Parole Board has been considering inmates in a manner consistent

with existing practices. That includes various due process protections that

attach to the parole process. Through a different process, the Commissioner,

with help from the Review Committee, has been addressing medical furloughs.

In that regard, the Governor’s Order created a commendable path for the

5
emergency release of certain inmates from prison during this time of crisis,

with safeguards in place to protect the public. Inmates will be confined at

home subject to various restrictions.

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. See Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1, 12 (1979); State Parole Bd. v. Byrne, 93 N.J. 192, 203

(1983). At a minimum, due process requires notice and an opportunity to be

heard. Doe v. Poritz, 142 N.J. 1, 106 (1995). We add the following

protections to the Executive Order to comport with due process:

(1) inmates are to be afforded an opportunity to present a written

statement in support of their request to be furloughed in the same way that

prosecutors and victims are allowed to express their views. Inmates may

proceed on their own or with the help of volunteer lawyers. The Public

Defender’s Office has volunteered its assistance and should be provided with

the lists of eligible inmates generated under the Order, under seal, subject to a

protective order;

(2) the Commissioner is to provide a statement of reasons to inmates

who are denied a medical furlough to help guard against mistakes and arbitrary

decisionmaking and allow for meaningful judicial review if it is sought; and

6
(3) inmates are to be given an opportunity to respond in order to try to

satisfy the Commissioner’s concerns and cure any mistakes. The

Commissioner shall consider each response before issuing a final decision.

Inmates may challenge the DOC’s action, a final agency decision, by

seeking review before the Appellate Division. See Acoli v. State Parole Bd.,

224 N.J. 213, 222-23 (2016); R. 2:2-3(a)(2). The agency’s decision is entitled

to deference on appeal. In re State & Sch. Emps.’ Health Benefits Comm’ns’

Implementation of Yucht, 233 N.J. 267, 279 (2018).

Individual inmates may also seek relief independently under Rule 3:21-

10(b)(2). They do not have to exhaust the remedies available under the

Executive Order before they may file a motion in court.

As to sentences imposed on juveniles who are in the custody of the JJC,

the Judiciary retains jurisdiction over their cases and has the authority to

modify dispositions. N.J.S.A. 2A:4A-43, -45. Those individuals may seek

relief from the court on an individual basis. Among other relevant factors,

courts are to consider the ongoing COVID-19 crisis and its impact on the

individual’s health condition.

We add an overriding concern. Because of the risks COVID-19 poses,

which are amplified in jail settings, each day matters. To the extent this

opinion calls for trial judges to rule on motions and the Appellate Division to

7
review agency decisions, we exercise the Court’s supervisory authority to

require that applications be heard and decided in a matter of days. For the

same reason, we urge the Commissioner and the Parole Board to act as

expeditiously as possible. The Executive Order itself calls for an expedited

process; the additional measures imposed, which are not inconsistent with the

Order’s purpose, should not extend the time for review in a notable way. We

urge that the entire process -- review for approval and release -- be carried out

carefully and expeditiously because the stakes are so high.

On March 19, 2020, the Public Defender brought an application before

this Court for an Order to Show Cause. He sought to commute or suspend

certain county jail sentences as a result of the crisis COVID-19 has created.

The Court directed the parties -- the Public Defender, ACLU, Attorney

General, and County Prosecutors Association -- to engage in mediation before

the Honorable Philip S. Carchman, retired Presiding Judge of the Appellate

Division and Acting Director of the Administrative Office of the Courts. They

promptly reached an agreement. On March 22, 2020, the Court entered a

consent order that led to the release of nearly 700 inmates in about a week.

8
On April 8, 2020, the Public Defender and the ACLU wrote to this Court

and proposed a second Order to Show Cause. The proposed Order sought the

release of all defendants serving a sentence in state prison or in the custody of

the Juvenile Justice Commission (JJC) with a maximum release date within the

next 12 months. The parties asked the Court to modify those sentences

pursuant to Rule 3:21-10(b)(2). Defendants convicted or adjudicated of

violent crimes subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, other

than second-degree robbery and second-degree burglary, were to be excluded.

Under the proposed Order, the County Prosecutor or Attorney General

could file written objections to the early release of a defendant. Any

objections would be addressed by judges or court-appointed special masters,

who were to presume that sentences should be modified unless they found that

public safety concerns overcame the presumption. Finally, in cases that

involved domestic violence or other crimes with a known victim, victims

would receive notice of an inmate’s early release.

The proposed Order also asked the Court to direct the State Parole Board

to “[e]xpedite consideration of parole-eligible defendants who are older than

60 or at particularly high risk of death from COVID-19 as a result of other

health concerns.” Defendants denied parole within the last year would have

their cases reconsidered in light of the pandemic.

9
Next, the proposed Order called for the DOC to identify for the Court

and counsel a list of defendants “particularly vulnerable to COVID-19 as a

result of age or health condition.” That list would exclude defendants

convicted of a crime pursuant to N.J.S.A. 2C:11-3 (murder), 2C:11-4

(manslaughter), 2C:14-2 (sexual assault), 2C:15-1 (robbery), 2C:13-1

(kidnapping), or 2C:12-1(b) (aggravated assault). If neither the County

Prosecutor nor the Attorney General filed an objection, the DOC would grant

eligible defendants a medical furlough. If the DOC did not grant a furlough,

this Court was asked to modify defendants’ sentences to allow for their

immediate release, pursuant to Rule 3:21-10(b)(2). Once again, judges or

special masters would resolve any objections, and notice would be provided to

victims.

On April 8, 2020, the Court responded by letter to the four parties to the

Consent Order and the agency heads of the DOC, Parole Board, and JJC. The

Court did not grant the application at the time and made Judge Carchman

available to mediate.

Two days later, on April 10, 2020, Governor Philip D. Murphy issued

Executive Order 124, pursuant to the Civilian Defense and Disaster Control

10
Act, N.J.S.A. App. A:9-30 to -63, and the Emergency Health Powers Act,

N.J.S.A. 26:13-1 to -31.

The Executive Order highlights various safety and health issues

presented by the COVID-19 pandemic. For example, the Order cites guidance

from the Centers for Disease Control and Prevention to practice social

distancing and avoid mass gatherings; acknowledges that certain individuals in

DOC custody may face a higher risk of death if they contract COVID-19

because of their age or underlying medical conditions; and notes that “DOC

has finite capacity within its facilities to provide medical care to inmates who

contract COVID-19.” Because of the challenges of maintaining social

distancing measures in jails, the Executive Order also acknowledges that “it

may be necessary to take certain emergency steps in order to temporarily

remove [vulnerable] individuals from congregate custody.”

To address those health and safety concerns, the Executive Order

directed DOC to “expeditiously identify” four categories of inmates for

referral to the Parole Board and the Review Committee: inmates who are age

60 or older and possess underlying medical conditions that increase the risk of

death or serious injury from COVID-19 (List 1); inmates who are either age 60

or older or possess underlying medical conditions that increase the risk of

death or serious injury from COVID-19 (List 2); inmates denied parole in the

11
past year who are not on Lists 1 or 2 (List 3); and inmates serving a sentence

with either a maximum release or parole eligibility date within 90 days, who

are not on Lists 1, 2, or 3 (List 4).

DOC’s Chief of Staff certified to the Court that a maximum 90-day

release date was preferable to a one-year period because inmates reaching their

maximum sentence within a year “would be most in need of robust reentry

planning before release,” which is “more likely to be considerably further

along” three months out.

Inmates not allowed to participate in a furlough program under N.J.S.A.

30:4-91.3(b) or serving a sentence for an offense subject to the No Early

Release Act cannot be included on the lists. Both exclusions apply to

defendants convicted of more serious offenses.

The Order directed DOC to submit supplemental lists, at least once a

week, that included any additional inmates “DOC subsequently concludes face

a heightened risk of death or serious injury from COVID-19 based on their age

and/or underlying medical conditions.”

When compiled, the four lists included 3050 inmates: 55 on List 1; 1051

on List 2; 921 on List 3; and 1023 on List 4. Some inmates on the lists either

declined to be considered for a medical furlough or were otherwise released.

12
As a result, 2500 inmates remained on the lists for DOC to consider: 51, 927,

809, and 713 inmates, respectively.

The Executive Order directed DOC to produce the lists immediately to

the Division of Criminal Justice and the County Prosecutors. The prosecutors

had five days to (1) notify any victims or next of kin about the possibility of an

inmate’s release, and (2) submit the views of the prosecutor and any victims or

next of kin about the possibility of release to the Parole Board and the Review

Committee. The Executive Order contains no provision for inmates to submit

their views.

The Order also required DOC to promptly produce all lists to the Parole

Board and the Review Committee. From that point, the Order provides two

tracks for review. The Parole Board “shall expedite consideration of . . .

inmates for parole” and can conduct hearings telephonically or by video

conference. Priority is given to inmates on List 1, followed by Lists 2, 3, and

At the same time, the DOC Commissioner must decide whether to grant

inmates “emergency medical home confinement” -- a medical furlough. In

doing so, he considers recommendations from the Review Committee

established by the Executive Order.

13
The Review Committee has seven days to prepare a recommendation

once it receives a list. Among other things, its recommendation includes the

views of the prosecutor and any victim or next of kin, identifies a community

sponsor and supervision plan, proposes conditions on home confinement and

restrictions for travel outside the home, and verifies the availability of

appropriate housing and medical and social services.

The Commissioner has three days to act on the recommendation. The

Executive Order states, “[t]he Commissioner shall not authorize temporary

home confinement for an inmate unless the Commissioner is satisfied that the

proposed conditions of confinement appropriately safeguard the health and

safety of the inmate, the general public, and any victims of the inmate’s

offense.”

Before an inmate is released, DOC is required to issue the inmate a

temporary photo identification and help the inmate complete and submit

applications for services and benefits.

One month after the Executive Order was issued, the Commissioner

approved an Internal Management Procedure (IMP) to implement the order.

As part of the IMP, each inmate identified on a list is interviewed. Inmates

who want to be considered for a medical furlough then fill out an application

14
that has a place for the inmate’s name, age, medications, the address and phone

numbers for the house where the inmate proposes to live, and the inmate’s

relationship to that site. The form also asks whether the community sponsor

has agreed (a) to allow the inmate to reside there during the furlough and (b) to

provide transportation to and from jail. The application has no space for

inmates to express their views or advocate for their release.

At the same time, DOC collects various documents relating to the

inmates’ offense, psychological evaluations, and progress notes. The agency

also reviews files for active investigations and any intelligence reports.

Under the IMP, parole officers visit the proposed home and interview

household members to evaluate whether it is suitable for a furlough. Among

other factors, they consider whether a co-defendant or victim resides in the

home and whether anyone there has tested positive for COVID-19.

Inmates who are released are subject to electronic monitoring and have

to wear a monitoring bracelet. They must also call into DOC twice a day.

To be released, approved inmates must be tested for COVID-19 and

must test negative.

The Attorney General describes various measures DOC has adopted in

correctional facilities to protect inmates and staff from COVID-19. Key to its

15
efforts, DOC represents that it will test all inmates. On May 28, 2020, DOC

reported a total of 15,302 inmates; 13,017 had been tested by June 1, 2020.

1720 inmates (13.2 percent) tested positive for COVID-19. Forty-six inmates

have died. The death rate was at its highest in mid to late April, and it

declined in May.

The virus has afflicted DOC staff members as well. On May 26, 2020,

DOC had 8008 staff members. DOC had tested 4274 of them, and 130 tested

positive. Staff members, though, independently reported 607 positive tests.

The Attorney General reports the following results from the Executive

Order as of May 26, 2020: 607 inmates had been approved for home

confinement or parole, and 337 had been released. Approximately 70

additional inmates had been released by June 1, 2020, bringing the total

number released to about 407.

DOC’s Chief of Staff certifies that the agency has completed its review

of all inmates on the lists who requested to be furloughed. 183 had been

placed on home confinement, and 67 had been approved but not yet released

by May 26, 2020. Those not yet released awaited test results, medical

clearance, or housing review, or had not been released for some other reason.

As of June 1, 2020, 25 additional inmates had been furloughed.

16
The Director of Release for the Parole Board certified the following as

of May 26, 2020: the Parole Board had released 174 inmates on parole; 271

had been granted parole or had their prior parole denial vacated, but had not

yet been released; and a total of 2156 inmates “ha[d] been denied parole, had

their prior parole denial affirmed upon reconsideration, ha[d] not yet reached

their parole eligibility date, or ha[d] not yet been considered for parole.”

Gregorio Cert., 5/26/20, ¶ 4. The group of inmates not yet considered totaled

256. 2 As of June 1, 2020, approximately 45 additional inmates had been

released on parole, and 50 more had been awarded parole but not yet released.

There are duplicate names among those considered for parole and

medical furloughs, which accounts for certain discrepancies.

II.

We first consider the relief the Public Defender and ACLU seek relating

to state prison inmates. Because juveniles present different concerns, we

discuss them separately below.

2
It is unclear how many inmates had not yet reached their parole eligibility
date, so we cannot be certain how many of the remaining 1900 inmates had
been denied parole or reconsideration of parole. That number is at least 751.
Gregorio Cert., 5/19/20, ¶ 41(f).
17
A.

The Executive Branch, and not the Judiciary, has primary control over

the custody and care of adult inmates, the parole process, and inmate

furloughs.

The Legislature established the Department of Corrections “to provide

for the custody, care, discipline, training and treatment of adult offenders” in

state prison or on parole. N.J.S.A. 30:1B-3. The Department is a part of the

Executive Branch. See N.J.S.A. 30:1B-4.

The DOC Commissioner has statutory authority to furlough inmates for

medical reasons. N.J.S.A. 30:4-91.3(a). The State Parole Board, a division of

the DOC, oversees the parole process. N.J.S.A. 30:4-123.47(a), -123.48.

Consistent with that statutory authority, Executive Order 124 directs the

Parole Board to consider eligible inmates for parole on an expedited basis, and

the Commissioner to consider them promptly for a medical furlough. That

process has been underway since April.

Despite their differences, there is a fair amount of overlap between the

relief the Public Defender and the ACLU request and the mechanism the

Governor set in motion. The approaches also differ in key ways -- for

example, whether inmates with ninety days or one year left on their sentence

18
should be considered for release, and whether executive branch agencies or the

courts should decide who will be released.

The Public Defender and ACLU identify State v. Boone, 262 N.J. Super.
220 (Law Div. 1992), and Rule 3:21-10(b)(2) as sources of authority for the

courts to act. We consider each in turn.

The Law Division’s decision in Boone does not afford a basis for a

broad-based judicial furlough process. Boone involved an extraordinary

situation that the Commissioner brought to the court’s attention: an inmate

with a rare and potentially dangerous condition needed to be examined quickly

for possible aortic replacement surgery, which could be performed only at a

hospital in Texas. 262 N.J. Super. at 222. The Commissioner had no statutory

authority to grant a furlough outside of New Jersey, so he asked the court to

intervene. Ibid. The trial judge relied on the court’s “inherent authority to act

to preserve life” and “granted a judicial furlough.” Id. at 223. At the same

time, the court noted “this power should be sparingly utilized in the very rarest

of cases.” Id. at 224.

The trial judge went out of his way to commend the Commissioner for

coming to court to seek relief under the circumstances. Id. at 224 n.1. The

19
Law Division’s decision cannot be read as a basis for courts to order and

oversee a wide-ranging furlough program in place of the Commissioner.

Rule 3:21-10(b)(2) likewise does not give the Judiciary broad authority

to oversee a furlough program. The Rule provides that “[a] motion may be

filed and an order may be entered at any time . . . amending a custodial

sentence to permit the release of a defendant because of illness or infirmity of

the defendant.”

Courts apply a balancing test to determine whether this “extraordinary

relief” should be granted. State v. Priester, 99 N.J. 123, 135 (1985). Among

other factors, courts consider “the serious nature of the defendant’s illness and

the deleterious effect of incarceration on the prisoner’s health”; “the

availability of medical services in prison”; “the nature and severity of the

crime, the severity of the sentence, the criminal record of the defendant, [and]

the risk to the public if the defendant is released.” Id. at 135-37. An inmate

must also show “that a change of circumstances” has occurred. Id. at 136.

The first two factors -- the nature of the inmate’s illness and the effect of

continued incarceration on his health -- are “[t]he predicate for relief.” Id. at

135. To prevail on a motion, inmates must therefore present evidence of both

an “illness or infirmity” -- a physical ailment or weakness -- and the increased

20
risk of harm incarceration poses to that condition. A generalized fear of

contracting an illness is not enough.

We find that the worldwide pandemic that has afflicted New Jersey and

its prison system amounts to a change in circumstances under the Rule. See

Comm. for Pub. Counsel Servs. v. Chief Justice of the Trial Court, 142 N.E.3d 525, 533 (Mass. 2020) (noting the Supreme Court of Washington declared that

the “pandemic shall be presumed to be a 'material change in circumstances’

for the purpose[] of . . . motions for bail review”).

The language of the Rule empowers individual inmates to apply for

release from jail based on their physical condition. The Rule, however, is not

a source of authority for the Judiciary to direct a broader furlough program.

We agree with the Public Defender, ACLU, and Attorney General that

inmates are not required to exhaust the administrative process under Executive

Order 124 before they can apply for relief under Rule 3:21-10(b)(2). The

principle that litigants must first exhaust administrative remedies is “designed

to allow administrative bodies to perform their statutory functions in an

orderly manner without preliminary interference from the courts.”

Griepenburg v. Township of Ocean, 220 N.J. 239, 261 (2015) (quoting

Brunetti v. Borough of New Milford, 68 N.J. 576, 588 (1975)). Although there

is “a strong presumption favoring the” doctrine, it is not an absolute

21
requirement. Ibid. (quoting Brunetti, 68 N.J. at 588); see also Abbott v. Burke,

100 N.J. 269, 297 (1985) (“the preference for exhaustion of administrative

remedies is one 'of convenience, not an indispensable pre-condition,’” except

for certain situations (quoting Swede v. City of Clifton, 22 N.J. 303, 315

(1956))).

Among other exceptions, see Griepenburg, 220 N.J. at 261, the

exhaustion doctrine “will be waived where the 'interest of justice so

requires.’” Brunetti, 68 N.J. at 589 (quoting Ward v. Keenan, 3 N.J. 298, 308

(1949)); see also R. 4:69-5 (“Except where it is manifest that the interest of

justice requires otherwise, actions under R. 4:69 shall not be maintainable as

long as there is available a right of review before an administrative agency

which has not been exhausted.” (emphasis added)).

Executive Order 124 does not cover all state prison inmates. 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. Given the spread of COVID-19 in jail, it would

not serve the public interest to require a seriously ill inmate with fewer than

ninety days left on his sentence -- who is covered by the Order -- to have to

wait until DOC review is completed before he can apply to the court.

22
We find that Rule 3:21-10(b)(2) gives all inmates an opportunity to seek

direct relief in court. Because of the urgent nature of the ongoing crisis, we

direct that motions brought by individual inmates under Rule 3:21-10(b)(2) be

resolved in an expedited manner. We exercise the Court’s supervisory power

over the administration of the court system to require an expedited briefing

schedule for such motions, a return date within five days of filing, and a

decision within the next three days. See N.J. Const. art. VI, § 2, ¶ 3.

Because the bases the Public Defender and the ACLU rely on do not

support the relief requested, we respectfully decline to grant it. 3 We note that

3
In response to an earlier application of the Public Defender and the ACLU,
the Court entered a consent order designed to reduce the county jail
population, under certain conditions, to mitigate the risks from the spread of
COVID-19. In re Request to Commute or Suspend County Jail Sentences, ___
N.J. ___, ___ (2020), available at https://njcourts.gov/notices/2020/
n200323a.pdf. The order led to the prompt release of nearly 700 inmates.

The Court acted after the Attorney General, County Prosecutors
Association, Public Defender, and ACLU engaged in mediation and agreed to
a thoughtful plan that addressed inmates serving county jail sentences as a
condition of probation or as a result of a municipal court conviction. In
general, the underlying offenses in those cases were not as serious as the
charges for which inmates in state prison have been convicted.

Part of the consent agreement called for judges to resolve objections to
release in individual cases. Unlike in this matter, the Executive voiced no
concerns about separation of powers. See N.J. Const. art III, ¶ 1. Just the
opposite, the Executive Branch responsibly asked the Judiciary to step in and
resolve disputes between prosecutors and defendants in particular cases -- a
23
no challenge has been leveled under the Eighth Amendment. The Eighth

Amendment’s prohibition against cruel and unusual punishment imposes a

duty on prison officials to “provide humane conditions” and “'take reasonable

measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27

(1984)). A prison official violates the Eighth Amendment if an alleged

deprivation is “sufficiently serious,” when viewed objectively, and the official

acted with a “sufficiently culpable state of mind” like “deliberate

indifference.” Id. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 297, 298,

302-03 (1991)).

Here, we are not faced with an Eighth Amendment challenge. The

Governor has issued a comprehensive order to which we now turn.

III.

The Attorney General argues that “the furlough review is an

administrative classification process” and is therefore not subject to due

process. In advancing that argument, the State contends that the decision

whether an inmate can serve part of his sentence at home is much like a

common role for the courts. Had the parties made a similar request here, the
Judiciary would have been faced with a very different situation at this time of
crisis.
24
decision to transfer an inmate from one prison to another. In both instances,

the inmate remains in the custody of the DOC.

Because inmates do not have a protected liberty interest in their

“housing assignment” or custody status, the State submits, no additio nal due

process is required. For support, the State relies on Szemple v. Department of

Corrections, 384 N.J. Super. 245, 249 (App. Div. 2006) (prisoners do not have

“a liberty interest” under the due process clause in “remaining free from

transfer to more restricted facilities”); Moore v. Department of Corrections,

335 N.J. Super. 103, 109 (App. Div. 2000) (change in inmate’s custody status

from minimum to medium “did not trigger due process safeguards ”); and

Shabazz v. Department of Corrections, 385 N.J. Super. 117, 124 (App. Div.

2006) (inmate transferred from halfway house to jail “did not have a

constitutionally protected interest in his initial placement”), among other

decisions. The State also cites Sandin v. Conner, 515 U.S. 472, 486 (1995), in

which the Supreme Court concluded that placement of an inmate in

disciplinary segregation did not create a protected liberty interest. The Court

observed that due process safeguards are “generally limited to freedom from

restraint” which “imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Id. at 484.

25
We disagree with the proposition at the core of the above argument: that

releasing an inmate from jail and allowing him to remain at home during a

pandemic is like a transfer to a different jail or a change in an inmate’s custody

status. The argument overlooks the reality of what the Executive Order

achieves: inmates are released from jail and sent home, where they are subject

to confinement and other restrictions.

We instead look for guidance from the body of law relating to parole, a

process through which inmates are also released from jail and are subject to

restrictions and supervision. See Morrissey v. Brewer, 408 U.S. 471, 482

(1972); N.J.S.A. 30:4-123.45 to -123.76. Although not a perfect match --

particularly because furloughed inmates are confined to home and not free to

go about -- parole is a more apt analogy than the transfer of an inmate between

prisons.

Inmates have no constitutional right to parole. Greenholtz, 442 U.S. at
7; Byrne, 93 N.J. at 208; In re Parole Application of Trantino, 89 N.J. 347, 363

n.5 (1982). And the due process clause is not implicated “simply because the

state provides for the possibility of parole.” Trantino, 89 N.J. at 363 n.5; see

also Greenholtz, 442 U.S. at 11. But a protected liberty interest can

nonetheless arise in the parole context. See Byrne, 93 N.J. at 202.

26
As the Supreme Court explained in Morrissey, courts examine the

weight and nature of an individual’s liberty interest to determine if it is within

the contemplation of the Fourteenth Amendment’s due process clause. 408 U.S. at 481. With that in mind, the Court considered whether due process

requirements applied to the revocation of parole. The Court noted that

parolees rely “on at least an implicit promise that parole will be revoked only

if [they] fail[] to live up to the parole conditions.” Id. at 482. The Court

concluded that the valuable nature of the liberty interest and the grievous loss

termination inflicts on parolees “call[] for some orderly process” under the
Fourteenth Amendment. Ibid.

The same type of analysis applies to revocation of probation, see

Gagnon v. Scarpelli, 411 U.S. 778 (1973), and forfeiture of good-time credits

for serious misbehavior, Wolff v. McDonnell, 418 U.S. 539 (1974); see also

Jamgochian v. State Parole Bd., 196 N.J. 222, 241 (2008). Because the State

grants a prisoner or probationer a liberty interest in those contexts, the interest

is protected by the due process clause.

Parole revocation is, of course, different from a decision not to release a

prisoner on parole. Greenholtz, 442 U.S. at 9. One deprives a person of

liberty, and the other denies the individual the “conditional liberty [he]

desires.” Ibid. The decision in Greenholtz, which this Court followed in

27
Byrne, identified the standard to determine when eligibility for parole under

state law creates a protectible liberty interest: whether a state statute creates a

legitimate or sufficient expectation of eligibility for parole. Greenholtz, 442 U.S. at 12; Byrne, 93 N.J. at 203; see also Vitek v. Jones, 445 U.S. 480, 489

(1980).

In Greenholtz, the Supreme Court found that Nebraska’s parole statue

“create[d] a protectible expectation of parole” by directing that the Parole

Board “shall order [an eligible offender’s] release unless” the Board finds

certain facts. 442 U.S. at 11-12. Even though inmates had no right to parole

under the statute, because the law’s structure and language created “the

expectancy of release,” inmates were entitled to due process protections. Id. at

12.

Similarly, in Byrne, this 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.’” 93 N.J. at 203 (alterations in original) (quoting Vitek, 445 U.S. at
489). The Court’s analysis focused on two parts of the Parole Act:

(1) N.J.S.A. 30:4-123.51(j), which outlined when inmates “shall become

primarily eligible for parole” but also provided they would not be eligible at

that time if the prosecutor or the “court advise[d] the [B]oard that the punitive

28
aspects” of their sentences would “not have been fulfilled”; and (2) N.J.S.A.

30:4-123.53(a) (1983), which stated that inmates “shall be released on parole

at the time of parole eligibility, unless . . . there is a substantial likelihood that

the inmate will commit a crime under the laws of this State if released on

parole at such time.”

This Court observed that the language in N.J.S.A. 30:4-123.53(a) --

“shall be released . . . unless” -- “parallel[ed] the language that the Greenholtz

Court found created a protected expectation in that case.” 93 N.J. at 206. As a

result, this Court concluded the Parole Act “creates a legitimate expectation of

parole eligibility.” Ibid. By doing so, the Act created “a liberty interest in

parole” that invokes due process protections. Ibid.

“Only a few, basic procedures [were] required” under the circumstances

“to deal with the risks of erroneous or arbitrary determinations”:

notice of the pendency of the parole disposition, a
statement by the objecting judge or prosecutor of the
reasons why the punitive aspects of the sentence have
not been fulfilled, and the opportunity for the prisoner
to respond in writing to that statement of reasons.

[Id. at 211.]

Executive Order 124 provides for an eligible inmate’s emergency release

from prison to home during this health crisis. As is true for pa role, inmates

have no right to release under the Order. We therefore examine the language

29
of the Executive Order to see if it creates a sufficient expectation of eligibility

for release to warrant due process protection.

Paragraph 8 of the Executive Order states the relevant standard:

Within three days of receiving a recommendation from
the Committee, the Commissioner shall decide whether
to grant an emergency medical home confinement
pursuant to his authority under N.J.S.A. 30:4-91.3. The
Commissioner shall not authorize temporary home
confinement for an inmate unless the Commissioner is
satisfied that the proposed conditions of confinement
appropriately safeguard the health and safety of the
inmate, the general public, and any victims of the
inmate’s offense.

[(emphasis added).]

The Attorney General has identified no other considerations relevant to

the Commissioner’s release decision. Therefore, although stated in the

negative, the Executive Order can be fairly read to convey that inmates shall

be eligible for a medical furlough unless the Commissioner finds the stated

conditions are not met. That interpretation is consistent with the aim of the

Governor’s Executive Order as a whole: to release eligible inmates from jail

during the pandemic unless their release would pose health or safety concerns

to the inmate, the public, or any victims.

The Executive Order provides neither a right to release nor a

presumption of release. The Commissioner exercises discretion when he

30
decides whether to grant a medical furlough, just as the Parole Board does

when it considers an inmate for parole. See Acoli, 224 N.J. at 222 (regarding

parole). But, similar to the parole statutes reviewed in Greenholtz and Byrne,

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. Because the Executive

Order creates a liberty interest in the furlough decision for those inmates, they

are “entitled to some measure of constitutional protection.” Greenholtz, 442 U.S. at 12; see also Byrne, 93 N.J. at 206.

IV.

We next consider what process is due under the circumstances.

The requirements of due process are “flexible” and are tailored to what

the particular situation demands. State in Interest of D.G.W., 70 N.J. 488, 502

(1976). To determine the precise protections required in a given case, courts

apply the balancing test set forth in Mathews v. Eldridge and consider three

factors:

First, the private interest that will be affected by the
official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the

31
Government’s interest, including the function involved
and the fiscal and administrative burdens that the
additional or substitute procedural requirement would
entail.

[ 424 U.S. 319, 335 (1976).]

Here, the inmates’ generalized “liberty interest in being free from

physical restraint,” see Byrne, 93 N.J. at 210 (quoting Greenholtz, 442 U.S. at
23 (Marshall, J., dissenting in part)), is heightened by the widespread presence

of COVID-19 in jail. That interest is weighty.

The current procedures also present a real risk that inmates might be

deprived of that interest in error. The Review Committee and DOC have been

tasked with reviewing thousands of individual cases on an expedited basis ,

with minimal input from the inmate. 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. Right now, they are

simply told that they “were considered” for home confinement and, “[a]fter

thorough review, it has been determined that [they] will not be released.”

Any remedy must also take into account the State’s interest here. It is

two-fold: to ensure that inmates fulfill the punitive aspect of their sentence ,

and to comply with the dictates of the Executive Order and process a large

32
number of cases expeditiously -- with the interests of the inmate, the public,

and victims in mind. The burdens of any additional process must be

considered in that context.

Under the circumstances, a full-blown set of procedural protections -- an

adversarial hearing with counsel and a detailed statement of reasons -- is not

required. Byrne offers a better approach: notice, an opportunity to be heard

and respond, and a written statement of reasons. 93 N.J. at 211; see also S.C.

v. Dep’t of Children & Families, ___ N.J. ___, ___ (2020) (slip op. at 33, 43-

44) (holding that the minimal requirements of due process -- “notice and

opportunity to be heard” -- could be satisfied without an adversarial hearing in

the context of an investigatory finding that an allegation of child abuse was

“not established” but stressing that the notice given must set forth the basis of

the finding, rather than rely on a conclusory statement, and that the

opportunity to be heard must not be illusory). Balancing the relevant interests,

we therefore find that the following protections are required to comport with

due process.

First, inmates must be given an opportunity to present a written

statement in support of their release. Inmates are now notified if they are

eligible for emergency medical home confinement. As noted earlier, interested

inmates fill out an application that asks for the following details: name; age;

33
the medications they are on; whether they have an underlying medical

condition; the address and relevant phone numbers for the proposed home

where they would be confined; their relationship to the site; whether the

sponsor has agreed to allow them to reside at the site for the duration of the

furlough; and whether the sponsor has agreed to provide transportation to and

from jail. Aside from a single line to explain any medical condition, there is

no place on the application form for inmates to express why they believe they

should be considered for release. Nor is there another opportunity to do so

during the furlough process.

In the same way that prosecutors and, through them, victims and next of

kin have five days to submit their views in writing to the Parole Board and the

Review Committee, inmates should be given that opportunity in the same time

frame. They can proceed with or without counsel. Because the Public

Defender has volunteered to assist inmates in the process, no right to counsel

issues are implicated here. See Byrne, 93 N.J. at 211.

To enable the Public Defender’s Office to help inmates, DOC shall

provide the Public Defender with copies of all four eligibility lists generated

under the Executive Order, as well as any supplemental ones. The lists shall

be treated as though they are under seal, and the Public Defender may not

34
release them. The Public Defender will need to follow up with inmates to seek

a medical release authorizing access to their medical records.

That process will protect against any potential concerns under the Health

Insurance Portability and Accountability Act of 1996 (HIPPA). See 45 C.F.R.

§ 164.512(e)(1)(i) (allowing for the sharing of protected medical records in

response to a court order under HIPPA).

Second, the Commissioner must provide an individualized statement of

reasons that explains why the inmate was denied a medical furlough. See

Byrne, 93 N.J. at 211. According to the Attorney General, the Parole Board

has provided written statements for all cases in which it denied parole.

Examples provided to the Court contain a list of mitigating factors and a list of

reasons for denial. In each sample in the record, the Parole Board panel

checked some of the more than thirty pre-printed boxes for both lists and also

provided handwritten, particularized explanations about the inmate in the

spaces provided.

A lengthy narrative statement of reasons is not required so long as the

Commissioner provides individualized reasons for each decision. Such a

statement will help guard against mistakes and arbitrary actions. See ibid.

Based on the Parole Board’s experience in implementing the Executive Order,

this additional requirement should not impose a substantial administrative

35
burden on the DOC. We note as well that requiring a statement of reasons is

not inconsistent with the aims of the Executive Order.

Third, as in Byrne, inmates should have an opportunity to respond in

writing to the statement of reasons. In that way, they may be able to cure a

mistake or satisfy a concern of the Commissioner. For example, if the original

sponsor is deemed unsatisfactory, the inmate can propose another; if the

proposed housing is deemed unacceptable because of a factual mistake, the

inmate can clarify the error. The Commissioner must consider the response

before finalizing the agency’s decision. Afterward, the inmate and counsel

must receive prompt notice in writing.

Inmates can then seek to review the Commissioner’s final decision in

court. Final agency action is subject to appellate review, Acoli, 224 N.J. at
222-23; Silviera-Francisco v. Bd. of Educ. of Elizabeth, 224 N.J. 126, 140

(2016), and an inmate can pursue an appeal as of right before the Appellate

Division, R. 2:2-3(a)(2).4

A deferential standard of review applies on appeal. A reviewing court

will not overturn a final agency action unless it is arbitrary, capricious, or

unreasonable. Yucht, 233 N.J. at 279. To apply that standard, courts consider

4
Inmates denied parole can pursue administrative appeals, see Acoli, 224 N.J.
at 223-24 (outlining administrative review process for parole decisions), and
also have the right of appeal to the Appellate Division.
36
“whether the decision conforms with relevant law, whether there is substantial

credible evidence in the record as a whole to support the agency’s decision,

and whether in applying the relevant law to the facts, the agency clearly erred

in reaching its conclusion.” Id. at 280.

Wide discretion is afforded to administrative decisions because of an

agency’s specialized knowledge. See Acoli, 224 N.J. at 222. But “that

discretion is not unbounded and must be exercised in a manner that will

facilitate judicial review.” In re Vey, 124 N.J. 534, 543-44 (1991).

In the context of parole, which is comparable here again, the Board

relies on its expertise to make “highly predictive and individualized

discretionary appraisals” about whether an inmate will violate the conditions

of parole. Beckworth v. State Parole Bd., 62 N.J. 348, 359 (1973); see also

N.J.S.A. 30:4-123.53(a). Nonetheless, the “difficulty in gauging whether a

parole determination constitutes an abuse of discretion” does not call for “a

more exacting standard of judicial review than [what applies] to other

administrative agency decisions.” Trantino v. State Parole Bd., 154 N.J. 19,

25 (1998); see also State Parole Bd. v. Cestari, 224 N.J. Super. 534, 548 n.6

(App. Div. 1988) (“We reject the contention that a more restrictive standard of

judicial review should apply to parole [decisions] than to other administrative

37
agency decisions.”). That applies as well to appellate review of the denial of

an emergency medical furlough under the Order.

Once again, we rely on the Court’s supervisory authority to require the

Appellate Division to address any appeals in an expedited manner. See N.J.

Const. art. VI, § 2, ¶ 3. Parties should be directed to submit briefs within three

days of a notice of appeal, and the court should issue its decision within the

next three days.

We decline to compel the Commissioner or the Parole Board to act

within a defined number of days. But we have done so for areas directly

within the Judiciary’s control because of the urgency of the situation.

The Public Defender and ACLU suggest the Court could have issued a

writ of mandamus had this matter been filed as an action in lieu of prerogative

writs. “A writ of mandamus is an order given by a court to a government

official 'that commands the performance of a specific ministerial act or duty,

or compels the exercise of a discretionary function, but does not seek to

interfere with or control the mode and manner of its exercise or to influence or

direct a particular result.’” In re Resolution of State Comm’n of Investigation,

108 N.J. 35, 45 n.7 (1987) (quoting Switz v. Township of Middletown, 23 N.J.
580, 587 (1957)). “[M]andamus is an appropriate remedy '(1) to compel

38
specific action when the duty is ministerial and wholly free from doubt, and

(2) to compel the exercise of discretion, but not in a specific manner.’” Vas v.

Roberts, 418 N.J. Super. 509, 522 (App. Div. 2011) (quoting Loigman v. Twp.

Comm. of Middletown, 297 N.J. Super. 287, 299 (App. Div. 1997)).

The County Prosecutors Association, in turn, reminds us as a friend of

the court that the “authority to compel agency action is exercised sparingly,

[because] courts are ill-equipped to micromanage an agency’s activities.”

Caporusso v. Dep’t of Health, 434 N.J. Super. 88, 101 (App. Div. 2014). The

Association also points to separation of powers concerns and notes that

“control of policy-making [belongs] to the Governor and Legislature.” Ibid.

In that regard, Executive Order 124 does not prescribe a time frame for the

Commissioner but calls for expedited action. And the timeline for decisions

by the Parole Board is fixed by statute. See N.J.S.A. 30:4-123.55; see also

N.J.A.C. 10A:71-4.2.

“Where an agency violates the express policy of its enabling act by

violating the clear deadline for agency action, the omission is arbitrary and

capricious.” Caporusso, 434 N.J. Super. at 108-09. We recognize as well that

the remedy of mandamus is available when a state agency neglects to perform

a duty imposed by an Executive Order. See Ironbound Health Rights Advisory

Comm’n v. Diamond Shamrock Chem. Co., 216 N.J. Super. 166, 176 (App.

39 Div. 1987); see also In re Resolution, 108 N.J. at 45 n.7 (“Mandamus is a well-

established remedy for 'official inaction.’” (quoting Joseph v. Passaic Hosp.

Ass’n, 26 N.J. 557, 571 (1958), and citing Marbury v. Madison, 5 U.S. (1

Cranch) 137, 169-71 (1803))).

The Public Defender and ACLU take issue with the pace at which

inmates have been released under the Executive Order. When they filed their

brief on May 14, 2020, they noted that only 99 inmates had been released. By

May 26, 2020, the Attorney General reported that 337 had been released and

280 more had been approved for release. As of June 1, 2020, an additional 70

inmates had been released. In addition, the Parole Board has completed its

review and denied parole or reconsideration of parole in at least 751 cases.

Although we agree that time is of the essence here, the record before us

does not demonstrate that the agency has neglected to implement the Executive

Order. Because of the critical nature of the situation, we urge both the DOC

Commissioner and the Parole Board to act expeditiously -- when the

Commissioner decides whether to furlough an inmate and when the Parole

Board makes both its initial decision and a determination in an administrative

appeal. See Acoli, 224 N.J. at 223-24.

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C.

Application of the above principles needs to take into account what has

and has not taken place in the review process up until now.

The Executive Order directs the DOC to generate four lists for each of

the categories described above. They have already been prepared, and a large

number of applications have been processed. In addition, the Executive Order

requires that supplemental lists be prepared on a weekly basis that include

additional inmates who “face a heightened risk of death or serious injury from

COVID-19 based on their age and/or underlying medical conditions.”

For inmates identified on the supplemental lists and others whose

applications are still pending, the due process protections outlined above will

apply to their cases in real time.

Inmates who have already been notified that the DOC did not approve

them for a medical furlough present a different situation. Rather than start the

process anew for them, and delay their review, the Commissioner should

expeditiously prepare a statement of reasons that explains the decision,

consistent with the above guidance. The statements should be served on the

inmate and the Public Defender. Inmates will then be in a position to respond

to concerns in a more focused way and can include more general advocacy in

41
their written response. Afterward, the Commissioner is to finalize his decision

in writing.

As noted earlier, inmates who have been denied parole received a

statement of reasons and have existing avenues to seek administrative and

court review of the Parole Board’s decision. Acoli, 224 N.J. at 222-24; R. 2:2-

3(a)(2). We again urge the Parole Board to proceed promptly in that regard.

Finally, we strongly encourage the DOC and Parole Board to publish and

regularly update data about the number of inmates considered for release, the

number approved for release, and the number actually released under the

Executive Order. Transparency is an asset to any public agency and enhances

public confidence. See Tarus v. Borough of Pine Hill, 189 N.J. 497, 507

(2007).

The Public Defender and the ACLU also seek relief related to custodial

terms imposed on juveniles who are under the custody of the Juvenile Justice

Commission (youths or residents). Specifically, they ask the Court to modify

sentences for those individuals with a maximum release date within the next

twelve months. Rutgers Criminal and Youth Justice Clinic (Rutgers Clinic),

appearing as a friend of the court, seeks additional relief.

42
Courts retain jurisdiction over the disposition of juvenile matters.

N.J.S.A. 2A:4A-45(a). That jurisdiction continues “for the duration of [the]

disposition of commitment or incarceration.” Ibid. Throughout that time, a

judge can “substitute any disposition otherwise available . . . under [N.J.S.A.

2A:4A-43].” Ibid. In short, the Family Division has continuing jurisdiction

over delinquent juveniles and can “change or modify an order of disposition at

any time.” State in Interest of R.M., 141 N.J. 434, 453 (1995) (quoting R.

5:24-6).

To determine the appropriate disposition for a juvenile adjudicated

delinquent, courts weigh multiple factors set forth at N.J.S.A. 2A:4A-43(a),

including “the well-being and physical safety of the juvenile.” Id. at (a)(4).

Judges may then impose incarceration or any of twenty dispositions listed by

statute. State in Interest of C.V., 201 N.J. 281, 295 (2010) (citing N.J.S.A.

2A:4A-43(b)). Although not included in the list, suspended sentences are

permitted “as a necessary, viable disposition.” Ibid.

The JJC population differs markedly from the state’s prison population.

On March 1, 2020, there were 303 residents in JJC custody. On April 21, there

were approximately 275. At that time, JJC began to implement universal

testing and, as of May 28, had tested 274 residents. Twenty-eight residents

tested positive for COVID-19, and none have died from it. By May 19, 257

43
individuals remained in JJC custody. Thirty-six staff members informed the

JJC that they tested positive.

The Acting Executive Director of the JJC has certified to a number of

safety measure at its facilities: daily temperature screening and masks for all

residents; temperature checks and face masks for anyone entering a facility;

enhanced cleaning and sanitizing protocols; reduced person-to-person contact;

and quarantining of residents who test positive, among other steps.

As noted, youths in JJC custody can apply to the court and ask for their

disposition to be modified. When such a motion is filed, judges are to evaluate

the circumstances of each case. They may consider all relevant factors raised

by the parties, including those set forth in N.J.S.A. 2A:4A-43(a) and the

youth’s conduct while in JJC custody. Judges must also consider health

concerns brought on by COVID-19 and their impact on the particular

resident’s health condition.

We again invoke the Court’s supervisory power over the administration

of the court system to require an expedited briefing schedule for such motions,

a return date within five days of filing, and a decision within the next three

days. See N.J. Const. art. VI, § 2, ¶ 3. To the extent residents petition the

Parole Board for review, we again urge the Board to proceed expeditiously.

44
The Rutgers Clinic also asks the Court to address “[a]ll custodial terms

imposed on any juveniles who have been given verified release dates by the

state parole board or whose terms of post-incarceration supervision were

revoked for technical violations” and modify them to “time served.” “[A]s a

general rule, the Court 'does not consider arguments that have not been

asserted by a party, and are raised for the first time by an amicus curiae.’”

State in Interest of A.A., 240 N.J. 341, 359 n.1 (2020) (quoting State v. J.R.,

237 N.J. 393, 421 (2017)); accord Bethlehem Twp. Bd. of Educ. v. Bethlehem

Twp. Educ. Ass’n, 91 N.J. 38, 48-49 (1982). We therefore do not address the

request beyond the guidance for individual hearings outlined above.

VI.

For the reasons set forth in this opinion, we modify and supplement

Executive Order 124 to comport with principles of due process. We have

ordered certain steps to expedite any court proceedings that stem from this

ruling. We urge the DOC and Parole Board to likewise expedite their ongoing

responsibilities under the Order.

We have not granted the full relief the Public Defender and ACLU

sought. The arguments raised do not provide a basis for that relief, and we

recognize the role the other branches of government have. The Executive and

45
Legislative Branches retain the authority to enact policy changes in response to

the spread of COVID-19 in state prisons and juvenile facilities.

The matter is remanded to the DOC for further proceedings consistent

with this opinion.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.

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