(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 Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
[This is a companion case to State v. David Eisenman, A-75-97, also decided today.]
Argued November 17, 1997 -- Decided May 14, 1998
STEIN, J., writing for a unanimous Court.
The primary issue posed by this appeal is whether, in view of the revocation of Black's parole by the
Parole Board, Black's criminal prosecution for absconding from parole is barred by principles of double
jeopardy and fundamental fairness. A collateral issue is whether Black is entitled to jail credit against his
sentence on the absconding conviction for any time in custody.
In February 1991, Black was sentenced to a three-year custodial prison term following a plea of
guilty to drug charges. He was released on parole in July 1992. When Black failed to report to his parole
officer on October 14, 1992, he was classified as an absconder and a parole warrant was issued for his arrest
the next day. Black was indicted for absconding from parole pursuant to N.J.S.A. 2C:29-5b in February 1993.
Black, who had relocated out-of-state, was returned to custody on June 16, 1995. He pled guilty to
the absconding charge in return for the State's agreement to recommend a three-year sentence to be served
concurrently with his original drug sentence. On August 22, 1995, the Parole Board issued a Notice of
Decision revoking Black's parole and ordering him to complete the remaining 337 days of imprisonment on
the drug convictions commencing as of the date of his return to custody.
On October 6, 1995, the Law Division sentenced defendant on the absconding conviction in
accordance with the plea agreement, crediting him with three days against the absconding sentence for time
served. The three days apparently represented time served from June 26, 1995, the date when the bench
warrant for absconding was executed, and June 28, 1995, the date when a parole detainer was filed.
Black appealed, arguing that his criminal prosecution for absconding should be barred by State and
Federal constitutional principles of double jeopardy and by principles of fundamental fairness, because the
revocation of parole punished him for the same conduct underlying the absconding charge. He further
argued that the trial court should have credited him on the absconding term with 103 days of time served
from the date of his arrest for absconding on June 26, 1995, until the date of sentencing on October 6, 1995.
The Appellate Division rejected both of Black's contentions. The Supreme Court granted his petition for
certification.
HELD: Parole revocation is not punishment that triggers the protections against double jeopardy; nor does
fundamental fairness preclude both parole revocation and prosecution for absconding. A parolee taken into
custody on a parole warrant where parole is later revoked should not receive a credit against a prison term
imposed for a new offense like absconding for any period prior to sentencing on the new offense.
1. The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution protects against
multiple punishments for the same offense. Protection against double jeopardy under the New Jersey
Constitution is at least coextensive with the protection afforded by the federal provision. An administrative
sanction may be deemed punishment for purposes of double jeopardy. The inquiry is whether the
administrative sanction is intended by the legislature to impose punishment or is punitive in impact. (pp. 4-9)
2. The general purpose of parole is rehabilitative rather than punitive. Parole revocation should be viewed
as an essential element of the parole procedures, the primary purpose of which is to rehabilitate a prisoner.
Thus, revocation is not punishment that triggers the protections against double jeopardy. (pp. 9-18)
3. Prosecution for absconding from parole under N.J.S.A. 2C:29-5b, on the other hand, is clearly intended to
punish violators of that criminal code provision. It applies only to parole violators who go into hiding or
leave the state for the purpose of avoiding parole supervision. (pp. 18-20)
4. The Court declines to apply the doctrine of fundamental fairness to prohibit what the constitutional
protections against double jeopardy do not. There is no indication that the Parole Board in revoking Black's
parole, or the State in pursuing this prosecution for absconding, acted in a way that was unjust, arbitrary, or
unduly oppressive. (pp. 20-22)
5. Black is not entitled to jail credit against the term of imprisonment imposed for his absconding
conviction. Black could have been returned to custody on two grounds -- the violation of parole and the
arrest for absconding. New Jersey courts have taken a negative view of giving an inmate jail credit against
more than one sentence. Since a parolee held in custody pursuant to a parole warrant cannot be released on
bail (N.J.S.A. 30:4-123.62(a)(2)), the confinement is attributable to the original sentence. Where parole is
later revoked, any period of confinement before sentencing on the new offense should be credited only
against the term of reimprisonment ordered by the Parole Board. (pp. 22-31)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and
COLEMAN join in JUSTICE STEIN's opinion.
SUPREME COURT OF NEW JERSEY
A-
53 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JERRY BLACK,
Defendant-Appellant.
Argued November 17, 1997 -- Decided May 14, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
295 N.J. Super. 453 (1996).
Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for appellant
(Ivelisse Torres, Public Defender, attorney;
Barbara A. Hedeen, Assistant Deputy Public
Defender, on the letter brief).
Paul H. Heinzel, Deputy Attorney General,
argued the cause for respondent (Peter
Verniero, Attorney General of New Jersey,
attorney).
The opinion of the Court was delivered by
STEIN, J.
Defendant's parole was revoked after he violated the
conditions of his parole by failing to report to his parole
officer, failing to refrain from drug use, and relocating his
residence to another state. The primary issue posed by this
appeal is whether, in view of the revocation of his parole by the
Parole Board, defendant's criminal prosecution for absconding
from parole is barred by principles of double jeopardy and
fundamental fairness. A collateral issue is whether defendant is
entitled to jail credit against his sentence on the absconding
conviction for his time in custody from the date of his arrest
for absconding until the date of sentencing.
In February 1991, defendant-petitioner Jerry Black was sentenced to a three-year custodial prison term following his plea of guilty to one count of distribution of a controlled dangerous substance (CDS) and one count of conspiracy to distribute CDS. Defendant was released on parole in July 1992. When defendant failed to report to his parole officer on October 14, 1992, as required, he was classified the next day as an absconder and a parole warrant issued for his arrest.
Indicted in February 1993 on a single count of third-degree absconding from parole pursuant to N.J.S.A. 2C:29-5b, defendant, who had relocated out-of-state, was returned to custody on June 16, 1995. Defendant pled guilty to the absconding charge in return for the State's agreement to recommend a three-year sentence to be served concurrently with defendant's original CDS sentence. On August 22, 1995, the Parole Board issued a Notice of Decision revoking defendant's parole and ordering him to complete the remaining 337 days of imprisonment on the CDS
conviction commencing as of the date of his return to custody.
On October 6, 1995, the Law Division sentenced defendant on the
absconding conviction in accordance with the plea arrangement,
crediting him with three days against the absconding sentence for
time served. Defendant's Adult Presentence Report suggests that
the three-day credit was for time served from June 26, 1995, the
date when the bench warrant for defendant's arrest for absconding
from parole was executed, until June 28, 1995, the date when a
parole detainer was filed. The Presentence Report indicates July
5, 1995, as the date of defendant's formal arrest for absconding.
Defendant's briefs, however, all refer to June 26, 1995, as the
date of his arrest for absconding.
Defendant appealed his conviction and sentence, contending
that his criminal prosecution for absconding from parole should
have been barred by state and federal constitutional principles
of double jeopardy and by principles of fundamental fairness
because the revocation of parole punished him for the same
conduct underlying the absconding charge. Defendant further
argued that the trial court should have credited him on the
absconding sentence with 103 days of time served from the date of
his arrest for absconding on June 26, 1995, until the date of his
sentencing on October 6, 1995. The Appellate Division rejected
both of defendant's contentions. State v. Black,
295 N.J. Super. 453 (App. Div. 1996). We granted defendant's petition for
certification.
149 N.J. 144 (1997).
A
The Double Jeopardy Clause's prohibition against multiple punishments clearly protects against a second criminal penalty being imposed in a second criminal prosecution for the same offense. It is not generally implicated by penalties imposed in civil and administrative proceedings. However, the United States Supreme Court held in 1989 that a civil or administrative penalty imposed in addition to a criminal sentence may be found to violate double jeopardy protections when it is based on the same conduct as the criminal charge and is punitive, rather than remedial, in nature. United States v. Halper, 490 U.S. 435, 446-48, 109 S. Ct. 1892, 1900-02, 104 L. Ed.2d 487, 500-02 (1989)(holding that where defendant was sentenced to two years imprisonment for Medicare fraud and then assessed civil penalty in excess of $100,000, which bore no relation to government's actual damages, penalty was punitive and thus violated Double Jeopardy Clause).
Under Halper, the determination of when a civil or administrative sanction constitutes “punishment” for double jeopardy purposes depended on “the purposes actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction.” Id. at 447 n.7, 109 S. Ct. at 1901 n.7, 104 L. Ed. 2d at 501 n.7. According to the Halper Court, the threshold question was thus whether the sanction as applied to the specific defendant serves the goals of punishment, namely retribution and deterrence. Id. at 448, 109 S. Ct. at 1901-02, 104 L. Ed. 2d at 501-02. In applying the Halper standard under both the federal and New Jersey constitutions, this Court has found that a sanction may be determined to be punitive if either the law pursuant to which the sanction was imposed was intended by the legislature to impose punishment or the impact of the sanction is punitive. Womack, supra, 145 N.J. at 583; see also Doe v. Poritz, 142 N.J. 1, 46 (1995)("An initial inquiry is whether the legislative intent was regulatory or punitive: . . . if the former, the inquiry changes to whether the impact, despite the legislative intent to regulate, is in fact punitive . . . .). Whether the civil or administrative sanction is imposed before or after the criminal
prosecution for the same conduct is immaterial to the
determination of whether the protection against double jeopardy
has been violated. Womack, supra, 145 N.J. at 585.
Subsequent to oral argument in this appeal, the United
States Supreme Court decided Hudson v. United States, 522 U.S.
___,
118 S. Ct. 488,
139 L. Ed.2d 450 (1997). In Hudson, a
five-member majority of the Court largely disavowed the double
jeopardy analysis used in Halper. Id. at ___, 118 S. Ct. at 491,
139 L. Ed.
2d at 456-57. The majority explained its
dissatisfaction with the Halper Court's analysis:
Our opinion in United States v. Halper
marked the first time we applied the Double
Jeopardy Clause to a sanction without first
determining that it was criminal in nature.
. . . .
As the Halper Court saw it, the imposition of
"punishment" of any kind was subject to
double jeopardy constraints, and whether a
sanction constituted "punishment" depended
primarily on whether it served the
traditional "goals of punishment," namely
"retribution and deterrence." Any sanction
that was so "overwhelmingly disproportionate"
to the injury caused that it could not
"fairly be said solely to serve [the]
remedial purpose" of compensating the
government for its loss, was thought to be
explainable as "serving either retributive or
deterrent purposes."
. . . .
We believe that Halper's deviation from longstanding double jeopardy principles was ill considered. As subsequent cases have demonstrated, Halper's test for determining whether a particular sanction is "punitive," and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable. We have since recognized that
all civil penalties have some deterrent
effect. If a sanction must be "solely"
remedial (i.e., entirely nondeterrent) to
avoid implicating the Double Jeopardy Clause,
then no civil penalties are beyond the scope
of the Clause.
[Id. at ___, 118 S. Ct. at 493-95,
139 L. Ed 2d at 459-61 (citations
and footnotes omitted).]
The Court thus rejected the rule that whether a sanction is
subject to double jeopardy restraints depends on whether that
sanction is "punitive," as opposed to "solely" remedial in
nature, and reestablished the traditional rule that whether a
sanction is subject to double jeopardy restraints depends on
whether that sanction essentially constitutes a criminal penalty.
Id. at ___, 118 S. Ct. at 493-94, 139 L. Ed.
2d at 458-59. See
also United States v. Ward,
448 U.S. 242, 248-49,
100 S. Ct. 2636, 2641,
65 L. Ed.2d 742, 749 (1980)(noting in dicta that
Double Jeopardy Clause protects only against two criminal
punishments); Breed v. Jones,
421 U.S. 519, 528,
95 S. Ct. 1779,
1785,
44 L. Ed.2d 346, 354 (1975)("In the constitutional sense,
jeopardy describes the risk that is traditionally associated with
a criminal prosecution."); Helvering v. Mitchell,
303 U.S. 391,
398-99,
58 S. Ct. 630, 633,
82 L. Ed. 917, 921 (1938)("Unless
this sanction was intended as punishment, so that the proceeding
is essentially criminal, the double jeopardy clause provided for
the defendant in criminal prosecutions is not applicable.").
The Hudson Court explained that
[w]hether a particular punishment is
criminal or civil is, at least initially, a
matter of statutory construction. Helvering,
supra, [303 U.S.] at 399,
82 L. Ed. 917,
58 S. Ct. 630. A court must first ask whether
the legislature, "in establishing the
penalizing mechanism, indicated either
expressly or impliedly a preference for one
label or the other." Ward, [supra,] 448 U.S.
at 248,
65 L. Ed.2d 742,
100 S. Ct. 2636.
Even in those cases where the legislature
"has indicated an intention to establish a
civil penalty, we have inquired further
whether the statutory scheme was so punitive
either in purpose or effect," id. at 248-49,
65 L. Ed.2d 742,
100 S. Ct. 2636, as to
"transfor[m] what was clearly intended as a
civil remedy into a criminal penalty," Rex
Trailer Co. v. United States,
350 U.S. 148,
154,
100 L. Ed. 149,
76 S. Ct. 219 (1956).
In making the latter determination, the
factors listed in Kennedy v. Mendoza-Martinez,
372 U.S. 144, 168-69,
9 L. Ed.2d 644,
83 S. Ct. 554 (1963), provide useful
guideposts, including: (1) "[w]hether the
sanction involves an affirmative disability
or restraint"; (2) "whether it has
historically been regarded as punishment";
(3) "whether it comes into play only on a
finding of scienter"; (4) "whether its
operation will promote the traditional aims
of punishment--retribution and deterrence";
(5) "whether the behavior to which it applies
is already a crime"; (6) "whether an
alternative purpose to which it may
rationally be connected is assignable for
it"; and (7) "whether it appears excessive in
relation to the alternative purpose
assigned." It is important to note, however,
that "these factors must be considered in
relation to the statute on its face," id. at
169,
9 L. Ed.2d 644,
83 S. Ct. 554, and
"only the clearest proof" will suffice to
override legislative intent and transform
what has been denominated a civil remedy into
a criminal penalty, Ward, supra, [448 U.S.]
at 249,
65 L. Ed 2d, 742,
100 S. Ct. 2626
(internal quotation marks omitted).
[Hudson, supra, 522 U.S. at ___, 118 S. Ct.
at 493, 139 L. Ed.
2d at 459.]
Because we find that defendant's argument must fail under
both federal and New Jersey double jeopardy jurisprudence as it
existed prior to the Supreme Court's decision in Hudson, and
because application of Hudson would only increase the burden on
defendant, we need not address whether New Jersey's double
jeopardy jurisprudence should be reevaluated in the wake of
Hudson. Therefore, the inquiry sufficient for the disposition of
this appeal remains whether the administrative sanction of parole
revocation was intended by the legislature to impose punishment
or is punitive in impact in accordance with prevailing federal
and New Jersey precedent prior to Hudson.
As required under N.J.S.A. 2C:43-9, “[r]elease of offenders on parole, recommitment and reparole after revocation shall be governed by the 'Parole Act of 1979,'” codified at N.J.S.A. 30:4-123.45 to -123.76. The Parole Act provides that the grant or denial of parole rests with the State Parole Board, N.J.S.A. 30:4-123.47, although the burden of proving that an inmate eligible for parole is a likely recidivist who thus should not be released is on the State. N.J.S.A. 30:4-123.53(a); New Jersey Parole Bd. v. Byrne, 93 N.J. 192, 205 (1983). Parole is a period
of supervised release “by which a prisoner is allowed to serve
the final portion of his sentence outside the gates of the
institution on certain terms and conditions, in order to prepare
for his eventual return to society.” State v. Oquendo,
262 N.J.
Super. 317, 324 (App. Div.)(quoting In re Clover,
34 N.J. Super. 181, 188 (App. Div. 1955)), rev'd on other grounds,
133 N.J. 416
(1993). The United States Supreme Court has explained that the
purpose of parole is “to help individuals reintegrate into
society as constructive individuals as soon as they are able,
without being confined for the full term of the sentence
imposed.” Morrissey v. Brewer,
408 U.S. 471, 477,
92 S. Ct. 2593, 2598,
33 L. Ed.2d 484, 492 (1972). Those descriptions
clearly characterize the general purpose of parole as
rehabilitative rather than punitive in nature. Furthermore, this
Court has observed that under the current New Jersey Code of
Criminal Justice (Code), we presume that the punitive aspects of
an inmate's sentence have been satisfied by the time he or she
becomes eligible for parole. Byrne, supra, 93 N.J. at 205.
Parolees must agree to abide by specific conditions of
parole, including, but not limited to, refraining from the
commission of any crime, obtaining permission to change
residence, and reporting to an assigned parole officer at
reasonable intervals. N.J.S.A. 30:4-123.59(b). The United
States Supreme Court has observed that the conditions of parole
include reporting to parole officers because such officers “are
part of the administrative system designed to assist parolees and
offer them guidance.” Morrissey, supra, 408 U.S. at 478, 92 S.
Ct. at 2599, 33 L. Ed.
2d at 492. Thus, the restrictions placed
on parolees are also rehabilitative rather than punitive in
purpose.
We note that there is no constitutional right to parole.
Greenholz v. Nebraska Penal Inmates,
442 U.S. 1, 7,
99 S. Ct. 2100, 2104,
60 L. Ed.2d 668, 675 (1979); Byrne, supra, 93 N.J.
at 208. However, this Court held in Byrne that the Parole Act of
1979 created for inmates eligible for parole a protected
expectation of parole sufficient to invoke requirements of
procedural due process. Id. at 206-08. The United States
Supreme Court has also “rejected the concept that constitutional
rights turn upon whether a governmental benefit is characterized
as a 'right' or as a 'privilege.'” Morrissey, supra, 408 U.S. at
481, 92 S. Ct. at 2600, 33 L. Ed.
2d at 494 (quoting Graham v.
Richardson,
403 U.S. 365, 374,
91 S. Ct. 1848, 1853,
29 L. Ed.2d 534, 543 (1971)).
The Parole Act empowers the State Parole Board to revoke
parole when a parolee violates the conditions of his or her
parole. N.J.S.A. 30:4-123.60 to -123.62. Although the threat of
parole revocation undoubtedly contains a deterrent component, the
underlying purpose of parole revocation is consistent with that
of the parole system generally. The Supreme Court described the
decision-making process underlying a parole revocation decision:
The first step in a revocation decision thus
involves a wholly retrospective factual
decision: whether the parolee has in fact
acted in violation of one or more conditions
of his parole. Only if it is determined that
the parolee did violate the conditions does
the second question arise: should the
parolee be recommitted to prison or should
other steps be taken to protect society and
improve chances of rehabilitation? The first
step is relatively simple; the second is more
complex. The second question involves the
application of expertise by the parole
authority in making a prediction as to the
ability of the individual to live in society
without committing antisocial acts.
[Morrissey, supra, 408 U.S. at 479-80, 92 S.
Ct. at 2599, 33 L.Ed.
2d at 493.]
The Court emphasized that parole revocation, controlled by an
administrative agency rather than the courts, is not part of a
criminal prosecution. Id. at 480, 92 S. Ct. at 2600, 33 L. Ed.
2d at 494. Parole revocation deprives an individual of
conditional, not absolute, liberty dependent on observance of the
special parole restrictions, and every step of the parole process
takes place after a complete criminal prosecution. Ibid. Thus
the Court found that the “full panoply of rights” due a defendant
in a criminal proceeding does not apply to parole revocations.
Ibid.
Those federal courts that have addressed the question
uniformly have held that the double jeopardy clause does not
apply to parole revocation proceedings. In United States v.
Hanahan,
798 F.2d 187, 189 (7th Cir. 1986), the defendant argued
that his prosecution for illegal possession of firearms violated
his rights under the double jeopardy clause because the same
conduct or transaction had previously served as the basis for the
revocation of his parole from a prior conviction. The court held
that the revocation of defendant's parole did not trigger double-jeopardy protections. Ibid. The court explained:
A parole revocation proceeding is an
administrative proceeding designed to
determine whether a parolee has violated the
conditions of his parole, not a proceeding
designed to punish a criminal defendant for
violation of a criminal law. A criminal
prosecution is a judicial proceeding that
vindicates the community's interests in
punishing criminal conduct. U.S. v. Whitney,
649 F.2d 296, 298 (5th Cir. 1981). Because
the two proceedings serve different ends, the
finding that the defendant no longer merits
parole does not foreclose the criminal
justice system from punishing the defendant
for that conduct.
[r]evocation of parole is remedial rather than punitive, since it seeks to protect the welfare of parolees and the safety of society. The termination of parole results in a deprivation of liberty and thus is a grievous loss to the parolee. But the harshness of parole revocation does not alter its remedial nature.
In United States v. Brown, 59 F.3d 102 (1995), the Ninth Circuit again held that parole revocation does not constitute “punishment” for double jeopardy purposes. The court stated:
Revocation of parole or probation is regarded as reinstatement of the sentence for the underlying crime, not as punishment for the conduct leading to the revocation. Parole and probation are part of the original sentence. Their continuance is conditioned on compliance with stated conditions--if the defendant does not comply with those conditions, parole and probation may be revoked. Revocation does not extend the original sentence, it simply alters the conditions under which it is served. The fact that the events which lead to revocation may also constitute a second crime does not mean the revocation itself is punishment for the second crime.
Although this Court has not addressed directly the question presented by this appeal, those federal court precedents clearly are consistent with both New Jersey's double jeopardy jurisprudence and our pronouncements on the nature and purpose of the Parole Act and the parole system generally. Both the Parole Act and the case law construing it verify that because the primary purpose of parole is rehabilitative, the act of revocation of parole should be viewed as an essential element of the parole procedures, the primary purpose of which is to rehabilitate a prisoner in preparation for his or her eventual return to society. See, e.g., In re Trantino Parole Application, 89 N.J. 347, 357 (1982)(explaining permissibility of parole
condition (reparation) under Parole Act depends on whether it is
"conducive to the rehabilitation of an inmate").
The Appellate Division has once before addressed the
question whether parole revocation constitutes “punishment” for
double jeopardy purposes under either the federal or state
constitutions. New Jersey State Parole Bd. v. Mannson,
220 N.J.
Super. 566 (App. Div. 1987), certif. denied,
110 N.J. 194 (1988).
In Mannson, the Parole Board reopened Mannson's parole revocation
hearing after the hearing officer had declared the hearing
“concluded.” Id. at 568-69. The court rejected Mannson's
argument that that action violated the constitutional protections
against double jeopardy, relying on Jonas v. Wainwright, supra,
Garcia, supra, and Hanahan, supra, for the proposition that “the
Fifth Amendment's double jeopardy clause does not apply to parole
revocation proceedings.” Id. at 572. The court found that the
New Jersey Constitution provided no broader protection in that
context. Id. at 573.
We concur with the reasoning underlying those precedents and
conclude that parole revocation under the New Jersey Parole Act
is remedial and rehabilitative in both its essential purpose and
its essential effect. Thus, it cannot be viewed as punishment
triggering the protections against double jeopardy of the state
and federal constitutions. Parole revocation is not, as
defendant asserts, primarily designed to punish parole violators.
The precedents relied on by defendant to support his
contention that parole revocation constitutes punishment are
inapposite. In California Department of Corrections v. Morales, 514 U.S. 499, 512-13, 115 S. Ct. 1597, 1604-05, 131 L. Ed.2d 588, 598-99 (1995), the Supreme Court suggested in dicta that a statute that would result in the actual delay of the release of prisoners from incarceration to parole could constitute punishment, but the Court neither addressed nor characterized the nature of parole revocation proceedings. In Weaver v. Graham, 450 U.S. 24, 33-36, 101 S. Ct. 960, 966-68, 67 L. Ed.2d 17, 26-28 (1981), the Court, without addressing parole revocation, invalidated a Florida statute that delayed the release of a prisoner to parole authorities by reducing his number of gain-time credits. In Lindsey v. Washington, 301 U.S. 397, 400-02, 57 S. Ct. 797, 798-99, 81 L. Ed. 1182, 1185-86 (1937), the Court held that a statute that changed the minimum prison term from one set by the legislature to one set by the parole board constituted an unconstitutional increase in punishment because it potentially delayed the release of a prisoner to parole authorities. Each of those cases concerned a legislative enactment that posed the potential of increasing the amount of time an inmate, sentenced and incarcerated prior to the enactment, would be required to serve in prison before becoming eligible for parole. Such statutes essentially altered the terms of the inmates' sentences -- sentences that were unquestionably punitive -- and altered the inmates' legitimate expectations of parole eligibility. The issues addressed by those cases are not analogous to the double-jeopardy claim raised by defendant's parole revocation. Parole
revocation is the expected remedial sanction that results upon a
violation of the understood conditions of parole. It does not
constitute an ex post facto change in the original punitive
sentence.
A person subject to parole commits a crime of the third degree if the person goes into hiding or leaves the State with a purpose of avoiding supervision. As used in this subsection, “parole” includes participation in the Intensive Supervision Program (ISP) established pursuant to the Rules Governing the Courts of the State of New Jersey. Abandoning a place of residence without the prior permission of or notice to the appropriate supervising authority shall constitute prima facie evidence that the person intended to avoid such supervision.
By its terms, absconding from parole is a purposive crime that applies only to certain parole violators. In State v.
Graham,
284 N.J. Super. 413, 416 (App. Div. 1995), certif.
denied,
144 N.J. 378 (1996), the Appellate Division addressed the
statutory requirement of purposeful avoidance of supervision:
[E]ven though the abandonment of an approved
residence would be a violation of a condition
of parole that could justify a revocation of
that parole, it would not constitute the
predicate act required to convict an employee
of absconding. Instead, the State would have
to show that after leaving an approved
residence, the parolee somehow attempted to
avoid parole supervision or apprehension,
such as by residing at a location that was
unknown to parole officials and failing to
communicate with them.
The critical element of the absconding offense is the act of
going into hiding or leaving the state for the purpose of
avoiding parole supervision. In contrast, the mere finding of a
violation of a condition of parole, absent any showing of the
parolee's intent, can constitute a basis for revocation of
parole. See e.g. Board of Trustees of Youth Correctional Center
v. Davis,
147 N.J. Super. 540, 545 (1977)(holding hearing
officer's findings, well founded in record, of violations of
parole conditions were sufficient to justify board's
determination to revoke parole). Clearly, the crime of
absconding from parole is intended to reach conduct evincing a
higher level of culpability than that minimally sufficient for
the administrative sanction of parole revocation. The targeted
conduct of the crime of absconding from parole evokes parallels
to the crime of escape. It is only the purposeful avoidance of
parole supervision that the legislature determined to criminalize
for the purposes of deterrence and retribution.
Because the legislature determined to punish the conduct of
absconding from parole under the criminal code, the issue
presented is not conceptually different from what defendant
describes as the more typical violation-of-parole case in which
the defendant's violation of parole was based on the commission
of a separate crime such as robbery. In the case of a parolee
who commits a robbery, the parole revocation proceeding addresses
the parolee's violation of the conditions of parole, and the
criminal proceeding addresses the substantive crime of robbery.
Here, defendant's parole was revoked because he violated the
conditions of his parole, and he was convicted and sentenced for
absconding from parole because his conduct, as acknowledged by
his guilty plea, constituted a commission of that independent
offense. In both cases, the criminal proceeding and the parole
revocation proceeding are occasioned substantially by the same
conduct, although defendant presumably could have faced parole
revocation based solely on his failure to refrain from drug use
and failure to attend out-patient drug counseling sessions. Each
proceeding serves a distinctly different purpose. Because the
purpose of the parole revocation proceeding is not punitive, the
fact that defendant faced what may be viewed as multiple
“sanctions” as a result of the same, or substantially the same,
conduct does not violate the constitutional protections against
double jeopardy.
We recently discussed the purpose and application of New Jersey's doctrine of fundamental fairness in State v. P.Z., 152 N.J. 86, 117-119 (1997). This Court has applied the doctrine to address governmental action that "is constitutional but that, nonetheless, includes elements of oppression or harassment requiring court intervention." Id. at 118 (citing Doe v. Poritz, 142 N.J. 1, 108-09 (1995)). We explained that the doctrine of fundamental fairness "'serves to protect citizens generally against unjust and arbitrary governmental action, and
specifically against governmental procedures that tend to operate
arbitrarily.'" Id. at 117 (quoting Doe v. Poritz, supra, 142
N.J. at 108). The doctrine is intended to address "those rare
cases where government action does not comport with 'commonly
accepted standards of decency of conduct to which government must
adhere . . . .'" Ibid. (quoting State v. Talbot,
71 N.J. 160,
168 (1976)).
The combination of defendant's parole revocation and his
absconding conviction does not justify application of New
Jersey's fundamental fairness doctrine. There is no indication
that either the Legislature in enacting N.J.S.A. 2C:29-5b, the
State Parole Board in revoking defendant's parole, or the State
in pursuing this prosecution, acted in a way that was unjust,
arbitrary, or unduly oppressive.
We next consider whether defendant should have received jail credit against his absconding sentence for the full time he spent in custody between his arrest and sentencing on that charge. Rule 3:21-8 provides: "The defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence." That rule has been interpreted to require credit only for "'such confinement as is attributable to the arrest or other detention resulting from the particular offense.'" State v.
Allen,
155 N.J. Super. 582, 585 (App. Div.)(quoting State v.
Council,
137 N.J. Super. 306, 308 (App. Div. 1975)), certif.
denied,
77 N.J. 472 (1978); see also State v. Hill,
208 N.J.
Super. 492, 495 (App. Div.)(holding R. 3:21-8 "'only applies to
confinement directly attributable to the particular offense
giving rise to the initial incarceration'" (quoting In re
Hinsinger,
180 N.J. Super. 491, 499 (App. Div. 1981)), certif.
denied,
104 N.J. 412 (1986).
Defendant could have been returned to custody on two grounds
-- the violation of the terms of his parole and the arrest for
absconding. Thus, defendant's detention was not necessarily
attributable to the particular criminal offense for which he was
later sentenced. In fact, the record suggests that defendant's
return to custody arose under the parole warrant. His
reimprisonment on June 16, 1995, apparently was attributable only
to the parole violation and therefore was related derivatively to
the original CDS offense. Furthermore, in revoking defendant's
parole and ordering him to complete his adjusted maximum sentence
on the CDS charge, the Parole Board credited defendant with the
days he spent in incarceration from the date of his return to
custody until the date of the Parole Board's Notice of Decision
revoking his parole. In addition, the time defendant served in
prison between the date of the Notice of Decision and the date of
his sentencing for absconding also were credited towards
defendant's original CDS sentence.
Neither the Criminal Code nor the Rules address the
propriety or permissibility of giving an inmate jail credit
against more than one sentence. However, New Jersey courts have
adopted a negative view of that practice. See State v. Harvey,
273 N.J. Super. 572, 575 (App. Div. 1994)("Duplicate or double
credits should not be given."); State v. Allen, supra, 155 N.J.
Super. at 585 ("To give [defendant] credit for the 127 days in
both counties would bestow upon him an impermissible double
credit."); Lipschitz v. State,
43 N.J. Super. 386, 389 (App. Div.
1957)("[D]uplicate or double credit should not be given for time
served.")
Defendant's argument for jail credit against his absconding
charge relies on State v. Beatty,
128 N.J. Super. 488 (App. Div.
1974), and State v. Williams,
266 N.J. Super. 154 (Law Div.
1993), overruled by Harvey, supra,
273 N.J. Super. 572. In
Beatty, supra, 128 N.J. Super. at 490, the defendant was indicted
on Union County robbery charges while serving a custodial term in
a New York prison. Additionally, a detainer was lodged against
the defendant based on a New Jersey parole violation. Ibid.
Because of that detainer, the defendant was held by New York
authorities for 166 days beyond the latest release date on his
New York sentence. Id. at 490-91. The State argued that because
the defendant's extended confinement in New York was the result
of the detainer for violation of parole, not the robbery charges,
the defendant should not be entitled to credit on the sentence
for robbery. Id. at 491. The court disagreed, explaining:
R. 3:21-8 expresses the public policy of the
State and should be liberally construed.
Defendant was detained in a New York
institution because of action taken by New
Jersey, and whether that action finds its
source in the robbery charge or the violation
of parole charge is in our view immaterial.
We accordingly hold that defendant is
entitled to receive credit against his
sentences for the 166 days that he was
detained in the New York penal institution.
In Williams, supra, 266 N.J. Super. at 156, the defendant was arrested for aggravated assault and related offenses on June 15, 1988, and a detainer was lodged on June 16, 1988, alleging a violation of parole. Pursuant to N.J.S.A. 30:4-123.61(a), the parole board determined that there was probable cause to believe that Williams had violated a condition of his parole. Ibid. Williams was returned to prison on August 26, 1988, but his parole was never formally revoked. Ibid. Arguing against the application of jail credit towards the defendant's sentence for aggravated assault, the State contended that defendant could not have been released after the detainer had been lodged by the parole board. Ibid. The Law Division disagreed, finding that "[a] parolee charged with violation of parole need not be returned to custody. N.J.A.C. 10A:71-7.2. In fact, a parolee can be released even after probable cause has been found. N.J.A.C. 10A:71-7.9." Ibid. The court concluded that
a defendant who is arrested on a new charge,
committed while on parole, who was unable to
raise bail and obtain his release, is
entitled to an award of jail credit for the
time served while awaiting disposition of the
new charge, notwithstanding the fact that a
detainer may have been lodged for a violation
of parole. Until such time as his parole is
actually violated his incarceration or
confinement is attributable to the new
offense, rather than the violation of parole,
and he is therefore entitled to an award of
credit. Once his parole is violated the
credit will stop because his confinement is
then attributable to the violation of parole
and he is no longer entitled to an award of
credit on any sentence that may thereafter be
imposed for the new offense.
In State v. Harvey, supra, 273 N.J. Super. 572, a case analogous to the issue presented in this appeal, the Appellate Division largely disavowed the Law Division's reasoning in Williams. In Harvey, the defendant, a parolee, was arrested and charged with two CDS offenses. Id. at 573. Bail was set at $15,000, but the defendant was unable to post bail. Id. at 573-74. Three days after his initial detention on the CDS arrest, a parole detainer was lodged against the defendant pursuant to N.J.S.A. 30:4-123.62. Id. at 574. As in this case, Harvey entered a negotiated plea of guilty to the new charges in
exchange for the State's recommendation of a sentence to be
served concurrently with any term imposed on his parole
revocation. Ibid. The sentencing court, on imposing the
recommended sentence, awarded defendant only three days of jail
credit against the new term, representing the days defendant
spent in jail on the new charges before the parole warrant was
lodged. Ibid. The State Parole Board subsequently revoked the
defendant's parole and credited the defendant with all of the
days spent in custody from the date the detainer was lodged.
Ibid.
The Appellate Division in Harvey affirmed the sentencing
court's determination not to award credit for the entire period
between defendant's arrest and sentencing on the new CDS charges.
Id. at 577. The court rejected the premise of Williams, supra,
266 N.J. Super. at 156, that a parolee can be released even after
a detainer has been lodged and that his incarceration therefore
is attributable to the new offense rather than the parole
violation, on the ground that the court in Williams ignored the
clear language of N.J.S.A. 30:4-123.62(a)(2). Harvey, supra, 273
N.J. Super. at 576. That statutory subsection provides that
"[n]o parolee held in custody on a parole warrant shall be
entitled to release on bail." N.J.S.A. 30:4-123.62(a)(2). Based
on that provision, the Harvey court determined:
As long as the warrant is lodged, a parolee
cannot be released. Thus the confinement is
attributable to the original sentence. If
the warrant is withdrawn or parole is not
revoked and the defendant is not returned to
custody, then jail time is credited against
the new sentence.
The Harvey court also attempted to distinguish Beatty, supra, 128 N.J. Super. 488, explaining that
in Beatty the issue was whether credit should be given at all, not whether to allocate it between the new charge and a parole violation. . . . There is no indication that the State argued that the credit should be allocated instead to incarceration resulting from the parole violation. The opinion is silent on whether Beatty's parole was formally revoked.
language of N.J.S.A. 30:4-123.62 prohibiting a parolee held on a
parole warrant from being released on bail, we find Harvey to be
the more persuasive precedent.
Defendant suggests that because the absconding sentence was
ordered to run concurrently with his reimprisonment for violation
of parole, a double credit is particularly appropriate. We note
that the Supreme Court of Vermont has held that
when a defendant is incarcerated based on
conduct that leads both to revocation of
probation or parole and to conviction on new
charges, the time spent in jail before the
second sentence is imposed should be credited
toward only the first sentence if the second
is imposed consecutively, but toward both
sentences if the second sentence is imposed
concurrently.
We hold that when a parolee is taken into custody on a parole warrant, the confinement is attributable to the original offense on which the parole was granted and not to any offense or offenses committed during the parolee's release. If the parole warrant is thereafter withdrawn or parole is not revoked, and the defendant is convicted and sentenced on new charges based on the same conduct that led to the initial parole warrant, then jail time should be credited against the new sentence. If parole is revoked, then the period of incarceration between the parolee's confinement pursuant to the parole warrant and the revocation of
parole should be credited against any period of reimprisonment
ordered by the parole board. Any period of confinement following
the revocation of parole but before sentencing on the new offense
also should be credited only against the original sentence,
except in the rare case where the inmate has once again become
parole eligible on the original offense but remains incarcerated
because of the new offense.
The record before the Court leaves open one question
concerning the proper application of our holding to this
defendant. A parole warrant issued for defendant's arrest on
October 15, 1992. Defendant was returned to custody on June 16,
1995. Although defendant was indicted for absconding from parole
in February 1993, the Adult Presentence Report indicates that an
arrest warrant on that charge was not issued until June 26, 1995.
The Report further indicates that the actual parole detainer for
defendant's violation of parole was not filed until June 28,
1995, and that the actual arrest on the absconding charge did not
take place until July 7, 1995. Defendant has conceded that his
return to custody on June 16 was pursuant to the parole
violation, not pursuant to the indictment for absconding; he
seeks credit against the absconding sentence only from June 26,
1995, which he contends was the date of his arrest for
absconding, until the date of sentence on that charge. The
period of confinement between June 16 and June 26 was therefore
properly credited only towards defendant's adjusted maximum
sentence on the CDS conviction. It appears from the record that
defendant actually may have received a double credit for the
period from June 26 until June 29, because he was still held in
custody on a parole warrant pursuant to N.J.S.A. 30:4-123.62(a)(2). As the State did not object to the double three-day credit awarded by the sentencing court, we decline to modify
that result.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and COLEMAN join in JUSTICE STEIN's opinion.
NO. A-53 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JERRY BLACK,
Defendant-Appellant.
DECIDED May 14, 1998
Chief Jusitce Poritz PRESIDING
OPINION BY Justice Stein
CONCURRING OPINION BY
DISSENTING OPINION BY