(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).
Argued October 6, 1997 -- Decided May 15, 1998
Handler, J., writing for a unanimous Court.
On August 23, 1964, Thomas Trantino was found guilty of first degree murder. He was sentenced to
die. Although there were two murder victims, Sgt. Peter Voto of the Lodi police force and police trainee Gary
Tedesco, Trantino was indicted on only one count of murder.
Trantino remained on death row until 1972 when the New Jersey death penalty statute was declared
unconstitutional. Trantino's sentence was commuted to one term of life imprisonment under Title 2A, the
criminal law that was in effect at the time. Title 2A did not provide for any mandatory minimum time of
imprisonment.
Trantino's efforts to secure parole have been extensive. The within appeal arises out of a series of
actions that began on September 18, 1991, with a denial of parole by the Parole Board. Ultimately, the Board
issued a decision on May 20, 1996, denying Trantino parole and establishing a ten-year parole ineligibility term.
Trantino appealed that decision to the Appellate Division.
In 1997, the Appellate Division handed down three separate opinions in deciding Trantino's appeal.
The majority held that the refusal of the Department of Corrections (DOC) to transfer Trantino to a halfway
house was invalid but that the denial of Trantino's parole was not an abuse of discretion. The matter was
remanded to the DOC to reconsider the application to transfer Trantino to a halfway house. The dissenting
member concluded that Trantino should have been assigned to a halfway house.
Because of the dissent below, Trantino had an appeal as of right to the Supreme Court. The Court also
granted the State's petition for certification, which challenged the remand to the DOC to reconsider the halfway
house application.
HELD: The Parole Board's ultimate determination of Thomas Trantino's parole fitness must be based on
whether there is a likelihood that he will again engage in criminal activity. Because the Board's denial of parole
focused instead on whether Trantino has achieved complete rehabilitation, the matter must be remanded to the
Board for reconsideration. Therefore, the Appellate Division's remand to reconsider Trantino's eligibility for
transfer to a halfway house was premature.
1. Decisions of the Parole Board are subject to the same standard of judicial review as other administrative
agencies. Board decisions should not be reversed by a court unless found to be arbitrary or an abuse of
discretion. (pp. 4-7)
2. For prisoners serving a sentence under Title 2A, the current statutory standard for parole fitness incorporates
a selective and limited consideration of punishment that relates to the basic question of whether, by a
preponderance of the evidence, that there is a substantial likelihood of future criminal activity if the inmate is
released. (pp. 7-10)
3. The Parole Board appears to have applied a parole standard that concentrated on whether Trantino had made sufficient progress in rehabilitation. Rehabilitation is relevant only as it bears on the likelihood that the inmate will not again resort to crime. Because it is unclear whether the Board applied an incorrect standard for parole
release, its findings of fact may not have been adequately tailored to the correct test. That, in turn, puts the
sufficiency of the evidence underlying the Board's action in question. (pp. 10-16)
4. Although it may be appropriate in other cases involving Title 2A prisoners to insist on evidence of subjective
awareness of guilt before concluding that an inmate's avowal of responsibility is sincere and that he is
rehabilitated to the point that he will not commit any crimes if released, such an insistence may be unwarranted
in the light of the lengthy record in this case. That record does not clearly sustain the conclusion that long-term
psychotherapy will lead to a breakthrough recollection by Trantino or that such a recollection is necessary, given
Trantino's repeated acceptance of responsibility for the murders. (pp. 16-25)
5. Because the basis for the Board's determination of Trantino's parole status is unclear and may have been
based on an improper standard, the matter must be remanded to the Board for reconsideration. In light of that
remand, the Appellate Division's remand to DOC for consideration of the halfway house issue is premature and
may be unnecessary. In making its decision on remand, the Board can devise pre- or post-release conditions on
the grant of parole. The Board may also consider halfway house treatment as a condition of parole. (pp. 26-27)
6. The DOC's decision to refuse Trantino's transfer to a halfway house was invalid. If the Board concludes
on remand that Trantino's transfer to a halfway house is a necessary or reasonable condition for parole, DOC
shall heed the Board's request and consider whether Trantino should be placed in a halfway house. The DOC
decision must be based on sufficient credible evidence with an adequate explanation of its findings and reasoning.
Further, it is expected that the DOC would exercise its authority under the Interstate Corrections Compact to
secure halfway house placement for Trantino should that become necessary. (pp. 28-31).
7. In concluding that the Board's decision must be set aside and reconsidered, the Court has to look primarily
at the Parole Act of 1979. The standard for release is legislatively mandated and the judiciary must follow that
mandate. The Court's holding in no way diminishes or mitigates the heinousness of Trantino's 1963 offenses.
From the standpoint of retribution, perhaps no prison sentence, regardless of length, would be sufficiently severe.
Nevertheless, the punitive elements of retribution and general deterrence cannot, under the law, be the
determining factors in resolving this inmate's eligibility for parole release. On remand, the Board is to
determine whether Trantino has attained a level of rehabilitation that can assure there is no likelihood that he
will engage in criminal conduct if released on parole. (pp.32-33)
The judgment of the Appellate Division is MODIFIED and AFFIRMED.
JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in JUSTICE
HANDLER's opinion. CHIEF JUSTICE PORITZ did not participate in the matter.
SUPREME COURT OF NEW JERSEY
A-43/
44 September Term 1997
THOMAS TRANTINO,
Appellant and
Cross-Respondent,
v.
NEW JERSEY STATE PAROLE BOARD and
NEW JERSEY STATE DEPARTMENT OF
CORRECTIONS,
Respondents and
Cross-Appellants.
------------------------------------------
THOMAS TRANTINO,
Appellant and
Cross-Respondent,
v.
NEW JERSEY STATE PAROLE BOARD,
SUPERINTENDENT DONALD E. LEWIS and
NEW JERSEY STATE DEPARTMENT OF
CORRECTIONS,
Respondents and
Cross-Appellants.
Argued October 6, 1997 -- Decided May 15, 1998
On appeal from and certification to the
Superior Court, Appellate Division, whose
opinion is reported at
296 N.J. Super. 437
(1997).
Roger A. Lowenstein argued the cause for
appellant and cross-respondent.
Howard J. McCoach, Deputy Attorney General, argued the cause for respondents and cross-appellants (Peter Verniero, Attorney General of New Jersey, attorney; Joseph L. Yannotti
and Mary C. Jacobson, Assistant Attorneys
General, of counsel; Mr. McCoach, Jennifer L.
Kleppe, Dianne M. Moratti and Andrew R.
Sapolnick, Deputy Attorneys General, on the
briefs).
The opinion of the Court was delivered by
HANDLER, J.
This appeal, before us as a matter of right pursuant to Rule
2:2-1(a)(2), concerns the criteria upon which inmates sentenced
to prison terms under Title 2A, which has been repealed and
superseded, are to be adjudged when seeking parole and whether
those standards were properly applied to appellant, Thomas
Trantino.
The basis for the appeal is the New Jersey State Parole
Board's decision denying Thomas Trantino parole and deferring
future parole eligibility for ten years. That decision was based
on earlier administrative decisions relating to Trantino's parole
status. One of those decisions rendered by the Parole Board
granted Trantino parole conditioned on his transfer to a halfway
house. The New Jersey State Department of Corrections (DOC),
however, rejected the Parole Board's transfer request. That
refusal led to the Parole Board's final decision denying parole.
The issues on appeal posed by the dissent are whether the
evidence demonstrates that Trantino is fit for parole and,
therefore, whether the Parole Board abused its discretion in
denying parole. The appeal also presents issues raised by the
State's petition for certification, see
150 N.J. 24 (1997)
(granting certification), including the validity of the DOC's
denial of Trantino's application for transfer to a halfway house.
The Appellate Division determined that the DOC's refusal to
transfer Trantino to a halfway house was invalid, but that the
Parole Board's subsequent denial of parole was based on
sufficient evidence and, therefore, was not an abuse of
discretion.
296 N.J. Super. 437, 462-70 (1997). Accordingly,
the court remanded the matter to the DOC to reconsider its
refusal to provide halfway house treatment. Id. at 471.
We affirm the Appellate Division judgment invalidating the
DOC's decision refusing to provide halfway house treatment. We
also set aside the judgment insofar as it sustains the Parole
Board's final decision denying parole and fixing an extended
future parole eligibility date. Although we concur in much of
the analysis and reasoning set forth in the comprehensive opinion
of Judge Stern, as well as that of the dissenting opinion of
Judge Pressler, we do not find that the Parole Board's decision
was based on a proper standard and supported by sufficient
evidence and adequate findings of fact. In reaching that
conclusion, we clarify the standard governing parole eligibility
under the circumstances of this case, particularly the
requirement of rehabilitation as a basis for parole. Our
determination requires the Parole Board to reconsider the
evidence. Accordingly, we modify the remand ordered by the
Appellate Division and direct the Parole Board to redetermine
Trantino's parole eligibility.
On August 23, 1964, Thomas Trantino was found guilty of one count of murder in the first degree and was subsequently sentenced to die. The circumstances surrounding not only this slaying, but also the contemporaneous murder of another victim, are detailed in State v. Trantino, 44 N.J. 358, 361-63 (1965), cert. denied, 382 U.S. 993, 86 S. Ct. 573, 15 L. Ed.2d 479 (1966), reh'g denied, 383 U.S. 922, 86 S. Ct. 901, 15 L. Ed.2d 679 (1966).
Trantino remained on death row until 1972 when the New Jersey death penalty statute was declared unconstitutional. See State v. Funicello, 60 N.J. 60, cert. denied, 408 U.S. 942, 92 S. Ct. 2849, 33 L. Ed.2d 766 (1972). His sentence was commuted to one term of life imprisonment, nunc pro tunc as of the date the death sentence was initially imposed.
The extensive history of Trantino's record in prison and his continuing efforts to achieve parole are recapitulated in great detail in the opinions of Judges Stern and Pressler, and in the concurring opinion of Judge Humphreys. That history remains highly relevant to the issues on this appeal, namely, whether the Parole Board applied the proper standard governing the parole of an inmate sentenced under Title 2A and, further, whether there were adequate factual findings based on substantial evidence sufficient to support the Parole Board's determination denying parole.
In addressing the validity of the Parole Board's denial of
parole, the judicial role concentrates on three inquiries: (1)
whether the agency's action violates express or implied
legislative policies, i.e., did the agency follow the law; (2)
whether the record contains substantial evidence to support the
findings on which the agency based its action; and (3) whether in
applying the legislative policies to the facts, the agency
clearly erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors. Brady v.
Department of Personnel,
149 N.J. 244, 256 (1997). Thus, we must
first consider whether the Parole Board applied the correct legal
standard for determining parole. See Beckworth v. State Parole
Bd.,
62 N.J. 348, 368 (1973) (Sullivan, J., concurring)
(observing that "judicial review of Parole Board matters is
limited to a consideration of whether guidelines and principles
have been substantially satisfied, and ordinarily will not
involve the review of the merits of the Parole Board decision").
Then, because the "question whether there is a substantial
likelihood an inmate will commit another crime if released" is
"essentially factual in nature," we "must determine whether the
factual finding could reasonably have been reached on sufficient
credible evidence in the whole record." State Parole Bd. v.
Cestari,
224 N.J. Super. 534, 547 (App. Div.) (citation omitted),
certif. denied,
111 N.J. 649 (1988).
The standard of review is strongly influenced by the fact
that the substantive principles governing parole do not confer a
constitutional right or entitlement. State Parole Bd. v. Byrne,
93 N.J. 192, 208 (1983); In re Trantino Parole Application,
89 N.J. 347, 363 n.5 (1982); accord Connecticut Bd. of Pardons v.
Dumschat,
452 U.S. 458, 463-64,
101 S. Ct. 2460, 2464,
69 L. Ed.2d 158, 164 (1981); Greenholtz v. Inmates of the Nebraska Penal &
Correctional Complex,
442 U.S. 1, 7,
99 S. Ct. 2100, 2104,
60 L.
Ed.2d 668, 675 (1979). However, while there is "no
constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid
sentence," Greenholtz, supra, 442 U.S. at 7, 99 S. Ct. at 2104,
60 L. Ed.
2d at 675, there is by statute a "protected expectation
of parole in inmates who are eligible for parole," Byrne, supra,
93 N.J. at 206.
We recognize that Parole Board determinations are highly
"individualized discretionary appraisals," Beckworth, supra, 62
N.J. at 359, and, therefore, Parole Board decisions should not be
reversed by a court unless found to be arbitrary, Monks v. State
Parole Bd.,
58 N.J. 238, 242 (1971), or an abuse of discretion,
State v. Lavelle,
54 N.J. 315, 322 (1969). Nevertheless, the
inherent difficulty in gauging whether a parole determination
constitutes an abuse of discretion does not engender a more
exacting standard of judicial review than that applicable to
other administrative agency decisions. See In re Hawley Parole
Application,
98 N.J. 108, 112 (1984) (finding "no reason to
exempt the Parole Board from the well-established principle" and
generally accepted standard of review applicable to
administrative agencies); Cestari, supra, 224 N.J. Super. at 548
n.60 ("reject[ing] the contention that a more restrictive
standard of judicial review should apply to parole [decisions]
than to other administrative agency decisions"); cf. 296 N.J.
Super. at 470 (stating that court must "not upset [parole
decisions] unless it clearly and convincingly appears that the
Board has abused its discretion" (citation omitted)). Cognizant
of this standard of review, we explain initially the criteria
that govern parole in the circumstances of this case.
Trantino is serving a sentence imposed under Title 2A, the predecessor criminal statute to the New Jersey Code of Criminal Justice, now codified under Title 2C. Title 2A and Title 2C have different approaches to sentencing that affect parole. Trantino Parole Application, supra, 89 N.J. at 370. Because a sentence of imprisonment imposed under Title 2C incorporates parole disqualification as a sentencing element, inmates serving such sentences "will have presumptively satisfied all punitive aspects of their sentences at the time they become eligible for parole." Ibid. In contradistinction, prison terms imposed under Title 2A did not expressly include parole disqualification, and consequently, "the punitive aspects of [the] sentences [of Title 2A inmates] will not necessarily have been fulfilled by the time parole eligibility has occurred." Ibid. For that reason, the
determination of parole of a 2A inmate must take into account the
punitive aspects of the sentence.
Even though punishment is a factor in determining parole for
a pre-Code inmate, punishment, as retribution or general
deterrence, is not to be considered an end in and of itself.
However, the gravity and enormity of the underlying crime
implicates the need for punishment as individual deterrence.
Hence punishment in that sense may be considered in the parole
determination, but only insofar as it "relate[s] to the
rehabilitative prospects of the inmate and his likelihood of
recidivism if released." Id. at 372-73.
Rehabilitation as a consideration of parole fitness
emphasizes the likelihood that the inmate will commit crimes if
released on parole. This focus on criminal recidivism is derived
from the changing statutory basis for parole. Under the Parole
Act of 1948, the Parole Board, in determining whether to release
an inmate on parole, was required to find "that there is
reasonable probability that, if such prisoner is released, he
will assume his proper and rightful place in society, without
violation of the law, and that his release is not incompatible
with the welfare of society." N.J.S.A. 30:4-123.14 (repealed by
L. 1979, c. 441, § 27); see Beckworth, supra, 62 N.J. at 360
("The statutory criteria in N.J.S.A. 30:4-123.14 contemplate
parole release only where the Board is of the opinion both (1)
that there is reasonable probability that the inmate will be law-abiding and (2) that the release is compatible with society's
welfare."). In determining whether parole would be "incompatible with the welfare of society," the Parole Board could consider whether release "would promote disrespect for law" or "have a substantially adverse effect on institutional discipline," or whether "continued correctional treatment" would "substantially increase the inmate's capacity to lead a law-abiding life." Id. at 361 (internal citation omitted). This standard was changed under the Parole Act of 1979, N.J.S.A. 30:4-123.45 to -123.69. No longer was the Parole Board required to assess whether the inmate had achieved such a high level of rehabilitation that he was fit to assume a responsible role in society that was compatible with the public welfare. Similarly, "punishment that serve[d] society's need for general deterrence or a concern for retribution" was no longer "truly relevant" for parole determinations. Trantino Parole Application, supra, 89 N.J. at 372. Rather, for purposes of parole, consideration of punishment was limited solely to rehabilitation encompassing individual deterrence, i.e., is there a "substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole." N.J.S.A. 30:4-123.56c. As applied to a prisoner serving a sentence under Title 2A, the current standard for parole fitness incorporates a selective and limited consideration of punishment that informs the basic inquiry whether it "appears by a preponderance of the evidence that there is a substantial likelihood of future criminal activity if [the
prisoner] is released." Trantino Parole Application, supra, 89
N.J. at 377.
The first issue here presented is whether the Parole Board applied the correct standard governing parole. Resolution of that issue, in turn, will frame the central issue to be determined, namely, whether the Parole Board's decision to deny parole was adequately supported and explained. Accordingly, we must examine the reasons and grounds for the Parole Board's several decisions and ultimate determination denying Trantino parole. The Appellate Division recounted in detail this procedural and decisional history, 296 N.J. Super. at 439-59, which we adopt and incorporate.
The recent history of Trantino's parole proceedings discloses that on September 18, 1991, the Parole Board denied Trantino parole and imposed a three-year parole ineligibility date (FET). Id. at 449. It concurrently urged him "to make every effort to achieve halfway house status in order for the Board to evaluate his behavior in a less structured environment." Ibid. (quoting Parole Board decision of September 18, 1991). Within a month, Trantino requested that the Superintendent of Riverfront State Prison authorize his transfer to a halfway house. Ibid. On December 31, 1991, the Prison Superintendent orally disapproved that request; this disapproval was confirmed in writing on April 21, 1992. Ibid. Although Trantino became
eligible for parole again in June 1992, the Parole Board panel
deferred any determination until further in-depth psychological
evaluations could be completed. Id. at 449-50.
On April 2, 1993, a two-member panel of the Parole Board
again considered whether Trantino should be released on parole.
Id. at 450. The panel split, with one member voting to release
Trantino and the other, "believing that halfway house placement
was essential to parole for someone incarcerated as long as
Trantino," voting to deny. Ibid. At a hearing for
reconsideration on November 12, 1993, both members of the panel
were critical of the fact that not only was Trantino denied
placement in a halfway house, but also that the DOC had not even
provided written reasons for the denial. Id. at 450-51. Because
it believed halfway house placement was a critical pre-condition
to release on parole, the panel felt constrained to deny parole.
Id. at 451. Trantino thereafter again requested that the DOC
transfer him to a halfway house; the DOC did not respond. On
December 17, 1993, the Parole Board reiterated its determination
that satisfactory completion of a stay at a halfway house was an
essential condition for parole. Id. at 452-53.
Trantino promptly, on January 11, 1994, renewed his request
for a transfer to a halfway house. Id. at 454. On February 2,
1994, the DOC again denied Trantino's application for transfer,
giving as the only reason: "seen for community release." Ibid.
(In a letter to an internal affairs investigator, the
superintendent stated that the decision rested in part on the
fact that the DOC received three anonymous letters threatening
Trantino's life. Id. at 454-55.) Faced with the DOC's continued
refusal to transfer Trantino to a halfway house, a two-member
panel of the Parole Board, on September 1, 1994, again denied
parole. Id. at 455.
Trantino filed administrative appeals to the full Parole
Board from the November 12, 1993 and September 1, 1994 denials of
parole. Id. at 456. On April 26, 1995, the Parole Board
considered and denied these appeals without explanation. Ibid.
Trantino then appealed to the Appellate Division challenging
the several decisions that eventuated in the denial of parole.
Id. at 457. However, the Parole Board vacated its decision of
April 26, 1995, and the Appellate Division dismissed the appeal
without prejudice so that Trantino might exhaust his
administrative remedies. Ibid.
In September 1995, a two-member panel of the Parole Board
again conducted a plenary hearing, denied Trantino parole, and
recommended a FET "beyond administrative guidelines." Id. at
457-58. Another hearing was held by a three-member panel in
December 1995, and, because the panel could not agree
unanimously, a full Board review followed. Id. at 459. On May
20, 1996, the Parole Board issued a written "notice of decision"
formally denying parole and establishing the ten-year parole
ineligibility term. Ibid.
The standard the Parole Board applied in determining
Trantino's parole fitness is disclosed by the Board's several
decisions. For example, in the decision of November 12, 1993, in
which the two-member panel denied parole and recommended halfway
house treatment as a condition of parole, the panel
"acknowledge[d] that Mr. Trantino has reached his rehabilitative
potential within the confines of his current state prison
setting." Id. at 453 (quoting Parole Board decision of December
17, 1993). The panel noted "his long and difficult path towards
real and not superficial rehabilitation," and it "believe[d] that
he cannot be judged to have reached his true and full
rehabilitative potential until and unless he has achieved an
intensive, therapeutic and rigorously supervised, gradual
reintegration into society." Ibid. The panel felt that only
through a "reintegration process" could it be determined "if this
man has been fully rehabilitated." Ibid. The panel concluded
that satisfactory treatment at a halfway house was the only means
by which Trantino could achieve his "true and full rehabilitative
potential." Ibid. Similarly, the September 14, 1994 denial of
parole was premised on the conclusion that "Trantino has not
reached his full rehabilitative potential" and "can not be said
to be completely and totally rehabilitated." Id. at 456 (quoting
Parole Board decision of September 1, 1994, as set forth in its
decision of April 26, 1995).
While the Parole Board did not disregard recidivism as the
criterion of the parole-fitness standard, the Board's several
decisions indicate that it applied a parole standard that
concentrated on whether Trantino had made sufficient progress
toward "reintegration into society," was "fully rehabilitated,"
had realized "his real rehabilitative potential," had reached his
"true and full rehabilitative potential," and had achieved "real
and not superficial rehabilitation" and "complete[] and total[]
rehabilitat[ion]." The Board also found a "substantial
likelihood" that Trantino would "commit a crime if released on
parole." Id. at 447 (quoting the May 20, 1996 written Parole
Board decision confirming its April 3, 1996 denial of parole).
That finding, however, was made in conjunction with its
determination that Trantino had failed to reach his full
rehabilitative potential and total rehabilitation. It thus
appears that the Parole Board considered that rehabilitation and
recidivism were cognate criteria. The test for parole fitness,
we repeat, is whether there is a substantial likelihood the
inmate will commit a crime if released on parole. Rehabilitation
is relevant under that test only as it bears on the likelihood
that the inmate will not again resort to crime. It need not be
total or full or real rehabilitation in any sense other than
there is no likelihood of criminal recidivism.
The Appellate Division concluded that the Parole Board had
rested its determination not only on a discretionary assessment
of intangibles, see Greenholtz, supra, 442 U.S. at 9-10, 99 S.
Ct. at 2103-04, 60 L. Ed.
2d at 677-79, but also on the objective
reports of the last two psychologists who evaluated Trantino.
296 N.J. Super. at 468-70. The Appellate Division acknowledged
the particularly heinous, vicious and reprehensible nature of the
murders of forty-year old Sgt. Peter Voto of the Lodi police
force and twenty-one year old police trainee Gary Tedesco. Both
victims were beaten, ordered to strip partially, and shot in
cold-blood.See footnote 1 The court further noted Trantino's clinical
diagnosis as an "antisocial character, polysubstance abuse," his
previously demonstrated absolute inability to function in society
as a supervised parolee,See footnote 2 the length of his incarceration and
consequent insulation from the stresses and temptations of
society, and the Board's consistent position that Trantino's
reintegration into society must be "intensive, therapeutic and
rigorously supervised." Id. at 440-41, 470. Accordingly, the
Appellate Division concluded that the Parole Board's most recent
denial of parole cannot be said to be an abuse of discretion.
Ibid.
We must, however, examine the predicate question of whether
the Parole Board applied the proper standard of parole release.
It is not clear whether the Parole Board invoked a test that
focuses primarily and essentially on the likelihood of criminal
recidivism or whether it followed the more exacting and difficult
test of full or complete rehabilitation that assures not only
that an inmate will continue to lead a law-abiding life, but also
that he or she will assume a responsible role in society
consistent with the public welfare. It is, therefore, equally
unclear whether the Parole Board's findings of fact were
adequately tailored to the correct test and whether the
underlying evidence was sufficient to support a determination
conforming to that test.
Trantino's prison record plainly is material in determining
whether he has achieved a level of rehabilitation such that he
has been sufficiently deterred and there is no likelihood of
recidivism. That record discloses substantial evidence of
significant rehabilitation tending to demonstrate that Trantino
has overcome any likelihood of recidivism. He has had no
substance abuse violations in prison and no rules infractions
since 1970. Trantino has already participated in sixty-nine work
and recreation details that involved excursions into the
community and has gone on overnight furloughs without incident.
Further, he has completed seventeen programs designed to enable
him to help fellow inmates and has been in individual and group
psychotherapy for the past twenty-five years. Finally,
Trantino's supervisors in prison have consistently rendered
favorable reports.See footnote 3
Psychological evidence also supports a determination of
substantial rehabilitation militating against the likelihood of
recidivism. Dr. James Bell, one of two evaluating psychologists,
said in his July 1995 report: "[W]ithin the prison system,
[Trantino] has been an exemplary inmate and not only has invested
in several programs to improve himself, but also has started
several programs to assist youthful delinquent offenders and
substance abusers." Id. at 487 (Pressler, J., dissenting)
(quoting July 1995 report of Dr. Bell). Dr. Bell further stated
in his report:
Clinically, he impresses as a man who has
reached a point of change come about through
sincere self-inventory and aspirations to
atone for the great wrong he has done in his
life. He has adequate mental and emotional
resources to live a socially responsible,
self-reliant life. His PASS score of 66" suggests an above average possibility of
post-release success.
An August 1995 evaluation by Glenn Ferguson, the other evaluating
psychologist, states:
Presently, Thomas [Trantino] functions more
as a staff member in the prison than as an
inmate. He has developed a well-rounded and
reputable support network which should enable
Thomas to manage the increased stress level
of independent living optimally. He has a
high level of motivation for continued
education, therapy and employment. His
employment plans appear realistic and
attainable, including technical work with his
wife's copyrighting company and creative work
in art and therapy. . . . The combination of
well-established social supports, motivation
for ongoing treatment, and age will most
likely lead to a successful parole outcome.
The Parole Board itself acknowledged "Mr. Trantino's charge
free institutional adjustment, program participation and full
minimum custody in mitigation." Id. at 456 (quoting the Board's
April 17, 1995 statement of reasons explaining its denial of
parole on September 1, 1994).
The Parole Board based its successive denials of parole in
large measure on the fact that Trantino was avoiding
responsibility for these crimes. As expressed by the Parole
Board's Adult Panel in one decision:
During this panel hearing Mr. Trantino was
once again in doubt as to whether he in fact
murdered the police officers, stating "I am
not capable of killing those two men. I
could not have done that." This is of great
concern to this panel. Until and unless Mr.
Trantino can completely, honestly, openly and
consistently confront and fully admit his
role in these murders, he can not be said to
be completely and totally rehabilitated as
per the Court's holding in the original
Trantino decision.
The stated basis for the Parole Board's conclusion that Trantino was avoiding responsibility for his crimes is Trantino's claimed memory loss. The two-member panel, in its September 25, 1995 decision, "acknowledged that Trantino had made great strides
towards achieving his rehabilitative potential over the course of
the preceding thirty-two years, but found that his rehabilitative
potential had not been reached due to his failure to remember
certain aspects of the crime." Id. at 458. As stated by one
Board member:
It is the Panel's belief that your failure to
remember certain details regarding the murder
is inhibiting you from reaching your
rehabilitative potential. In sum, the Adult
Panel is of the position that until you can
remember specific events regarding the
murder, including firing the gun that killed
Sgt. Voto, you will not be able to fully
accept your role in the crime and will not
achieve your rehabilitative potential.
Therefore, the Panel believes there is a
substantial likelihood you will commit a
crime if released on parole.
[Id. at 458 (quoting Board's
September 25, 1995 notice of
decision regarding the September
14, 1995 parole hearing).]
In short, the "memory loss has always been a key ingredient in
the parole deliberations." (Parole Board hearing of October 9,
1990).
To support its conclusion that Trantino is avoiding
responsibility by feigning memory loss, the Parole Board refers
to Dr. Bell's observation that Trantino
believes that his co-defendant shot the
victims but cannot recall specific aspects of
the event, because he was in an alcohol/speed
blackout and in fact, may have been
experiencing hallucinations related to this
substance abuse. He recalls fist fighting
with one victim and having a gun in his left
hand but continues that he did not discharge
it, and thinks he left the bar before the man
was shot.
Nevertheless, there is evidence in the record that Trantino's memory loss is consistent, long-standing and genuine, and, beyond the issue of recollection, his acknowledgement of responsibility is sincere and legitimate. That Trantino acknowledges and accepts responsibility for his crimes is disclosed in the record of his numerous parole proceedings. The Appellate Division noted that "[o]n May 8, 1995, Trantino, in a letter to the Chairman of the Parole Board, requested an appeal" and "proffered additional evidence that he acknowledged that he killed the two police officers and that he was deeply ashamed and suffers for what he did." Id. at 457. Since 1988 Trantino repeatedly told the Board in unequivocal terms that he accepts responsibility for having murdered both men even though he cannot remember the details because of his alcoholic/drugged state. See, e.g., at the 1988 parole hearing ("I have no memory of it. The evidence is there. I don't want to argue with the evidence anymore. And I will accept responsibility."); at the April 2, 1993 parole hearing (Q. "Number one, did you kill Peter Voto?" A. "Yes." Q. "Number two, did you kill [Gary] Tedesco?" A. "Yes. . . . I don't have a conscious memory of it--" Q. "But you fully and totally acknowledge that you killed both of those gentlemen?" A. "Yes."); at the September 1, 1994 parole hearing ("I accept responsibility -- altogether. . . . I have just no memory of it."); at the September 14, 1995 parole hearing ("I didn't say that I didn't. I say I did. I say I have no conscious memory of it. I have said I have committed this
murder. I am responsible for both murders."); at the December
11, 1995 parole hearing ("To repeat once again, there is no doubt
in my mind that I am responsible for and guilty of killing Mr.
Voto and Mr. Tedesco.").
This history is corroborated by Dr. Bell, who, in the same
report cited by the Parole Board, noted that Trantino's
"recounting includes assertions on his part that he takes full
responsibility for the crime." The August 1995 psychological
evaluation by Glenn Ferguson reaches a similar conclusion:
"[Trantino] has consistently claimed no recollection of the
actual offense, although he accepts full responsibility for both
murders, in light of eye witness testimony, and his recollection
of holding a gun both prior to and after the offense."
We acknowledge that the fact that the two psychologists who
most recently examined Trantino indicated that he was fit for
parole may not be dispositive. See In re Registrant G.B.,
147 N.J. 62, 87 (1996) (noting that for purposes of sex offender
registry, courts must take care not "to abdicate decision-making
responsibility to experts"); In re D.C.,
146 N.J. 31, 59 (1996)
(finding that for purposes of involuntary commitment proceeding,
"the final determination of dangerousness lies with the courts,
not the expertise of psychiatrists and psychologists"); State ex
rel. C.A.H. & B.A.R.,
89 N.J. 326, 343 (1982) (finding that for
purposes of juvenile waiver hearing, court is not required to
give controlling effect to experts, but rather must weigh the
evidence in "light of common sense and experience").
Nevertheless, we do not find a sufficient basis or an adequate
explanation for the Parole Board's rejection of the conclusions
of the psychologists.
The Parole Board's final decision that Trantino was not
ready for parole and would not be eligible for parole for a
period of ten years is also based on its determination that
Trantino requires long-term intensive psychotherapy. In its
decision of September 25, 1995, a two-member panel determined
that parole must be deferred for an extended period because
"long-term psychotherapy" was required in order for Trantino to
reach his "rehabilitative potential."
The Parole Board appears to have considered long-term
therapy as an alternative to or substitute for halfway house
treatment. Both conditions appear to be predicated on a standard
of "full rehabilitation." Thus, in imposing halfway house
treatment as a parole condition, the Parole Board explained:
In New Jersey, the only present means to
achieve this crucial goal [of reintegration
into society] is through the placement by the
Department of Corrections of Mr. Trantino in
a halfway house while still an inmate.
The Parole Board firmly believes that this last and vital step must be attempted before Mr. Trantino could even be considered to be fully rehabilitated and granted parole. Although we believe that it is not unreasonable to conclude that Mr. Trantino has made impressive strides in resolving his problems and internal conflicts that led to these homicides we will only have full knowledge of this man's rehabilitation through the reintegration process of a community based halfway house setting. In that context we can evaluate Trantino's readjustment to societal and not
institutional stresses, to societal and not
institutional failures, and to societal and
not institutional temptations.
[296 N.J. Super. at 453 (quoting
December 17, 1993 decision of
Board).]
The Parole Board, in its final decision, in effect, linked
the need for long-term therapy as a condition of parole to its
earlier decision requiring halfway house treatment as a parole
condition:
The Adult Panel is aware that a different
Board Panel determined at your parole hearing
on November 12, 1993 that you had reached
your rehabilitative potential within the
confines of prison and that your progress
toward real and not superficial
rehabilitation could only be maintained by
placement in a halfway house as an inmate.
You have attempted on numerous occasions to
be placed in a halfway house as an inmate.
The Department of Corrections has continually
denied you placement into a halfway house.
While this Adult Panel believes placement of
you into a halfway house would be beneficial
to you in your goal to reach your
rehabilitative potential, it is this Panel's
determination that certainly this is not the
only means by which you can achieve this
goal. It is this Panel's position that you
can eventually reach this goal through long
term psychological counseling in an
institutional setting.
[Id. at 459 (quoting Board's
September 25, 1995 notice of
decision confirming its September
14, 1995 denial of parole).]
See also id. at 486 (Pressler, J., dissenting) (noting that because the DOC had refused to assign Trantino to a halfway house and because the Board "was of the view that defendant needs a period of intensive psychotherapy in lieu thereof, the Parole
Board concluded that defendant should spend another ten years in incarceration to obtain that treatment"). Nevertheless, the Parole Board did not base its determination that Trantino needs long-term intensive psychotherapy on any express finding that such treatment was a functional equivalent of or an adequate substitute for halfway house treatment. Rather, the Parole Board determined that halfway house treatment was only "beneficial" and was not essential or "the only means" for Trantino to reach his "rehabilitative potential." Moreover, the Board appeared to shift the grounds for requiring long-term therapy, finding that "until [Trantino] can remember specific events regarding the murder, including firing the gun that killed Sgt. Voto, [he] will not be able to fully accept [his] role in the crime and will not achieve [his] rehabilitative potential." Id. at 458 (quoting Parole Board's written decision of September 25, 1995); see also id. at 486 (Pressler, J., dissenting) (noting that the Parole Board doubted the "genuineness" of what it termed Trantino's "selective recollection" and concluded that his rehabilitation would not be complete until "he remembers the details of his appalling, terrible crime"). While it may be appropriate in other cases involving pre-Code inmates to insist upon evidence of subjective awareness of guilt before concluding that an inmate's avowal of responsibility is sincere and that he is rehabilitated to the point that he will not commit crimes if released, such an insistence may be unwarranted in this case where, we repeat, the record supports the finding that Trantino cannot and will not
ever be able to remember actually pulling the trigger. The
record thus does not clearly sustain the conclusion that long-term psychotherapy will eventuate in a breakthrough recollection
or that such a recollection is necessary, given Trantino's
repeated acceptance of responsibility, in order to ensure that he
has achieved a level of rehabilitation that eliminates the
likelihood that he will, if released, commit crimes. See id. at
472-74 (Pressler, J., dissenting) (finding evidence completely
wanting in support of Parole Board's denial of parole and
requirement of long-term therapy, even under the more difficult
standard requiring "full and true rehabilitation").
We conclude that the Parole Board's decision that Trantino
is not at present ready for parole and that he will not be
eligible for parole for another ten years was influenced by the
application of a standard of parole that may not have focused
sufficiently on the likelihood that Trantino will commit crimes
if released, but instead focused on the achievement of complete
rehabilitation. Hence, the Parole Board's final determination
cannot be said to be supported by adequate findings of fact
derived from sufficient credible evidence. The current state of
the record and the several decisions of the Parole Board do not
support and explain a determination that Trantino, if paroled,
will likely again resort to crime. Accordingly, we set aside the
Parole Board's decision denying parole and postponing
reconsideration of parole eligibility for ten years.
Because the basis for the Parole Board's determination of
Trantino's current parole status is unclear and the decision may
have resulted from application of an improper standard of parole,
the matter must be remanded to the Parole Board to reconsider the
basic issue of whether Trantino is now ready to be paroled. The
Appellate Division's remand to the DOC to reconsider the
availability of halfway house treatment is, therefore, premature
and may, in fact, be unnecessary.
The Parole Board's ultimate determination of parole fitness
must be based on whether there is a likelihood that Trantino will
again engage in criminal activity. In evaluating Trantino's
fitness for parole under this standard, the Parole Board should
give weight to the facts that Trantino is now sixty years old
and, as already noted, has previously been released on sixty-nine
work details and two furloughs without incident; has not violated
a correctional rule in twenty-seven years; has successfully
completed substance abuse counseling; has educated himself while
in prison; has pursued the available vocations for prisoners; has
a stable support network; was housed without incident at the
Wharton Tract, a facility without perimeter guards; and has been
deemed fit for transfer by the last two psychologists to evaluate
him. Moreover, in light of that evidence, the length of time
Trantino has served under his sentence, and the successive
occasions on which he has been deemed eligible for parole,
punishment is no longer a material consideration in the parole
determination.
In its determination, the Board can devise pre-release
conditions that will allow it to assess how Trantino handles the
stresses of society that may induce or impel him to commit
crimes. Those conditions could include community work details,
furloughs, minimum security status, and other measures that would
serve to reintroduce Trantino gradually into society and lead to
his ultimate release. Alternatively, the Board may decide to
impose post-release conditions, such as intensive supervision and
drug testing, that would ensure that Trantino was not behaving in
a way that indicates he will engage in criminal activity.
In its redetermination of parole fitness, the Parole Board
may also consider halfway house treatment as a condition of
parole. As the Appellate Division noted, the denial of placement
in a halfway house was an inextricable part of the whole question
of Trantino's parole status: "The 1994 denial of halfway house
placement clearly impacts on the 1995 and 1996 decisions
regarding parole, and the Parole Board decisions also impacted on
the subsequent eligibility for halfway house placement." 296
N.J. Super. at 462. Glenn Ferguson, the evaluating psychologist,
recognized halfway house treatment as a possible condition of
parole. He stated: "A transitional setting prior to final
release would most likely aid Thomas in making a problem free
adjustment on parole after thirty-two years of incarceration, but
is not viewed as crucial." We concur in Judge Stern's
observations:
[T]he record details the consistent position
of the Board that it cannot prudently grant
parole to a long term prisoner, convicted of
a crime such as murder, before performance in
a halfway house or residential facility can
be thoroughly evaluated. And we cannot say
that this policy is arbitrary or
unreasonable. . . . [E]valuation of an
inmate's conduct in such a setting is, in any
event, valuable in assessing whether or not
the inmate is ready for parole and the
conditions to be attached.
Because the final decision of the Parole Board in 1996
denying Trantino parole and fixing a future eligibility date at
ten years was predicated on the DOC's earlier 1994 refusal to
accept Trantino into a halfway house as a condition for parole,
we must consider also whether the DOC's decision to refuse
Trantino's transfer to a halfway house is valid. Based on the
cogent reasons set forth in the opinions of Judges Stern and
Pressler, we conclude that it was not, viz:
The DOC's decision not to transfer
Trantino to a halfway house was never
embodied in any final determination of the
agency. Certainly the words "seen for
community release" were not reasons, as the
Board panel subsequently told Trantino. Nor
can the letter from Riverfront Administrator
Lewis to a DOC investigator suffice as the
final administrative action or substitute for
the necessary statement of the reasons for
the decision. See N.J.A.C. 10A:20-4.10(d)
[now renumbered -4.8(d)]. The Commissioner
is responsible for the final agency
determination, and we cannot find in the
record any reasons rendered by him or his
office for the decision not to transfer
Trantino.
However, N.J.A.C. 10A:20-4.12 [now recodified at N.J.A.C. 10A:20-4.10] places authority for such transfer decisions in the ICC. Thus, even if its determination is final on such matters, the decision (embodied
in a memorandum filed in June 1995, almost
one and one-half years after it was rendered)
was based on letters not produced in the
record and which we are told were
"misplaced." The decision was also premised
on the fact that Trantino's case had "high
visibility and notoriety, through the news
media and through Senator Kosco who
vehemently objected to the parole and
community release of inmate Trantino." These
reasons embodied in an internal DOC memo,
without a supporting record (or
reconstruction) simply cannot be the basis
for denying transfer when the Parole Board
considered such placement critical to the
parole process. See N.J.A.C. 10A:20-4.10(d)
[now renumbered -4.8(d)], -4.12(f) [now
recodified at -4.10(c)].
[Id. at 462-63 (internal citations
omitted); see id. at 480-82
(Pressler, J., dissenting).]
In the event the Board considers and determines a transfer
to a halfway house to be a necessary or reasonable condition for
parole in order to engender the likelihood that Trantino will not
engage in criminal activity, the DOC is directed to heed the
Parole Board's request and consider whether Trantino should be
placed in a halfway house. The DOC decision, in that event, must
be based on sufficient credible evidence and its findings and
reasoning adequately explained. As Judge Stern pointed out:
[R]egulations require a statement of reasons
for the denial of halfway house placement,
N.J.A.C. 10A:20-4.10(d) [now renumbered -4.8(d)], and given the relation between this
subject and the Parole Board's action for
approximately six years, we conclude that
reasons for the DOC action or inaction on the
subject are required.
[Id. at 465 (internal citations
omitted).]
Under current regulations, among the factors that the DOC
can consider when evaluating an inmate's application for transfer
to a halfway house are the objective classification scoring
results; needs and interests expressed by the inmate; age; family
status; social contacts with family and friends; correctional
facility adjustment; educational history and needs; vocational
history and needs; military history; nature and circumstance of
present offense; prior offense record; records from previous
confinement; detainers on file or pending; drug dependency and/or
involvement; sexual adjustment; history of escape, attempted
escape or propensity for escape; current psychological and/or
psychiatric reports; medical history and recommendations; arson
history; needs of the Correctional facility; and/or any other
factor pertinent to the inmate's case. N.J.A.C. 10A:9:3-3(a)(1)
- (21). The regulations also provide that an inmate "shall" have
a psychological evaluation, not more than six months old, that
addresses his "readiness and ability to adequately adapt to the
pressures and responsibilities of living outside the correctional
facility" and shall not be "likely to pose a threat to the safety
of the community." N.J.A.C. 10A:20-4.4(a)(2), (3). In its
remand to the DOC, the Appellate Division commented on the
lattermost factor:
If the decision [of the DOC] is premised, in
whole or part, on concerns for the safety of
Trantino or others, it must state reasons for
the DOC's conclusions that the threats are
real and why the safety of Trantino and
others cannot be reasonably protected with
available resources. The public may be
reasonably outraged by Trantino's lawless
conduct, but it cannot be presumed that those
so outraged will resort to the type of
conduct they find so offensive.
The record does not support a finding that concerns of safety
would be a basis for the denial of halfway house transfer.
Finally, it is expected that the DOC, in considering any
request for halfway house treatment, will exercise its authority
under the Interstate Corrections Compact, N.J.S.A. 30:7C-1 to
-12; N.J.A.C. 10A:10-3.1 to -3.19, to secure such a placement, if
that becomes necessary. Such a placement is possible given that
the Interstate Corrections Compact envisions cooperation and
flexibility among member states, N.J.S.A. 30:7C-2; New Jersey
would retain ultimate control over Trantino's fate, N.J.S.A.
30:7C-5; and the DOC presumably has arranged transfers before in
circumstances not unlike this one.
We conclude, as did the Appellate Division, that the DOC, if
requested by the Parole Board, will correctly exercise its
discretion on remand in accordance with the Court's opinion.
In view of Trantino's status as a Title 2A inmate, the standard governing his parole is not derived from current notions of punishment and sentencing. See N.J.S.A. 2C:43-7.2 (mandating that for violent crimes of the first or second degree the sentencing court must now impose a term of parole ineligibility equal to at least 85" of the term of the sentence); Stacey L.
Pilato, New Jersey's No Early Release Act, 22 Seton Hall Legis.
J. 357, 395 (1997) (describing recently enacted federal and state
truth-in-sentencing acts that have reduced the possibility of
parole). The criteria for the parole of Title 2C prisoners,
which are influenced by current punishment and sentencing
standards, simply may not be applied in this case. Trantino
Parole Application, supra,
89 N.J. 367.
In concluding that the Parole Board's decision must be set
aside and the matter reconsidered, we must look primarily to the
Parole Act of 1979, in which the Legislature adopted as the
standard for parole fitness whether there is a substantial
likelihood of future criminal activity if the prisoner is
released. That standard for parole release is legislatively
mandated, and it is the judiciary's obligation to adhere to
express legislative enactments and to effectuate legislative
intent. Our holding in no way diminishes or mitigates the
heinousness of Trantino's 1963 offenses. Our prior opinion
described in detail the vicious homicides that led to Trantino's
convictions and lengthy imprisonment. Trantino Parole
Application, supra, 89 N.J. at 352. The brutality of those
crimes, whose victims were a Lodi police sergeant and a police
trainee, unquestionably is seared not only in the memories of the
victims' families and friends but also in the consciousness of
society. From the standpoint of retribution, perhaps no prison
sentence, whatever its length, is sufficiently severe.
Nevertheless, the punitive elements of retribution and general
deterrence cannot, under the law, be the determinative factors in
resolving this prisoner's eligibility for parole release. On
remand, the Parole Board is obligated to apply the proper
statutory standard.
That standard, as clarified in this opinion, requires that
it be demonstrated that the inmate has attained a level of
rehabilitation that can assure there is no likelihood that he or
she will engage in criminal conduct if released on parole. In
light of that standard, it is not clear that there was sufficient
evidence and adequate findings of fact to support the denial of
parole. Thus, the decision of the Parole Board in denying
Trantino parole and fixing a future parole eligibility date at
ten years is set aside.
Accordingly, we modify the remand to require that the Parole
Board first consider Trantino's parole eligibility. In the event
that the Parole Board determines that halfway house treatment
shall be imposed as a condition for parole release, then the
implementation of that condition shall be undertaken by the DOC
in accordance with this opinion.
The judgment of the Appellate Division is modified and
affirmed.
JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in JUSTICE HANDLER's opinion. CHIEF JUSTICE PORITZ did not participate.
NO. A-43/44 SEPTEMBER TERM 1997
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
THOMAS TRANTINO,
Appellant and
Cross-Respondent,
v.
NEW JERSEY STATE PAROLE BOARD et al.,
Respondents and
Cross-Appellants.
----------------------------------------------------------------
THOMAS TRANTINO,
Appellant and
Cross-Respondent,
v.
NEW JERSEY STATE PAROLE BOARD, et al.,
Respondents and
Cross-Appellants.
DECIDED May 15, 1998
Justice Handler PRESIDING
OPINION BY Justice Handler
CONCURRING OPINION BY
DISSENTING OPINION BY