STATE OF NEW JERSEY v. F.E.D.
DOCKET NO. A-2554-20
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
August 16, 2021
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION August 16, 2021
Argued June 9, 2021 - Decided August 16, 2021
Before Judges Ostrer, Accurso, and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 79-01-1131.
Alison Gifford, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Alison Gifford and Lucy Gray-Stack, Assistant Deputy Public Defender, of counsel and on the briefs).
Frank J. Ducoat, Special Deputy Attorney General/ Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Acting Essex County Prosecutor, attorney; Frank J. Ducoat, of counsel and on the brief).
OSTRER, P.J.A.D.
Effective February 1, 2021, the Legislature removed the Parole Board‘s power to grant “medical parole” to terminally ill or permanently incapacitated inmates, and, instead, empowered the courts to grant such inmates “compassionate release.”
During the subsequent hearing, he asserted he satisfied the three prerequisites for such discretionary relief: he suffered from a “permanent physical incapacity” (that is, a condition that “did not exist at
F.E.D. contends on appeal that the court misinterpreted the statute and found, contrary to the factual record, that he still posed a risk to the public. His arguments are unavailing. To petition for compassionate release, F.E.D. had to present a valid “Certificate of Eligibility for Compassionate Release” from the Department of Corrections, attesting that he suffered from a terminal disease or a permanent physical incapacity. F.E.D.‘s certificate was invalid; the medical diagnoses on which the certificate relied did not conclude that F.E.D. was terminally ill or unable to perform activities of basic daily living. Because the court could not even consider F.E.D.‘s petition without a valid certificate of eligibility, we do not decide if the court abused its discretion when it found that F.E.D. failed to show, by clear and convincing evidence, that he would not pose a threat to public safety.
I.
We start by summarizing the compassionate-release statute. Accepting a recommendation of the New Jersey Criminal Sentencing & Disposition Commission, Annual Report: November 2019 30-33 (2019) [hereinafter Sentencing Commission Report], the Legislature empowered courts to grant qualifying inmates “compassionate release” regardless of their parole-eligibility date, see
Before petitioning the court for rеlease, an inmate must procure a certificate of eligibility from the Corrections Department. “No petition for compassionate release may be submitted to the court unless . . . accompanied by a Certificate of Eligibility for Compassionate Release.”
Armed with the certificate (and the Public Defender‘s help, if needed,
Then, the court “may” grant “compassionate release” - but only if the court “finds[,] by clear and convincing evidence[,] that the inmate is so debilitated or incapacitated by the terminal condition, disease or syndrome, or permanent physical incapacity as to be permanently physically incapable of committing a crime if released.”
And even if the inmate overcomes all those hurdles, the statute, by stating that “the court may order . . . compassionate release,” grants the trial court discretion to deny it.
Compassionately released inmates must also obey the usual parole conditions; if they do not, they may be sanctioned. See
II.
In F.E.D.‘s March 17, 2021 petition for compassionate release, he included a certificate of eligibility, signed by the Corrections Department Commissioner, stating that F.E.D. was “eligible and m[et] the requirement for Compassionate Release” because he was “diagnosed with a terminal condition, disease or syndrome, or a permanent physical incapacity” - specifically, “[s]evere dilated cardiomyopathy with unclear etiology; an ejection fraction of 10% - 15%; [and] underlying atrial appendage clot due to atrial fibrillation.”
The commissioner signed the certificate following the written recommendation of the department‘s “Managing Physician/Psychiatrist,” Hesham Soliman, M.D.3 Referring to the “two Physician attestations required under the law,” Dr. Soliman said, “I see a medical condition that would be fatal in the near future or [a] permanent physical disability” - not, as the statute requires, a terminal condition resulting in death in “six months or less” or a “permanent physical incapacity” (emphasis added). Although Dr. Soliman wrote that “[F.E.D.] requires home health care” (or, if that was unavailable, nursing-home care), he did not specify that F.E.D. could not perform activities of basic daily living and required twenty-four-hour care.
The two physicians’ written diagnoses (or “attestations,” per Dr. Soliman), prepared in mid-February 2021, addressed
The physicians also agreed that F.E.D. should continue to live in the infirmary. Dr. Perera said so “due to [F.E.D.‘s] diminished physical function“; F.E.D. was “[a]ble to do ADL‘s [activities of daily living] but [it] takes a long time,” and he had to “stop” to “rest after walking [a] short distance due to difficulty breathing.” Dr. Lynch said F.E.D. should live in the infirmary “due to diminished ability” - not inability - “in instrumental activities of daily living.”5 Both physicians said F.E.D.‘s condition disabled him from working or exercising.
Referring to F.E.D.‘s aftercare (his care if released), the physicians said that he would need “significant help” (Dr. Lynch) or “assistance” (Dr. Perera) with laundry, grocery shopping, meal preparation and house cleaning. But, neither physician said that F.E.D. currently needed an aide for basic activities like toileting, bathing, eating, or dressing. Dr. Lynch said that F.E.D. would need a walker only “as his condition deteriorate[s]“; Dr. Perera agreed, saying that F.E.D. “may need [a] walker or [a] wheel chair [sic] when breathing pro[b]lems worsen.”
The prosecutor opposed F.E.D.‘s petition. At the subsequent plenary hearing, the prosecutor presented no witnesses, but several witnesses testified on F.E.D.‘s behalf, and F.E.D. presented numerous letters supporting his release. F.E.D.‘s wife testified about her willingness to house and care for F.E.D., and two former fellow inmates discussed F.E.D.‘s rehabilitation and how he helped other inmates’ rehabilitation, including their own. F.E.D. himself said he was sorry for his crimes and had become rehabilitated. And, although Dr. Lynch and Dr. Perera did not testify, Dr. Soliman and an outside cardiologist who treated F.E.D., Mark Soffer, M.D., testified about F.E.D.‘s serious condition.
Dr. Soffer described F.E.D.‘s heart condition, but he declined to assess F.E.D.‘s ability to perform activities of daily living. Dr. Soffer explained that in late 2020, F.E.D. suffered from heart failure (measured by a low ejection fraction - that is, “how well the left ventricle . . . the main pumping chamber of the heart, squeezes“). He was short of breath, and his legs were swollen. He also suffered from arrhythmia, which may have added to his problems.
Using a widely accepted statistical model, Dr. Soffer opined that F.E.D.‘s one-year and five-year mortality rates were fourteen and fifty-five percent, which would drop to eleven and forty-nine percent if he received an implanted defibrillator. Dr. Soffer diagnosed F.E.D. with “Class 3 Stage C heart failure,” meaning he was symptomatic “at . . . low levels of activity or at rest.”
Dr. Soliman concluded that F.E.D. satisfied the preconditions for compassionate rеlease. The physician said that F.E.D.‘s severe cardiomyopathy made the “likelihood of . . . a terminal condition in the next six months . . . possible.” He also noted that F.E.D. remained in the infirmary. Dr. Soliman maintained that, despite the improvement Dr. Soffer had observed, F.E.D. qualified for compassionate release, because his severe cardiomyopathy persisted and his ejection fraction could worsen.
Regarding activities of daily living, Dr. Soliman testified that F.E.D. “does not ambulate, and his ADL . . . is limited.” He ambiguously said that F.E.D. “cannot take care of himself in bathing” and “[o]n a limited basis he can take . . . a little more time to do it.” He then noted that, according to Drs. Lynch and Perera, F.E.D. was “very limited in doing his ADLs.” Asked if F.E.D. would need “24-hour care,” Dr. Soliman said, “He would need some assistance in getting around. . . . I would say that . . . if his staging gets worse, he will need nursing home -- skilled nursing home.” But presently, “he mаy be able to have somebody help him with his ADLs. And that means that somebody would take him to the bathroom, somebody would wheel him around . . . if he was to leave the . . . house.”
In summation, F.E.D.‘s counsel argued that F.E.D. suffered from a permanent physical incapacity because he had lived in the infirmary for months, could “barely walk,” lost “his breath if he walked a few steps,” and needed help with laundry, grocery shopping, bathing, and cleaning.6 And although F.E.D. had improved recently, his condition would persist. Counsel also argued that F.E.D. was “physically incapable of committing a crime” under the statute. According to counsel, F.E.D. satisfied this condition
because he was unable to commit “crimes that require some level of physicality and that pose a threat to public safety.” Lastly, referring to the character witnesses, F.E.D.‘s own testimony and institutional record, and F.E.D.‘s age,
By contrast, the State contended F.E.D. did not suffer a “permanent physical incapacity” as the statute defined it, because the record did not demonstrate he was unable to perform activities of basic daily living. Pointing to F.E.D.‘s serious and extensive criminal behavior, the State also argued that he remained a threat to public safety.
In denying F.E.D.‘s petition, the trial court found that F.E.D. did not prove by clear and convincing evidence he had a “permanent physical incapacity” under the statute. Noting that the statute did not define “activities of basic daily living,” the judge found instructive Medicaid long-term-care requirements, which describe “activities of daily living” as including “bathing, dressing, toileting, locomotion, transfers, eating and mobility.” The judge noted that neither Dr. Lynch nor Dr. Perеra opined that F.E.D. was “unable to perform . . . activities of basic daily living.”
Because F.E.D. did not prove he had a permanent physical incapacity, the court did not decide if such an incapacity made him “permanently physically incapable of committing a crime if released.” But the court did decide F.E.D. had not proved that “the conditions . . . under which [he] would be released would not pose a threat to public safety.” The court considered the reference to a threat to public safety to be categorical. By contrast, the regular parole statute refers to “a reasonable expectation that [an] inmate will violate conditions of parole,”
To guide its decision, the court analyzed several of the factors that guide the Parole Board in deciding whether to grant regular parole. See
This appeal, which we accelerated, followed.
III.
Arguing that the court should have granted him compassionate release, F.E.D. presents three contentions: (1) he suffers from a “permanent physical incapacity” because he requires substantial assistance to perform activities of basic daily living; (2) he would pоse no threat to public safety, because he has rehabilitated himself and is in poor health, his age is inversely correlated with recidivism, and he would have a strong support system; and (3) he is permanently physically incapable of reoffending.7
A.
We begin with the threshold question: whether F.E.D. suffers from a permanent physical incapacity.8 Because the
court must determine whether the agency‘s decision conforms with thе law, is supported by credible evidence and is not unreasonable - in other words, whether it is arbitrary or capricious. See In re State & Sch. Emps.’ Health Benefits Comm‘ns’ Implementation of Yucht, 233 N.J. 267, 280 (2018) (defining arbitrary and capricious standard).
Notably, the statute does not expressly instruct the court to decide anew if a petitioner meets the permanent-physical-incapacity requirement. Rather, the statute instructs the court to decide - given the inmate‘s permanent physical incapacity - if the inmate is physically incapable of committing a crime, and if the inmate poses a threat to public safety. For example, the court must decide if the “inmate is so debilitated or incapacitated by the terminal condition, disease or syndrome, or permanent physical incapacity as to be permanently physically incapable of committing a crime if rеleased.”
Because the law is unclear, we refer to the legislative history. See State v. Munafo, 222 N.J. 480, 488 (2015) (“If the language is unclear, courts can turn to extrinsic evidence for guidance, including a law‘s legislative history.“).
The bill and committee statements are silent on the question; however, the Sentencing Commission Report provides guidance. See State v. Molchor, 464 N.J. Super. 274, 290 (App. Div. 2020) (“[W]e may look for guidance to the statements of intent that a study commission expressed in recommending [a] statute‘s enactment“), aff‘d sub nom. State v. Lopez-Carrera, 245 N.J. 596 (2021).
The commission stated that “[a]fter a hearing, the court could order the inmate‘s release upon a finding that . . . [t]he certificate of eligibility was valid and its issuance was proper.” Sentencing Commission Report at 31. Therefore, the commission clearly contemplated that courts would review the department‘s determination, neither deciding eligibility anew nor blindly accepting the agency‘s decision.
By reviewing the agency‘s eligibility decision - as opposed to deciding eligibility anew - the court furthers the overarching legislative goal of expediting review of compassionate-release applications. See Sentencing Commission Report at 32 (attributing prior medical-parole law‘s limited use (in part) to delays in processing applications, and proposing measures to reduce delays); A. L. & Pub. Safety Comm. Statement to A. 2370, at 2 (July 20, 2020) (noting that the bill provides for expedited hearings on compassionate-releаse petitions). Deciding eligibility anew would fly in the face of this goal by inevitably adding time to the process. Judicial review also increases efficiency by granting primary authority to those physicians best situated to assess the inmate.9
B.
Although the trial judge did not expressly apply this standard of review, he correctly rejected the commissioner‘s threshold eligibility determination. In reviewing the trial court‘s determination, we begin by agreeing with the trial court that “activities of basic daily living” involve the rudimentary tasks of “bathing, dressing, toileting, locomotion, transfers, eating and mobility” (as opposed to, for example, shopping, cooking meals, laundering clothes, and house cleaning).
The statute does not define the phrase “activities of basic daily living.” Nor did the prior medical-parole statute,
But we deem persuasive the definition California has adopted to implement a strikingly similar statutory scheme for medical parole. California‘s law provides that an eligible inmate “shall” receive medical parole if (1) the head physician at the inmate‘s institution determines “that the prisoner is permanently medically incapacitаted with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care, and that incapacitation did not exist at the time of sentencing” and (2) the parole board “determines that the conditions under which he or she would be released would not reasonably pose a threat to public safety.”
basic daily living are breathing, eating, bathing, dressing, transferring, elimination, arm use, or physical ambulation.”
We recognize that various other New Jersey laws and regulations define the phrase “activities of daily living“; however, the Legislature chose not to import those definitions into the compassionate-release
benefits,12 enter certain viatical settlements,13 or receive nursing-facility services.14 It is another thing to use an inmate‘s performance of “activities of basic daily living” to assess his or her ability to reoffend or threaten public safety. Nonetheless, these various formulations support the trial court‘s decision that “activities of basic daily living” include only rudimentary but indispensable tasks like bathing, dressing, toileting, locomotion, transfers, eating and mobility. Including the modifier “basic” before “daily living” also reflects an intention to cover only the most fundamental daily activities
certainly not activities like shopping, house cleaning, food preparation and laundry.
F.E.D. contends that a person who can perform an activity of basic daily living only with another‘s help is “unable to perform” it. That may be so, but we disagree with his contention that requiring assistance with “several” or “nearly all” “activities of basic daily living” satisfies the statute. That would be a vague standard indeed, one we doubt the Legislature intended. And if a person who cannot perform some “activities of basic daily living” satisfies the statute, does it matter which activities those are?
F.E.D. argues that some is enough, because the Medicaid program authorizes nursing-home care for persons who need “hands on assistance with three or more activities of daily living,”15 and the compassionate-release statute is linked to Medicaid — that is, it requires that inmates receive help applying “for medical assistance
daily living. If the Legislature intended to refer to less than all activities, it could have done so. Cf.
We also reject F.E.D.‘s contention that “legislative history,” in the form of sponsors’ post-enactment press statement, supports his interpretation.16 True, two of the statute‘s sponsors acknowledged that the medical-parole system resulted in the release of few “gravely ill inmates” and that the new legislation was intended to “show true compassion to those with profound medical needs.” Press Release, Governor Murphy Signs Sentencing Reform Legislation (Oct. 19, 2020), https://www.nj.gov/governor/news/news/562020/20201019d.shtml (joint statement of Assemblyman Gary Schaer and Assemblywoman Verlina Reynolds-Jackson). Yet, the Sentencing
Commission proposed to increase the number of releasees not by relaxing the medical-parole standards, but by streamlining procedure and tightening timeframes. Sentencing Commission Report at 31-32 (discussing medical-parole standards, proposing that Legislature “establish similar standards” for compassionate release, and noting that “one significant reason” medical parole was “rarely used” was because of procedural delays). The Legislature based the statute on the commission‘s recommendations, S. Judiciary Comm. Statement to First Reprint of A. 2370, at 1 (Aug. 24, 2020); it also expanded the pool of potential beneficiaries by making convicted murderers and kidnappers, among others, eligible, cf.
C.
Applying this understanding of the statute and the court‘s role, we affirm the court‘s denial of F.E.D.‘s petition. We do so because the commissioner‘s certificate of eligibility was invalid. It did not conform to the law‘s requirement that two physicians diagnose F.E.D. with a “permanent physical
incapacity as defined.” See
And Dr. Lynch‘s statement that F.E.D. would need a “[w]heeled [w]alker for fall prevention as his condition deteriorate[s]” indicated that F.E.D. was currently capable of ambulating (a basic activity of daily living) without one.
That statement was consistent with Dr. Perera‘s finding that F.E.D. “may need [a] walker or wheel chair [sic] when breathing pro[b]lems worsen.” In short, the two physicians did not make the predicate findings for issuing the certificate of eligibility.
Dr. Soliman‘s testimony is no substitute for the physicians’ diagnoses. The statute requires the department to issue a certificate of eligibility based on the two physicians’ assessment. Although the statute does not preclude the medical director from reviewing the diagnoses and conveying them to the commissioner, the medical director is not the best witness to convey those diagnoses to the court.19
In sum, the certificate of eligibility was invalid because the physicians did not find that F.E.D. was “unable to perform activities of basic daily living.” Without a valid certificate, the court lacked authority to consider release.
statement that F.E.D. needed to be in the infirmary “due to diminished physical function” was equivalent to saying he needed “24-hour care,” especially if life on a prison block requires “physical function” unlike life in other residential settings. Nor do we decide if Dr. Lynch addressed the twenty-four-hour-care requirement by stating that F.E.D. needed “[c]ontinued [h]ousing in the [i]nfirmary [u]nit,” especially since Lynch‘s recommendation was due to F.E.D.‘s “diminished ability in instrumental activities of daily living.” As to whether the condition existed at the time of sentencing, the physicians ought to have addressed the issue, but did not. However, no one disputes that F.E.D.‘s heart condition arose years after his sentencing as a thirty-three-year-old man.
D.
Pressing beyond its non-eligibility finding, the trial court also rejected F.E.D.‘s claim that his release conditions would not
Were we to review the trial court‘s public-safety decision, we would review it for an abuse of discretion. Like parole decisions, the court‘s decision to grant or deny compassionate release depends on “inherently imprecise” appraisals. See Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222 (2016). The predictive nature of the court‘s decision-making is also akin to pre-trial detention decisions, where a court must decide whether conditions could control the risk that a released arrestee would threaten safety, obstruct justice,
or not appear — decisions we review for an abuse of discretion. State v. S.N., 231 N.J. 497, 515 (2018).
The statute, as noted, already specifies that a physically incapacitated inmate be physically incapable of committing a crime; the no-threat-to-public-safety requirement is an additional prerequisite that applies to physically incapacitated, but not terminally ill, inmates. Assuming that the no-threat-to-public-safety requirement is not mere surplusage, see Feuer v. Merck & Co., 455 N.J. Super. 69, 79 n.2 (App. Div. 2018), aff‘d o.b., 238 N.J. 27 (2019), the statute contemplates that a person who is “physically incapable” of committing a crime may still pose a threat to public safety. How that is so, is not so clear. F.E.D. contends that, to avoid “preclud[ing] [all] inmate[s] from being released,” the “physical[] incapab[ility]” standard should be read to encompass only crimes “requiring some level of physicality,” and to exclude crimes like “downloading child pornography or mailing a bad check.”21 That, of course, would leave petitions by inmates who committed those latter two crimes as grist for the threat-to-public-safety mill. But it would also narrowly — perhaps too narrowly — construe the only test that applies to terminally ill inmates.
We are not convinced that the Legislature intended “physical[] incapab[ility]” to be so limited. First, the plain language of the statute does not support such a limitation. Second, the statute‘s legislative history reflects an intention to create a strict standard. The 1996 study commission that recommended the original medical-parole law, L. 1997, c. 214, contemplated parole for inmates who could “not physically pose a threat оf committing another crime if released.” Study Comm‘n on Parole, Report of the Study Commission on Parole (1996) at 22-24 (emphasis removed). But the Legislature evidently went farther in requiring that inmates be “permanently physically incapable of committing a crime.” A. L. & Pub. Safety Comm. Statement to A. Comm. Substitute for A. 22, at 1 (March 3, 1997).
Perhaps “physically incapable” refers to an inmate‘s personal, unassisted physical capacity to commit a crime. If so, persons who suffer from severe dementia or paralysis or otherwise lack control of muscular or neurological function may be “physically incapable” of using a computer or writing a bad check (as well as firing a weapon or stealing a car).22 However, a person with
could enlist another to commit a crime on his or her behаlf. In such a case, the “threat of public safety” test may prove its worth. See In re Martinez, 148 Cal. Rptr. 3d 657, 675, 679 (Ct. App. 2012) (concluding that a quadriplegic inmate did not “reasonably pose a threat to public safety” and ordering parole board to release him on medical parole).
In any case, here, the trial court construed the “threat to public safety” strictly, noting that the statute omits the word “reasonable” — unlike the parole law, which refers to “a reasonable expectation” someone will violate parole,
The California Court of Appeal, in construing its state‘s medical-parole law for physically incapacitated inmates, attached great importance to the presence of the word “reasonably.” In re Martinez, 148 Cal. Rptr. 3d at 664-668. Unlike the New Jersey statute, the California law allows medical parole if the inmate does not “reasonably pose a threat to public safety.”
court held that the quadriplegic medical-parole candidate did not reasonably pose a threat to public safety. He was unlikely to enlist others to commit crimes on his behalf, notwithstanding the parole board‘s fears that he would. So, the court held that he was entitled to medical parole. Id. at 673, 675, 679. See also Sarah L. Cooper & Cory Bernard, Medical Parole-Related Petitions in U.S. Courts: Support for Reforming Compassionate Relеase, 54 Creighton L. Rev. 173, 185-86 (2021) (reviewing Martinez and suggesting “that the assessment of a prisoner‘s risk to public safety should be nuanced and evidence-informed, reflecting that ill health likely lessens that risk“).
These are knotty issues, to be sure. We defer deciding how much “physicality” is required to be “physically incapable of committing a crime,” and how much “threat to public safety” is enough to bar compassionate release, to a case requiring those decisions.
E.
In sum, we affirm the trial court‘s order denying F.E.D.‘s compassionate release. Although F.E.D.‘s rehabilitation efforts are laudable and his medical condition serious, our role is to interpret the statute; we must affirm the decision below because the certificate of eligibility, which depended on medical diagnoses lacking essential findings, was invalid.
Affirmed.
CLERK OF THE APPELLATE DIVISION