Sundiata Acoli v. New Jersey State Parole Board
A-73-20 (083980)
SUPREME COURT OF NEW JERSEY
May 10, 2022
Argued January 31, 2022
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.
Sundiata Acoli v. New Jersey State Parole Board (A-73-20) (083980)
Argued January 31, 2022 -- Decided May 10, 2022
ALBIN, J., writing for the Court.
In this appeal, the Court considers whether, as required by the statute that governs the determination of Sundiata Acoli’s parole application --
On May 2, 1973, Acoli was driving with two fellow members of the Black Liberation Army, James Costan and Joanne Chesimard. All three were armed with handguns. Shortly before 1:00 a.m., New Jersey State Trooper James Harper stopped their car for a broken taillight. Acoli exited the car to speak with Trooper Harper. Almost simultaneously, Trooper Werner Foerster arrived on the scene as backup. Trooper Foerster frisked Acoli while Trooper Harper approached the car. While patting Acoli down, Foerster uncovered ammunition and a pistol. As Trooper Foerster was confronting Acoli, Chesimard shot Trooper Harper in the shoulder. A shootout ensued between Harper, Chesimard, and Costan. In the meantime, Acoli attempted to wrest Trooper Foerster’s gun from him. In the course of that physical struggle, Acoli claims that Trooper Harper fired at him, grazing the top of his head and causing him to black out. According to Acoli, when he regained consciousness, Trooper Foerster’s body was lying on the ground nearby and Acoli fled with Costan and Chesimard, both severely wounded.
In 1974, a jury found Acoli guilty of all charges brought against him for the murder of Trooper Foerster and the shooting of Trooper Harper. In total, he received an aggregate prison sentence of life plus twenty-four to thirty years. Under the law that controlled the crimes he committed in 1973, Acoli first became eligible for parole in 1993.
Acoli has lived the last forty-nine years in various federal prisons. After an early attempted escape and some minor infractions in the nineties, Acoli’s record over more than a quarter century has been exemplary. The Federal Bureau of Prisons has kept detailed records of Acoli’s institutional progress, including his completion of 120 prison programs. Institutional progress reports and a report by a prison psychologist made during that time were favorable to Acoli.
Before Acoli’s 2010 parole hearing, the State assigned Dr. Lois D. Goorwitz, a licensed psychologist, to assess Acoli’s institutional progress. In Dr. Goorwitz’s view, Acoli appeared remorseful, pointing to Acoli’s expression of deep regret for his “part in Trooper Fo[er]ster’s death.” Dr. Goorwitz found “NO psychological contraindications to granting parole.” She concluded that “it is time to seriously consider [Acoli] for parole.” A two-member panel of the Parole Board recommended the denial of parole, giving little weight to Acoli’s positive institutional record and largely disregarding Dr. Goorwitz’s favorable report. The full Parole Board affirmed the denial.
In September 2014, the Appellate Division held that the Parole Board had failed to establish that there was a substantial likelihood that Acoli would reoffend if released and ordered that Acoli be placed on parole. The Court reversed on procedural grounds, holding that
Between his 2010 and 2016 hearings, Acoli remained infraction-free, continued to receive positive reports from prison staff, and completed twenty-four more programs. In advance of the 2016 parole hearing, the Board retained the services of a new licensed psychologist, Dr. Julia Van Pelt. Although Acoli’s institutional record was exemplary during the six-year interim, Dr. Van Pelt arrived at completely different conclusions from those reached by Dr. Goorwitz.
In June 2016, the full Board conducted a hearing, calling only one witness -- Acoli. During approximately six hours of questioning, the then-seventy-nine-year-old Acoli spoke about his failing health, including his cardiac disease, difficulty hearing, and memory loss. Most of the questioning probed Acoli’s recall of the 1973 Turnpike shooting. The Board repeatedly asked Acoli who shot Trooper Foerster, and, every time, Acoli responded that he did not know.
Toward the end of six hours of examination, Acoli was asked, “Who do you think killed Trooper Foerster?” (emphasis added). To that speculative question, Acoli answered, “I think [Trooper Foerster] was probably shot by Trooper Harper” while Acoli struggled with Foerster. Acoli’s errant speculation elicited by the Board provided the basis for the Board’s later claim that Acoli had changed his account of the shooting. The Board asked Acoli few questions about his decades-long infraction-free and model institutional record or about the dozens of programs he had completed (other than one, Criminal Thinking).
At the end of the hearing, Acoli explained, “I deeply regret the actions that transpired, those were turbulent and fearful times.” He stated that if paroled, he would live with his daughter and grandchildren. After the hearing concluded, the Board denied Acoli parole.
A divided three-judge panel of the Appellate Division affirmed the decision of the Parole Board. 462 N.J. Super. 39 (App. Div. 2019). Emphasizing the deferential standard of review afforded to a decision of the Parole Board and the expertise the Board brings to bear, the panel majority concluded that “there is ample support in the record for the Board’s determination that there is a substantial likelihood that Acoli will commit another crime . . . if the Board grants him parole.” Id. at 66.
In dissent, Judge Rothstadt described the proceedings before the Parole Board as a “show hearing” that arrived at a “desired” result. Id. at 67-68, 77. Judge Rothstadt made clear that the Parole Board and the panel majority did not faithfully apply the Parole Act, which “effectively establishes a presumption in favor of parole.” Id. at 71 (quoting In re Parole Application of Trantino (Trantino II), 89 N.J. 347, 355-56 (1982)). According to Judge Rothstadt, the Parole Board did not meet its burden of proving that Acoli “should not be released.” Ibid. He concluded that the Parole Board unjustifiably overlooked and undervalued critical evidence that warranted the granting of parole. Id. at 77.
The case comes before the Court as an appeal as of right based on the dissent.
HELD: Under
1. The discretionary power of the Parole Board is not unlimited or absolute. Trantino v. State Parole Bd. (Trantino VI), 166 N.J. 113, 173 (2001). When a parole decision is so far wide of the mark or so manifestly mistaken under the governing statutory standard, intervention is required in the interests of justice. Id. at 192. A Parole Board decision that either violates legislative policy, is not supported by “substantial evidence” in the record, or “could not reasonably have been made on a showing of the relevant factors” cannot be sustained. Trantino v. State Parole Bd. (Trantino IV), 154 N.J. 19, 24-25 (1998). (p. 31)
2. The Parole Act of 1979 provides that an inmate, such as Acoli, “shall be released on parole at the time of parole eligibility, unless [it is shown] by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime . . . if released on parole at such time.” Trantino VI, 166 N.J. at 126. Only when the risk of reoffending rises to “a substantial likelihood” may a parole-eligible inmate be denied parole. The 1979 Parole Act shifted the burden to the State to prove that the prisoner should not be released, and it creates a protected expectation of parole in inmates who are eligible for parole. The objective of the Act was to reduce the discretionary authority of the Board. (pp. 32-33)
3. Under the 1979 Parole Act, the Parole Board must assess a number of factors for the purpose of determining “what a man is and what he may become rather than simply what he has done.” See Acoli, 224 N.J. at 222 (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10 (1979)).
4. In Trantino VI, the Court reversed the Parole Board’s decision to deny parole to Thomas Trantino, who was convicted of murdering two police officers in 1963. 166 N.J. at 121-23. The Court found that the Board had not abided by the statutory standard governing parole. Id. at 192. Stressing its previous finding that “there is evidence in the record that Trantino’s memory loss is consistent, long-standing and genuine,” id. at 177-78 (quoting Trantino IV, 154 N.J. at 35, 38), the Court determined that Trantino’s inability to recall the specifics of the crime was not necessary to ensure Trantino would not reoffend upon release, id. at 178. The Court also found the Board’s “highly selective focus only on the psychological evidence supportive of its denial of parole, and its total disregard of evidence favorable to parole, undermine[d] the deference” to which it was normally entitled. Id. at 188. Finally, and more globally, the Court concluded that parole had been denied based “on the Board’s selective and arbitrary reliance on only those portions of the record that could possibly support the Board’s conclusion.” Id. at 189. The Court noted that the Board failed to adequately address “substantial evidence in the record, spanning many years of infraction-free incarceration and favorable psychological evaluations, that demonstrated Trantino’s likelihood of success on parole.” Ibid. “Because of the Parole Board’s unjustifiable and ‘obvious overlooking or undervaluation of crucial evidence,’” the Court held that its determination was “manifestly mistaken and must be set aside.” Id. at 192. Recognizing that the grant of parole in any given case may be highly unpopular, this Court emphasized that “public outrage . . . has no place in a parole proceeding and is to be given no weight in a parole decision.” Id. at 127 (quoting Trantino II, 89 N.J. at 376). (pp. 35-38)
5. With the principles of Trantino VI as a guide, the Court addresses the validity of the Parole Board’s decision to deny Acoli parole. First, although the crime Acoli committed occurred forty-nine years ago, the Board’s hyper-focus on Acoli’s recollection of the events and its finding that his account lacked credibility became one of its critical justifications for denying parole. But to the extent that the Board relied on alleged inconsistencies in Acoli’s account, the Board did not distinguish between the consistent accounts that Acoli had given based on his recollection and the speculation that the Board demanded as to who killed Trooper Foerster -- after Acoli had repeatedly stated that he did not know. The Board surely had the right to revisit the terrible deeds that Acoli had done. The Board, however, lost sight that its mission largely was to determine the man Acoli had become. The Board’s narrow focus obscured the actual issue to be decided -- whether there was a substantial likelihood Acoli would reoffend if released. (pp. 38-43)
6. At the parole hearing, the Board members expressed no interest in: (1) the approximately 120 courses Acoli completed; (2) his extensive participation in counseling; (3) his above-average work evaluations; (4) the constructive rapport he displayed with prison staff and inmates; (5) the positive evaluations from the Federal Bureau of Prisons; (6) his assignment to the Honor Unit of his institution; (7) his instruction of younger inmates in a course on Critical Thinking in the federal prison system; and (8) his decades-long infraction-free record. Rather, the Board stated it “reviewed the entire record in rendering its decision” and then cursorily enumerated some generic mitigating factors. In short, the Board merely paid lip service to the mitigating factors favoring parole set forth in
7. The Board made clear that its decision, in large part, was based on Acoli’s performance at the hearing. But beyond belittling Acoli’s presentation as “shallow and emotionless,” the Board failed to explain what else Acoli might have said to persuade the Board of his sincerity. The Board refused to accept Acoli’s words -- and, perhaps more importantly, his deeds, as evidenced by its disregard of his model behavior as an inmate. In light of Acoli’s verbal renunciation of violence as an acceptable way to achieve social change; more than two decades infraction-free in the federal prison system; the multitude of programs and counseling sessions he completed; his honor status as an inmate; his acquisition of vocational skills; and his advanced age, it is difficult to imagine what else might have persuaded the Board that Acoli did not present a substantial likelihood to reoffend. (pp. 45-49)
8. The Board’s denial of parole to Acoli, moreover, was not supported by the overall psychological risk assessments. The Appellate Division reversed the Board’s 2010 denial of parole based, in part, on Dr. Goorwitz’s report. On remand and in the run-up to Acoli’s 2016 parole hearing, the Parole Board retained a new psychologist, Dr. Van Pelt. Dr. Van Pelt made less favorable observations and came to less favorable conclusions than previous psychological assessments of Acoli. Nevertheless, Dr. Van Pelt determined that Acoli presented only a low to moderate risk of recidivism -- and never opined that there was a substantial likelihood that Acoli would reoffend. In the end, even Dr. Van Pelt’s report does not support the Board’s denial of parole. The Board, moreover, may not rely on a single unfavorable psychological report, in disregard of evidence favorable to parole, to reach a preferred outcome. (pp. 49-52)
9. Finally, Acoli’s advanced age -- seventy-nine at the time of the hearing (and eighty-five today) -- is another highly relevant factor in determining whether the Board abused its discretion in denying parole. Studies have shown that as individuals age, their propensity to commit crime decreases and, in particular, that elderly individuals released from prison tend to recidivate at extremely low rates. Yet nothing in its decision suggests that the Board considered in any meaningful way the studies on the age-crime curve in denying parole to Acoli. (pp. 52-53)
10. The Parole Board’s decision to deny Acoli parole is not supported by substantial evidence in the record or by a reasonable weighing of the relevant factors in
REVERSED.
JUSTICE SOLOMON, dissenting, expresses the view that the majority probes the record for evidence favorable to Acoli rather than affording the Parole Board the substantial deference to which it is entitled. Noting that the Board is tasked by the Legislature to make value judgments by assessing the facts in the record and its personal observations of the inmates before it, Justice Solomon explains how the Parole Board formed its decision in this case by reasonably relying on the record as a whole as well as the observations from its members during Acoli’s parole hearing. After reviewing the evidence on which the Board relied and noting that removing the Board’s ability to evaluate the sincerity of an inmate’s presentation would be stripping the Board of one of its core responsibilities, Justice Solomon concludes that the Board came to a well-supported conclusion here. In the dissent’s view, the majority diminishes the role of the Parole Board by making the Court the finder of fact, contrary to fundamental principles of appellate review.
JUSTICE PIERRE-LOUIS and JUDGE FUENTES (temporarily assigned) join in JUSTICE ALBIN’s opinion. JUSTICE SOLOMON filed a dissent, in which JUSTICE PATTERSON joins. CHIEF JUSTICE RABNER did not participate.
Bruce I. Afran argued the cause for appellant (Bruce I. Afran, on the briefs).
Joseph J. Russo, Deputy Public Defender, argued the cause for amicus curiae Public Defender of New Jersey (Joseph E. Krakora, Public Defender, attorney; Scott M. Welfel, Assistant Deputy Public Defender, of counsel and on the brief, and Joseph J. Russo, on the brief).
Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation and Rutgers Law School Constitutional Rights Clinic, attorneys; Alexander Shalom and Jeanne LoCicero, of counsel and on the brief, and Ronald K. Chen, on the brief).
Raymond Brown argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; CJ Griffin, on the brief).
Lawrence S. Lustberg submitted a brief on behalf of amicus curiae American Friends Service Committee (Gibbons, attorneys; Lawrence S. Lustberg and Michael R. Noveck, on the brief).
Richard Lomurro submitted a brief on behalf of amicus curiae National Conference of Black Lawyers (Lomurro, Munson, Comer, Brown & Schottland and Howard University School of Law, Movement Lawyering Clinic, attorneys; Richard Lomurro, of counsel and on the brief, Emeka Nkwuo, of counsel, and Justin Hansford, a member of the Maryland bar, admitted pro hac vice, on the brief).
Jennifer B. Condon submitted a brief on behalf of amicus curiae Center for Constitutional Rights (Seton Hall University School of Law Center for Social Justice, attorneys; Jennifer B. Condon, on the brief).
Andrew Robert Burroughs submitted a brief on behalf of amici curiae the National Association of Blacks in Criminal Justice, the Black Police Experience, Blacks in Law Enforcement of America, and the Grand Council of Guardians (Burroughs Law and Harvard Law School Charles Hamilton Houston Institute for Race and Justice, attorneys; Andrew Robert Burroughs, and Katharine Naples-Mitchell, a member of the New York and Massachusetts bars, admitted pro hac vice, on the brief).
JUSTICE ALBIN delivered the opinion of the Court.
Sundiata Acoli, now eighty-five years old, has been imprisoned for forty-nine years for his role in the murder of State Trooper Werner Foerster and the wounding of State Trooper James Harper in 1973. He has been a model inmate and infraction-free for more than twenty-five years. During that time, he has consistently received positive institutional reports from the Federal Bureau of Prisons, completed over a hundred programs and counseling sessions, served on the Honor Unit in his institution, taught a course to younger inmates on rational thinking and emotional control, and learned employable skills.
Since 1993, the New Jersey State Parole Board has denied Acoli parole every time he has become eligible for release. On each occasion, including in 2016 when Acoli was seventy-nine years old, the Parole Board determined that there was a substantial likelihood that Acoli would commit a crime if released. The Board, however, has not
In 2010, the Parole Board denied Acoli parole, despite psychological assessments that favored his release. The Appellate Division overturned the Board’s decision, finding no substantial support in the record to justify Acoli’s continued imprisonment. It therefore ordered his release. This Court reversed on procedural grounds to allow the full Board to take firsthand witness testimony before deciding whether to grant parole to Acoli.
At a hearing in 2016, the Parole Board called only one witness, Acoli, who was then suffering from cardiovascular disease and hearing loss. Acoli testified that, if released, he planned to reside with his daughter, a Wall Street risk analyst, and his grandchildren. The State’s psychological expert, despite issuing a report less favorable than the previous one, described Acoli’s risk of committing another offense as low to moderate. The Board again denied parole, stating “that concerns remain that [Acoli] would commit a crime if released on parole.” The Board imposed a fifteen-year future eligibility term. The Appellate Division affirmed.
We now reverse. The Parole Board has not established “by a preponderance of the evidence that there is a substantial likelihood that [Acoli] will commit a crime” if placed on parole. See
The Board clothed its decision with the same findings it has repeatedly invoked to deny Acoli parole -- that he lacked insight into the crime he committed almost a half-century ago and feigned his memory of the events. The parole hearing had little to do with the man who appeared before the Board. Almost no inquiry was made about his exemplary record over the last twenty-five years, his successful completion of programs, his institutional achievements, his fading health, or his prospects in the future. Indeed, the Board’s reasons for denying Acoli parole resemble in many ways the contrived reasons we criticized in Trantino v. State Parole Bd. (Trantino VI), 166 N.J. 113, 198 (2001).1
No member of the Court disputes that Acoli committed a horrific crime. The issue, however, is whether Acoli, after nearly five decades of imprisonment, has satisfied the statutory demands that govern his parole eligibility. The Parole Board, like every government agency, must faithfully discharge the law entrusted to it, even when it may not be popular to do so. However despised Acoli may be in the eyes of many because of the notoriety of his crime, he too is entitled to the protection of the law -- and to the fair and impartial administration of justice. That is what our commitment to the rule of law requires.
Many, no doubt, may believe that a person who kills a police officer should never be eligible for parole. Indeed, if such a crime were committed today, the offender would be condemned to serve a term of life in prison without the possibility of parole.
I.
A.
Sundiata Acoli2 enjoyed a seemingly ordinary upbringing in Texas and conventional young adult life.3 In 1956, at the age of nineteen, he graduated from Prairie View A&M College, where he majored in math. He began work at the National Aeronautics and Space Administration (NASA) and then was employed by defense contractors. He came of age in the 1950s and 1960s, a turbulent time in race relations in this country. It was a time when African Americans in the South struggled to break the shackles of segregation, to gain admission to public accommodations and transportation, and to secure the right to vote and other constitutional rights. It was a time that gave rise to a civil rights movement, and a time when members of that movement were beaten and arrested, and some killed. Acoli was deeply affected by the injustices and passions of his time. After the brutal murder of three young civil rights workers in Mississippi in 1964, he traveled to the South to assist in voter registration with non-violent civil rights organizations.
During those years, Acoli apparently lost faith in the non-violent path to change. In 1968, the year of Dr. Martin Luther King, Jr.’s assassination, Acoli became a member of the Black Panther Party, an organization that promoted Black nationalism and social welfare programs but also armed self-defense. In 1969, he joined the Black Liberation Army -- a militant group more inclined to commit violent acts in pursuit of its radical goals. As a member of that organization, Acoli moved to Alabama where he engaged in community organizing.
In the early morning hours of May 2, 1973, Acoli was driving a Pontiac LeMans on the New Jersey Turnpike, on his way to Alabama from New York. Travelling with him were two fellow members of the Black Liberation Army, James Costan and Joanne Chesimard (later known as Assata Shakur). All three were armed with handguns. Acoli knew his passengers from their common membership in the organization, but he claimed that he did not know their destination. He was aware, however, that Chesimard was wanted for bank robberies in New York.
Shortly before 1:00 a.m., New Jersey State Trooper James Harper stopped the Pontiac for a broken taillight. Acoli exited his car to speak with Trooper Harper. Almost simultaneously, Trooper Werner Foerster arrived on the scene as backup. Trooper Foerster frisked Acoli while Trooper Harper
approached the Pontiac to check the VIN number. While patting Acoli down, Foerster uncovered an ammunition
As Trooper Foerster was confronting Acoli, Trooper Harper stated that Chesimard opened fire at Harper, striking him in the shoulder. A shootout ensued between Harper, Chesimard, and Costan. During the exchange of fire, Chesimard and Costan were wounded. In the meantime, Acoli attempted to wrest Trooper Foerster’s gun from him. In the course of that physical struggle, Acoli claims that Trooper Harper fired at him, grazing the top of his head and causing him to black out. In the midst of the melee, Harper ran toward the State Police Barracks located 200 yards away for help.
According to Acoli, when he regained consciousness, the gravely injured Costan was leaning on Harper’s troop car, telling Acoli to get up. Trooper Foerster’s body was lying on the ground nearby. Acoli assisted Costan to the Pontiac, where he found Chesimard severely wounded. Acoli drove the Pontiac about five miles, pulled it onto the shoulder of the road, and assisted
Costan and Chesimard out of the vehicle. As the police arrived, Acoli fled into the woods. The wounded Chesimard remained behind and surrendered. By that time, Costan had died from his injuries, and the police found Foerster’s service revolver under his body. The next day, Acoli was apprehended.
When state troopers arrived at the scene of the initial motor vehicle stop, they found Trooper Foerster’s body lying on the roadway. Trooper Foerster had been shot four times, twice in the head with his own revolver and twice by bullets fired from Acoli’s gun. Who fired the fatal shots that killed Trooper Foerster remains a disputed issue. The Middlesex County Prosecutor, in a letter to the Parole Board, stated either Acoli or Chesimard could have fired the shots from Foerster’s weapon.
In 1973, Acoli and Chesimard were indicted on charges related to the murder of Trooper Foerster and the shooting of Trooper Harper. Acoli and Chesimard were tried separately. A jury found Acoli guilty in 1974 of all charges, including murder, assault with intent to kill Harper, and illegal possession of a weapon.5 Acoli was sentenced to a term of life imprisonment for committing murder and to consecutive prison terms of ten to twelve years for assault with intent to kill; two to three years for illegal possession of a
weapon; and twelve to fifteen years for armed robbery. In total, he received an aggregate prison sentence of life plus twenty-four to thirty years.6
Under the law that controlled the crimes he committed in 1973, Acoli first became eligible for parole in 1993.
B.
1.
Acoli has lived the last forty-nine years in various federal prisons. He initially
Acoli’s record over more than a quarter century has been exemplary. The Federal Bureau of Prisons has kept detailed records of Acoli’s institutional progress, including his completion of 120 prison programs.7
A 1998 progress report from the federal penitentiary at Allenwood recorded that Acoli had developed “positive avenues to channel his energy.” Acoli had become active in “peer organizations” and had participated in such programs as Criminal Thinking, Anger Management, and Self Discovery. In those programs, group counselors described Acoli as “an excellent participant.” Acoli completed a computer course with a 4.0 grade average for which he received a certificate of excellence. He also graduated with honors from a two-year paralegal course and a real estate course and, additionally, held the position of Public Relations Officer in the African Culture Group.
That same year, Dr. Richard G. Dudley, Jr., a prison psychologist, expressed in a report that if Acoli were to be granted parole, “he evidences the
psychological stability required to successfully adjust to life outside of prison.”
A 2003 Allenwood report positively noted that Acoli was “a member of the institution’s Honor Unit program” and a “prisoner representative” in an organization that “establishe[d] programs and activities for the inmate population.” Acoli consistently received “above average work evaluations.” A 2007 Allenwood report stated that Acoli performed “above-average in the areas of quality of work, quantity of work, initiative, interest, ability to learn, need for supervision, response to supervision and ability to work with others.”
A 2009 progress report from the Otisville Federal Correctional Institute recorded that Acoli “has participated in programs as recommended” and “displayed a positive rapport with both staff and inmates.” The Psychology Services staff positively noted that Acoli had developed “adequate coping skills, an organized approach to completing goals and [an] ability to establish positive interaction with others.” The staff also expected that Acoli would “be able to transition to the community if paroled.”
In 2009, the Bureau of Prisons presented Acoli with a lifetime achievement award from his peers. The Certificate of Recognition stated: “You have consistently bridged the gap and promoted unity, education and peace amongst prisoners from around the world in the Federal Bureau of
Prisons. You have demonstrated year after year your love for Humanity and Redemption.”
In 2014, within the federal prison system, Acoli began instructing a course in Critical Thinking -- a course in which he
2.
Acoli became eligible for parole for the third time in 2010. Before his 2010 parole hearing, the State assigned Dr. Lois D. Goorwitz, a licensed psychologist, to assess Acoli‘s institutional progress. Dr. Goorwitz determined that Acoli‘s institutional adjustment was “above average” and that he displayed “adequate insight.” In interviewing Acoli, Dr. Goorwitz observed that he was “very cooperative, self-reflective, thoughtful, and non-defensive.” He also “appeared to be answering [questions] honestly.” In her report, Dr. Goorwitz referred to the multitude of programs completed by Acoli, including therapeutic programs. She noted that Acoli‘s computer instructor described him as “an excellent student.”
In Dr. Goorwitz‘s view, Acoli appeared remorseful, pointing to Acoli‘s expression of deep regret for his “part in Trooper Foerster‘s death.”8 Acoli had told her that “the years he has participated in individual as well as group counseling has led him to see life differently,” and that he “no longer believes in the use of violence for political purposes.” He pointed to the election of President Barack Obama as proof that “[t]here are other ways to accomplish change.”
Dr. Goorwitz found “NO psychological contraindications to granting parole.” She pointed out Acoli‘s “[g]ood family support” as well as his “[e]xpressed family values” and “motivation to make changes in lifestyle and behavior.” She assessed his risk of recidivism as “moderate,” only twenty-eight percent. Dr. Goorwitz emphasized that Acoli‘s “mental health treatment” and the maturity he gained through the years had resulted not only “in significant self-growth,” but also in his “ability to take responsibility for his crimes.” She also stressed that he had “significantly changed views on politics and the use of violence.” She concluded that “it is time to seriously consider [Acoli] for parole.”
C.
1.
A two-member panel of the Parole Board conducted a hearing at which Acoli testified. Acoli provided the same account of the Turnpike incident that he has consistently given over the years. He repeated that he did not know who shot Trooper Foerster but told the Board that he accepts responsibility for the Trooper‘s death.
In recommending the denial of parole, the panel gave little weight to Acoli‘s positive institutional record and largely disregarded Dr. Goorwitz‘s favorable report. The panel found that Acoli “continue[s] to remain a substantial threat to public safety” because of his inability “to identify or adequately address the causes of his criminal behavior” or “to demonstrate remorse and empathy.” According to the panel, Acoli continued to “minimize [his] maladaptive behavior,” and “to deny key aspects of the offenses.” Acoli appealed to the full Parole Board, which, in part, relied on the interview conducted by the two-member panel in affirming the denial of parole.
Acoli appealed the Parole Board‘s decision.
In September 2014, the Appellate Division held that the Parole Board had failed to establish that there was a substantial likelihood that Acoli would reoffend if released. The Appellate Division determined that the Parole Board‘s findings that Acoli lacked insight, did not accept responsibility, and could not explain how his violent thinking had changed were unsupported by the record. In addition, in the court‘s view, the Board paid too little regard to Dr. Goorwitz‘s favorable psychological report and gave too much weight to its assessment that Acoli was likely to recidivate based almost solely on the crimes he committed four decades earlier.
The court also explained that Acoli‘s “forty-year-old recollection of the events is not likely to change” and “should not stand in the way of [his] parole.” It noted that Acoli‘s version of events -- albeit different from the State‘s -- had remained consistent over the years. The Appellate Division concluded that the Board‘s findings were “so wide of the mark and so fundamentally contradicted by the record” that the Board‘s decision warranted reversal, quoting Kosmin v. State Parole Bd., 363 N.J. Super. 28, 43 (App. Div. 2003). The Appellate Division thus ordered that Acoli be placed on parole.
3.
We granted the Parole Board‘s petition for certification, Acoli v. State Parole Bd., 221 N.J. 220 (2015), and reversed on procedural grounds, Acoli v. State Parole Bd., 224 N.J. 213, 232 (2016). The Court held that
II.
A.
In the six years between the 2010 and 2016 hearings, Acoli remained infraction-free, continued to receive positive reports from prison staff, and completed twenty-four more programs. In advance of the 2016 parole hearing, the Board retained the services of a new licensed psychologist, Dr. Julia Van Pelt. Although Acoli‘s institutional record was exemplary during the six-year interim, Dr. Van Pelt arrived at completely different conclusions from those reached by Dr. Goorwitz. The same exact responses that Dr. Goorwitz credited as sincere six years earlier, Dr. Van Pelt rejected as inauthentic. After listening to Acoli‘s account of what occurred in 1973, Dr. Van Pelt opined that Acoli failed to take responsibility for his actions. She did not accept as genuine Acoli‘s expressions of remorse and his verbal renunciation of violence as a vehicle for social change. In Dr. Van Pelt‘s view, Acoli had an “inability . . . to at least superficially condemn violence” and appears to “at least passively condone aggression.”
Dr. Van Pelt acknowledged that Acoli‘s peers viewed Acoli as a “wise elder.” She also reported that his case manager indicated that, if there were ever to be trouble in the unit, Acoli would merely be considered “an old man in the way.” Dr. Van Pelt assessed Acoli as presenting a low to moderate risk of recidivism. She did not render an opinion that there was a substantial likelihood that Acoli would reoffend if released.
B.
On June 8, 2016, the full Board conducted a hearing, calling only one witness -- Acoli. During approximately six hours of questioning, the then seventy-nine-year-old Acoli spoke about his failing health, including his cardiac disease, difficulty hearing, and memory loss.
Most of the questioning probed Acoli‘s recall of the 1973 Turnpike shooting. Consistent with the account he had given at prior parole hearings, Acoli stated that once the gun battle broke out between Trooper Harper, Costan, and Chesimard, he struggled with Trooper Foerster, then blacked out when a bullet grazed the top of his head. The Board repeatedly asked Acoli who shot Trooper Foerster, and, every time, Acoli responded that he did not know.
Toward the end of six hours of examination, the Board demanded that Acoli go beyond what he remembered and conjecture about how Trooper Foerster was killed. Acoli was asked, “Who do you think killed Trooper Foerster?” (emphasis added). To that speculative question, Acoli answered, “I think [Trooper Foerster] was probably shot by Trooper Harper” while he struggled with Foerster. Acoli‘s errant speculation elicited by the Board provided the basis for the Board‘s later claim that Acoli had changed his account of the shooting.
The Board asked Acoli few questions about his decades-long infraction-free and model institutional record or about the dozens of programs he had completed (other than one, Criminal Thinking). The Board took little interest in his achievements and rehabilitative steps, the positive reports filed by the Federal Bureaus of Prisons, or the plans he had if paroled. Some Board members expressed fascination with the Superfly hat he wore in the 1970s. Other members expressed puzzlement over why Acoli, who had “the[] advantages” of a good family, a college education, and secure employment, became focused on the plight of less fortunate African Americans and their civil rights. He simply explained that he wanted all Black people to “gain an equal opportunity to a better life.” That motivation led him to join a radical organization -- even one willing to use violence. The Board expressed concern about whether Acoli had disavowed violence as a legitimate means of achieving political or social change.
Acoli stated that he was “older, and hopefully wiser” and had come to realize, through counseling and over time, that change in society could “be attained through nonviolent means.” As an example of such change, he pointed to the election of President Barack Obama. He told the Board that he did not “advocate and condone violence, and particularly in bringing about . . . political change” and that he “fully embrace[d] living a peaceful lifestyle.”
At the end of the hearing, Acoli conveyed his deep regret for his role in the murder of Trooper Foerster and his “deepest remorse, and sincere apology to Trooper Foerster‘s family.” He added, “No one can change the past, but anyone can pay the penalty to change themselves. And that‘s what I‘ve been working on these many years.” He reflected that he was now “an old man” whose “memory fails me more and more each day[.] . . . But I do
After the hearing concluded, the Board denied Acoli parole.
C.
On December 22, 2016, the Parole Board issued a six-page opinion explaining its decision to deny parole. The Board stated that, “based upon answers [Acoli] provided at the hearing, . . . concerns remain that [he] would commit a crime if released on parole.” The Board faulted Acoli because “[his] answers were not spontaneous and [he] paused before answering each question“; because his answers “lacked depth and revealed that [he] d[id] not have an adequate understanding of [his] criminal thinking“; because “[his] presentation was shallow and emotionless“; because “[his] responses were superficial in nature and appeared rehearsed“; and because he had ”chosen to speculate [about] who fired the fatal shots” and “could not reconcile [his] conjecture with the evidence from the crimes.” (emphasis added). The Board stressed that Acoli had “made negligible progress into understanding why [he] chose to be part of a violent militant organization.” Although the “Board noted the numerous programs that [Acoli had] completed during [his] incarceration,” it nevertheless found that Acoli could not “articulate any cognitive thoughts that would indicate [his] understanding of seeking resolution to an issue without resorting to criminal activity.”
Consequently, the Board determined that “after 42 years of incarceration . . . [m]ore work needs to be done on [Acoli‘s] part to undergo a meaningful introspection into the internal and external factors that impelled [his] life choices.” The Board imposed a fifteen-year future eligibility term, retroactive to July 17, 2010.10
On June 21, 2017, the Parole Board denied Acoli‘s administrative appeal, with some more detail but mostly for the reasons stated in its earlier decision.
D.
A divided three-judge panel of the Appellate Division affirmed the decision of the Parole Board, with Judge Rothstadt dissenting. Acoli v. State Parole Bd., 462 N.J. Super. 39 (App. Div. 2019).
The panel majority emphasized the deferential standard of review afforded to a decision of the Parole Board and the expertise the Board brings to bear on the “highly predictive and individualized discretionary appraisals” in prognosticating “an inmate‘s future behavior.” Id. at 51 (quoting Acoli, 224 N.J. at 222). To explain the contrast between its decision to affirm the Board‘s denial of parole and the Appellate Division panel‘s 2014 decision ordering Acoli‘s release, the panel majority focused on the purported differences in the records presented to the two panels.
First, the panel majority noted that the Board‘s “new psychologist” had interviewed Acoli and reviewed “approximately twenty-one documents” and came to a considerably less favorable view of Acoli than the one expressed in the 2010 psychological report issued to the Board. Id. at 64-65. The panel majority found “nothing perfunctory about the new report.” Id. at 64.
Second, the
Third, the panel majority stressed that “[t]his record -- not the earlier one -- supports the difficulty the Board had believing Acoli blacked out.” Ibid. Throughout its opinion, the panel majority highlighted that Acoli “testified that Trooper Harper ‘probably shot’ Foerster in friendly fire, and specifically denied that his two passengers could have done so.” Ibid. The panel majority barely mentioned, however, that Acoli‘s response came after he repeatedly stated he had no recall of the events and only after the Board urged him to speculate about what he thought might have occurred.
Finally, the panel majority acknowledged that Acoli participated in 100 different self-improvement programs, in addition to vocational training. But it apparently gave great weight to the fact that when Acoli was asked open-ended questions about one course he had taken, Criminal Thinking, at some undefined period in the past, all that he recalled was that it had “something to do with not breaking the law.” Id. at 66.
The panel majority concluded that “there is ample support in the record for the Board‘s determination that there is a substantial likelihood that Acoli will commit another crime . . . if the Board grants him parole.” Ibid.
In his dissent, Judge Rothstadt stated that, despite the majority‘s claim that “new information justified the Parole Board‘s actions, . . . the record . . . has remained virtually unchanged since [the Appellate Division] last visited this matter in 2014.”11 Id. at 67. Judge Rothstadt described the proceedings before the Parole Board as a “show hearing” that arrived at a “desired” result, and he lamented that the panel majority‘s affirmance of the Board “abandons our guiding principles” and “contravenes the public policy behind the Parole
Act of 1979.” Id. at 67-68, 77.
Judge Rothstadt made clear that despite the senseless crime committed by Acoli, the Parole Board and the panel majority did not faithfully apply the Parole Act, which “effectively establishes a presumption in favor of parole.” Id. at 71 (quoting In re Parole Application of Trantino (Trantino II), 89 N.J. 347, 355-56 (1982)). According to Judge Rothstadt, the Parole Board did not meet its burden of proving that Acoli “should not be released.” Ibid. (quoting State Parole Bd. v. Byrne, 93 N.J. 192, 205 (1983)). He reasoned that “if model prisoners, like Acoli, perceive that parole decisions are not based upon an inmate‘s development and rehabilitation,” inmates will be left without incentives or hope, and will lose faith in our system of justice. Id. at 71, 77. He concluded that the Parole Board unjustifiably overlooked and undervalued critical evidence that warranted the granting of parole. Id. at 77.
This case comes before this Court as an appeal as of right based on Judge Rothstadt‘s dissent. See
A.
Acoli contends that the Board failed to meet its burden of showing that there is a substantial likelihood he will commit a crime if released on parole. He states that, in violation of the directives of Trantino VI, the Board relentlessly focused on the circumstances of the offense he committed nearly a half-century ago -- and his memory of those events -- almost to the exclusion of all else, including a plethora of favorable evidence that he is an appropriate candidate for parole. (citing 166 N.J. at 175-95). Acoli also claims that, in contravention of Trantino, the Board arbitrarily cherry-picked evidence -- mostly about his alleged feigned memory and refusal to admit to shooting Trooper Foerster -- to reach a desired result and undervalued all the positive evidence. Acoli cites, as proof of his rehabilitation and commitment to live a non-violent life, his infraction-free record during his last twenty-five years of incarceration, his 2010 psychological report favoring parole, his extensive participation in educational and counseling programs, and the positive testimonials from the Federal Bureau of Prisons, which praised his coping skills, psychological progress, and positive rapport with others.
He argues that the Board raised speculative concerns that in the free world he may come upon “similarly charged situations regarding social injustice and community activism” like those in the 1960s and 1970s but failed to specify how those concerns equate to a substantial likelihood that he will reoffend in 2022. The vague fear that he will join some violent radical movement at the age of eighty-five, Acoli asserts, is not borne out by any fact-based risk assessment.
Indeed, Acoli submits that his advanced age and declining health weigh heavily in favor of granting parole, as studies indicate elderly individuals are highly unlikely to re-offend upon release. He asks this Court to reverse the Appellate Division and order his release because he was denied parole based on a mere “possibility” of future criminal behavior, not based on a “substantial likelihood” that he would reoffend, as required by law.
B.
The Board urges this Court to apply “the narrow and deferential review” afforded to administrative agency determinations and affirm the denial of parole to Acoli. Such deference is warranted, it contends, because the Board has specialized expertise in making “highly predictive and individualized discretionary appraisals” that are “inherently imprecise,” quoting Acoli, 224 N.J. at 222. The Board emphasizes that it had the opportunity to hear and assess the credibility of Acoli‘s testimony, which it found was “insincere, rehearsed, shallow and emotionless,” quoting Acoli, 462 N.J. Super. at 65. It also stresses that, at the hearing, Acoli showed that he “lacked criminal insight into his criminal behavior,” “minimized his conduct,” and failed to demonstrate an “understanding how his criminal thinking pattern has changed.”
The Board expresses that it was “particularly troubled” by Acoli‘s decision to speculate that Foerster was killed by “friendly fire” and thus to deviate from his previous statements that he “blacked out” after being grazed by a bullet fired by Trooper Harper. Given “Acoli‘s previous participation in a ‘radical organization,‘” the Board also states its concern about Acoli‘s potential “community activism,” if released, and about whether he had the “tools” to deal with “charged situations
The Board asserts that, despite “the significant mitigating evidence in the record,” including Acoli‘s advanced age, medical history, and “record of rehabilitative program participation,” that evidence was outweighed by the aggravating factors, particularly his “insufficient problem resolution.” In rendering its decision, the Board argues that it “considered all relevant material facts,” consistent with
C.
We granted the motions of a number of organizations to participate as amici curiae: the American Civil Liberties Union; the Office of the Public Defender; the Association of Criminal Defense Lawyers; the American Friends Services Committee; the Center for Constitutional Rights; The National Association of Blacks in Criminal Justice, the Black Police Experience, Blacks in Law Enforcement of America, and the Grand Council of Guardians; and the National Conference of Black Lawyers. Those organizations urge this Court to overturn the Appellate Division majority‘s affirmance of the Parole Board‘s denial of parole.
IV.
A.
The Parole Board is charged with the statutory responsibility of determining, by a preponderance of the evidence, whether there is a substantial likelihood that Acoli -- now eighty-five years old -- will commit a crime if released on parole. See
The discretionary power exercised by the Parole Board, however, is not unlimited or absolute. Trantino VI, 166 N.J. at 173. A government agency, such as the Parole Board, may not wield its discretionary power arbitrarily. See In re Parole Application of Hawley, 98 N.J. 108, 112 (1984). Like all agency decisions, those rendered by the Parole Board are subject to judicial review. However deferential the standard of review may be, our courts are the ultimate arbiters of whether the Board has acted within the bounds of the law. Id. at 112-13.
Although courts are cautioned not to substitute their judgments for that of the Parole Board, when a parole decision is so far wide of the mark or so manifestly mistaken under the governing statutory standard, intervention is required in the interests of justice. Trantino VI, 166 N.J. at 192. A Parole Board decision that either violates legislative policy, is not supported by “substantial evidence” in the record, or “could not reasonably have been made on a showing of the relevant
B.
The Parole Act of 1979 provides that an inmate, such as Acoli, “shall be released on parole at the time of parole eligibility, unless [it is shown] by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime . . . if released on parole at such time.” Trantino VI, 166 N.J. at 126 (alteration and omission in original) (emphasis added) (quoting
This much we can say about the term “substantial likelihood.” Assessing the risk that a parole-eligible candidate will reoffend requires a finding that is more than a mere probability and considerably less than a certainty. To be sure, the mere “potential” that an inmate if released may reoffend is not sufficient. See State Parole Bd. v. Cestari, 224 N.J. Super. 534, 550 (1988). Only when the risk of reoffending rises to “a substantial likelihood” may a parole-eligible inmate be denied parole. Ibid.
The 1979 Parole Act altered the prior parole scheme and “shift[ed] the burden to the State to prove that the prisoner is a recidivist and should not be released.” Byrne, 93 N.J. at 205. The change in the parole law corresponded with the passage of the new Code of Criminal Justice,
Under the 1979 Parole Act, the Parole Board must assess a number of factors for the purpose of determining “what a man is and what he may become rather than simply what he has done.” See Acoli, 224 N.J. at 222
(quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10 (1979)).
The weight to be assigned to any one factor will depend on the unique history, background, and characteristics of the individual and the institutional record developed during years of incarceration. Some factors may have high value and others lower value. For example, although the “[f]acts and circumstances of the offense” is one factor,
The failure of an inmate “to cooperate in his or her own rehabilitation” is another factor.
In Trantino VI, this Court set guideposts that are directly relevant to our review of the Parole Board’s decision in this case. 166 N.J. at 175-90.
C.
In Trantino VI, this Court reversed the Parole Board’s decision to deny parole to Thomas Trantino, who was convicted of murdering two police officers in 1963. 166 N.J. at 121-23. Trantino’s death sentence for those crimes was later commuted to life imprisonment. Id. at 124-25. Trantino was denied parole by the Board more than five times over the span of twenty years. Id. at 122, 126-41. After Trantino had served thirty-seven years in prison, and was in his sixties, this Court ordered his release on parole because the Parole Board had failed to show that there was a substantial likelihood that he would commit another crime. Id. at 197.
The Court found that the Board had thwarted Trantino’s release by not abiding by the statutory standard governing parole. Id. at 192. The Court acknowledged the depraved crimes committed by Trantino and the public outrage prompted by his eligibility for parole. Id. at 196-97. This Court cautioned, however, that government agencies may not “create exceptions to the rule of law” by “exempting the disfavored.” Id. at 198.
This Court rejected the Board’s characterization that Trantino’s failure to recall the specific details of the murders evidenced a “pattern of deception.” Id. at 177. The Court referred to its