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Law360 (May 27, 2020, 4:14 PM EDT) -- New Jersey inmates serving time during the COVID-19 pandemic are being unjustly denied a voice in the decision to either release them for safety reasons or keep them incarcerated during an urgent health crisis, the state supreme court heard Wednesday.
The New Jersey Office of the Public Defender, the American Civil Liberties Union of New Jersey and other advocates called on the justices to add a decision-review process to Gov. Phil Murphy's executive order regarding releasing inmates due to virus concerns.
The April 10 mandate creates a mechanism for the Department of Corrections and the Parole Board to designate at-risk inmates as eligible for medical furlough or parole during the global health crisis. The DOC commissioner makes the final call, the advocates claimed, but so far hasn't given any reasons for the medical furlough denials that have been handed down.
All they get is a letter that says, "After a thorough review, you have been denied," according to ACLU attorney Alexander Shalom.
"There is no further communication," Shalom told the justices.
He said at one point that inmates aren't allowed to give input before the decision.
However, those denied parole do get a full statement of reasons and also meet with a parole officer via videoconference before the decision, according to assistant New Jersey Attorney General Stephanie J. Cohen, who defended the process.
Further, due process doesn't apply because nothing in the executive order creates a private right for any of the individuals to expect that they'll be released, even those deemed eligible, she said.
"Ultimately, these types of decisions go back to the commissioner's discretion," Cohen told the court.
The coronavirus has so far claimed the lives of 43 inmates in New Jersey and sickened a total of 830, according to regularly updated figures provided by the criminal justice think tank The Marshall Project. New Jersey's inmate deaths from coronavirus outnumber those of 38 other states combined, the inmate advocates said in their brief citing the think tank's research.
Since Murphy handed down Executive Order 124, roughly 3,000 Garden State inmates have been deemed eligible for release due to the virus, according to Wednesday's argument. Of that figure, only 337 have been released, while 2,156 have received curt denials, the advocates claimed. Cohen said that 607 have been approved for release.
But that's not good enough given the "horror stories" of incarceration during the pandemic, public defender Joseph E. Krakora said, referring to the inability to practice social distancing.
Krakora blasted the lack of transparency and urgency in the process. And it's not just the inmates and employees who are at risk, he said.
"It has enhanced the risk to the community as a whole because the staff who work there go home to their families every night," he told the court.
The public defender's office has even offered to assist corrections and parole officials effectuate the reentry of the inmates into society, Krakora said, "but those overtures were rebuffed."
The virus is also spreading through juvenile justice facilities, according to Rutgers Criminal and Youth Justice Clinic attorney Laura A. Cohen, who offered an amicus argument.
Yet the courts presiding over the juvenile release matters have failed to "accord meaningful weight" to the process, according to her. The juveniles have to wait two to four weeks to see a judge, and prosecutors have further slowed the process with "unreasonable" discovery requests.
"We're seeing very different results of these motions, very different calendaring of these motions, from county to county," Cohen said.
The assistant prosecutor emphasized the "extensive protocols" the DOC has taken in response to the pandemic, including enhanced cleaning, quarantine medical procedures and social distancing.
When asked by Justice Jaynee LaVecchia about the practical concerns the attorney general would have with the relief the advocates seek, Stephanie Cohen said it would apply to the prison system's entire inmate population, which numbers about 18,000.
"If you're going to be having to give a statement of reasons for all of them, it's going to overwhelm the system," the assistant attorney general said.
The New Jersey Office of the Public Defender is represented in-house by Joseph E. Krakora, Joseph J. Russo, Laura B. Lasota and Alison Perrone.
ACLU-NJ is represented in-house by Alexander Shalom and Jeanne LoCicero.
The New Jersey Office of the Attorney General, the Department of Corrections and the Parole Board are represented by Gurbir S. Grewal, Stephanie J. Cohen, Kai W. Marshall-Otto, Tim Sheehan and Michael T. Moran of the state's attorney general's office.
The County Prosecutors Association of New Jersey is represented in-house by Joseph B. Paravecchia.
The Rutgers Criminal and Youth Justice Clinic is represented in-house by Laura A. Cohen.
The case is In the Matter of the Request to Modify Prison Sentences, Expedite Parole Hearings, and Identify Vulnerable Prisoners, case number 084412, before the Supreme Court of the State of New Jersey.
--Editing by Adam LoBelia.
For a reprint of this article, please contact reprints@law360.com.
