NJ’s high court backs compassionate release law


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New Jersey Supreme Court


The New Jersey Supreme Court weighed in Wednesday for the first time on the 18-month-old “compassionate release” law, declining to parole a seriously ill inmate convicted of three murders in an opinion that could eventually make it a little  easier for terminally ill and significantly disabled prisoners to win early release.

In the case involving a 73-year-old inmate, identified as F.E.D. because the law enacted in 2020 requires confidentiality, the justices unanimously agreed that his condition does not rise to the level of permanent incapacity required for release. The decision sets criteria that are less stringent than an earlier appellate panel did.

“We do not concur with the appellate court that the Compassionate Release Statute requires that an inmate prove that he is unable to perform any activity of basic daily living in order to establish a ‘permanent physical incapacity,’” Associate Justice Anne Patterson wrote in the decision.

Lawyers who had submitted friend of the court briefs in support of release, said they were pleased with the court’s action.

“We are pleased that the Court soundly rejected the Appellate Division’s very limited interpretation of the Compassionate Release Statute, one that was not faithful to the Legislature’s purpose or even with the very notion of ‘compassion,’” said Anne M. Collart, who represented the Criminal Defense Lawyers of New Jersey, in an emailed response to a request for comment.

The court also set what could be a high bar for judges who will determine if a person might be capable of committing another crime or otherwise pose a public threat, including by “soliciting another person to commit a crime similar to the one he committed.”

Gauging impact of release

“If the inmate proves that he suffers from a ‘permanent physical incapacity’ and the court therefore considers … whether his release on conditions ‘would not pose a threat to public safety,’ the court’s inquiry is not restricted to potential offenses related to the inmate’s criminal history, but entails a thorough analysis of any risk to the public posed by the inmate and the impact of his release conditions on that risk,” the decision states.

Lawyers said it will be up to the court to further refine what that means. It will have the chance to do so next month when it hears two other cases involving compassionate release requests.

“By interpreting the statutory requirement … to require a holistic view of a person’s realistic risk of recidivism, the Court likewise liberalized the statute without endangering public safety — exactly what, as we argued, the Legislature intended,” Collart said.

The opinion could help inmates deemed terminally ill or who have a higher level of disability than F.E.D. be released if they can prove they do not pose a public threat.

Alexander Shalom of ACLU-NJ said the new law will never lead to the release of large numbers of individuals, but will hopefully help the most seriously ill.

“No one expected this to open the jail doors to everyone,” he said. “The idea is to provide compassion to those who are the most sick … This decision restores sanity to the statute.”

In setting these criteria, the court said it was relying on the Legislature’s intent when it replaced a little-used medical parole law that had allowed only five releases in five years and was not available to those convicted of murder and other serious offenses.

Reducing delays for release process

The new release law took effect a year ago. The Criminal Sentencing and Disposition Commission recommended the change and he law’s legislative sponsors said it was meant to streamline the release process, offer compassion to inmates who are dying or are so incapacitated as to pose no threat of reoffending and save the state money.

So far, however, only two inmates have been released under the law, roughly the same pace as under the old medical parole law. And a cost-savings report required by the compassionate release statute found that the state Department of Corrections saved less than $700 in the 2021 fiscal year by its early release 25 days before his parole of one inmate.

Under the law, an inmate who is certified by two doctors as terminally ill with less than six months to live or is permanently incapacitated with conditions that make them “permanently unable to perform activities of basic daily living” and needs “24-hour care” due to an illness not present at the time of sentencing is eligible to request release. Inmates are given the right to an attorney to argue for their release, a right they didn’t used to have. The attorney general’s office or a county prosecutor can object. A judge has the final say.

F.E.D., who has cardiomyopathy and other conditions, is serving two life terms with no eligibility for parole until 2040. He petitioned for release and two doctors certified his eligibility, saying F.E.D. requires the 24-hour use of a LifeVest wearable defibrillator and has “diminished ability in instrumental activities of daily living.” The trial court and appellate panel disagreed and refused to grant a release.

Easing appellate requirements

The Supreme Court agreed that F.E.D. does not qualify for release, but the court set criteria for determining permanent disability that are less stringent than the appellate division. To be eligible, an inmate need only show an inability to perform two basic living activities — eating, walking, bathing, dressing, using a toilet and getting in and out of bed — rather than an inability to perform them all.

The court did not reach a determination of whether F.E.D. would be incapable of committing a crime or pose a threat to public safety. But it did provide clarification to judges about how to evaluate these conditions in a way that may make it difficult to win release.

“The court should conduct an individualized assessment of an inmate’s risk of recidivism,” the decision states. “An inmate such as F.E.D., convicted of three murders, would be required to prove not only that his permanent physical incapacity renders him physically incapable, alone or with the assistance of another, of committing a murder or another violent crime, but that it also renders him physically incapable of soliciting another person to commit such a crime.”

Deputy Public Defender Alison Perrone said the office, which represented F.E.D. is still reviewing the decision and had no comment.

In September, the court is set to hear two additional cases involving compassionate release. One of these is that of Al-Damany Kamau, convicted of murdering a police detective in the Essex County Courthouse in 1993. Kamau, 53, is bedridden with end-stage multiple sclerosis and totally incapacitated. He was hospitalized earlier this year but last month was returned to the infirmary at South Woods State Prison in South Jersey.

In February, Superior Court Judge Ronald Wigler, sitting in Essex County, agreed that Kamau, formerly known as Eddie Lee Oliver, met the definition of being permanently incapacitated and unable to perform activities of daily living. But he still denied the release, saying he had the discretion to do so. He said that Kamau “deserves the same compassion” that he showed the police officer he killed and another he wounded, “which is zero compassion.”

The public defender appealed that ruling and the state Supreme Court agreed to take that appeal directly. Oral arguments are scheduled for mid-September.

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published this page in News and Politics 2022-08-04 03:05:50 -0700