1

SYLLABUS

This syllabus is not part of the opinion of the Court. It has been prepared by the Office of 

the Clerk for the convenience of the reader. It has been neither reviewed nor approved by 

the Court. In the interest of brevity, portions of an opinion may not have been 

summarized.

An Order to Show Cause to Address the Release of Certain Individuals

Serving Sentences in State Prisons and Juvenile Facilities

(M-1093-19) (084412)

Argued May 27, 2020 -- Decided June 5, 2020

RABNER, C.J., writing for the Court.

The Court considers issues relating to the impact of the coronavirus on individuals 

in state prison and juvenile facilities. The Office of the Public Defender and the 

American Civil Liberties Union of New Jersey (ACLU) applied directly to the Court for 

relief relating to the spread of the virus in both settings. They essentially asked the 

Judiciary to order a framework for the early release of several groups. Under the 

proposed framework, judges or court-appointed special masters would decide whether to 

grant release or a furlough in individual cases.

Two days after the Public Defender and ACLU wrote to the Court, the Governor 

issued Executive Order 124. The Order created a mechanism to identify inmates in state 

prison to be considered for parole or a medical furlough. It provides two tracks for 

review, directing the Parole Board to expedite its consideration of inmates for parole and 

the Commissioner of the Department of Corrections (DOC) to decide whether to grant a 

medical furlough -- an “emergency medical temporary home confinement.” As of May 

26, 2020, 607 inmates had been approved for home confinement or parole, and 337 had 

been released. By June 1, 2020, an additional 70 had been released.

Consistent with existing law, the Parole Board provided inmates with an 

individualized statement of reasons for cases in which it denied parole. Inmates denied a 

medical furlough received a two-sentence form letter from the Commissioner that 

notified them of the outcome but did not set forth any reasons. Inmates denied parole 

have an avenue for appeal; inmates denied a medical furlough under the Executive Order 

do not. 

The decision whether to grant parole or to furlough an inmate rests largely with 

the Executive Branch. Although a court rule authorizes judges to amend a sentence and 

release an individual defendant because of illness or infirmity, R. 3:21-10(b)(2), neither 

the rule nor the other sources raised provide authority for the courts to establish and 
2

oversee a broad-based program to release or furlough inmates in state prison. The Court

therefore respectfully declines to grant the relief requested by the Public Defender and 

the ACLU.

As to the two tracks the Executive Order created to consider inmates for release, 

the Parole Board has been considering inmates in a manner consistent with existing 

practices. That includes various due process protections that attach to the parole process. 

Through a different process, the Commissioner, with help from the Review Committee, 

has been addressing medical furloughs.

HELD: Executive Order 124 creates a sufficient expectation of eligibility for release 

through a furlough program to call for certain due process protections. The Court adds to 

the Executive Order the protections summarized on pages 6 to 7 and detailed on pages 33 

to 36 of the opinion to comport with due process. The Court also notes that inmates may 

challenge the DOC’s action, a final agency decision, by seeking review before the 

Appellate Division. The agency’s decision is entitled to deference on appeal. Individual 

inmates may also seek relief independently under Rule 3:21-10(b)(2). They do not have 

to exhaust the remedies available under the Executive Order before they may file a 

motion in court. As to sentences imposed on juveniles who are in the custody of the 

Juvenile Justice Commission (JJC), those individuals may seek relief from the court on 

an individual basis. To the extent the opinion calls for trial judges to rule on motions and 

the Appellate Division to review agency decisions, the Court exercises its supervisory 

authority to require that applications be heard and decided in a matter of days and urges

the Commissioner and the Parole Board to act as expeditiously as possible.

Section I of the Court’s opinion discusses the requested Order to Show Cause, 

which was proposed by the Public Defender and the ACLU. (pp. 8-10) The opinion next 

discusses Executive Order 124. (pp. 10-14) One month after the Order was issued, the 

Commissioner approved an Internal Management Procedure (IMP) to implement the 

Order. The Court reviews the IMP, notes measures DOC has adopted in correctional 

facilities to protect inmates and staff from COVID-19, and cites results from the 

Executive Order as reported by the Attorney General. (pp. 14-17)

Section II of the opinion considers the relief the Public Defender and ACLU seek 

relating to state prison inmates. The Court notes that the Executive Branch, and not the 

Judiciary, has primary control over the custody and care of adult inmates, the parole 

process, and inmate furloughs. (p. 18) The Court considers the sources that the Public 

Defender and ACLU have identified as conferring authority for the courts to act and finds 

no basis for a broad-based judicial furlough process in either State v. Boone, 262 N.J. 

Super. 220 (Law Div. 1992), or in Rule 3:21-10(b)(2). (pp. 19-21) Although the Court 

finds no source of authority for the Judiciary to direct a broader furlough program in the 

Rule, however, the Court notes that the Rule empowers individual inmates to apply for 

release from jail based on their physical condition. (p. 21) The Court agrees with the 
3

Public Defender, ACLU, and Attorney General that inmates are not required to exhaust 

the administrative process under Executive Order 124 before they can apply for relief 

under Rule 3:21-10(b)(2). (pp. 21-22) The Court finds that Rule 3:21-10(b)(2) gives all 

inmates an opportunity to seek direct relief in court and requires an expedited briefing 

schedule for such motions, a return date within five days of filing, and a decision within 

the next three days. (p. 23) The Court declines to grant the relief requested and notes no 

Eighth Amendment challenge was raised. (pp. 23-24)

Section III of the Court’s opinion considers the Attorney General’s argument that 

“furlough review is an administrative classification process” and is therefore not subject 

to due process, like a decision to transfer an inmate from one prison to another. (pp. 24-

25) The Court disagrees and instead looks for guidance from the body of law relating to 

parole. (p. 26) Reviewing relevant case law, the Court explains that, although inmates 

have no constitutional right to parole, eligibility for parole under state law can create a 

protectible liberty interest if a state statute creates a legitimate or sufficient expectation of 

eligibility for parole. (pp. 26-28) In State Parole Board v. Byrne, 93 N.J. 192, 203 

(1983), the Court held that New Jersey’s Parole Act creates a sufficient expectancy of 

parole eligibility to entitle prisoners to some measure of constitutional protection with 

respect to parole eligibility decisions. (pp. 28-29) The Court examines the language of 

Executive Order 124 and finds that it creates a liberty interest in the furlough decision for 

the inmates it covers and that those inmates are therefore entitled to some measure of 

constitutional protection. (pp. 29-31)

Section IV of the opinion addresses what process is due under the circumstances. 

After performing the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 335 

(1976), the Court concludes that an adversarial hearing with counsel and a detailed 

statement of reasons is not required. (pp. 31-33) Instead, as in Byrne, the Court requires 

notice, an opportunity to be heard and respond, and a written statement of reasons. (p. 

33) On pages 33 to 36, the Court describes those requirements in detail. The Court then 

notes that the agency’s decision is subject to appellate review under a deferential 

standard, and sets forth an expedited timeframe for Appellate Division proceedings. (pp. 

36-38) The Court declines to compel the Commissioner or the Parole Board to act within 

a defined number of days, noting that the record does not demonstrate that the agency has 

neglected to implement the Executive Order. (pp. 38-40) The Court urges both the 

Commissioner and the Board to act expeditiously, orders some specific measures going 

forward, and strongly encourages them to publish and regularly update relevant data. 

(pp. 41-42)

Section V considers the relief requested as to juveniles under the custody of the 

JJC. The Judiciary retains jurisdiction over the disposition of juvenile matters, and courts 

can change or modify an order of disposition at any time. (pp. 42-43) The Court reviews 

the impact of the coronavirus on JJC facilities and notes that youths in JJC custody can

apply to the court and ask for their disposition to be modified. (pp. 43-44) The Court 
4

provides guidance for such proceedings and requires an expedited schedule. (pp. 42-44) 

The Court does not address the request that all custodial terms on certain juveniles be 

modified to “time served” because that argument was advanced exclusively by an amicus 

curiae. (p. 45)

The Court concludes that the arguments raised do not provide a basis for the 

requested relief and recognizes the role the other branches of government have. The 

Executive and Legislative Branches retain the authority to enact policy changes in 

response to the spread of COVID-19 in state prisons and juvenile facilities.

The matter is remanded to the DOC for further proceedings.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, 

SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.
1

SUPREME COURT OF NEW JERSEY

M-1093 September Term 2019

084412 

In the Matter of the Request to

Modify Prison Sentences, Expedite

Parole Hearings, and Identify

Vulnerable Prisoners

On an Order to Show Cause to Address the Release 

of Certain Individuals Serving Sentences in State 

Prisons and Juvenile Facilities.

Argued

May 27, 2020

Decided

June 5, 2020

Joseph E. Krakora, Public Defender, argued the cause for 

the Office of the Public Defender (Joseph E. Krakora, 

Public Defender, attorney; Joseph E. Krakora, Joseph J. 

Russo, Assistant Public Defender, Alison Perrone, First 

Assistant Deputy Public Defender, and Laura B. Lasota, 

Assistant Deputy Public Defender, on the briefs).

Alexander Shalom argued the cause for the American 

Civil Liberties Union of New Jersey (American Civil 

Liberties Union of New Jersey Foundation, attorneys; 

Alexander Shalom and Jeanne LoCicero, on the briefs).

Laura Cohen argued the cause for amicus curiae Rutgers 

Criminal and Youth Justice Clinic (Rutgers Criminal and 

Youth Justice Clinic, attorneys; Laura Cohen, Elana Wilf, 

and Tyler Dougherty, on the brief).

Stephanie J. Cohen, Assistant Attorney General, argued 

the cause for the Office of the Attorney General, the 

Department of Corrections, and the State Parole Board 

(Gurbir S. Grewal, Attorney General, attorney; Stephanie 
2

J. Cohen, Kai W. Marshall-Otto, Deputy Attorney 

General, Tim Sheehan, Deputy Attorney General, and 

Michael T. Moran, Deputy Attorney General, on the 

briefs).

Joseph Paravecchia, Assistant Mercer County Prosecutor, 

argued the cause for the County Prosecutors Association 

of New Jersey (Angelo J. Onofri, President, County 

Prosecutors Association, attorney; Joseph Paravecchia, 

Laura Sunyak, Assistant Mercer County Prosecutor, John 

McNamara, Jr., Chief Assistant Morris County 

Prosecutor, Jeffrey L. Weinstein, Assistant Hunterdon 

County Prosecutor, Jaimee M. Chasmer, Assistant Bergen 

County Prosecutor, and Frank J. Ducoat, Assistant Essex 

County Prosecutor, on the brief).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

The COVID-19 pandemic has presented many serious challenges. We 

now consider issues relating to the impact of the coronavirus on individuals in 

state prison and juvenile facilities. 

As of June 1, 2020, out of a total population of 15,302 inmates in state 

prison, 1720 had tested positive for the virus, about 192 had been hospitalized, 

and 46 had died. Up to 737 out of 8008 staff members had also tested positive. 

Although no residents under the custody of the Juvenile Justice Commission
3

have died, 28 residents out of a total population of 274 had tested positive.1 

Those statistics speak for themselves and reveal how critical the situation is. 

The Office of the Public Defender and the American Civil Liberties 

Union of New Jersey (ACLU) applied directly to the Court for relief relating 

to the spread of the virus in both settings. They essentially asked the Judiciary 

to order a framework for the early release of several groups: adults and 

juveniles serving a sentence that will expire in the next year; individuals 

eligible for parole; and any defendant who is particularly vulnerable to 

COVID-19. Under the proposed framework, judges or court-appointed special 

masters would decide whether to grant release or a furlough in individual cases

after considering any objections.

On April 10, 2020, two days after the Public Defender and ACLU wrote 

to the Court, the Governor issued Executive Order 124. The Order created a 

mechanism to identify inmates in state prison to be considered for parole or a 

medical furlough: inmates who are at least sixty years old; who possess an 

underlying medical condition that increases their risk of death or serious injury 

from COVID-19; who were denied parole within the last year; whose sentence 

1

 Unless otherwise noted, the Attorney General provided the statistics that 

appear in this opinion in the form of certifications from officials at the 

Department of Corrections, the State Parole Board, and the Juvenile Justice 

Commission. 
4

will end within ninety days; or who will be eligible for parole within ninety 

days. 

The Executive Order provides two tracks for review. It directs the 

Parole Board to expedite its consideration of inmates for parole. It also directs

the Commissioner of the Department of Corrections (DOC) to decide whether 

to grant a medical furlough -- an “emergency medical temporary home 

confinement” -- if he “is satisfied that the proposed conditions of confinement 

appropriately safeguard the health and safety of the inmate, the general public, 

and any victims of the inmate’s offense.” In making that decision, the 

Commissioner must consider recommendations prepared by the newly created 

Emergency Medical Review Committee (Review Committee). Its

recommendations include the views of the prosecutor and the victim or next of 

kin in each case, but not the position of the inmate. 

Pursuant to the Executive Order, 3050 inmates were identified for 

consideration. Hundreds of them declined to be considered, which reduced the 

total number to 2500. As of May 26, 2020, 607 inmates had been approved for 

home confinement or parole, and 337 had been released. By June 1, 2020, an 

additional 70 had been released.

Consistent with existing law, the Parole Board provided inmates with an 

individualized statement of reasons for cases in which it denied parole. 
5

Inmates denied a medical furlough received a two-sentence form letter from 

the Commissioner that notified them of the outcome but did not set forth any 

reasons. Inmates denied parole have an avenue for appeal; inmates denied a 

medical furlough under the Executive Order do not. 

The decision whether to grant parole or to furlough an inmate rests 

largely with the Executive Branch. The Legislature empowered the Parole 

Board to make decisions about parole, see N.J.S.A. 30:4-123.45 to -123.76, 

and gave the Commissioner authority to decide whether to furlough inmates, 

see N.J.S.A. 30:4-91.3. Although a court rule authorizes judges to amend a 

sentence and release an individual defendant because of illness or infirmity, R.

3:21-10(b)(2), neither the rule nor the other sources raised provide authority 

for the courts to establish and oversee a broad-based program to release or 

furlough inmates in state prison. We therefore respectfully decline to grant the 

relief requested by the Public Defender and the ACLU.

As to the two tracks the Executive Order created to consider inmates for 

release, the Parole Board has been considering inmates in a manner consistent 

with existing practices. That includes various due process protections that 

attach to the parole process. Through a different process, the Commissioner, 

with help from the Review Committee, has been addressing medical furloughs. 

In that regard, the Governor’s Order created a commendable path for the 
6

emergency release of certain inmates from prison during this time of crisis, 

with safeguards in place to protect the public. Inmates will be confined at 

home subject to various restrictions. 

We hold that because the Order creates a sufficient expectation of 

eligibility for release through a furlough program, the Order calls for certain 

due process protections. See Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1, 12 (1979); State Parole Bd. v. Byrne, 93 N.J. 192, 203

(1983). At a minimum, due process requires notice and an opportunity to be 

heard. Doe v. Poritz, 142 N.J. 1, 106 (1995). We add the following 

protections to the Executive Order to comport with due process: 

(1) inmates are to be afforded an opportunity to present a written 

statement in support of their request to be furloughed in the same way that 

prosecutors and victims are allowed to express their views. Inmates may 

proceed on their own or with the help of volunteer lawyers. The Public 

Defender’s Office has volunteered its assistance and should be provided with 

the lists of eligible inmates generated under the Order, under seal, subject to a 

protective order;

(2) the Commissioner is to provide a statement of reasons to inmates 

who are denied a medical furlough to help guard against mistakes and arbitrary 

decisionmaking and allow for meaningful judicial review if it is sought; and
7

(3) inmates are to be given an opportunity to respond in order to try to 

satisfy the Commissioner’s concerns and cure any mistakes. The 

Commissioner shall consider each response before issuing a final decision. 

Inmates may challenge the DOC’s action, a final agency decision, by 

seeking review before the Appellate Division. See Acoli v. State Parole Bd., 

224 N.J. 213, 222-23 (2016); R. 2:2-3(a)(2). The agency’s decision is entitled 

to deference on appeal. In re State & Sch. Emps.’ Health Benefits Comm’ns’ 

Implementation of Yucht, 233 N.J. 267, 279 (2018). 

Individual inmates may also seek relief independently under Rule 3:21-

10(b)(2). They do not have to exhaust the remedies available under the 

Executive Order before they may file a motion in court. 

As to sentences imposed on juveniles who are in the custody of the JJC, 

the Judiciary retains jurisdiction over their cases and has the authority to 

modify dispositions. N.J.S.A. 2A:4A-43, -45. Those individuals may seek 

relief from the court on an individual basis. Among other relevant factors, 

courts are to consider the ongoing COVID-19 crisis and its impact on the

individual’s health condition. 

We add an overriding concern. Because of the risks COVID-19 poses, 

which are amplified in jail settings, each day matters. To the extent this 

opinion calls for trial judges to rule on motions and the Appellate Division to 
8

review agency decisions, we exercise the Court’s supervisory authority to 

require that applications be heard and decided in a matter of days. For the 

same reason, we urge the Commissioner and the Parole Board to act as 

expeditiously as possible. The Executive Order itself calls for an expedited 

process; the additional measures imposed, which are not inconsistent with the 

Order’s purpose, should not extend the time for review in a notable way. We 

urge that the entire process -- review for approval and release -- be carried out 

carefully and expeditiously because the stakes are so high. 

I.

A.

On March 19, 2020, the Public Defender brought an application before 

this Court for an Order to Show Cause. He sought to commute or suspend 

certain county jail sentences as a result of the crisis COVID-19 has created. 

The Court directed the parties -- the Public Defender, ACLU, Attorney 

General, and County Prosecutors Association -- to engage in mediation before 

the Honorable Philip S. Carchman, retired Presiding Judge of the Appellate 

Division and Acting Director of the Administrative Office of the Courts. They 

promptly reached an agreement. On March 22, 2020, the Court entered a 

consent order that led to the release of nearly 700 inmates in about a week. 
9

On April 8, 2020, the Public Defender and the ACLU wrote to this Court 

and proposed a second Order to Show Cause. The proposed Order sought the 

release of all defendants serving a sentence in state prison or in the custody of 

the Juvenile Justice Commission (JJC) with a maximum release date within the 

next 12 months. The parties asked the Court to modify those sentences 

pursuant to Rule 3:21-10(b)(2). Defendants convicted or adjudicated of 

violent crimes subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, other 

than second-degree robbery and second-degree burglary, were to be excluded. 

Under the proposed Order, the County Prosecutor or Attorney General 

could file written objections to the early release of a defendant. Any 

objections would be addressed by judges or court-appointed special masters, 

who were to presume that sentences should be modified unless they found that 

public safety concerns overcame the presumption. Finally, in cases that 

involved domestic violence or other crimes with a known victim, victims 

would receive notice of an inmate’s early release. 

The proposed Order also asked the Court to direct the State Parole Board

to “[e]xpedite consideration of parole-eligible defendants who are older than 

60 or at particularly high risk of death from COVID-19 as a result of other 

health concerns.” Defendants denied parole within the last year would have 

their cases reconsidered in light of the pandemic. 
10

Next, the proposed Order called for the DOC to identify for the Court 

and counsel a list of defendants “particularly vulnerable to COVID-19 as a 

result of age or health condition.” That list would exclude defendants 

convicted of a crime pursuant to N.J.S.A. 2C:11-3 (murder), 2C:11-4

(manslaughter), 2C:14-2 (sexual assault), 2C:15-1 (robbery), 2C:13-1

(kidnapping), or 2C:12-1(b) (aggravated assault). If neither the County 

Prosecutor nor the Attorney General filed an objection, the DOC would grant 

eligible defendants a medical furlough. If the DOC did not grant a furlough, 

this Court was asked to modify defendants’ sentences to allow for their 

immediate release, pursuant to Rule 3:21-10(b)(2). Once again, judges or 

special masters would resolve any objections, and notice would be provided to 

victims. 

On April 8, 2020, the Court responded by letter to the four parties to the 

Consent Order and the agency heads of the DOC, Parole Board, and JJC. The 

Court did not grant the application at the time and made Judge Carchman 

available to mediate. 

B.

Two days later, on April 10, 2020, Governor Philip D. Murphy issued 

Executive Order 124, pursuant to the Civilian Defense and Disaster Control 
11

Act, N.J.S.A. App. A:9-30 to -63, and the Emergency Health Powers Act, 

N.J.S.A. 26:13-1 to -31.

The Executive Order highlights various safety and health issues 

presented by the COVID-19 pandemic. For example, the Order cites guidance 

from the Centers for Disease Control and Prevention to practice social 

distancing and avoid mass gatherings; acknowledges that certain individuals in 

DOC custody may face a higher risk of death if they contract COVID-19

because of their age or underlying medical conditions; and notes that “DOC 

has finite capacity within its facilities to provide medical care to inmates who 

contract COVID-19.” Because of the challenges of maintaining social 

distancing measures in jails, the Executive Order also acknowledges that “it 

may be necessary to take certain emergency steps in order to temporarily 

remove [vulnerable] individuals from congregate custody.” 

To address those health and safety concerns, the Executive Order 

directed DOC to “expeditiously identify” four categories of inmates for 

referral to the Parole Board and the Review Committee: inmates who are age 

60 or older and possess underlying medical conditions that increase the risk of 

death or serious injury from COVID-19 (List 1); inmates who are either age 60 

or older or possess underlying medical conditions that increase the risk of 

death or serious injury from COVID-19 (List 2); inmates denied parole in the 
12

past year who are not on Lists 1 or 2 (List 3); and inmates serving a sentence 

with either a maximum release or parole eligibility date within 90 days, who 

are not on Lists 1, 2, or 3 (List 4). 

DOC’s Chief of Staff certified to the Court that a maximum 90-day 

release date was preferable to a one-year period because inmates reaching their 

maximum sentence within a year “would be most in need of robust reentry 

planning before release,” which is “more likely to be considerably further 

along” three months out. 

Inmates not allowed to participate in a furlough program under N.J.S.A. 

30:4-91.3(b) or serving a sentence for an offense subject to the No Early 

Release Act cannot be included on the lists. Both exclusions apply to 

defendants convicted of more serious offenses. 

The Order directed DOC to submit supplemental lists, at least once a 

week, that included any additional inmates “DOC subsequently concludes face 

a heightened risk of death or serious injury from COVID-19 based on their age

and/or underlying medical conditions.” 

When compiled, the four lists included 3050 inmates: 55 on List 1; 1051 

on List 2; 921 on List 3; and 1023 on List 4. Some inmates on the lists either 

declined to be considered for a medical furlough or were otherwise released. 
13

As a result, 2500 inmates remained on the lists for DOC to consider: 51, 927, 

809, and 713 inmates, respectively. 

The Executive Order directed DOC to produce the lists immediately to 

the Division of Criminal Justice and the County Prosecutors. The prosecutors

had five days to (1) notify any victims or next of kin about the possibility of an 

inmate’s release, and (2) submit the views of the prosecutor and any victims or 

next of kin about the possibility of release to the Parole Board and the Review 

Committee. The Executive Order contains no provision for inmates to submit 

their views.

The Order also required DOC to promptly produce all lists to the Parole 

Board and the Review Committee. From that point, the Order provides two 

tracks for review. The Parole Board “shall expedite consideration of . . . 

inmates for parole” and can conduct hearings telephonically or by video 

conference. Priority is given to inmates on List 1, followed by Lists 2, 3, and 

4.

At the same time, the DOC Commissioner must decide whether to grant

inmates “emergency medical home confinement” -- a medical furlough. In 

doing so, he considers recommendations from the Review Committee 

established by the Executive Order. 
14

The Review Committee has seven days to prepare a recommendation 

once it receives a list. Among other things, its recommendation includes the 

views of the prosecutor and any victim or next of kin, identifies a community 

sponsor and supervision plan, proposes conditions on home confinement and 

restrictions for travel outside the home, and verifies the availability of 

appropriate housing and medical and social services. 

The Commissioner has three days to act on the recommendation. The 

Executive Order states, “[t]he Commissioner shall not authorize temporary 

home confinement for an inmate unless the Commissioner is satisfied that the 

proposed conditions of confinement appropriately safeguard the health and 

safety of the inmate, the general public, and any victims of the inmate’s 

offense.” 

Before an inmate is released, DOC is required to issue the inmate a 

temporary photo identification and help the inmate complete and submit 

applications for services and benefits. 

C.

One month after the Executive Order was issued, the Commissioner 

approved an Internal Management Procedure (IMP) to implement the order. 

As part of the IMP, each inmate identified on a list is interviewed. Inmates 

who want to be considered for a medical furlough then fill out an application
15

that has a place for the inmate’s name, age, medications, the address and phone 

numbers for the house where the inmate proposes to live, and the inmate’s 

relationship to that site. The form also asks whether the community sponsor 

has agreed (a) to allow the inmate to reside there during the furlough and (b) to 

provide transportation to and from jail. The application has no space for

inmates to express their views or advocate for their release. 

At the same time, DOC collects various documents relating to the 

inmates’ offense, psychological evaluations, and progress notes. The agency 

also reviews files for active investigations and any intelligence reports. 

Under the IMP, parole officers visit the proposed home and interview 

household members to evaluate whether it is suitable for a furlough. Among 

other factors, they consider whether a co-defendant or victim resides in the 

home and whether anyone there has tested positive for COVID-19. 

Inmates who are released are subject to electronic monitoring and have 

to wear a monitoring bracelet. They must also call into DOC twice a day. 

To be released, approved inmates must be tested for COVID-19 and 

must test negative. 

D.

The Attorney General describes various measures DOC has adopted in 

correctional facilities to protect inmates and staff from COVID-19. Key to its 
16

efforts, DOC represents that it will test all inmates. On May 28, 2020, DOC 

reported a total of 15,302 inmates; 13,017 had been tested by June 1, 2020. 

1720 inmates (13.2 percent) tested positive for COVID-19. Forty-six inmates 

have died. The death rate was at its highest in mid to late April, and it 

declined in May. 

The virus has afflicted DOC staff members as well. On May 26, 2020,

DOC had 8008 staff members. DOC had tested 4274 of them, and 130 tested 

positive. Staff members, though, independently reported 607 positive tests. 

E.

The Attorney General reports the following results from the Executive 

Order as of May 26, 2020: 607 inmates had been approved for home 

confinement or parole, and 337 had been released. Approximately 70 

additional inmates had been released by June 1, 2020, bringing the total 

number released to about 407. 

DOC’s Chief of Staff certifies that the agency has completed its review 

of all inmates on the lists who requested to be furloughed. 183 had been 

placed on home confinement, and 67 had been approved but not yet released

by May 26, 2020. Those not yet released awaited test results, medical 

clearance, or housing review, or had not been released for some other reason. 

As of June 1, 2020, 25 additional inmates had been furloughed. 
17

The Director of Release for the Parole Board certified the following as 

of May 26, 2020: the Parole Board had released 174 inmates on parole; 271 

had been granted parole or had their prior parole denial vacated, but had not 

yet been released; and a total of 2156 inmates “ha[d] been denied parole, had 

their prior parole denial affirmed upon reconsideration, ha[d] not yet reached 

their parole eligibility date, or ha[d] not yet been considered for parole.”

Gregorio Cert., 5/26/20, ¶ 4. The group of inmates not yet considered totaled 

256.2 As of June 1, 2020, approximately 45 additional inmates had been 

released on parole, and 50 more had been awarded parole but not yet released. 

There are duplicate names among those considered for parole and 

medical furloughs, which accounts for certain discrepancies.

II.

We first consider the relief the Public Defender and ACLU seek relating 

to state prison inmates. Because juveniles present different concerns, we 

discuss them separately below.

 

2

 It is unclear how many inmates had not yet reached their parole eligibility 

date, so we cannot be certain how many of the remaining 1900 inmates had 

been denied parole or reconsideration of parole. That number is at least 751. 

Gregorio Cert., 5/19/20, ¶ 41(f).
18

A.

The Executive Branch, and not the Judiciary, has primary control over 

the custody and care of adult inmates, the parole process, and inmate 

furloughs.

The Legislature established the Department of Corrections “to provide 

for the custody, care, discipline, training and treatment of adult offenders” in 

state prison or on parole. N.J.S.A. 30:1B-3. The Department is a part of the 

Executive Branch. See N.J.S.A. 30:1B-4. 

The DOC Commissioner has statutory authority to furlough inmates for 

medical reasons. N.J.S.A. 30:4-91.3(a). The State Parole Board, a division of 

the DOC, oversees the parole process. N.J.S.A. 30:4-123.47(a), -123.48. 

Consistent with that statutory authority, Executive Order 124 directs the 

Parole Board to consider eligible inmates for parole on an expedited basis, and 

the Commissioner to consider them promptly for a medical furlough. That 

process has been underway since April. 

Despite their differences, there is a fair amount of overlap between the 

relief the Public Defender and the ACLU request and the mechanism the 

Governor set in motion. The approaches also differ in key ways -- for 

example, whether inmates with ninety days or one year left on their sentence 
19

should be considered for release, and whether executive branch agencies or the 

courts should decide who will be released.

The Public Defender and ACLU identify State v. Boone, 262 N.J. Super. 

220 (Law Div. 1992), and Rule 3:21-10(b)(2) as sources of authority for the 

courts to act. We consider each in turn.

1.

The Law Division’s decision in Boone does not afford a basis for a 

broad-based judicial furlough process. Boone involved an extraordinary 

situation that the Commissioner brought to the court’s attention: an inmate 

with a rare and potentially dangerous condition needed to be examined quickly 

for possible aortic replacement surgery, which could be performed only at a 

hospital in Texas. 262 N.J. Super. at 222. The Commissioner had no statutory 

authority to grant a furlough outside of New Jersey, so he asked the court to 

intervene. Ibid. The trial judge relied on the court’s “inherent authority to act 

to preserve life” and “granted a judicial furlough.” Id. at 223. At the same 

time, the court noted “this power should be sparingly utilized in the very rarest 

of cases.” Id. at 224. 

The trial judge went out of his way to commend the Commissioner for 

coming to court to seek relief under the circumstances. Id. at 224 n.1. The 
20

Law Division’s decision cannot be read as a basis for courts to order and 

oversee a wide-ranging furlough program in place of the Commissioner.

2.

Rule 3:21-10(b)(2) likewise does not give the Judiciary broad authority 

to oversee a furlough program. The Rule provides that “[a] motion may be 

filed and an order may be entered at any time . . . amending a custodial

sentence to permit the release of a defendant because of illness or infirmity of 

the defendant.” 

Courts apply a balancing test to determine whether this “extraordinary 

relief” should be granted. State v. Priester, 99 N.J. 123, 135 (1985). Among 

other factors, courts consider “the serious nature of the defendant’s illness and 

the deleterious effect of incarceration on the prisoner’s health”; “the 

availability of medical services in prison”; “the nature and severity of the 

crime, the severity of the sentence, the criminal record of the defendant, [and] 

the risk to the public if the defendant is released.” Id. at 135-37. An inmate 

must also show “that a change of circumstances” has occurred. Id. at 136.

The first two factors -- the nature of the inmate’s illness and the effect of 

continued incarceration on his health -- are “[t]he predicate for relief.” Id. at 

135. To prevail on a motion, inmates must therefore present evidence of both 

an “illness or infirmity” -- a physical ailment or weakness -- and the increased 
21

risk of harm incarceration poses to that condition. A generalized fear of 

contracting an illness is not enough. 

We find that the worldwide pandemic that has afflicted New Jersey and 

its prison system amounts to a change in circumstances under the Rule. See

Comm. for Pub. Counsel Servs. v. Chief Justice of the Trial Court, 142 N.E.3d 

525, 533 (Mass. 2020) (noting the Supreme Court of Washington declared that 

the “pandemic shall be presumed to be a ‘material change in circumstances’ 

for the purpose[] of . . . motions for bail review”). 

The language of the Rule empowers individual inmates to apply for 

release from jail based on their physical condition. The Rule, however, is not 

a source of authority for the Judiciary to direct a broader furlough program. 

We agree with the Public Defender, ACLU, and Attorney General that

inmates are not required to exhaust the administrative process under Executive 

Order 124 before they can apply for relief under Rule 3:21-10(b)(2). The 

principle that litigants must first exhaust administrative remedies is “designed 

to allow administrative bodies to perform their statutory functions in an 

orderly manner without preliminary interference from the courts.” 

Griepenburg v. Township of Ocean, 220 N.J. 239, 261 (2015) (quoting

Brunetti v. Borough of New Milford, 68 N.J. 576, 588 (1975)). Although there 

is “a strong presumption favoring the” doctrine, it is not an absolute 
22

requirement. Ibid. (quoting Brunetti, 68 N.J. at 588); see also Abbott v. Burke, 

100 N.J. 269, 297 (1985) (“the preference for exhaustion of administrative 

remedies is one ‘of convenience, not an indispensable pre-condition,’” except 

for certain situations (quoting Swede v. City of Clifton, 22 N.J. 303, 315 

(1956))).

Among other exceptions, see Griepenburg, 220 N.J. at 261, the 

exhaustion doctrine “will be waived where the ‘interest of justice so 

requires.’” Brunetti, 68 N.J. at 589 (quoting Ward v. Keenan, 3 N.J. 298, 308 

(1949)); see also R. 4:69-5 (“Except where it is manifest that the interest of 

justice requires otherwise, actions under R. 4:69 shall not be maintainable as 

long as there is available a right of review before an administrative agency 

which has not been exhausted.” (emphasis added)). 

Executive Order 124 does not cover all state prison inmates. An inmate 

with a serious illness who has ten years left on his sentence and will not be 

eligible for parole soon -- and is not covered by the Order -- can apply directly 

to the court for relief today. Given the spread of COVID-19 in jail, it would 

not serve the public interest to require a seriously ill inmate with fewer than 

ninety days left on his sentence -- who is covered by the Order -- to have to 

wait until DOC review is completed before he can apply to the court. 
23

We find that Rule 3:21-10(b)(2) gives all inmates an opportunity to seek 

direct relief in court. Because of the urgent nature of the ongoing crisis, we 

direct that motions brought by individual inmates under Rule 3:21-10(b)(2) be 

resolved in an expedited manner. We exercise the Court’s supervisory power 

over the administration of the court system to require an expedited briefing 

schedule for such motions, a return date within five days of filing, and a 

decision within the next three days. See N.J. Const. art. VI, § 2, ¶ 3. 

B.

Because the bases the Public Defender and the ACLU rely on do not 

support the relief requested, we respectfully decline to grant it.3 We note that 

3

 In response to an earlier application of the Public Defender and the ACLU, 

the Court entered a consent order designed to reduce the county jail 

population, under certain conditions, to mitigate the risks from the spread of 

COVID-19. In re Request to Commute or Suspend County Jail Sentences, ___

N.J. ___, ___ (2020), available at https://njcourts.gov/notices/2020/

n200323a.pdf. The order led to the prompt release of nearly 700 inmates. 

The Court acted after the Attorney General, County Prosecutors 

Association, Public Defender, and ACLU engaged in mediation and agreed to 

a thoughtful plan that addressed inmates serving county jail sentences as a 

condition of probation or as a result of a municipal court conviction. In 

general, the underlying offenses in those cases were not as serious as the 

charges for which inmates in state prison have been convicted. 

Part of the consent agreement called for judges to resolve objections to 

release in individual cases. Unlike in this matter, the Executive voiced no 

concerns about separation of powers. See N.J. Const. art III, ¶ 1. Just the 

opposite, the Executive Branch responsibly asked the Judiciary to step in and 

resolve disputes between prosecutors and defendants in particular cases -- a 
24

no challenge has been leveled under the Eighth Amendment. The Eighth 

Amendment’s prohibition against cruel and unusual punishment imposes a 

duty on prison officials to “provide humane conditions” and “‘take reasonable 

measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 511 

U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 

(1984)). A prison official violates the Eighth Amendment if an alleged 

deprivation is “sufficiently serious,” when viewed objectively, and the official 

acted with a “sufficiently culpable state of mind” like “deliberate 

indifference.” Id. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 297, 298, 

302-03 (1991)). 

Here, we are not faced with an Eighth Amendment challenge. The 

Governor has issued a comprehensive order to which we now turn. 

III.

The Attorney General argues that “the furlough review is an 

administrative classification process” and is therefore not subject to due 

process. In advancing that argument, the State contends that the decision 

whether an inmate can serve part of his sentence at home is much like a 

common role for the courts. Had the parties made a similar request here, the 

Judiciary would have been faced with a very different situation at this time of 

crisis. 
25

decision to transfer an inmate from one prison to another. In both instances, 

the inmate remains in the custody of the DOC. 

Because inmates do not have a protected liberty interest in their 

“housing assignment” or custody status, the State submits, no additional due 

process is required. For support, the State relies on Szemple v. Department of 

Corrections, 384 N.J. Super. 245, 249 (App. Div. 2006) (prisoners do not have 

“a liberty interest” under the due process clause in “remaining free from 

transfer to more restricted facilities”); Moore v. Department of Corrections, 

335 N.J. Super. 103, 109 (App. Div. 2000) (change in inmate’s custody status 

from minimum to medium “did not trigger due process safeguards”); and 

Shabazz v. Department of Corrections, 385 N.J. Super. 117, 124 (App. Div. 

2006) (inmate transferred from halfway house to jail “did not have a 

constitutionally protected interest in his initial placement”), among other 

decisions. The State also cites Sandin v. Conner, 515 U.S. 472, 486 (1995), in 

which the Supreme Court concluded that placement of an inmate in 

disciplinary segregation did not create a protected liberty interest. The Court 

observed that due process safeguards are “generally limited to freedom from 

restraint” which “imposes atypical and significant hardship on the inmate in 

relation to the ordinary incidents of prison life.” Id. at 484. 
26

We disagree with the proposition at the core of the above argument: that 

releasing an inmate from jail and allowing him to remain at home during a 

pandemic is like a transfer to a different jail or a change in an inmate’s custody 

status. The argument overlooks the reality of what the Executive Order 

achieves: inmates are released from jail and sent home, where they are subject 

to confinement and other restrictions. 

We instead look for guidance from the body of law relating to parole, a 

process through which inmates are also released from jail and are subject to 

restrictions and supervision. See Morrissey v. Brewer, 408 U.S. 471, 482

(1972); N.J.S.A. 30:4-123.45 to -123.76. Although not a perfect match --

particularly because furloughed inmates are confined to home and not free to 

go about -- parole is a more apt analogy than the transfer of an inmate between 

prisons. 

Inmates have no constitutional right to parole. Greenholtz, 442 U.S. at

7; Byrne, 93 N.J. at 208; In re Parole Application of Trantino, 89 N.J. 347, 363 

n.5 (1982). And the due process clause is not implicated “simply because the 

state provides for the possibility of parole.” Trantino, 89 N.J. at 363 n.5; see 

also Greenholtz, 442 U.S. at 11. But a protected liberty interest can 

nonetheless arise in the parole context. See Byrne, 93 N.J. at 202. 
27

As the Supreme Court explained in Morrissey, courts examine the 

weight and nature of an individual’s liberty interest to determine if it is within 

the contemplation of the Fourteenth Amendment’s due process clause. 408 

U.S. at 481. With that in mind, the Court considered whether due process 

requirements applied to the revocation of parole. The Court noted that

parolees rely “on at least an implicit promise that parole will be revoked only 

if [they] fail[] to live up to the parole conditions.” Id. at 482. The Court 

concluded that the valuable nature of the liberty interest and the grievous loss

termination inflicts on parolees “call[] for some orderly process” under the 

Fourteenth Amendment. Ibid.

The same type of analysis applies to revocation of probation, see

Gagnon v. Scarpelli, 411 U.S. 778 (1973), and forfeiture of good-time credits

for serious misbehavior, Wolff v. McDonnell, 418 U.S. 539 (1974); see also

Jamgochian v. State Parole Bd., 196 N.J. 222, 241 (2008). Because the State 

grants a prisoner or probationer a liberty interest in those contexts, the interest

is protected by the due process clause. 

Parole revocation is, of course, different from a decision not to release a 

prisoner on parole. Greenholtz, 442 U.S. at 9. One deprives a person of 

liberty, and the other denies the individual the “conditional liberty [he] 

desires.” Ibid. The decision in Greenholtz, which this Court followed in 
28

Byrne, identified the standard to determine when eligibility for parole under 

state law creates a protectible liberty interest: whether a state statute creates a 

legitimate or sufficient expectation of eligibility for parole. Greenholtz, 442 

U.S. at 12; Byrne, 93 N.J. at 203; see also Vitek v. Jones, 445 U.S. 480, 489 

(1980).

In Greenholtz, the Supreme Court found that Nebraska’s parole statue 

“create[d] a protectible expectation of parole” by directing that the Parole 

Board “shall order [an eligible offender’s] release unless” the Board finds 

certain facts. 442 U.S. at 11-12. Even though inmates had no right to parole 

under the statute, because the law’s structure and language created “the 

expectancy of release,” inmates were entitled to due process protections. Id. at 

12. 

Similarly, in Byrne, this Court held that New Jersey’s “Parole Act 

creates ‘a sufficient expectancy of parole [eligibility] to entitle [prisoners] to 

some measure of constitutional protection with respect to parole [eligibility] 

decisions.’” 93 N.J. at 203 (alterations in original) (quoting Vitek, 445 U.S. at 

489). The Court’s analysis focused on two parts of the Parole Act: 

(1) N.J.S.A. 30:4-123.51(j), which outlined when inmates “shall become 

primarily eligible for parole” but also provided they would not be eligible at 

that time if the prosecutor or the “court advise[d] the [B]oard that the punitive 
29

aspects” of their sentences would “not have been fulfilled”; and (2) N.J.S.A. 

30:4-123.53(a) (1983), which stated that inmates “shall be released on parole 

at the time of parole eligibility, unless . . . there is a substantial likelihood that 

the inmate will commit a crime under the laws of this State if released on 

parole at such time.” 

This Court observed that the language in N.J.S.A. 30:4-123.53(a) --

“shall be released . . . unless” -- “parallel[ed] the language that the Greenholtz

Court found created a protected expectation in that case.” 93 N.J. at 206. As a 

result, this Court concluded the Parole Act “creates a legitimate expectation of 

parole eligibility.” Ibid. By doing so, the Act created “a liberty interest in 

parole” that invokes due process protections. Ibid. 

“Only a few, basic procedures [were] required” under the circumstances 

“to deal with the risks of erroneous or arbitrary determinations”: 

notice of the pendency of the parole disposition, a 

statement by the objecting judge or prosecutor of the 

reasons why the punitive aspects of the sentence have 

not been fulfilled, and the opportunity for the prisoner 

to respond in writing to that statement of reasons. 

[Id. at 211.]

Executive Order 124 provides for an eligible inmate’s emergency release 

from prison to home during this health crisis. As is true for parole, inmates 

have no right to release under the Order. We therefore examine the language 
30

of the Executive Order to see if it creates a sufficient expectation of eligibility 

for release to warrant due process protection.

Paragraph 8 of the Executive Order states the relevant standard:

Within three days of receiving a recommendation from 

the Committee, the Commissioner shall decide whether 

to grant an emergency medical home confinement 

pursuant to his authority under N.J.S.A. 30:4-91.3. The 

Commissioner shall not authorize temporary home 

confinement for an inmate unless the Commissioner is 

satisfied that the proposed conditions of confinement 

appropriately safeguard the health and safety of the 

inmate, the general public, and any victims of the 

inmate’s offense. 

[(emphasis added).]

The Attorney General has identified no other considerations relevant to 

the Commissioner’s release decision. Therefore, although stated in the 

negative, the Executive Order can be fairly read to convey that inmates shall

be eligible for a medical furlough unless the Commissioner finds the stated 

conditions are not met. That interpretation is consistent with the aim of the 

Governor’s Executive Order as a whole: to release eligible inmates from jail 

during the pandemic unless their release would pose health or safety concerns 

to the inmate, the public, or any victims.

The Executive Order provides neither a right to release nor a 

presumption of release. The Commissioner exercises discretion when he 
31

decides whether to grant a medical furlough, just as the Parole Board does 

when it considers an inmate for parole. See Acoli, 224 N.J. at 222 (regarding

parole). But, similar to the parole statutes reviewed in Greenholtz and Byrne, 

the Executive Order creates a legitimate and sufficient expectation of 

eligibility for a furlough, subject to health and safety concerns, for the 3000 

inmates who appear on the lists the DOC generated. Because the Executive 

Order creates a liberty interest in the furlough decision for those inmates, they 

are “entitled to some measure of constitutional protection.” Greenholtz, 442 

U.S. at 12; see also Byrne, 93 N.J. at 206.

IV.

We next consider what process is due under the circumstances. 

A.

The requirements of due process are “flexible” and are tailored to what 

the particular situation demands. State in Interest of D.G.W., 70 N.J. 488, 502

(1976). To determine the precise protections required in a given case, courts 

apply the balancing test set forth in Mathews v. Eldridge and consider three 

factors: 

First, the private interest that will be affected by the 

official action; second, the risk of an erroneous 

deprivation of such interest through the procedures 

used, and the probable value, if any, of additional or 

substitute procedural safeguards; and finally, the 
32

Government’s interest, including the function involved 

and the fiscal and administrative burdens that the 

additional or substitute procedural requirement would 

entail. 

[424 U.S. 319, 335 (1976).]

Here, the inmates’ generalized “liberty interest in being free from 

physical restraint,” see Byrne, 93 N.J. at 210 (quoting Greenholtz, 442 U.S. at 

23 (Marshall, J., dissenting in part)), is heightened by the widespread presence 

of COVID-19 in jail. That interest is weighty. 

The current procedures also present a real risk that inmates might be 

deprived of that interest in error. The Review Committee and DOC have been 

tasked with reviewing thousands of individual cases on an expedited basis, 

with minimal input from the inmate. Even with the best of intentions, 

mistakes are inevitable. And no one can rule out entirely the possibility of 

arbitrary decisions. Yet no such shortcomings can be detected if the DOC 

does not tell inmates why they have been denied release. Right now, they are 

simply told that they “were considered” for home confinement and, “[a]fter 

thorough review, it has been determined that [they] will not be released.” 

Any remedy must also take into account the State’s interest here. It is 

two-fold: to ensure that inmates fulfill the punitive aspect of their sentence,

and to comply with the dictates of the Executive Order and process a large 
33

number of cases expeditiously -- with the interests of the inmate, the public, 

and victims in mind. The burdens of any additional process must be 

considered in that context. 

Under the circumstances, a full-blown set of procedural protections -- an 

adversarial hearing with counsel and a detailed statement of reasons -- is not 

required. Byrne offers a better approach: notice, an opportunity to be heard 

and respond, and a written statement of reasons. 93 N.J. at 211; see also S.C. 

v. Dep’t of Children & Families, ___ N.J. ___, ___ (2020) (slip op. at 33, 43-

44) (holding that the minimal requirements of due process -- “notice and 

opportunity to be heard” -- could be satisfied without an adversarial hearing in 

the context of an investigatory finding that an allegation of child abuse was 

“not established” but stressing that the notice given must set forth the basis of 

the finding, rather than rely on a conclusory statement, and that the 

opportunity to be heard must not be illusory). Balancing the relevant interests, 

we therefore find that the following protections are required to comport with 

due process. 

First, inmates must be given an opportunity to present a written 

statement in support of their release. Inmates are now notified if they are 

eligible for emergency medical home confinement. As noted earlier, interested 

inmates fill out an application that asks for the following details: name; age; 
34

the medications they are on; whether they have an underlying medical 

condition; the address and relevant phone numbers for the proposed home 

where they would be confined; their relationship to the site; whether the 

sponsor has agreed to allow them to reside at the site for the duration of the 

furlough; and whether the sponsor has agreed to provide transportation to and 

from jail. Aside from a single line to explain any medical condition, there is 

no place on the application form for inmates to express why they believe they 

should be considered for release. Nor is there another opportunity to do so 

during the furlough process.

In the same way that prosecutors and, through them, victims and next of 

kin have five days to submit their views in writing to the Parole Board and the 

Review Committee, inmates should be given that opportunity in the same time 

frame. They can proceed with or without counsel. Because the Public 

Defender has volunteered to assist inmates in the process, no right to counsel 

issues are implicated here. See Byrne, 93 N.J. at 211. 

To enable the Public Defender’s Office to help inmates, DOC shall 

provide the Public Defender with copies of all four eligibility lists generated 

under the Executive Order, as well as any supplemental ones. The lists shall 

be treated as though they are under seal, and the Public Defender may not 
35

release them. The Public Defender will need to follow up with inmates to seek 

a medical release authorizing access to their medical records. 

That process will protect against any potential concerns under the Health 

Insurance Portability and Accountability Act of 1996 (HIPPA). See 45 C.F.R. 

§ 164.512(e)(1)(i) (allowing for the sharing of protected medical records in 

response to a court order under HIPPA). 

Second, the Commissioner must provide an individualized statement of 

reasons that explains why the inmate was denied a medical furlough. See

Byrne, 93 N.J. at 211. According to the Attorney General, the Parole Board 

has provided written statements for all cases in which it denied parole. 

Examples provided to the Court contain a list of mitigating factors and a list of 

reasons for denial. In each sample in the record, the Parole Board panel 

checked some of the more than thirty pre-printed boxes for both lists and also 

provided handwritten, particularized explanations about the inmate in the 

spaces provided.

A lengthy narrative statement of reasons is not required so long as the 

Commissioner provides individualized reasons for each decision. Such a 

statement will help guard against mistakes and arbitrary actions. See ibid. 

Based on the Parole Board’s experience in implementing the Executive Order, 

this additional requirement should not impose a substantial administrative 
36

burden on the DOC. We note as well that requiring a statement of reasons is 

not inconsistent with the aims of the Executive Order. 

Third, as in Byrne, inmates should have an opportunity to respond in 

writing to the statement of reasons. In that way, they may be able to cure a 

mistake or satisfy a concern of the Commissioner. For example, if the original 

sponsor is deemed unsatisfactory, the inmate can propose another; if the 

proposed housing is deemed unacceptable because of a factual mistake, the 

inmate can clarify the error. The Commissioner must consider the response 

before finalizing the agency’s decision. Afterward, the inmate and counsel 

must receive prompt notice in writing. 

Inmates can then seek to review the Commissioner’s final decision in 

court. Final agency action is subject to appellate review, Acoli, 224 N.J. at

222-23; Silviera-Francisco v. Bd. of Educ. of Elizabeth, 224 N.J. 126, 140 

(2016), and an inmate can pursue an appeal as of right before the Appellate 

Division, R. 2:2-3(a)(2).4

A deferential standard of review applies on appeal. A reviewing court 

will not overturn a final agency action unless it is arbitrary, capricious, or 

unreasonable. Yucht, 233 N.J. at 279. To apply that standard, courts consider

4

 Inmates denied parole can pursue administrative appeals, see Acoli, 224 N.J. 

at 223-24 (outlining administrative review process for parole decisions), and 

also have the right of appeal to the Appellate Division. 
37

“whether the decision conforms with relevant law, whether there is substantial 

credible evidence in the record as a whole to support the agency’s decision, 

and whether in applying the relevant law to the facts, the agency clearly erred 

in reaching its conclusion.” Id. at 280. 

Wide discretion is afforded to administrative decisions because of an 

agency’s specialized knowledge. See Acoli, 224 N.J. at 222. But “that 

discretion is not unbounded and must be exercised in a manner that will 

facilitate judicial review.” In re Vey, 124 N.J. 534, 543-44 (1991). 

In the context of parole, which is comparable here again, the Board 

relies on its expertise to make “highly predictive and individualized 

discretionary appraisals” about whether an inmate will violate the conditions 

of parole. Beckworth v. State Parole Bd., 62 N.J. 348, 359 (1973); see also

N.J.S.A. 30:4-123.53(a). Nonetheless, the “difficulty in gauging whether a 

parole determination constitutes an abuse of discretion” does not call for “a 

more exacting standard of judicial review than [what applies] to other 

administrative agency decisions.” Trantino v. State Parole Bd., 154 N.J. 19, 

25 (1998); see also State Parole Bd. v. Cestari, 224 N.J. Super. 534, 548 n.6 

(App. Div. 1988) (“We reject the contention that a more restrictive standard of 

judicial review should apply to parole [decisions] than to other administrative 
38

agency decisions.”). That applies as well to appellate review of the denial of 

an emergency medical furlough under the Order. 

Once again, we rely on the Court’s supervisory authority to require the 

Appellate Division to address any appeals in an expedited manner. See N.J. 

Const. art. VI, § 2, ¶ 3. Parties should be directed to submit briefs within three 

days of a notice of appeal, and the court should issue its decision within the 

next three days.

B.

We decline to compel the Commissioner or the Parole Board to act 

within a defined number of days. But we have done so for areas directly 

within the Judiciary’s control because of the urgency of the situation.

The Public Defender and ACLU suggest the Court could have issued a 

writ of mandamus had this matter been filed as an action in lieu of prerogative 

writs. “A writ of mandamus is an order given by a court to a government 

official ‘that commands the performance of a specific ministerial act or duty, 

or compels the exercise of a discretionary function, but does not seek to 

interfere with or control the mode and manner of its exercise or to influence or 

direct a particular result.’” In re Resolution of State Comm’n of Investigation, 

108 N.J. 35, 45 n.7 (1987) (quoting Switz v. Township of Middletown, 23 N.J. 

580, 587 (1957)). “[M]andamus is an appropriate remedy ‘(1) to compel 
39

specific action when the duty is ministerial and wholly free from doubt, and 

(2) to compel the exercise of discretion, but not in a specific manner.’” Vas v. 

Roberts, 418 N.J. Super. 509, 522 (App. Div. 2011) (quoting Loigman v. Twp. 

Comm. of Middletown, 297 N.J. Super. 287, 299 (App. Div. 1997)). 

The County Prosecutors Association, in turn, reminds us as a friend of 

the court that the “authority to compel agency action is exercised sparingly, 

[because] courts are ill-equipped to micromanage an agency’s activities.” 

Caporusso v. Dep’t of Health, 434 N.J. Super. 88, 101 (App. Div. 2014). The 

Association also points to separation of powers concerns and notes that 

“control of policy-making [belongs] to the Governor and Legislature.” Ibid. 

In that regard, Executive Order 124 does not prescribe a time frame for the 

Commissioner but calls for expedited action. And the timeline for decisions 

by the Parole Board is fixed by statute. See N.J.S.A. 30:4-123.55; see also

N.J.A.C. 10A:71-4.2. 

“Where an agency violates the express policy of its enabling act by 

violating the clear deadline for agency action, the omission is arbitrary and 

capricious.” Caporusso, 434 N.J. Super. at 108-09. We recognize as well that 

the remedy of mandamus is available when a state agency neglects to perform 

a duty imposed by an Executive Order. See Ironbound Health Rights Advisory 

Comm’n v. Diamond Shamrock Chem. Co., 216 N.J. Super. 166, 176 (App. 
40

Div. 1987); see also In re Resolution, 108 N.J. at 45 n.7 (“Mandamus is a wellestablished remedy for ‘official inaction.’” (quoting Joseph v. Passaic Hosp. 

Ass’n, 26 N.J. 557, 571 (1958), and citing Marbury v. Madison, 5 U.S. (1 

Cranch) 137, 169-71 (1803))).

The Public Defender and ACLU take issue with the pace at which 

inmates have been released under the Executive Order. When they filed their 

brief on May 14, 2020, they noted that only 99 inmates had been released. By 

May 26, 2020, the Attorney General reported that 337 had been released and 

280 more had been approved for release. As of June 1, 2020, an additional 70 

inmates had been released. In addition, the Parole Board has completed its 

review and denied parole or reconsideration of parole in at least 751 cases.

Although we agree that time is of the essence here, the record before us 

does not demonstrate that the agency has neglected to implement the Executive 

Order. Because of the critical nature of the situation, we urge both the DOC 

Commissioner and the Parole Board to act expeditiously -- when the 

Commissioner decides whether to furlough an inmate and when the Parole 

Board makes both its initial decision and a determination in an administrative 

appeal. See Acoli, 224 N.J. at 223-24.
41

C.

Application of the above principles needs to take into account what has 

and has not taken place in the review process up until now. 

The Executive Order directs the DOC to generate four lists for each of 

the categories described above. They have already been prepared, and a large

number of applications have been processed. In addition, the Executive Order 

requires that supplemental lists be prepared on a weekly basis that include 

additional inmates who “face a heightened risk of death or serious injury from 

COVID-19 based on their age and/or underlying medical conditions.” 

For inmates identified on the supplemental lists and others whose 

applications are still pending, the due process protections outlined above will 

apply to their cases in real time.

Inmates who have already been notified that the DOC did not approve 

them for a medical furlough present a different situation. Rather than start the 

process anew for them, and delay their review, the Commissioner should 

expeditiously prepare a statement of reasons that explains the decision,

consistent with the above guidance. The statements should be served on the 

inmate and the Public Defender. Inmates will then be in a position to respond 

to concerns in a more focused way and can include more general advocacy in 
42

their written response. Afterward, the Commissioner is to finalize his decision 

in writing.

As noted earlier, inmates who have been denied parole received a 

statement of reasons and have existing avenues to seek administrative and 

court review of the Parole Board’s decision. Acoli, 224 N.J. at 222-24; R. 2:2-

3(a)(2). We again urge the Parole Board to proceed promptly in that regard.

D.

Finally, we strongly encourage the DOC and Parole Board to publish and 

regularly update data about the number of inmates considered for release, the 

number approved for release, and the number actually released under the 

Executive Order. Transparency is an asset to any public agency and enhances

public confidence. See Tarus v. Borough of Pine Hill, 189 N.J. 497, 507 

(2007).

V.

The Public Defender and the ACLU also seek relief related to custodial 

terms imposed on juveniles who are under the custody of the Juvenile Justice 

Commission (youths or residents). Specifically, they ask the Court to modify 

sentences for those individuals with a maximum release date within the next 

twelve months. Rutgers Criminal and Youth Justice Clinic (Rutgers Clinic), 

appearing as a friend of the court, seeks additional relief. 
43

Courts retain jurisdiction over the disposition of juvenile matters. 

N.J.S.A. 2A:4A-45(a). That jurisdiction continues “for the duration of [the] 

disposition of commitment or incarceration.” Ibid. Throughout that time, a 

judge can “substitute any disposition otherwise available . . . under [N.J.S.A. 

2A:4A-43].” Ibid. In short, the Family Division has continuing jurisdiction 

over delinquent juveniles and can “change or modify an order of disposition at 

any time.” State in Interest of R.M., 141 N.J. 434, 453 (1995) (quoting R.

5:24-6). 

To determine the appropriate disposition for a juvenile adjudicated 

delinquent, courts weigh multiple factors set forth at N.J.S.A. 2A:4A-43(a), 

including “the well-being and physical safety of the juvenile.” Id. at (a)(4). 

Judges may then impose incarceration or any of twenty dispositions listed by 

statute. State in Interest of C.V., 201 N.J. 281, 295 (2010) (citing N.J.S.A. 

2A:4A-43(b)). Although not included in the list, suspended sentences are 

permitted “as a necessary, viable disposition.” Ibid. 

The JJC population differs markedly from the state’s prison population. 

On March 1, 2020, there were 303 residents in JJC custody. On April 21, there 

were approximately 275. At that time, JJC began to implement universal 

testing and, as of May 28, had tested 274 residents. Twenty-eight residents 

tested positive for COVID-19, and none have died from it. By May 19, 257 
44

individuals remained in JJC custody. Thirty-six staff members informed the 

JJC that they tested positive. 

The Acting Executive Director of the JJC has certified to a number of 

safety measure at its facilities: daily temperature screening and masks for all 

residents; temperature checks and face masks for anyone entering a facility; 

enhanced cleaning and sanitizing protocols; reduced person-to-person contact; 

and quarantining of residents who test positive, among other steps.

As noted, youths in JJC custody can apply to the court and ask for their 

disposition to be modified. When such a motion is filed, judges are to evaluate 

the circumstances of each case. They may consider all relevant factors raised 

by the parties, including those set forth in N.J.S.A. 2A:4A-43(a) and the 

youth’s conduct while in JJC custody. Judges must also consider health 

concerns brought on by COVID-19 and their impact on the particular 

resident’s health condition. 

We again invoke the Court’s supervisory power over the administration 

of the court system to require an expedited briefing schedule for such motions, 

a return date within five days of filing, and a decision within the next three 

days. See N.J. Const. art. VI, § 2, ¶ 3. To the extent residents petition the 

Parole Board for review, we again urge the Board to proceed expeditiously. 
45

The Rutgers Clinic also asks the Court to address “[a]ll custodial terms 

imposed on any juveniles who have been given verified release dates by the 

state parole board or whose terms of post-incarceration supervision were 

revoked for technical violations” and modify them to “time served.” “[A]s a 

general rule, the Court ‘does not consider arguments that have not been 

asserted by a party, and are raised for the first time by an amicus curiae.’” 

State in Interest of A.A., 240 N.J. 341, 359 n.1 (2020) (quoting State v. J.R., 

237 N.J. 393, 421 (2017)); accord Bethlehem Twp. Bd. of Educ. v. Bethlehem 

Twp. Educ. Ass’n, 91 N.J. 38, 48-49 (1982). We therefore do not address the 

request beyond the guidance for individual hearings outlined above. 

VI.

For the reasons set forth in this opinion, we modify and supplement

Executive Order 124 to comport with principles of due process. We have 

ordered certain steps to expedite any court proceedings that stem from this 

ruling. We urge the DOC and Parole Board to likewise expedite their ongoing 

responsibilities under the Order. 

We have not granted the full relief the Public Defender and ACLU 

sought. The arguments raised do not provide a basis for that relief, and we 

recognize the role the other branches of government have. The Executive and 
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Legislative Branches retain the authority to enact policy changes in response to 

the spread of COVID-19 in state prisons and juvenile facilities. 

The matter is remanded to the DOC for further proceedings consistent 

with this opinion.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, 

SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.