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March 10, 2026 Get Citation Alerts Download PDF Add Note

Horace Cowan v. New Jersey State Parole Board

Supreme Court of New Jersey

• Citations: None known

• Docket Number: A-24-24

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (278)

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Combined Opinion

SYLLABUS

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.

Horace Cowan v. State Parole Board (A-24-24) (089243)

Argued September 25, 2025 -- Decided March 10, 2026

JUSTICE PIERRE-LOUIS, writing for a unanimous Court.

In this appeal, the Court considers whether, after denying Horace Cowan
parole, the State Parole Board acted in an arbitrary, capricious, or unreasonable
manner in setting a future eligibility term (FET) -- the period of time an inmate must
remain incarcerated before being considered for parole again -- of 200 months when,
under N.J.A.C. 10A:71-3.21(a)(1), Cowan’s presumptive FET was 27 months.

Cowan has been in custody since February 1990. He was convicted of
aggravated manslaughter and weapons offenses in 1992 and sentenced to life
imprisonment with 25 years’ parole ineligibility. He also pled guilty to offenses
related to a prison escape and received a consecutive sentence of 10 years with 5
years’ parole ineligibility. He committed 18 institutional disciplinary infractions
during his first 21 years in prison and only 3 since 2011. He has maintained
employment, obtained his high school diploma, and completed numerous programs
since 2001.

Cowan became eligible to be released on parole in February 2020. A two-
member Board panel denied Cowan parole. On May 6, 2020, the three-member
panel imposed a 200-month FET -- more than seven times the presumptive FET of
27 months noted in N.J.A.C. 10A:71-3.21(a)(1). The panel issued a 10-page
decision detailing Cowan’s offenses, his institutional record, his “insufficient
problem resolution,” and the panel’s reasons for imposing the 200-month FET.

On administrative appeal, the full Parole Board affirmed the denial of parole
and imposition of the extended FET, again citing “insufficient problem resolution”
and a “lack[] [of] insight into his criminal behavior.” The Appellate Division
affirmed. The Court granted certification. 259 N.J. 485 (2025).

HELD: The 200-month FET was arbitrary, capricious, and unreasonable. Adopting
an analysis similar to the Appellate Division’s analysis in Berta v. State Parole
Board, 473 N.J. Super. 284 (App. Div. 2022), the Court holds that, to impose an
extended FET beyond the presumptive term, the Parole Board must (1) overcome the

1
presumption by explaining why the presumptive term is clearly inappropriate and (2)
explain why the extended FET that the Board imposed is necessary and appropriate.
Any extended FET imposed should be no longer than needed to address the
likelihood of recidivism, which is the primary concern of the applicable statute and
regulations.

1. Prior to 1979, an inmate’s punishment was a highly relevant consideration in
   parole determinations, in addition to the likelihood of recidivism. After amendments
   to the Criminal Code in 1979, parole eligibility became a judicial responsibility to
   be exercised at the time of sentencing, and the dual considerations of (1) the
   likelihood of recidivism and (2) the sufficiency of punishment were replaced with
   only one criterion: whether the inmate would likely commit another crime if
   released. Consequently, the 1979 Parole Act created a presumption in favor of
   release, shifting the burden to the State to prove that the prisoner should not be
   released. The Act was amended again in 1997, but it is the 1979 Parole Act that
   controls here because an inmate’s parole eligibility is governed by the version of the
   Parole Act in effect when their crime was committed. (pp. 18-21)

2. Under the 1979 Parole Act, every defendant sentenced to a term of imprisonment
   in New Jersey becomes eligible for parole after serving the minimum term specified
   by law. Pursuant to the Parole Board’s regulations, the 24 factors listed in N.J.A.C.
   10A:71-3.11(b) must be considered in evaluating an inmate’s parole application. If
   the Board denies parole, the Board must set an FET, or the date on which the inmate
   can next be considered for parole. N.J.A.C. 10A:71-3.21(a)(1) sets the standard FET
   at 27 months for inmates serving sentences for murder, manslaughter, aggravated
   sexual assault, kidnapping, and other serious offenses. The standard FET for other
   offenses is shorter. The Board, may, in its discretion, increase or reduce an FET by
   nine months pursuant to N.J.A.C. 10A:71-3.21(c). The Parole Board can also depart
   from the FET schedule and establish an FET that exceeds the nine-month increase
   pursuant to N.J.A.C. 10A:71-3.21(d), which directs the panel to consider the same
   factors the Board is required to consult in making the initial decision of whether to
   grant or deny parole pursuant to N.J.A.C. 10A:71-3.11(b). (pp. 21-24)

3. The Court reviews instructive case law. Most recently, in Berta, the Appellate
   Division reversed as 72-month FET. 473 N.J. Super. at 325. The Berta court held
   that in imposing an FET higher than the presumptive term outlined in the N.J.A.C.
   10A:71-3.21(a) schedule and above the extended term of nine months outlined in
   N.J.A.C. 10A:71-3.21(c), the Parole Board must: (1) “overcome the presumption by
   explaining why a twenty-seven-month FET is clearly inappropriate” and (2) must
   also explain “why the FET that was actually imposed is necessary and appropriate.”
   Id. at 323. The appellate court stressed that “[t]he Board cannot simply pick a
   number out of thin air.” Ibid. (pp. 25-29)

2
4. Here, the Board panel’s decision is devoid of any connection between the facts in
the parole record and the determination that a 200-month FET, instead of a 27- or
36-month FET, was necessary to reduce Cowan’s likelihood of future criminal
behavior. Also absent from the panel’s decision is any mention of some of the
important factors set forth in N.J.A.C. 10A:71-3.11. An FET of 27 months -- the
longest presumptive FET listed in the regulations -- already reflects the seriousness
of Cowan’s crimes. To increase the FET above 27 or 36 months, the Board must
adhere closely to its own regulations, which require a determination regarding the
likelihood that an inmate will commit a crime if released. Here, given the Board’s
lack of focus on Cowan’s risk of re-offense, the absence of substantive reasoning in
its decision for imposing an FET term of nearly 17 years when the presumptive term
was between two and three years, and its apparent lack of meaningful consideration
of the one objective assessment tool designed to determine an inmate’s risk of
recidivism, the Board’s imposition of a 200-month FET was arbitrary, capricious,
and unreasonable. (pp. 29-35)

1. Going forward, the Parole Board must adhere to the standard articulated by the Appellate Division in Berta when setting FETs beyond the presumptive term and the allowable nine-month increase pursuant to N.J.A.C. 10A:71-3.21(d). The Board must: (1) overcome the presumption by explaining why the applicable presumptive term is clearly inappropriate; and (2) explain why the imposed FET is necessary and appropriate. The Board must also ensure that any extended FET is no longer than necessary to address what the Board perceives at the time to be “the inmate’s lack of satisfactory progress in reducing the likelihood of future criminal behavior,” which is the sole basis identified in the Parole Board’s own regulations for establishing an extended FET. Further, as noted in N.J.A.C. 10A:71-3.21(d), the Board shall consider the factors enumerated in N.J.A.C. 10A:71-3.11(b) in making its determination to impose an extended FET. Of particular note is the factor related to the results of the objective risk assessment instrument. Substantial weight should be given to the risk assessment as it is an objective measure of an inmate’s likelihood of re-offending. And, in reconsidering Cowan’s parole on remand, the Parole Board must continue to be mindful that the 1979 Parole Act applies to Cowan. Therefore, the Board can consider only new information since the time of Cowan’s first parole denial in determining whether to grant him parole. (pp. 36-37)

REVERSED and REMANDED for a new parole hearing.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, WAINER APTER,
FASCIALE, NORIEGA, and HOFFMAN join in JUSTICE PIERRE-LOUIS’s
opinion.

3
SUPREME COURT OF NEW JERSEY
A-24 September Term 2024
089243

Horace Cowan,

Petitioner-Appellant,

v.

New Jersey State
Parole Board,

Respondent-Respondent.

On certification to the Superior Court,
Appellate Division.

Argued Decided
September 25, 2025 March 10, 2026

Scott M. Welfel, Assistant Deputy Public Defender,
argued the cause for appellant (Jennifer N. Sellitti, Public
Defender, attorney; Scott M. Welfel, of counsel and on
the brief).

Appellant filed a brief on appellant’s behalf.

Christopher C. Josephson, Deputy Attorney General,
argued the cause for respondent (Matthew J. Platkin,
Attorney General, attorney; Janet Greenberg Cohen,
Assistant Attorney General, of counsel, and Christopher
C. Josephson, on the briefs).

Ezra D. Rosenberg argued the cause for amicus curiae
American Civil Liberties Union of New Jersey (American
Civil Liberties Union of New Jersey Foundation and

1
Rutgers Constitutional Rights Clinic Center for Law &
Justice, attorneys; Ezra D. Rosenberg, Jeanne LoCicero,
and Rebecca Uwakwe, of counsel and on the brief, and
Ronald K. Chen and Jessica Rofé, admitted pursuant to
Rule 1:21-3(c), on the brief).

Raymond M. Brown argued the cause for amicus curiae
Association of Criminal Defense Lawyers of New Jersey
(Pashman Stein Walder Hayden, attorneys; Raymond M.
Brown and Joshua P. Law, on the brief).

Jonathan Romberg submitted a brief on behalf of amicus
curiae Seton Hall University School of Law Center for
Social Justice (Seton Hall University School of Law
Center for Social Justice, attorneys; Jonathan Romberg,
of counsel and on the brief).

JUSTICE PIERRE-LOUIS delivered the opinion of the Court.

In this case, the New Jersey State Parole Board denied Horace Cowan

parole. Cowan’s presumptive future eligibility term (FET) -- the period of

time an inmate must remain incarcerated before being considered for parole

again -- was 27 months. The Parole Board instead imposed a 200-month FET.

We are asked to determine whether the Board acted in an arbitrary, capricious,

or unreasonable manner in setting that term.

In 1991, Cowan was sentenced to a term of life imprisonment with 25

years of parole ineligibility as a result of convictions for aggravated

manslaughter, possession of a weapon for an unlawful purpose, and offenses

related to his escape from jail while awaiting trial. In February 2020, Cowan

2
became parole eligible, but the Board denied parole. The Board then imposed

a 200-month FET, meaning Cowan would remain incarcerated for another 200

months before being eligible for parole again. In its decision establishing the

extended FET, the Parole Board stated that Cowan needed to develop a better

understanding of his “criminal thinking” and a deeper understanding of why he

chose to act in a criminal manner during the 1990 offense.

On appeal, Cowan challenged his denial of parole and argued that the

200-month FET was arbitrary and capricious. The Appellate Division

affirmed, finding that the Parole Board’s imposition of the 200-month FET

was not arbitrary, capricious, or unreasonable and was supported by sufficient

credible evidence in the record.

We find that the 200-month FET was arbitrary, capricious, and

unreasonable, and we reverse and remand for a new parole hearing. Adopting

an analysis similar to the Appellate Division’s analysis in Berta v. State Parole

Board, 473 N.J. Super. 284 (App. Div. 2022), we hold that in order for the

Parole Board to impose an extended FET beyond the presumptive term, it must

(1) overcome the presumption by explaining why the presumptive term is

clearly inappropriate and (2) explain why the extended FET that the Board

imposed is necessary and appropriate. Any extended FET imposed should be

3
no longer than needed to address the likelihood of recidivism, which is the

primary concern of the applicable statute and regulations.

I.

A.

On February 18, 1990, when Cowan was 22 years old, he and two

accomplices attempted to rob the victim. During the robbery, Cowan shot the

victim with a sawed-off shotgun, resulting in his death. Cowan was charged

with murder and two related firearms counts.

Cowan was detained at Monmouth County Correctional Institution while

awaiting his trial. On February 20, 1991, Cowan -- assisted by two other

inmates -- assaulted a corrections officer and maintenance worker in the course

of escaping from the prison. He hit the corrections officer in the head with a

metal pipe, threatened the maintenance worker with a screwdriver, confined

both in the shower room, and escaped through a window using a fire

extinguisher to break the steel rods. Cowan was apprehended the next day and

returned to prison. He was charged with attempted murder, aggravated assault,

armed robbery, kidnapping, criminal restraint, escape, and weapons offenses.

In May 1992, a jury found Cowan guilty of aggravated manslaughter and

both firearms offenses related to the robbery victim’s death. On July 31, 1992,

he was sentenced to life imprisonment with 25 years of parole ineligibility.

4
For his escape from the Monmouth County prison, Cowan pled guilty to

second-degree conspiracy to commit aggravated assault, third-degree criminal

restraint, and second-degree escape. He was sentenced to an aggregate of 10

years’ imprisonment with a five-year period of parole ineligibility for

conspiracy to commit aggravated assault and the related offenses. The trial

court ordered that this sentence run consecutively to the life sentence he

received after his jury trial convictions.

Cowan has been in custody since February 20, 1990. During his

incarceration, Cowan committed 21 institutional disciplinary infractions

beginning in 1993, eight of which were asterisk-designated infractions, which

“are considered the most serious and result in the most severe sanctions.” 1

N.J.A.C. 10A:4-4.1(a). All but three of those 21 infractions occurred during

Cowan’s first 21 years in prison.

After 2011, Cowan incurred only three infractions. Two of those three

infractions were related to a fight between Cowan and three other inmates in

July 2018. According to Cowan, the fight occurred after he told the three

younger inmates, who were affiliated with gangs, that they needed to be more

1
Cowan stated in his brief that he incurred 22 infractions. The Parole Board
record lists 21 infractions because two 2018 infractions received a single,
combined sanction.

5
positive, which he said led him to being bullied and looked down upon as a

“nerd.” Cowan claimed that after reporting the bullying to a corrections

officer, the three men attacked him in his cell. The medical report regarding

the incident stated that Cowan was found “laying supine in his housing unit”

with “multiple facial lacerations, slurred speech . . . and swelling to the nose.”

The report also stated that officers on-site noted that Cowan “was involved in

an altercation with multiple inmates in which he was possibly stomped.”

According to Cowan, he fought back during the attack and was later charged

with fighting and disruptive conduct as a result.

Cowan’s most recent infraction prior to becoming eligible for parole

occurred in August 2018, when the Department of Corrections (DOC)

proposed to transfer him to Bayside Prison, where the inmates who had

assaulted him the month prior were housed. Cowan refused the housing

assignment due to the conflict with the inmates and was charged with an

infraction.

At the time of his parole hearing in 2020, Cowan had not incurred any

additional infractions since August 2018. Cowan lost a total of 725 days of

commutation credits due to infractions during his time in prison.

Since 2001, Cowan has maintained employment in the prison kitchen,

bakery, dining room, and building sanitation unit. He obtained his high school

6
diploma while in prison and completed multiple therapeutic and substance

abuse programs, including Focus on the Victim, Cognitive Behavioral

Change, Anger Management, Living in Balance, 12 Step Education, Successful

Transition and Reentry Program, HOPE Parenting Program, and Employment

Readiness. Cowan also completed several vocational programs, including

Department of Transportation Hazmat and CPR.

B.

Cowan became eligible to be released on parole in February 2020. The

Parole Board held Cowan’s parole hearing in November 2019. On January 2,

2020, a two-member Board panel denied Cowan parole, determining that “a

substantial likelihood exists that [he] would commit a new crime if released on

parole at this time.” In denying parole, the Board used a form checklist to

denote its decision, reasons for its denial, and the mitigating factors it found.

Regarding its reasons for denial, the two-member Parole Board panel

marked an “x” adjacent to the following factors: “Facts and circumstances of

offense(s), Specifically: multiple acts of violence, one involving fatality”;

“Prior offense record is extensive”; “Offense record is repetitive”; “Prior

offense record noted”; “Nature of criminal record increasingly more serious”;

“Committed to incarceration for multiple offenses”; “Committed new

offense(s) on community supervision (probation)”; “Prior opportunity(ies) on

7
community supervision . . . has (have) failed to deter criminal behavior”;

“Prior incarceration(s) did not deter criminal behavior”; “Institutional

infraction(s),” noting the last infraction was on August 22, 2018 for refusing a

work assignment; 2 “Commission of current offense(s) while incarcerated /

ROR / on bail / on escape / attempting to elude prosecution”; and Cowan’s

score of 24 on the risk assessment evaluation known as the LSI-R (Level of

Service Inventory-Revised). Dr. Richard Mucowski, Ph.D., performed the

objective LSI-R risk assessment and concluded that Cowan scored a 24, which

indicated “a moderate risk for recidivism with a 28% chance of re-arrest and a

17.1% chance of reconviction within two years of release.”

The panel also marked an “x” next to “Insufficient problem(s)

resolution,” for which the panel explained that Cowan “has over 21 infractions

with the most recent ones committed in 2018 including refusing to work and

fighting. The infractions indicate that [Cowan] still has not addressed his

criminal behavior or thinking. [Cowan] needs to participate in his own

rehabilitation by addressing his behavior during incarceration.” At the bottom

2
We note that the record, including notes and documentation from prison
staff, clarifies that Cowan’s August 2018 infraction was for refusing a housing
assignment, not for refusing a work assignment as stated by the Board in its
parole denial. That infraction, referred to in the record as violation .254,
encompasses violations for “refusing to work, or to accept a program or
housing unit assignment.” (emphases added).
8
of the form, on the line adjacent to “[t]he Panel suggests,” the panel wrote

“[r]emain infraction free.”

The two-member panel checked the following boxes to indicate it found

these mitigating factors: “All opportunity(ies) on community supervision

completed without violation(s)”; “Participation in program(s) specific to

behavior”; “Participation in institutional program(s)”; “institutional reports

reflect favorable institutional adjustment”; “Attempt made to enroll and

participate in program(s) but was not admitted”; and “Positive interview is

noted.”

After the denial, Cowan provided a letter of mitigation to the Parole

Board, accompanied by supporting documents and letters of support.

On March 3, 2020, the two-member panel amended its decision. The

panel removed “[p]ositive interview is noted” as a mitigating factor, and,

under reasons for denial, added “lack of insight into criminal behavior” under

the “[i]nsufficient problem(s) resolution” category. Regarding the removal of

“[p]ositive interview is noted,” the panel explained that the mitigating factor

“appeared on the Initial Hearing Case Assessment, however, it does not appear

appropriate for the Board panel’s interview.” The panel also clarified, as

reasons for its denial, that Cowan’s “[c]ommission of [the] current offense

[was] while [he was] incarcerated” and Cowan had a “lack of insight into

9
criminal behavior,” which contributed to his “[i]nsufficient problem

resolution.” The Board again suggested that Cowan “[r]emain infraction free.”

The two-member panel referred the matter to a three-member Parole

Board panel for establishment of an FET. As articulated by the Parole Board,

“[t]he FET establishes the length of time that must be served before the inmate

may again become eligible for parole consideration, and the initiation of the

parole hearing process once again.” N.J. State Parole Bd., Division of Release,

https://www.nj.gov/parole/functions/release-division/ (last updated Jan. 25,

2022). Pursuant to the Board’s regulations, if the Board seeks to establish an

FET longer than the presumptive term outlined in the regulations based on the

offense of conviction, 27 months in this case, the FET must be set by a three-

member Board panel. 3 See N.J.A.C. 10A:71-3.21(a), (d).

On May 6, 2020, the three-member panel imposed a 200-month FET --

nearly 17 years and more than seven times the presumptive FET of 27 months

noted in N.J.A.C. 10A:71-3.21(a)(1).

On June 5, 2020, the panel issued a 10-page decision regarding the 200-

month FET. The decision detailed Cowan’s offenses, his institutional record,

3
The three-member panel consisted of the original two Parole Board members
that denied Cowan parole, with the addition of a third Board member.
10
his “insufficient problem resolution,” and the panel’s reasons for imposing the

200-month FET.

The panel explained its reasons for finding that Cowan lacked insight

into his criminal behavior. It noted Cowan’s statement, regarding his

manslaughter conviction, that he was “sorry for all of that, that day,” as well as

his explanation that, at the time, he was “really thinking as a juvenile, doing

dumb stuff,” was “on the street,” and “basically just wanted to fit in. Be cool.”

The panel noted Cowan stated that he “found [himself] doing a lot of dumb

stuff that shouldn’t [have] been done.” The panel found that Cowan needed to

“develop a better understanding [of] the dynamics of [his] personality defects

that impelled [him] to criminal behavior.” The panel also stated that, for

Cowan, “[g]aining insight into [his] personality defects is essential, so [he] can

comprehend [his] triggers and stressors to [his] life experiences and how those

factors influence [his] criminal thinking.”

The panel took issue with Cowan’s infraction that resulted from the 2018

incident with other inmates, which was his most recent infraction at the time.

According to the panel, Cowan explained at the parole hearing that the fight

resulted from his attempt to counsel younger inmates “who may be acting in a

negative manner.” The panel stated that Cowan admittedly conducted himself

“in such a manner, choosing to interact and lecture inmates on how they were

11
living a negative life based upon their street gang affiliations.” The panel

further stated that Cowan’s decision to talk to those inmates “resulted in

animosity and an incident during which [he] claim[ed] [he] had to defend

[himself] from three (3) inmates who attacked [him].” The panel found that

Cowan needed to “develop better judgment in dealing and interacting with

others, during situations of discourse and confrontation.”

In detailing the reasons for its imposition of the 200-month FET, the

panel stated:

You present as having identified contributory factors of
your criminal thinking. Seeking acceptance from your
peers as a juvenile was a contributory factor. The
Board panel finds you must develop a deeper
understanding into why you made the choice and found
it easily acceptable to act in a criminal manner, at times
with the use [of] violence, to achieve social acceptance.
You must conduct an introspection to understand the
emotional and psychological dynamics of your criminal
thinking; and

You present as not having made adequate progress in
the rehabilitative process. The Board panel notes your
participation in programming/counseling including
Thinking For a Change, Focus On The Victim, Anger
Management and Successful Transition and Reentry
Series (STARS). However, the Board panel finds that
further programming will assist you in gaining a better
understanding [of] your criminal thinking; and

You committed twenty-one (21) infractions, with eight
(8) of the infractions being serious (asterisk). The
serious infractions involved you exhibiting assaultive

12
and disruptive behavior, along with incidents with
components of fighting and narcotics . . . . Though you
claimed at the hearing that you are older and are no
longer the young man who made poor choices in the
past, the Board panel finds that your recent *.004 --
Fighting Any Person infraction from 2018
demonstrates that problematic issues still exist
regarding how you interact with others.

The panel estimated that, after application of commutation credits,

Cowan’s projected parole eligibility date would be in June 2030, or 10 years

and four months after his initial eligibility date. The panel’s decision did not

relate the 200-month FET to Cowan’s risk of recidivism as calculated by the

LSI-R.

Cowan administratively appealed the 200-month FET decision to the full

Board. The Board affirmed the denial of parole and imposition of the

extended FET, again citing “insufficient problem resolution,” and a “lack[]

[of] insight into his criminal behavior.”

Cowan, appearing as a self-represented litigant, appealed to the

Appellate Division, challenging both the parole denial and 200-month FET.

The Appellate Division affirmed, finding the decision was supported by

“sufficient credible evidence on the record” that reflected Cowan’s lack of

insight, history of infractions -- particularly the eight serious/asterisked

infractions -- and need for rehabilitation.

13
We granted Cowan’s petition for certification, which he filed on his own

behalf as a self-represented litigant. 4 259 N.J. 485 (2025). We also granted

leave to appear as friends of the court to the American Civil Liberties Union of

New Jersey (ACLU), Association of Criminal Defense Lawyers of New Jersey

(ACDL), and the Seton Hall University School of Law Center for Social

Justice.

II.

A.
Cowan urges this Court to reverse the Parole Board’s 200-month FET

and remand for a new parole hearing. He argues that the Board’s decision to

impose such a lengthy FET was arbitrary and capricious because the Board

failed to show that the presumptive FET was insufficient to reduce Cowan’s

likelihood of recidivism. Cowan asks this Court to articulate a clear standard

for the Board to apply in setting FETs and to adopt the standard articulated by

the Appellate Division in Berta, 473 N.J. Super. at 323. Applying the Berta

standard, Cowan argues that the 200-month FET the Board imposed after his

denial of parole fails to overcome the presumption of an FET within the

schedule and must be reversed.

4
The Office of the Public Defender now represents Cowan before this Court.
14
The ACLU argues that the record in this case does not establish a

substantial likelihood that Cowan will re-offend and does not justify a 200-

month FET. The ACLU notes that the Board must consider all factors in

N.J.A.C. 10A:71-3.11(b) in setting an FET, including the objective risk

assessment -- the LSI-R -- which the ACLU argues the Board failed to

consider in establishing Cowan’s FET. The ACDL argues that when the Board

sets FETs, its discretion should be constrained by New Jersey’s “fundamental

fairness” doctrine, which forbids arbitrary or unjust government actions and

requires both procedural and substantive protections. The Seton Hall

University School of Law Center for Social Justice stresses that the Board’s

imposition of a 200-month FET -- far exceeding the presumptive FET of 27

months and the nine-month permitted upward adjustment -- is disproportionate

and violates the Legislature’s intent to establish clear and determinate parole

eligibility timelines.

B.

The Parole Board argues that Cowan’s 200-month FET is not arbitrary,

capricious, or unreasonable. At oral argument, the Board conceded there is a

presumption that the scheduled FET listed in the regulations will be imposed.

The Board contends the extended FET was properly imposed here because the

Board appropriately considered all pertinent factors under N.J.A.C. 10A:71-

15
3.11(b), properly focused on Cowan’s potential for recidivism, and supplied

ample explanation for why it imposed a 200-month FET based on Cowan’s

criminal and infraction history. The Board urges the Court to reject Cowan’s

interpretation of the Appellate Division’s holding in Berta. The Board asserts

that the Appellate Division did not hold in Berta that the length of an FET

must mirror the time necessary to reduce the inmate’s risk of recidivism, as

Cowan claims.

III.

A.

Appellate “review of administrative agency action is limited.” Russo v.

Bd. of Trs., PFRS, 206 N.J. 14, 27 (2011). Reviewing “[c]ourts apply a

deferential standard to final agency actions and will not overturn them unless

an action is arbitrary, capricious, or unreasonable.” In re Att’y Gen. Law Enf’t

Directive Nos. 2020-5 & 2020-6, 246 N.J. 462, 489 (2021). Appellate courts

focus on the following three inquiries when addressing the validity of an

agency decision:

(1) whether the agency’s action violates express or
implied legislative policies, i.e., did the agency follow
the law; (2) whether the record contains substantial
evidence to support the findings on which the agency
based its action; and (3) whether in applying the
legislative policies to the facts, the agency clearly erred
in reaching a conclusion that could not reasonably have
been made on a showing of the relevant factors.
16
[Trantino v. State Parole Bd. (Trantino IV), 154 N.J.
19, 24 (1998).]

We interpret statutes, however, de novo. Krug v. State Parole Bd., 261 N.J.

477, 485-86 (2025).

This Court has “recognized that Parole Board decisions are highly

‘individualized discretionary appraisals.’” Trantino v. State Parole Bd.

(Trantino VI), 166 N.J. 113, 173 (2001) (quoting Beckworth v. State Parole

Bd., 62, N.J. 348, 359 (1973)). In reviewing Parole Board decisions, appellate

courts must determine whether the Parole Board’s factual finding “that ‘there

is a substantial likelihood that an inmate will commit another crime if

released’” could have reasonably “‘been reached on sufficient credible

evidence in the whole record.’” Id. at 172 (quoting Trantino IV, 154 N.J. at

24).

“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.” Acoli v. State Parole Bd., 250 N.J. 431,

455 (2022) (citing Trantino VI, 166 N.J. at 192). Therefore, a parole decision

cannot be sustained if it “either violates legislative policy, is not supported by

‘substantial evidence’ in the record, or ‘could not reasonably have been made

17
on a showing of the relevant factors.’” Ibid. (citing Trantino IV, 154 N.J. at

24-25).

B.

In the Parole Act of 1948, the Legislature created the State Parole Board

“to determine when, and under what conditions, . . . [inmates] may be released

upon parole.” L. 1948, c. 84, §§ 1, 5. Under the 1948 Act, eligibility for

parole release was not directly tied to a defendant’s sentence; rather, “[a]

complex of factors and computations required by statute, administrative

regulations and institutional rules and practices governed the amount of time

an inmate was required to serve in prison before he was entitled to parole

consideration.” In re Parole Application of Trantino (Trantino II), 89 N.J. 347,

367 (1982). The 1948 statute, like the scheme in place before its enactment,

treated the sufficiency of an inmate’s punishment as “a highly relevant

consideration in parole determinations.” Id. at 368. For a prisoner to be

released on parole, the Board had to be “of the opinion that there is reasonable

probability that, if such prisoner is released, he will assume his proper and

rightful place in society, without violation of the law, and that his release is

not incompatible with the welfare of society.” L. 1948, c. 84 § 14. The Parole

Board was therefore required to consider “the likelihood of recidivism” as well

as the “sufficiency of punishment.” Trantino II, 89 N.J. at 368.

18
In 1979, our State’s “penal laws underwent a significant change.” Krug,

261 N.J. at 487 (quoting Royster v. Fauver, 775 F.2d 527, 529 (3d Cir. 1985)).

The 1979 amendments to the Criminal Code implemented a new sentencing

structure that more clearly defined the discretionary aspects of imposing

sentences: “Specific mitigating and aggravating factors which the sentencing

judge must consider [were] enumerated in the [Criminal] Code.” Trantino II,

89 N.J. at 368. After the 1979 amendments, parole eligibility became “a

function of the sentence received.” Ibid. “In effect,” the decision regarding

parole eligibility became “a judicial responsibility to be exercised at the time

of sentencing,” and defendants convicted of a crime can now be “required to

serve a mandatory minimum term before they can be considered for parole.”

Ibid.

At the same time, the Legislature amended the State’s parole laws and

implemented “significant changes to complement the Code’s sentencing

scheme.” Ibid. “The 1979 [Parole] Act replaced the 1948 Act’s dual

considerations of (1) ‘the likelihood of recidivism’ and (2) the ‘sufficiency of

punishment’ with only one criterion: whether the inmate would likely commit

another crime if released.” Krug, 261 N.J. at 487 (quoting Trantino II, 89 N.J.

at 367-68). It thus precluded the “Parole Board from considering whether the

prisoner had been sufficiently punished so as to serve society’s need for

19
deterrence and retribution.” Trantino v. State Parole Bd. (Trantino V), 331

N.J. Super. 577, 604 (App. Div. 2000), overruled in other part by Krug, 261

N.J. at 497. Consequently, the 1979 Parole Act created a presumption in favor

of release, “shift[ing] the burden to the State to prove that the prisoner . . .

should not be released.” State Parole Bd. v. Byrne, 93 N.J. 192, 205 (1983).

Indeed, the 1979 amendments stated that “[a]n adult inmate shall be

released on parole at the time of parole eligibility, unless information supplied

in the report filed [with the Parole Board] or developed or produced at a

hearing . . . indicates by a preponderance of the evidence that 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.” 5 L. 1979, c. 441, § 9(a)

5
In 1997, the Legislature amended the Parole Act and once again altered the
Board’s inquiry regarding parole determinations, broadening the bases upon
which the Board could deny parole. L. 1997, c. 213. The Parole Act currently
directs that an inmate

shall be released on parole at the time of primary parole
eligibility, unless information supplied in the report
filed [with the Parole Board] or developed or produced
at a hearing . . . indicates by a preponderance of the
evidence that the inmate has failed to cooperate in his
or her own rehabilitation or that there is a reasonable
expectation that the inmate will violate conditions of
parole imposed . . . if released on parole at that time.

[N.J.S.A. 30:4-123.53(a).]

20
(emphasis added). As indicated by the word “shall,” parole was therefore

mandatory unless the Board found an inmate was likely to re-offend, based on

information supplied to it or discovered during the parole proceedings.

Therefore, under the 1979 Parole Act, the only inquiry before the Board was

the determination of whether it was likely that the inmate would commit a

crime if released.

C.

An inmate’s parole eligibility is governed by the version of the Parole

Act in effect when their crime was committed. Berta, 473 N.J. Super. at 304;

see also Trantino II, 89 N.J. at 373 (noting that the Parole Board erred in

considering itself bound by the recently enacted 1979 Parole Act when the

relevant offenses were committed prior to the Act’s effective date). Here, the

1979 version of the Parole Act governs because Cowan committed the offenses

for which he was convicted in 1990 and 1991, before the 1997 amendments to

the Parole Act. 6 We therefore focus our discussion on the requirements and

procedures under the 1979 version of the Act.

That version of the Act provides that every defendant sentenced to a

term of imprisonment in New Jersey becomes eligible for parole after serving

6
We note that the Appellate Division quoted the 1997 version of the Parole
Act when discussing the standards for granting parole.

21
the minimum term specified by law. L. 1979, c. 441, § 7. Pursuant to the

Parole Board’s regulations, in considering an inmate’s parole application,

“[t]he hearing officer, Board panel, or Board shall consider” a list of 24

enumerated factors. N.J.A.C. 10A:71-3.11(b) (emphasis added). 7 Those

factors include, among other considerations, the inmate’s commission of an

offense during incarceration, any serious disciplinary infractions, the facts and

circumstances of the offense of conviction, “[s]tatements by the inmate

reflecting on the likelihood that he or she will commit another crime,” and the

results of the objective risk assessment instrument. N.J.A.C. 10A:71-

3.11(b)(1), (2), (5), (17), (23). The regulations further direct that the Board

“may consider any other factors deemed relevant,” in addition to the factors

that must be considered. N.J.A.C. 10A:71-3.11(b).

If the Board grants parole, the Board issues a certificate of parole with

specific conditions the parolee must abide by. L. 1979, c. 441, § 15(b). If the

7
Both parties rely on the current version of Parole Board regulations and
neither has argued that the version of the regulations at the time Cowan
committed his offenses applies, or that an Ex Post Facto Clause violation
results from applying the current regulations. See Garner v. Jones, 529 U.S.
244, 255 (2000) (holding that to prove a retroactive application of a parole
board rule violated the Ex Post Facto Clause, the defendant “must show that as
applied to his own sentence the law created a significant risk of increasing his
punishment”). Therefore, the issue of whether a prior version of the
regulations should apply is not before this Court.
22
Board denies parole, the Board must set an FET, or the date on which the

inmate can next be considered for parole. L. 1979, c. 441, § 12(b).

The schedule of FET dates is determined according to regulations

promulgated by the Board, with emphasis on the inmate’s prior criminal record

and the need for continued incapacitation of the inmate. L. 1979, c. 441, §

12(a); N.J.A.C. 10A:71-3.21. Pursuant to N.J.A.C. 10A:71-3.21(a), a two-

member Parole Board panel shall establish an FET based on the schedule.

N.J.A.C. 10A:71-3.21(a)(1) sets the standard FET at 27 months for inmates

serving sentences for murder, manslaughter, aggravated sexual assault,

kidnapping, and other serious offenses. The standard FET for other offenses is

shorter. See N.J.A.C. 10A:71-3.21(a)(2) to (a)(4) (setting the FET for armed

robbery and robbery, among other offenses, at 23 months; the FET for

burglary, narcotics offenses, theft, and arson, among other offenses, at 20

months; and the FET for bribery, conspiracy, gambling, and possession of a

weapon, among other offenses, at 17 months).

The Board, however, may, in its discretion, increase or reduce an FET

by nine months. N.J.A.C. 10A:71-3.21(c) states that

[t]he future parole eligibility dates required pursuant to
(a) and (b) above may be increased or decreased by up
to nine months when, in the opinion of the Board panel,
the severity of the crime for which the inmate was
denied parole and the prior criminal record or other
characteristics of the inmate warrant such adjustment.
23
Pursuant to that regulatory provision, the Parole Board in its discretion can

lower the FET to 18 months for someone who, like Cowan, is incarcerated for

manslaughter -- which carries an FET of 27 months under the schedule -- or

increase it to a maximum of 36 months.

The Parole Board can also depart from the FET schedule and establish

an FET that exceeds the nine-month increase pursuant to N.J.A.C. 10A:71-

3.21(d):

A three-member Board panel may establish a future
parole eligibility date which differs from that required
by the provisions of (a) or (b) and (c) above if the future
parole eligibility date which would be established
pursuant to such subsections is clearly inappropriate
due to the inmate’s lack of satisfactory progress in
reducing the likelihood of future criminal behavior. In
making the determination that the establishment of a
future parole eligibility date pursuant to (a) or (b) and
(c) above is clearly inappropriate, the three-member
panel shall consider the factors enumerated in N.J.A.C.
10A:71-3.11.

In other words, if the Board panel is considering an FET beyond that

required by the regulations, section 3.21(d) directs the three-member panel to

consider the same factors the Board is required to consult in making the initial

decision of whether to grant or deny parole pursuant to N.J.A.C. 10A:71-

3.11(b).

24
D.

This Court has yet to decide a case specifically regarding the propriety

of the Parole Board’s decision to impose an extended FET, but opinions from

this Court and the Appellate Division reviewing denials of parole, which often

address the imposition of FETs, are instructive.

In Trantino IV, this Court, in part, analyzed the Parole Board’s denial of

parole and setting of an FET of 10 years under the standard established in the

1979 Parole Act. 154 N.J. at 22. The Court set aside the denial of parole and

the 10-year FET and modified and affirmed the Appellate Division’s judgment

to remand the case to the Board. Id. at 39, 44. We concluded that, in the

Board’s decision-making process, it had applied the wrong standard, which

resulted in denying Trantino parole. Id. at 43-44. This Court found that

the Parole Board’s decision that Trantino is not at
present ready for parole and that he will not be eligible
for parole for another ten years was influenced by the
application of a standard of parole that may not have
focused sufficiently on the likelihood that Trantino will
commit crimes if released, but instead focused on the
achievement of complete rehabilitation. Hence, the
Parole Board’s final determination cannot be said to be
supported by adequate findings of fact derived from
sufficient credible evidence. The current state of the
record and the several decisions of the Parole Board do
not support and explain a determination that Trantino,
if paroled, will likely again resort to crime.
Accordingly, we set aside the Parole Board’s decision
denying parole and postponing reconsideration of
parole eligibility for ten years.
25
[Id. at 38-39.]

In addition, in discussing the 1979 Parole Act, this Court noted that

“[t]he Parole Board’s ultimate determination of parole fitness must be based

on whether there is a likelihood that Trantino will again engage in criminal

activity.” Id. at 39. The Court explained that the likelihood of Trantino re-

offending serves as the primary standard that permeates the 1979 Parole Act

amendments, including the setting of an extended FET. Id. at 27, 38.

In Acoli, a case not focused on FETs, this Court found that the Parole

Board lacked substantial evidence to deny Acoli parole and failed to show by a

preponderance of the evidence that he would commit a crime if released. 250

N.J. at 470. This Court determined that the Parole Board had “taken refuge in

threadbare findings that Acoli lacks insight into the conduct that led him to his

involvement in the crimes he committed in 1973 and that he still refuses to

take responsibility for his acts.” Id. at 460. Further, we found that nothing in

the Board’s decision suggested that it had meaningfully considered Acoli’s

“exemplary institutional record,” the compelling “studies on the age-crime

curve,” or Acoli’s “psychological risk assessments.” Id. at 465-71.

Most recently, in Berta, the Appellate Division reversed Berta’s 72-

month FET. 473 N.J. Super. at 325. In 1984, Berta was sentenced to life

imprisonment with thirty years of parole ineligibility for murder. Id. at 289.
26
After the Board denied his first application for parole in 2015, the Board

established a 120-month FET, which the Appellate Division affirmed. Id. at

1. Berta’s second parole hearing occurred in 2020. A two-member Board

panel again denied parole, stating there was a “substantial likelihood . . . that

[Berta] would commit a new crime if released on parole.” Id. at 297. The

Board cited three primary reasons for its decision: (1) the facts and

circumstances of Berta’s multiple offenses; (2) his denial of committing the

offenses; and (3) his seven institutional disciplinary infractions, which were

“numerous, persistent, [and] serious.” Id. at 298-99. The matter was then

referred to a three-member Board panel, which affirmed the parole denial

primarily because of Berta’s “continued refusal to admit his guilt.” Id. at 299.

The three-member panel established a 72-month FET. Ibid.

Berta filed an administrative appeal to the full Board, which affirmed the

panel’s decision. Ibid. On appeal, the Appellate Division reversed and

remanded to the Board, finding that “the Board failed to adequately explain

why it fixed an FET almost three times as long as the presumptive twenty-

seven-month FET.” Id. at 322.

The Appellate Division held that in imposing an FET higher than the

presumptive term outlined in the N.J.A.C. 10A:71-3.21(a) schedule and above

the extended term of nine months outlined in N.J.A.C. 10A:71-3.21(c), the

27
Parole Board must: (1) “overcome the presumption by explaining why a

twenty-seven-month FET is clearly inappropriate” and (2) must also explain

“why the FET that was actually imposed is necessary and appropriate.” Id. at

1. The appellate court stressed that “[t]he Board cannot simply pick a

number out of thin air.” Ibid. The court noted that the “clearly inappropriate”

standard from the regulations is a “high threshold to vault” and that the

presumptive FET “is not to be dispensed with for light or transient reasons.”

Id. at 322-23.

The Appellate Division further emphasized that in establishing an

extended FET pursuant to N.J.A.C. 10A:71-3.21(d), “(1) an FET must not be

imposed as a form of punishment; and (2) the decision to impose an FET

beyond the presumptive FET, like the underlying decision to deny parole, must

be tied directly to the goal of reducing the likelihood of future criminal

behavior.” Id. at 323. The appellate court presumed that the Parole Board’s

decision to deny Berta parole did not adhere to those standards and was

“strongly influenced, if not driven, by [his] refusal to admit his guilt.” Id. at

1. The Appellate Division concluded that it would be “inappropriate to

impose a lengthy FET to essentially coerce Berta to admit his guilt.” Id. at

325.

28
In his concurring opinion, Judge Geiger suggested that the Court should

address several unresolved issues regarding the Parole Board’s authority over

imposing extended FETs. Id. at 326-27 (Geiger, J.A.D., concurring). The

concurrence questioned “the Board’s largely unbridled discretion” in imposing

extended FETs and whether inmates are entitled to greater procedural

protections during this process, and it argued for a less deferential standard of

review. Id. at 327. Judge Geiger emphasized that the evidence in the record

must objectively demonstrate that the duration of an FET is “directly relate[d]

to the amount of time necessary to address the reasons identified for denying

parole.” Id. at 328.

IV.

Applying these principles, we find that the Parole Board’s imposition of

the 200-month FET in this case was arbitrary, capricious, and unreasonable.

When Cowan became eligible for parole in 2020, for the first time since

being taken into custody in February 1990, the Parole Board denied parole.

The three-member Board panel then established an FET of 200 months

pursuant to N.J.A.C. 10A:71-3.21(d), citing Cowan’s need for an

“introspection” and further programming and his 21 infractions.

Missing from the panel’s decision, however, was an explanation of why

it believed the presumptive FET of 27 months (up to a maximum of 36

29
months) was insufficient due to Cowan’s “lack of satisfactory progress in

reducing the likelihood of future criminal behavior,” the one basis articulated

in the Board’s regulations for imposing an extended FET. See N.J.A.C.

10A:71-3.21(d). The Board panel neglected to forge any connection between

the facts in the parole record and the risk that Cowan would re-offend if

released on parole. The Board also did not explain why the length of the FET,

200 months, was necessary to address the likelihood of Cowan engaging in

future criminal behavior -- the very issue at the center of the 1979 Parole Act

amendments.

As detailed above, the statutory scheme as amended under the 1979

Parole Act focused on the likelihood of recidivism, in line with the revisions to

the Criminal Code. Importantly, those amendments changed the way

defendants were sentenced and established a new structure involving

aggravating and mitigating factors for trial courts to consider in imposing a

sentence. This new sentencing scheme allowed trial courts to impose a period

of parole ineligibility, thereby requiring certain defendants to serve a minimum

amount of time in prison before becoming eligible for parole. This shift in

sentencing, through which parole eligibility became “a function of the

sentence received,” led to a shift in the consideration of parole. The Parole

Board was no longer charged with considering whether the prisoner had been

30
sufficiently punished -- that determination was made by the sentencing court

on the front end. Instead, the Legislature adjusted the parole determination

decision to focus, under the 1979 Act, on whether there is a substantial

likelihood an inmate will commit another offense if released. See Trantino II,

89 N.J. at 368-69.

The determination of whether an inmate will commit a crime if released

on parole is the critical decision under the 1979 Parole Act amendments, and it

is evident by the plain language of the statute at the time that the Legislature

intended the risk of recidivism to be the only impediment to parole. First, the

statute directed that an inmate “shall be released on parole at the time of parole

eligibility, unless information supplied . . . indicates by a preponderance of the

evidence that 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.” L. 1979,

c. 441, § 9(a) (emphasis added). Even on reconsideration of parole,

subsequent to the inmate serving their time pursuant to the FET, the statute

once again required that an inmate “shall be released on parole on the new

parole eligibility date unless new information . . . indicates by a preponderance

of the evidence that that 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.”

L. 1979, c. 441, § 12(c) (emphasis added).

31
The Parole Board’s regulations for setting FETs beyond the presumptive

term also focus on the risk of recidivism. Pursuant to N.J.A.C. 10A:71-

3.21(d), a three-member Parole Board panel can set an FET above the

presumptive term and the allowable nine-month increase if the presumptive

FET in the schedule “is clearly inappropriate due to the inmate’s lack of

satisfactory progress in reducing the likelihood of future criminal behavior.”

(emphasis added). The regulations further direct that a Board panel, in making

the determination that the presumptive FET is inappropriate, “shall consider

the factors enumerated in N.J.A.C. 10A:71-3.11,” which are the same factors

considered in determining whether parole should be granted or denied. Ibid.

(emphasis added).

In setting the 200-month FET for Cowan, the Board panel’s decision is

devoid of any connection between the facts in the parole record and the

determination that a 200-month FET, instead of a 27- or 36-month FET, was

necessary to reduce Cowan’s likelihood of future criminal behavior. It

seemed, quite frankly, that the Board panel “simply pick[ed] a number out of

thin air,” see Berta, 473 N.J. Super at 323, which is the very definition of an

arbitrary and capricious determination.

The three-member panel’s decision fails to address any of the facts that

directly relate to the core inquiry of whether Cowan was likely to re-offend if

32
released. The panel noted Cowan’s commission of 21 infractions while in

prison, but did not address the fact that all but three of those infractions

occurred within the first 21 years of his incarceration. That decrease in

infractions in the later years of his incarceration is arguably indicative of

Cowan’s progress over time in reducing his likelihood of future criminal

behavior. The panel further noted that Cowan needed to gain more insight into

his criminal behavior by engaging in more programming, without any

indication of what type of programming the Board panel deemed necessary or

beneficial -- in other words, the sort of “threadbare findings” we rejected in

Acoli, 250 N.J. at 460. The 1979 Parole Act and the Parole Board’s

regulations demand more from the panel’s decision to set aside the 27- or 36-

month FET in favor of an FET that was more than seven times the presumptive

term.

Also absent from the three-member Board panel’s decision is any

mention of some of the important factors the panel is to consider in imposing

an extended FET. As explained above, N.J.A.C. 10A:71-3.21(d) directs the

panel to consider the factors in -3.11(b) in establishing an FET above the

presumptive term. The panel’s decision, however, seemed to overlook the

“results of the objective risk assessment instrument.” See N.J.A.C. 10A:71-

3.11(b)(23). That objective assessment, the LSI-R, specifically gauges an

33
inmate’s risk of future criminal conduct, the question at the core of the

determination of whether to establish an extended FET. In the Parole Board’s

denial of parole, the two-member panel checked the “Risk assessment

evaluation” box on the Board’s checklist form indicating, without elaboration,

that the LSI-R was one of the reasons for denial. The three-member panel’s

written decision setting the 200-month FET, however, made no mention of the

LSI-R, which concluded that Cowan was “a moderate risk for recidivism with

a 28% chance of re-arrest and a 17.1% chance of reconviction within two years

of release.” Additionally, the three-member panel’s decision seemed to not

consider statements by Cowan himself and/or by institutional staff as to

whether “[Cowan] is likely to commit a crime if released,” two other factors

related to risk of recidivism. See N.J.A.C. 10A:71-3.11(b)(9), (17).

The presumptive FETs set forth in the regulations are the product of the

Parole Board’s careful rulemaking process, in which specific offenses were

taken into consideration in determining how long an individual convicted of

certain crimes should wait to be considered for parole after an initial denial.

For example, inmates like Cowan “serving a sentence for murder,

manslaughter, aggravated sexual assault, kidnapping, or strict liability for drug

induced death, or serving any minimum-maximum or specific sentence in

excess of 14 years for a crime [not otherwise listed]” shall serve an FET of 27

34
months. N.J.A.C. 10A:71-3.21(a)(1). An FET of 27 months is the longest

presumptive FET term listed in the regulations and is reflective of the serious

nature of the crimes to which that FET is applicable. The Parole Board,

therefore, already took the seriousness of Cowan’s crimes into account when

setting the FET schedule. Even the Attorney General conceded at oral

argument that there is a presumption that the FETs outlined in N.J.A.C.

10A:71-3.21(a) will be imposed. In order for the Parole Board to increase the

FET above 27 or 36 months, it must adhere closely to the requirements of its

own regulations that require a determination regarding the likelihood that an

inmate will commit a crime if released.

Given the Board’s lack of focus on Cowan’s risk of re-offense, the

absence of substantive reasoning in its decision for imposing an FET term of

nearly 17 years when the presumptive term was between two and three years,

and its apparent lack of meaningful consideration of the one objective

assessment tool designed to determine an inmate’s risk of recidivism, the

Board’s imposition of a 200-month FET in this case was arbitrary, capricious,

and unreasonable. We therefore reverse the judgment of the Appellate

Division.

Many years have passed since Cowan’s parole hearing in 2019 and the

Board’s denial of parole and imposition of the 200-month FET in 2020. Given

35
the passage of time, we remand this matter to the Parole Board for a new

parole hearing.

V.

Going forward, the standard articulated by the Appellate Division in

Berta is the standard the Parole Board must adhere to when setting FETs above

the presumptive term. We hold that the Parole Board, in setting an FET

pursuant to N.J.A.C. 10A:71-3.21(d) beyond the presumptive term and the

allowable nine-month increase, must: (1) overcome the presumption by

explaining why the applicable presumptive term is clearly inappropriate; and

(2) explain why the imposed FET is necessary and appropriate. As the

Appellate Division in Berta noted, the “clearly inappropriate” standard

articulated in the regulations is a “high threshold to vault,” and the

presumptive terms detailed in the Board’s regulations are “not to be dispensed

with for light or transient reasons.” See Berta, 473 N.J. Super. at 322-23.

The Board must also ensure that any extended FET imposed pursuant to

N.J.A.C. 10A:71-3.21(d) is no longer than necessary to address what the Board

perceives at the time to be “the inmate’s lack of satisfactory progress in

reducing the likelihood of future criminal behavior,” as that is the sole basis

identified in the Parole Board’s own regulations for establishing an extended

FET. See N.J.A.C. 10A:71-3.21(d). Indeed, “an extended FET must be based

36
on substantial credible evidence in the record that objectively demonstrates

that its duration directly relates to the amount of time necessary to address the

reasons identified for denying parole.” Berta, 473 N.J. Super. at 328 (Geiger,

J.A.D., concurring). Given that the only reason for denying parole pursuant to

the 1979 Parole Act is the risk of recidivism, the Board must relate the FET

duration to that reason.

Further, as noted in N.J.A.C. 10A:71-3.21(d), the Board shall consider

the factors enumerated in N.J.A.C. 10A:71-3.11(b) in making its determination

to impose an extended FET. Of particular note is the factor related to the

results of the objective risk assessment instrument. See N.J.A.C. 10A:71-

3.11(b)(23). Substantial weight should be given to the risk assessment as it is

an objective measure of an inmate’s likelihood of re-offending.

Lastly, in reconsidering Cowan’s parole on remand, the Parole Board

must continue to be mindful that the 1979 Parole Act applies to Cowan.

Therefore, the Board can consider only new information since the time of

Cowan’s first parole denial in determining whether to grant him parole. See L.

1979, c. 441, § 12(c) (“An inmate shall be released on parole on the new

parole eligibility date unless new information . . . indicates by a preponderance

of the evidence that there is a substantial likelihood that the inmate will

37
commit a crime under the laws of this State if released on parole at such time.”

(emphases added)). 8

VI.

For the foregoing reasons, we reverse the judgment of the Appellate

Division and remand the matter to the Parole Board for a new hearing.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, WAINER
APTER, FASCIALE, NORIEGA, and HOFFMAN join in JUSTICE PIERRE-
LOUIS’s opinion.

8
The Legislature’s 1997 amendments to the Parole Act removed the new
information limitation, and the Act now allows the Parole Board, “during
second or subsequent hearings, to . . . consider all relevant information about
an inmate.” Krug, 261 N.J. at 480.
38