In a Closely-Watched Case, Sundiata Acoli Wins Parole by a 3-2 Supreme Court Vote

Acoli v. New Jersey State Parole Bd., ___ N.J. ___ (2022). A 2-1 Appellate Division decision, discussed here, upheld the New Jersey State Parole Board’s decision to deny parole to Sundiata Acoli, who “committed a horrific crime” in “his role in the murder of State Trooper Werner Foerster and the wounding of State Trooper James Harper in 1973 (the words of Justice Albin, the author of today’s majority opinion). Acoli was part of the Black Liberation Army, and one of the others involved in the murder was Joanne Chesimard, later known as Assata Shakur, who is likely more well-known to most people than Acoli.

Today, by a 3-2 vote (Chief Justice Rabner did not participate), the Supreme Court reversed the Appellate Division and ordered parole for Acoli. The majority consisted of Justices Albin and Pierre-Louis, along with Judge Fuentes. Justice Solomon wrote a dissenting opinion for himself and Justice Patterson.

In some ways, today’s decision paralleled the Court’s split ruling in State v. Lodzinski, 249 N.J. 116 (2021), discussed here, in which the members of the Court lined up similarly. (Justice Fernandez-Vina, the third dissenter in that 4-3 ruling has meanwhile reached mandatory retirement). The differences between the majority and the dissent here also resembled the views that separated the two sides in Lodzinski, with the key issue being the extent of deference to be paid to the original decider (here, the Parole Board; in Lodzinski, the jury).

Today’s majority opinion began from the premise that “[u]nder N.J.S.A. 30:4-123.53 (1979), at the time of Acoli’s parole hearing, he was presumptively entitled to release. To overcome that presumption, the Parole Board had the burden of demonstrating that there was a substantial likelihood that, if released, Acoli would commit another crime. Ibid. The Parole Board did not meet that burden. The record does not contain substantial credible evidence to support the Parole Board’s decision to deny parole to Acoli.”

The dissenters, in contrast, criticized the majority for not “affording the Board the substantial deference to which it is entitled” and for “substitut[ing] its own interpretation of the record for that reached by the finder of fact — the Board.” The majority’s rejoinder was that “[t]he Parole Board’s decision is entitled to deference — but not blind deference.”

To summarize too briefly a lengthy and detailed opinion, the majority found that Acoli, now 85 years old and having been imprisoned for 49 years for this crime, was not likely to re-offend. Justice Albin cited “[s]tudies [that] have shown that as individuals age, their propensity to commit crime decreases and, in particular, that elderly individuals released from prison tend to recidivate at extremely low rates.” He also relied on Acoli’s history in prison, where “[h]e has been a model inmate and infraction-free for more than twenty-five years. During that time, he has consistently received positive institutional reports from the Federal Bureau of Prisons, completed over a hundred programs and counseling sessions, served on the Honor Unit in his institution, taught a course to younger inmates on rational thinking and emotional control, and learned employable skills.”

Also contributing to the majority’s view was the fact that the State’s psychological expert “described Acoli’s risk of committing another offense as low to moderate.” Finally, the majority saw Acoli’s testimony at the Parole Board’s hearing as supporting parole. The majority criticized the Parole Board for focusing at the hearing on issues such as the hat that Acoli wore on the day of the shootings instead of more pertinent issues and concluded that the Board . The majority saw the Parole Board’s decision as “so wide of the mark and manifestly mistaken that the interests of justice require our intervention.”

The dissenters weighed those things differently and would have given the Board more deference. But the majority ruled, and Acoli was “released to live with his daughter and grandchildren in their home in accordance with his parole plan.” Both opinions are well worth reading in full.

Justice Albin expressly recognized that the Court’s ruling today “does not absolve [Acoli] of the senseless crimes he committed almost fifty years ago,” and that “no punishment will right the wrong of Trooper Foerster’s death, requite the loss to Trooper Foerster’s family, or assuage their pain. Trooper Harper too is left with lifelong psychic and physical scars from his wounding.” The majority “acknowledge[d] that if Acoli were convicted today of the crimes he committed in 1973, he would be condemned to serve life imprisonment without the hope of parole,” as the law has changed.

Justice Albin concluded by saying that the Court was “not unmindful of the passions aroused by a sensational case of this nature and the immense pressures that come to bear on dutiful public officials. But neither government agencies nor our courts can bow to public outrage in enforcing the law. Even the most scorned member of our society is entitled to be sheltered by the protection of the law, no matter how hard and vengeful the winds of public opinion may blow.” Those winds blow hard in parole cases involving the killing of police officers and will likely continue to do so.