On August 11, 2025, a 6-1 majority of the New Jersey Supreme Court decided the case of Krug v. State Parole Board. The principal issue concerned ex post facto prohibitions and an amendment to the Parole Act of 1948.
An “ex post facto” law is a law makes a past lawful action illegal, increases the punishment for a crime that already occurred, or alters the rules of evidence to make it easier to convict someone for a past crime. Ex post facto means “after the fact.” Ex post facto laws are prohibited by the New Jersey and United States constitutions. The prohibition ensures that people can follow the law with peace of mind knowing that it will not change to punish their actions.
Justice Wainer Apter wrote for the majority in relevant part: The Parole Act of 1948 permitted the Board to consider the merits of parole with reference to “all existing available records.” The Parole Act of 1979 allowed the Board, at a second or subsequent parole hearing, to consider only “new information” filed since the prior hearing. A 1997 amendment abolished that new information limitation and allowed the Board, during second or subsequent hearings, to once again consider all relevant information about an inmate. In this appeal, the Court considers whether the State Parole Board’s determination to consider all relevant information about appellant Fred Krug — rather than only “new information” filed since his last parole hearing — violated the ex post facto protections of the federal and state constitutions.
Krug committed the crimes for which he is now incarcerated in 1973. The Parole Board denied Krug’s applications for parole in 1994, 1995, 2012, and 2016. In August 2022, Krug became eligible for parole for a fifth time. Although Krug incurred thirty disciplinary infractions while in prison, he has been infraction-free since 2003, except for one refusal to submit to a search in 2017. A Board panel held a parole hearing in January 2023 and again denied parole by filling out a one-page form. As reasons for the denial, the panel checked twelve boxes related to pre-2016 information. The panel also checked four boxes possibly related to information gathered since the 2016 hearing. The panel checked six boxes for mitigating information. However, the panel ultimately checked a box labeled “(Prior to 8/19/1997)” that read, “The Panel has determined a substantial likelihood exists that you would commit a new crime if released on parole at this time.” The panel set a future eligibility term of thirty-six months.
Krug appealed to the full Board, arguing, among other things, that the panel violated the 1979 Act by “presenting no new evidence since previous denials of parole to justify his continued confinement.” In a final agency decision, the full Board affirmed the panel’s determinations. The Appellate Division affirmed the denial of parole.
Constitutional ex post facto prohibitions forbid only punishment beyond what was contemplated at the time the crime was committed. Because the law at the time of Krug’s offenses permitted the Board to consider the same “all existing” information it may now consider, retroactive application of the 1997 amendment to Krug created no risk of additional punishment. The Court therefore rejects Krug’s ex post facto challenge.
Under the Parole Act of 1948, the Parole Board was required to assess whether the inmate had served enough time in prison and been sufficiently punished in terms of both society’s need for adequate punishment and the inmate’s rehabilitation. In 1979, the New Jersey penal laws underwent a significant change. The Legislature adopted a new Code of Criminal Justice, requiring more definite and severe sentences, including mandatory minimum terms. At the same time, the 1979 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. It thus precluded the Parole Board from considering whether the prisoner had been sufficiently punished. And it created a presumption in favor of release, shifting the burden to the State to prove that the prisoner should not be released. As to second and subsequent hearings, the 1979 Act narrowed the information on which the Board could rely to deny parole, providing that “an inmate shall be released on parole unless new information indicates by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime if released at such time.” The 1979 Act’s new-information limitation was interpreted to mean the Board was required to base its decision strictly on information developed since the previous denial of parole and could not deny parole at subsequent hearings if there had been no institutional infractions committed by the inmate since the last review.
In 1995, then-Governor Whitman appointed a Study Commission on Parole to undertake a thorough study of the parole system. The Commission published a final report with recommendations to expand the authority of the Parole Board to deny parole to inmates who cannot safely be returned to the community. It recommended removing the 1979 Act’s new-information limitation during second and subsequent parole hearings to allow a comprehensive review of all relevant information in an inmate’s record. In 1997, the Legislature accepted the Commission’s recommendations and amended the Parole Act. The amended Act allowed the Board to deny parole if it found, 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, and it adopted that same new substantive standard for second and subsequent hearings, abolishing the requirement that the Board consider only new information.
The New Jersey and United States Constitutions both prohibit ex post facto laws — a law that imposes a punishment for an act not punishable at the time it was committed or imposes additional punishment beyond what was prescribed at the time of commission. Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint. The U.S. Supreme Court has applied the same analysis when examining a change to a parole law. The controlling inquiry is whether retroactive application of the new parole law created a sufficient risk of increasing the measure of punishment attached to the covered crimes, or created a significant risk of prolonging an individual’s incarceration beyond that contemplated at the time the crime was committed. Thus, when confronted with the claim that a parole law has worked an ex post facto violation on an inmate, a court must compare the allegedly offensive parole law with the parole law in effect at the time of the inmate’s crime and ask whether the parole standards of the newer act are more rigorous or burdensome than were the standards of the older one.
Trantino v. State Parole Board (Trantino V) correctly stated that “the critical inquiry is whether the statute realistically produces a sufficient risk of increasing the measure of punishment as to offend the constitutional prohibition.” But it also implied that a “procedural modification that does not constitute a substantive change in the parole release criteria” cannot violate the Ex Post Facto Clause. Under controlling U.S. Supreme Court precedent, “simply labeling a law ‘procedural’ does not thereby immunize it from scrutiny under the Ex Post Facto Clause.” Collins v. Youngblood, 497 U.S. 37, 46 (1990). To the extent Trantino V has been read to mean that procedural changes cannot violate the State or Federal Ex Post Facto Clauses, the Court overrules that decision.
But the ex post facto analysis is concerned solely with whether a statute assigns more disadvantageous criminal or penal consequences to an act than did the law in place when the act occurred. That remains true when it comes to changes in parole laws. At the time of Krug’s offense, the Board was entitled to review “old” information, including an inmate’s criminal history and the seriousness of the offense for which the inmate was incarcerated. The 1997 amendment restored the Board’s ability to consider that information. In so doing, it poses no risk of increasing Krug’s punishment beyond what was contemplated at the time of his offense.
The Court explains that its agreement with the Board on the meaning of the Ex Post Facto Clause does not in any way signal approval of its litigation position either in this case or in earlier cases. But although the Court does not condone the Board’s litigation position in this case, that does not change the meaning of the Federal and State Ex Post Facto Clauses. The Court does not opine on whether the facts of this case, or any case involving a change in law that conferred a benefit on an inmate for many years, and then subsequently repealed that benefit, could implicate due process or fundamental fairness concerns.
Justice Noriega, dissenting, expresses the view that, rather than a rigid formula, the constitutional principles that animate the Ex Post Facto Clause — notice, governmental restraint, and preservation of the social compact between the government and the governed — should drive an ex post facto analysis. Justice Noriega notes that focusing an ex post facto analysis on whether a new law increases punishment when compared to the law in effect at the time of the offense works well in the typical sentencing case scrutinizing a single legislative change, but that parole is different because, over the potentially very long period during which an incarcerated individual is subject to a parole regime, the government may legitimately change that regime to the individual’s advantage, revising the social compact and thereby recentering the ex post facto analysis away from the offense date and onto the legislative change. Here, Justice Noriega writes, the Legislature subjected Krug and similarly situated individuals to the 1979 Parole Act when it passed the provision, which replaced and repealed the 1948 Act for all those incarcerated at the time. In Justice Noriega’s view, the Ex Post Facto Clause was specifically designed to forbid and prevent maneuvering such as the 2022 application to Krug’s case of the more restrictive parole conditions enacted in 1997.
Under the majority’s analysis, if Krug had committed his crimes after the 1979, he would likely be entitled to relief. Unfortunately for him, his crimes were committed in 1973. They included: murder, rape, aggravated assault, terroristic threats, and weapons offenses. Krug is 78 years old. His next parole eligibility date is January 21, 2026.
