Kevin Stout v. New Jersey Board of Parole

In partnership with the Rutgers Constitutional Rights Clinic, the ACLU-NJ filed a brief on behalf of Kevin Stout, who was repeatedly denied parole based on the Parole Board’s conclusion that he “lacks insight into his criminal behavior.” Four decades ago, Stout committed a horrible crime as a nineteen-year-old addicted to drugs and was incarcerated thereafter. His record in prison was exemplary: at the time of filing, he had been free of any institutional charges for 18 years, had completed extensive rehabilitation programs while in prison, and had achieved full minimum custody status. He first became parole eligible in 2009 after having served 25 years, already more than half his lifetime in prison.

His parole denials and appeals bounced back and forth between the Parole Board and Appellate Division. At the time of filing, Stout’s most recent parole denial was in October 2018; he had received a 36-month “hit,” making him next eligible for parole release in December 2020. Stout filed an administrative appeal pro se, which was denied. Among other reasons, the Board found that Stout had “insufficient problem resolution” because he “lacks insight into his criminal behavior.”

By its regulations, the Parole Board must consider a set of factors in its decision about whether a person should be granted parole. None of those factors includes “lack of insight.” Nevertheless, the Board lists lack of insight as a factor in a pre-printed, check-box form for parole denials and finds that factor in numerous cases, including Stout’s. The ACLU-NJ and Rutgers Constitutional Rights Clinic challenged the Board’s reliance on “lack of insight” as the product of improper rulemaking in violation of the Administrative Procedures Act. Additionally, because the term is nowhere defined in the regulations, the brief argued that it is improperly vague — a wild card that the Board can use in just about any case it wishes.

Status

While the court considered the appeal, Stout appeared before the Parole Board yet again and was finally granted parole release before the scheduled oral argument. The court nevertheless proceeded with argument on October 21, 2020, and the parties await an opinion.

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