On Appeal from the United States District Court for the District of New Jersey, D.C. Civil No. 83-0440
This case, arising under 42 U.S.C. § 1983 (1982), requires us to consider whether the application of the New Jersey Parole act of 1979, N.J. Stat. Ann. § 30:4-123.45 et seq. [West 1981 & Supp. 1985], to a prisoner who committed an offense in 1968 is a violation of the ex post facto clause of the federal Constitution.*fn1 Because the standards for parole eligibility established by the 1979 law are substantially similar to those in effect at the time of the offense, and the regulations adopted pursuant to the 1979 law did not harm the prisoner in any way, we find that there is no unconstitutionality, and affirm the judgment of the district court, which denied relief.
I. The Appellant's Crime, his Sentencing, and his Original Eligibility for Parole
In 1968, appellant John Royster shot Carmen Rapella, a widow and mother of three, five times at close range with a .22 calibre handgun while he robbed the cash register of her small grocery store. Royster was convicted of first degree murder, and was sentenced to death pursuant to the provisions of Title 2A Criminal Code, N.J. Stat. Ann. § 2A:1-1 et seq. (repealed, Sept. 1, 1979 by N.J. Stat. Ann. § 2C:1-1 et seq. (West 1982 & Supp. 1985)). State v. Royster, 57 N.J. 472, 273 A.2d 574, cert. denied, 404 U.S. 910, 30 L. Ed. 2d 182, 92 S. Ct. 235 (1971). On review, the New Jersey Supreme Court noted that twenty-five veniremen had been excused for cause because they had stated that they had conscientious scruples against the death penalty. Id. at 489-90, 273 A.2d at 583-84. The Court found that the exclusion of these prospective jurors was "a clear violation of the principle set forth by the Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968)," State v. Royster, 57 N.J. at 490, 273 A.2d at 584. The Court therefore reduced Royster's death sentence to life imprisonment. Id. at 492, 273 A.2d at 585.
As a result of Royster's resentencing, the provisions of the state's parole laws became applicable to him. According to the parole laws originally enacted in 1948 and in effect at the time Royster committed his offense, N.J. Stat. Ann. § 30:4-123, 1 et seq. [referred to hereinafter as the "Parole act of 1948" or the "1948 Act"], repealed, April 20, 1980, N.J. Stat. Ann. § 30:4-123.45 et seq. [referred to hereinafter as the "Parole Act of 1979" or the "1979 Act"], Royster would be eligible for parole in 1981.
II. Changes in the New Jersey Sentencing and Prole Laws
A. The old and new parole acts
The Parole act of 1948 required the New Jersey Parole Board to consider two factors in determining whether a prisoner was eligible for parole. The Board could approve parole only if it had determined that
 there is a reasonable probability that, if such prisoner is released, he will assume his proper and rightful place in society without violation of the law, and  ... his release is not incompatible with the welfare of society.
N.J. Stat. Ann. § 30:4-123.14 (repealed). The first factor is clear: a prisoner could be released only if the Board believed that the prisoner would not commit a crime again. The second factor, incompatibility with the welfare of society, is less than pellucid. As we are bound to follow on this point), the second factor required the Board to find that the "punitive aspects" of a prisoner's sentence had been accomplished, that is, that the defendant had served a period commensurate with, and demonstrated contrition appropriate to, the gravity of his crime. See In re Trantino Parole Application, 89 N.J. 347, 368, 446 A.2d at 104, 114-15 (1982).
In 1979, the New Jersey penal laws underwent a significant change. The state adopted a new Code of Criminal Justice ("New Code") and the Parole Act of 1979. For present purposes, the significant difference between the old and new systems is that the new system shifted from the Parole Board to the sentencing judge the responsibility of seeing to it that the "punitive aspects" of a convicted person's sentence would be satisfied. See infra note 2. The New Code did this by imposing mandatory minimum sentences for many crimes, thus making parole eligibility a function of the sentence received. See, e.g., N.J. Stat. Ann. § 2C:43-6 (establishing mandatory minimum term during which prisoners are not eligible for parole). The authors of the New Code intended that as a result of these changes, by the time a prisoner became eligible for parole the punitive objectives of his sentence would have been satisfied. See In re Trantino Parole Application, 89 N.J. at 369, 446 A.2d at 115 ("The longer sentences and mandatory minimum terms anticipated under the [new] Code serve to insure that the punitive aspects of the inmate's sentence will be satisfied by the time parole eligibility arrives"); see also infra note 2.
The discretion of the Parole Board was accordingly limited. The Board was no longer to consider whether the punitive aspect of a prisoner's punishment had been served. The 1979 Act required the Board to focus exclusively on whether the prisoner would likely commit crimes if granted a parole.
An adult inmate shall be released on parole at 'the time of parole eligibility, unless [it is demonstrated] . . . 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.
N.J. Stat. Ann. § 30:4-123.53(a) [New Code]. This single factor test is essentially the same as the first factor considered under the Parole Act of 1948. It focuses exclusively upon recidivism, and it does not take into ...