Fred Krug v. New Jersey State Parole Board

This Court’s decisions establish a two-factor test for determining an ex post facto violation: (1) whether the statute is being retroactively applied to conduct before its enactment, and (2) whether the statute has a substantial punitive effect on the person complaining of the new law. Weaver v. Graham, 450 U.S. 24, 29 (1981). Typically, an analysis of the second factor involves evaluating the new law against the law in place at the time of the person’s offenses. See id. at 30. This is because, most often, that law was the one actively governing the person’s sentence at the time of the retroactive change. Krug’s case presents a somewhat different scenario. In 1974, he was given a life sentence for crimes committed in 1973 with a mandatory minimum of 20 years. At the time of Krug’s offenses and sentence, parole in New Jersey was governed by the 1948 Parole Act. Five years into Krug’s sentence, however, New Jersey enacted the 1979 Parole Act. That act completely repealed the 1948 Act, established an entirely new regime, and was expressly made applicable to all current New Jersey inmates. When Krug had his first two parole hearings in 1994 and 1995, they were evaluated under the 1979 Act. In 1997, New Jersey revisited its parole laws once more and enacted substantial changes to make them more severe. The substantive changes were not applied retroactively, except for one: the 1997 Act greatly expanded the record on which the Parole Board could deny parole at a subsequent hearing following an initial denial. After that change, all inmates, including pre-1997