New Jersey Supreme Court Rejects Ex Post Facto Challenge

In Krug v. State Parole Board (A-12-24/089603) (Decided August 11, 2025), the Supreme Court of New Jersey held that Constitutional ex post facto prohibitions forbid only punishment beyond what was contemplated at the time the crime was committed. 

Accordingly, the Court rejected Fred Krug’s ex post facto challenge, reasoning that because the law at the time of his offenses permitted the State Parole 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. 

Facts of Krug v. State Parole Board

The question before the New Jersey Supreme Court was 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. 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. 

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 30 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 36 months.

Krug appealed to the full Board, arguing, among other things, that the panel violated the 1979 Act by “present[ing] 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.

NJ Supreme Court’s Decision in Krug v. State Parole Board

The New Jersey Supreme Court affirmed, rejecting rejects Krug’s ex post facto challenge. Justice Wainer Apter wrote on behalf of the majority.

In reaching its decision, the New Jersey Supreme Court explained that 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. 

Accordingly, 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.

The New Jersey Supreme Court also addressed decisions addressing ex post facto challenges to the 1979 Act and the 1997 amendments in state and federal court. It determined that while Trantino v. State Parole Board (Trantino V), 331 N.J. Super. 577, 610 (App. Div. 2000), correctly stated that “[t]he critical inquiry is whether the statute realistically produces a sufficient risk of increasing the measure of punishment as to offend the constitutional prohibition,” 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. 

However, under controlling U.S. Supreme Court precedent, specifically Collins v. Youngblood, 497 U.S. 37, 46 (1990), “simply labeling a law ‘procedural’ . . . does not thereby immunize it from scrutiny under the Ex Post Facto Clause.” Thus, to the extent that Trantino V has been read to mean that procedural changes can’t violate the State or Federal Ex Post Facto Clauses, the New Jersey Supreme Court overruled that decision.

The New Jersey Supreme Court found that 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. Justice Wainer Apter wrote:

Thus, 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 New Jersey Supreme Court went on to explain that its decision is consistent with the purposes of the Ex Post Facto Clauses, which safeguard “not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.”