New Jersey county prosecutors told the state Supreme Court Tuesday that judges need the discretion to deny gravely ill inmates early release from prison, even when the inmates are months away from death or physically incapacitated.

But, a public defender argued, the state’s new Compassionate Release Act — intended to free up space in prison, save taxpayer money and provide a humane release to people who no longer pose a threat to society — shouldn’t be understood to leave judges with that much leeway. If a prisoner meets the criteria under the law, she said, that prisoner should be released.

The act was enacted to replace the state’s old medical parole law, which was rarely used and released just five prisoners in five years, a legislative commission found.

The new law, which went into effect in February 2021, transferred the process to the trial courts. It allows prisoners who are permanently physically incapacitated or have less than six months to live to petition the courts for release once the Department of Corrections deems they are eligible. It also eliminates the old law’s restriction that inmates convicted of certain crimes, like murder, are ineligible for compassionate release.

So far, 15 prisoners have been found eligible for release under the law, according to the Department of Corrections. The DOC denied 111 who didn’t meet the criteria outlined in the law, a spokesman said.

But since the law took effect, just two people have been granted their freedom by the courts, identified by their initials in court filings and by the Department of Corrections. J.C. was released on May 20th, 2021 and A.M. was released on June 25th, 2022, according to the department.

“The goal here of the compassionate release statute was to increase the number of inmates released because medical parole wasn’t working effectively,” public defender Alison Gifford, who argued on behalf of the two prisoners, told the justices.

Alexander Shalom, senior attorney for the ACLU of New Jersey, arguing as a friend of the court, said the Legislature had been clear about the criteria for releasing a prisoner — “and so what we can't do is let a judge override that Legislative value judgment that the sickest individuals, the people who are the most debilitated, can spend their last days outside of prison.”

A.M’s release is one of two cases argued before the Supreme Court on Tuesday. A.M. was convicted of murdering her husband but was freed this June after an appellate court granted her release due to her permanent physical incapacitation cause by end-state multiple-sclerosis.

But Assistant Morris County Prosecutor Tiffany Russo, who opposed A.M.’s release, told the justices that the Legislature intended to give judges discretion in the law and not “make them into rubber stamps.”

“It was not enacted to allow everybody who commits any crime under any circumstance to mandatorily receive compassionate release just because they meet those two factors,” she said, referring to the medical and safety guidelines under the law.

The second case before the court involves Al-Damany Kamau, formerly known as Eddie Lee Oliver, who shot and killed a Newark detective inside an Essex County courtroom in 1993. His release was denied by Superior Court Judge Ronald Wigley, who ruled that though Kamau met the requirements under the law — he suffers from end-stage multiple sclerosis and is bedridden and can’t eat or go to the bathroom on his own — he didn’t deserve compassion because of the heinous nature of his crime.

“The compassionate release statute was designed to open up the courthouse doors, not the doors of the prison,” Essex County Assistant Prosecutor Frank Ducoat said. Ducoat argued Kamau’s crime was a particularly shocking and callous attack, and a judge should have the discretion to keep him in prison.

The state attorney general’s office appeared as a friend of the court, arguing that the law does afford judges discretion to deny a prisoner’s release, but that it should be limited to extraordinary circumstances, such as in the case of a mass shooter in a school or a prisoner who becomes incapacitated after an attempt to escape prison.

“The discretion can’t swallow the rule,” said Angela Cai, deputy solicitor general for the attorney general’s office. She said having the prisoner meet the burden of proof by clear and convincing evidence “has to mean something substantive for the defendant otherwise the [Compassionate Release Act] itself would be relatively meaningless.”