How sentencing reform could offer seniors a second chance and save N.J. millions

During his 30 years in prison, Edwin Ortiz witnessed many men grow old. He saw some move around the prison using walkers. He saw others sit in their cells in wheelchairs. He watched as men with cancer and other conditions became incapacitated and died behind bars.

“I would ask myself, why are these men in prison languishing? They don’t pose a threat to society,” Ortiz said. “We need to change how we treat our elderly in prison. We are doing a disservice to our society and our taxpayers. We are redeemable.”

Ortiz spoke earlier this month at the Hughes Justice Complex in Trenton during a meeting of advocates for prison reform that included faith leaders, state legislators, former prisoners, and representatives from the New Jersey Office of the Public Defender and the New Jersey Department of Corrections.

Advocates called on the New Jersey Legislature to pass “Second Look” legislation that would give senior citizen inmates who are ready for reentry into society a chance for release.

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A lower low risks of recidivism

Study after study has shown that recidivism rates decrease as prisoners age. Older prisoners are much less likely to commit crimes after release.

In Maryland, nearly 200 elderly lifers were released from prison en masse under jury instructions found unconstitutional in the case Unger v. Maryland. According to a study from the Justice Policy Institute, a Washington, D.C.-based nonprofit, the recidivism rate for the group was just 3%.

New Jersey Department of Corrections Commissioner Victoria Kuhn said in a statement read at the Trenton event supporting Second Look legislation that recidivism statistics show that older people who have served their state prison sentences are not returning to prison for new criminal convictions. Statistics show readmission rates continue to decrease with age in New Jersey, with a readmission rate of less than 3% for those over age 60.

“Rehabilitation and reentry efforts have been proven to work in New Jersey,” Kuhn said. “New Jersey stands at the forefront of second chances as one of the states with the lowest (prison) readmission rates in the nation.”

Jennifer Sellitti, head of the New Jersey Office of the Public Defender, said violent crimes spike between the ages of 20 and 24 and drop precipitously thereafter. The arrest rate for violent crimes after age 60 is identical to the arrest rate for violent crimes committed by children under 10.

“It is less than 4%, and right now, 40% of people serving time in America’s prisons who are over age 55 committed their crimes when they were 24 years old, more than half a lifetime ago,” she said.

An aging population

Older prisoners are the fastest-growing segment of the U.S. prison population. The median age of New Jersey’s incarcerated population is 37, which is two years older than it was in 2018. About 22% of the state’s incarcerated population is 50 or older, up from 13% a decade ago.

According to New Jersey Department of Corrections statistics, as of January 2024:

• 8% of the prison population in New Jersey, or 992 people, were between ages 50 and 54.
• 6%, or 763 people, were between ages 55 and 59.
• 4%, or 552 people, were between ages 60 and 64.
• 4%, or 504 people, were 65 and older.

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Advocates for reform in New Jersey say punitive sentencing laws and a broken parole system paved the way for the growing crisis in the state’s prisons.

The state limits parole eligibility for people convicted of certain crimes. Even when elderly prisoners qualify for parole, they are often denied release by the parole board for decades-old offenses. The board also imposes long periods between parole hearings, leaving many elderly people to wait and die in prison.

“The tough-on-crime policies of the 1980s and 1990s, focused on lengthening and intensifying sentences, led to a massive 550% increase in our prison populations by the mid-2000s,” said Sellitti. “Today, older individuals make up five times as large a proportion of the prison population as they did 30 years ago. By 2030, more than a third of our prison population will be elderly. New Jersey is no exception.”

Skyrocketing health care costs

Older prisoners cost more because almost all expenses related to their health care are paid using state tax dollars. As the geriatric population in New Jersey prisons grows, prisons are sending more incarcerated people to long-term acute care hospitals for specialized care prison infirmaries can’t provide.

The Bureau of Justice Statistics found that older inmates are more susceptible to costly chronic medical conditions. They typically experience the effects of aging sooner than people outside prison because of issues such as substance use disorders, inadequate preventive and primary care before incarceration, and stress linked to the isolation and violent environment of prison life.

“Heart disease, high blood pressure, diabetes and dementia are common among older individuals, even more so for people serving time in prison,” Sellitti said. “The prison environment itself accelerates aging and contributes to physical ailments and mental health challenges. The costs of treating these conditions, along with specialized care for physical rehabilitation, assisted living and hospice care, are incredibly expensive.”

Sellitti said the financial costs of keeping people in prison over the age of 60 are exceedingly high.

“The public safety risk of releasing elders, particularly after a thorough review by the courts of their rehabilitation, is exceedingly low. The problem might be simple, but the solution is not. It’s a systemic challenge that required us to rethink our approach to justice and rehabilitation and to second chances,” she said.

The National Institute of Corrections estimated the annual cost of incarcerating those 55 or older who have chronic and terminal illnesses at two to three times the cost for others on average. More recently, researchers have found that the cost differential may be wider.

The cost of housing an incarcerated person averages about $74,000 a year. State Sen. Raj Mukherji estimated that acute hospital care and rehab facilities for prisoners can cost the state up to $2 million a year per placement, along with another $300,000 in overtime for corrections officers to guard an incarcerated person who need additional care.

“The elderly in our prisons are the least likely to recidivate, and we’re allowing them to languish,” Mukherji said. “That’s unfair, not only to the humanity of these people who pose no danger to society any longer, because people can change and reintegrate in society, but also to their families and every taxpayer in our state. It is an unnecessary, unduly burdensome expense that can be avoided.”

A proposal with unanimous support of state commission

In November, the New Jersey Criminal Sentencing and Disposition Commission, a 13-member group that includes former Attorney General Christopher Porrino, Attorney General Matt Platkin, New Jersey Department of Corrections Commissioner Victoria Kuhn, and New Jersey State Parole Board Chairman Samuel Plumeri Jr., unanimously supported legislation creating a rehabilitative release program. The program would permit prisoners 60 and older who have served a minimum of 20 years to apply to the courts for resentencing. Prisoners who have committed murder would be allowed to apply at age 62 or older after serving a minimum of 30 years.

The legislation, S2338, is sponsored by Sens. Raj Mukherji and Angela McKnight of Hudson County and was introduced in the New Jersey Senate in January 2024. An identical bill, A4463, sponsored by Assembly members Verlina Reynolds-Jackson, Jessica Ramirez, and William Sampson IV, was introduced in June.

The bill would permit the Department of Corrections commissioner to issue a certificate to prisoners who qualify for the program. Prisoners would have a chance to petition the Superior Court for resentencing. Victims and their family members would have an opportunity to be heard at the resentencing hearing or through a written statement.

If a Superior Court judge determines the prisoner is not a danger and demonstrates readiness for reentry, the judge would modify, reduce or suspend the sentence.

Mukherji said the bill values public safety, requiring “clear and convincing evidence” of rehabilitation to ensure the incarcerated person poses no danger to society. “The Department of Corrections must ensure there’s a structured process for evaluating inmates’ readiness for reintegration,” he said. “If you’ve done at least two decades and you’re over 60, you’re not likely to recidivate. The data should guide our decision-making.”

Racquel Romans-Henry, policy director for the Salvation and Social Justice, said the legislation acknowledges the potential for change and rehabilitation.

“People can and do change, and our justice system should reflect this fundamental truth,” Romans-Henry said. “This is not an ‘open the gates and let everyone out’ policy. This simply provides an opportunity to assess whether these individuals have been rehabilitated and if their continued incarceration serves any meaningful purpose.”

She said the common-sense legislation alleviates the financial strain on the prison system while promoting compassion and justice and ensuring laws are not just punitive but also restorative.

“By releasing those who no longer pose a threat, we can redirect resources to more pressing needs, such as education, health care, affordable housing and restorative justice,” Romans-Henry said. “It offers a second chance to those who have demonstrated their readiness to reintegrate into society, promoting it more just and more equitable community.”

Bill languishes in Senate and Assembly judiciary committees

The Rev. Russell Owen, who spent 32 years in prison and now leads the group Faith in New Jersey, said the state takes pride in being a “state of second chances” and a leader in criminal justice reform.

“Yet our elders are behind bars right now, dying, and it doesn’t have to be that way,” Owen said, recalling his experiences comforting elderly men who were dying while he was in prison.

Owen noted that some leaders in the country were found guilty of crimes and can now run for office. They are in positions of power because people forgave them.

“Why not for everyone?” he asked. “Is there no redemption?”

The second-look bill has languished in the Senate Judiciary Committee and Assembly Judiciary Committee since being introduced.

The Rev. J. Amos Caley said the New Jersey Legislature should make good on the Sentencing Commission’s recommendations and take action to approve the legislation that would allow the courts to review older incarcerated people’s petitions.

“There are people who have filled out clemency applications who may never have the clemency application heard in time,” Caley said, mentioning an elderly prisoner with breast cancer who has been waiting for a hearing and will likely die before the parole board reviews her case.

“This second-look bill would allow her the timely opportunity to come before the courts and share her medical diagnosis, share the ways that she has changed while inside, and I do believe that she would be awarded a second chance if this bill were put through,” he said.

“The bill right now is stuck. It’s stuck in the judiciary committees of both houses. The reason it’s stuck is because—I’ll just be honest—the lack of political courage to bring this bill forward,’ Caley said. “It’s really hard for legislators, particularly, to stick their necks out and say, ‘I want fewer people in prison,’ right? It’s hard politically because the ‘tough-on-crime’ rhetoric of the ’90s remains a very sticky, nasty residue.”

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