Despite Rhetoric of Criminal Justice Reform, Benefits Are Slow to Come for Those Aging in Prisons in New York State

Fishkill Correctional Facility, a medium security prison in the Hudson Valley about 90 minutes north of New York City, is home to a unique though perhaps prescient housing program - the 30-bed Unit for the Cognitively Impaired, established to meet the needs of people who are incarcerated in New York State while managing dementia, Alzheimer’s disease and similar end-of-life experiences.

A similar housing program exists in California, and the issue has become central for Corrections leaders nationwide: what to do with a rapidly growing elderly prison population housed in facilities designed for the young and able-bodied and governed by policies that fundamentally conflict with human and constitutional rights when employed in the context of the elderly. 

Due in large part to the harsh sentencing laws of the past half-century - mandatory minimums, three-strike laws, the expansion of life without parole - senior citizens make up one of the fastest rising prison demographics.

In state and federal prisons combined, there are more than 246,000 people aged 50 and above; 26,000 people over 65. Between 1995 and 2010 this population grew by 282 percent and now comprises roughly 10 percent of various state and federal systems. In New York State alone there are 4,000 people aged 55 and above incarcerated, the vast majority of whom entered prison much younger. One in six people incarcerated in the state are serving a life sentence. According to Human Rights Watch, about a third of incarcerated people in New York State aged 60-plus have already served more than 20 years behind bars.

This number is unlikely to budge anytime soon. While grassroots mobilizations have forced Governor Andrew Cuomo into rhetorical nuance on the topic, he appears unwilling to put up the resources - financial, personnel and political - that would be required to really make a dent in the elderly prison population.

At the end of 2015, after significant public pressure, Cuomo, for the first time, released through clemency a senior citizen from prison. Seventy-year-old Lydia Ortiz, was serving a 20-25-year sentence for drug possession. According to the Cuomo administration she had an “excellent prison disciplinary history” and is “unable to walk without assistance.” At the same time, Cuomo also launched a program to provide free legal assistance to clemency applicants. According to the administration, they’ve involved the New York State Bar Association, the New York County Lawyers Association, the New York City Bar Association, the Legal Aid Society of New York, the New York State Association of Criminal Defense Attorneys and several white-shoe law firms in the project.

So far that program has not yielded a single release. A Cuomo spokesman told me this week that the administration has produced a webinar on completing clemency petitions that has been shared with pro bono attorneys and that incarcerated people around the state have continued to send in applications for review. The state also has a website through which incarcerated people can apply for clemency on-line though few have access to the Internet.

Allen Roskoff, who runs the advocacy group Candles for Clemency, described the Governor’s program as welcomed, but overly burdened by bureaucracy.

Sara Bennett, an attorney who has worked on three clemency applications over the past 17 years in New York State, explained that each petition takes several months to put together and that the administration may need to tap thousands of pro bono attorneys in order to make a significant difference in the population.

“I think there was a good intention behind it, but they might be overwhelmed by what it will really take,” Bennett said of the Governor’s executive clemency project.

“What’s there doesn’t seem to be funded and if he has the will do it, he can do this himself,” Roskoff said. “There are so many people who obviously don’t belong in prison and it comes down to does he have the will to do what’s right. The ball’s in his court.”

Overall, there are approximately 2.3 million people incarcerated in federal and state prisons and jails. Every year an additional 444,000 people land in immigration detention. When polled, public support is overwhelmingly in favor of reducing these populations. But the issue of aging remains outside the mainstream conversation. 

“People just aren’t aware that there’s this large aging population, people sentenced to 25 years to life who 40 years later are still in prison,” says Victor Pate, an organizer with the Release Aging People in Prison (RAPP) Campaign. “They might be blind, in a wheelchair, on dialysis, have a Master’s Degree - when are you going to let them out?”

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