By: Sarah Johnson
This week we’re taking a closer look at some of the most popular prison reform legislation in Nebraska over the last couple years. It is particularly timely to look at overcrowding in prisons and reform attempting to address the issue as we understand just how rampant the COVID-19 outbreak is within prisons, have conversations about the discrepancies of different groups incarcerated within prisons, and recognize the true danger currently posed to people housed and working within prisons.
Why are we looking at Nebraska?
Good question. Nebraska’s prisons are currently the second-most overcrowded in the nation, trailing Alabama. This year, at 157% of capacity, Nebraska state prisons held 2,006 more inmates than their designed capacity (3,535 inmates).
In 20017, Alabama was put under federal order to address its overcrowding problem after an investigation. Last year, the Justice Department found “severe, systemic” problems, and determined Alabama’s prisons are violating the Constitution by failing to protect inmates from violence and sexual abuse and by housing them in unsafe and overcrowded facilities.
In 2017, the Nebraska ACLU filed a lawsuit against the Nebraska Department of Correctional Services in Sabato v Nebraska Department of Correctional Services. David Fathi, director of the ACLU National Prison Project, had this to say about Nebraska prisons
Nebraska remains an extreme outlier in terms of overcrowding, staff shortages and dangerously inadequate systems of medical and mental health care. The level of overcrowding in Nebraska prisons today is comparable to that in California in 2011, when the U.S. Supreme Court found that overcrowding had made adequate medical and mental health care impossible and created unsanitary and unsafe conditions. The court ordered California to reduce this overcrowding, as it made constitutional violations unavoidable.
Nebraska has not received quite as much coverage as Alabama related to their overcrowding issue, but it is severe. Data provided by 1011 Now indicates Nebraska has had this issue for awhile, and it’s only gotten worse.
Doug Koebernick, the Inspector General for the Department of Corrections, explained they got into this situation by not only imprisoning more people, but incarcerating people for longer periods of time.
We’re not the only state that’s had this tough on crime mentality, so the sentences became longer. You had people who were coming into the system, you had more people coming into the system, and for longer periods of time.
In 2015, a July 1, 2020 deadline was imposed by the Legislature aiming to hold the corrections department accountable in its efforts to reduce prison crowding. The package was designed to reduce the number of inmates by placing more emphasis on parole and rehabilitation. This deadline required Nebraska’s corrections department to lower the inmate population to 140% of what facilities are designed to hold. Some actions have been taken since then, but now that the department fell short of this imposed target, an automatic “overcrowding emergency” should have been triggered, although it has yet to be done. This emergency would require state officials to consider paroling all eligible inmates without delay. But, Nebraska Governor Pete Ricketts, doesn’t think this is what it will look like in practice,
That’s not what this law does. This law does not let a bunch of people out. The Parole Board’s first priority is always going to be public safety, they’re always going to put public safety first. So, anybody that gets paroled will have to complete their programming, and make sure they’re doing all the right things.
So, they need to come up with a way to get a lot of these prisoners out of confinement, with the deadline up two weeks ago. As of mid-July, there has been no news of any actual movement on this front and what the legal implications of inaction could look like.
Let’s take a brief look at the populations of these prisons.
People of color are disproportionately incarcerated throughout the United States at an alarming percentage, it is no different for Nebraska. According to the Vera Institute of Justice, Nebraska incarcerated Black people at 8.2 times the rate of white people, and Native American people at 6.9 times the rate of white people in 2017. The following graphs are of incarceration rates broken down according to data available in 2017 for prisons and jails.
Incarceration Trends in Nebraska in – Vera
Since 1990, the rate at which Black people are jailed has increased 13 percent. The rate at which Black people are incarcerated has increased 48 percent since 1978.
Incarceration Trends in Nebraska – Vera
What has been done?
Senator Wendy DeBoer, said the longer-term approach they have been implementing is good, but that it is not enough to address the immediate problem, “I feel a little bit like we’re in a house that’s on fire, and we’re installing fireproof tiles.”
In 2019, quite a few prison related bills were swept into an omnibus bill which passed in May, 2019 (LB686).
LB262 would make changes to the long-term restrictive housing work group. These changes include restrictions on membership of the group, who appoints them, and the requirement that the group meet at least three times each year.
LB240 would allow for a judge to commit a defendant who is incompetent to stand trial to the Department of Health and Human Services for treatment at a facility other than one that is state-owned and operated.
LB91 would provide an option for judges to allow them to place defendants on intensive probation and defer judgement for an agreed period of time. There are jurisdictions that don’t have problem-solving courts, and this would be used for less challenging cases to defer people from prison, if they can abide by the rules of probation.
LB684 made post-release supervision optional for people who commit Class IV felonies, and LB739 ensured vulnerable inmates, including those with serious mental illness, are prohibited from restrictive housing.
In 2020, some additional legislation has been put forth in an attempt to address these issues further, but nothing actionable has been implemented yet. The Nebraska legislative session would normally have ended in April, but it was suspended in response to the pandemic. They are set to begin meeting again July 20 and finish the session in mid August. Here are the bills I am following in this session:
LB131, introduced by Sen. Patty Pansing Brooks in 2019 and carried over to 2020, would require that a minimum sentence be no more than half the years as the maximum number of years for certain class felonies, unless a mandatory minimum sentence is required by law. So, if someone was sentenced for a maximum sentence is 20 years, the minimum could be no more than 10 years. If this bill is passed, it would have the practical effect of allowing offenders to become parole-eligible sooner, thus improving the overcrowding crisis in Nebraska prisons. The only issue is that just because an inmate is parole eligible doesn’t mean they would be granted parole. This bill is in committee and has not seen action since February.
LB1208 was proposed this year to limit a prisoner’s time in restrictive housing to not more than 15 consecutive days. It lays out rules for putting inmates in restrictive housing or solitary confinement, and bans double bunking in those situations. Without presenting evidence in support, the Department of Correctional Services would not be allowed to put an inmate in restrictive housing for more than 90 days in a calendar year. This bill is in committee and has not seen action since February.
It is very clear there is a huge issue with the Nebraska jail and prison system. With the July 1st deadline come and gone and no real news of what they are doing to address it, I am very curious what missing huge items like this are going to look like in the age of COVID. This issue not only impacts the safety of those incarcerated from contracting COVID, but also their personal safety due to the overcrowding. Hopefully there are more updates to come on the next steps.
Cover Photo by Emiliano Bar on Unsplash
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