Dear Senators,
I have just watched the general file debate on LB 686 on prison reform and I was happy to see that the legislature is moving forward on some attempts to address the crisis in NE’s prisons. As positive as LB 686 is, it is still dwarfed by the appropriations made since 2016 to expand capacity at NDCS: $49 mill. just this session to add 384 beds to LCC, $75 mill. in ’17 to renovate LCC facilities and to build a mental health and long term care unit with 64 beds, $21 mill. to add 160 women’s beds to CCCL with the remaining budget of $5 mill. to add 100 beds to NSP, and $1.8 mill. to add a 100 man dorm to CCCL. The appropriation of $4.9 mill. to problem solving courts is a major investment in the right direction but it is less than 1/30 of that spent to expand capacity and that’s not counting the ongoing operational costs of those facilities. The 384 bed expansion at LCC will at $3.7 mill. alone. (And is that a real-world calculations considering the inevitable overtime costs due to short-staffing?)
There are fundamentally only 2 approaches to solving the overcrowding crisis. Either you increase capacity or your decrease the population. The numbers clearly show which option legislatures have chosen in the past. Not only does this require huge capital invetments but it also significantly increases the ongoing operational costs of the corrections system which is not a fiscally prudent choice. There was a heated debate over whether to send $51 mill. to restore the rainy day fund or to the property tax credit fund. Well, both could have been achieved if the cost of the LCC expansion had not been approved.
I would suggest that the fiscally conservative and socially progressive thing to do is to focus on decreasing the population rather than increasing capacity. This would start by admitting that though Corrections should accurately report the overcrowding (https://www.unlockthemind.com/forum/topic/is-ndcs-being-transparent-about-the-true-overcrowding-in-its-systems/) it has little to no control over population growth. To use Sen. Lathrop’s analogy, NDCS is like a warehouse, product comes in and product goes out. Director Frakes is the warehouse manager and no matter how much he improves the management systems his only option when faced with increased numbers is to increase the size of the warehouse.If you want to control the prison population you must consider the input to and output from the system.That means looking at the courts (both judges’ sentences and prosecutors’ charges) and the parole board.My first suggestion is that the office of the Inspector General of Corrections have its purview expanded to the whole Criminal Justice system in order to be able to investigate the inputs and outputs of the system. Here are some ideas for improving outcomes of the courts and parole board.
COURTS
1. Do an interim study of sentence lengths since LB 605. Why did it fail to decrease the population?
2. The Council of State Governments showed that NE’s courts sentence 11% more cases to prison than the national average (Justice Reinventment in Nebraska, Analysis and Policy Framework, pg. 9). Have more studies which identify the cause; whether it is caused by mandatory minimums, judges’ implicit biases, or because of more punitive judges.
3. Study charging trends across districts to see if prosecutorial discretion might cause the disparity identified above. Implement training from Adam Foss’s Prosecutor Impact foundation. (https://www.ted.com/talks/adam_foss_a_prosecutor_s_vision_for_a_better_justice_system/transcript?language=en)
4. Consider establishing Conviction Review Units as described in Case Dismissed, May 4th issue of The Economist (See attached article-A new breed of prosecutors is tasked with getting people out of jail). The presence of CRUs can change culture in prosecutorial offices and curb overly aggressive prosecutors.
5 Sen. Pansing-Brooks’ LB 131 restoring the 1/3 sentencing rule could help moderate sentencing length or it just might cause prosecutors to stack more charges and judges to use consecutive sentences to achieve a longer minimum sentence. The charging and sentencing culture must be changed along with the rules.
6. The problem solving courts and LB 91’s “poor man’s problem solving courts” are excellent beginings. Could there be a mental health diversion court?
7. Sen. Wayne’s bill increasing the penalty for witness tampering got me thinking about “sentence creep.” If a senator decides an individual offense should have its sentence increased and over time sentences over all creep up. Those interested in solving the overcrowding crisis should adopt a conservative “budget neutral” approach and every time they propose increasing one offense’s sentence it should include a decrease for another offense.
8. To encourage judges to keep in mind the financial costs to the community they could be required to add the projected cost of every sentence to their sentencing memorandum and to state it at sentencing. For instance, at a projected annual cost of housing someone in NDCS of, around, $39,000/yr a sentence of 10-20 years would be $390,000 – $780,000.
PAROLE BOARD
1. Do an interim study to identify trends in parole, i.e. is the percentage of denials increasing/decreasing, is the number of parole eligible people increasing/decreasing and what is it projected to be in the future (2020).
2. Ask the parole board why the 2 largest categories for at least the past 2 years for denying parole have been “Other” and “No Reason Listed.” Given that there are only 4 reasons for denying parole under Neb. Rev. Stat. Section 83-1,114 why are the vast majority of denials not any of these 4?
3. Exercise oversight of the emergency declaration to make sure that the parole board is properly reviewing cases and only denying parole for one of the 3 reasons listed in Neb. Rev. Stat. Section 83-962.
4. Properly implement the 191 (2011) good time law and have it apply to PEDs (https://www.unlockthemind.com/2017/05/191-letter/)
5. The only way to immediately decrease the population is to implement an increase to good time and allow it to be implemented retroactively. This can be done without violating the NE constitution’s separation of powers by allowing the parole board to choose to apply it retroactively (NE Supreme Court case Johnson & Cunningham v. Exon, 1977). It also does not violate ex post facto because is is not disadvantaging the person (SCOTUS, Weaver v. Graham, 1981). By allowing the parole board the ability to apply retroactively increased good time the legislature would be giving the parole board a means to address an overcrowding emergency declaration.
Next year an overcrowding emergency will be declared. I hope that the legislature will take more significant action in its next session. These are just some ideas for starting points to create bills for 2020. Please continue the good work.
Thank you for your time and attention,
Robert J. Heist II
#83796
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