Is NDCS being transparent about the true overcrowding in its systems?
Updated for Q2 '19 data
Is NDCS being transparent about the true overcrowding in its systems?
The Correctional System Overcrowding Emergency Act was passed in 2002 (1) and gave the governor the power to declare an emergency "whenever the director certifies that the department's inmate population is over one hundred forty percent of design capacity" (2). The population has been over the 140% mark since 2006-2007 (3) yet no governor has ever declared an overcrowding emergency. Thus, in 2015 the legislature ammended the Neb. Rev. Stat. 83-962 to give a deadline (4). "Beginning July 1, 2020, a correctional system overcrowding emergency shall exist whenever the director certifies that the department's inmate population is over one hundred forty percent of design capacity" (5). First, I would like to address how NDCS may be planning to avoid certifying that the population is over 140%. Then, I would like to examine what is supposed to happen even if an emergency is declared.
The current popularly cited percentage for overcrowding in NDCS is 163% (6). This is the number regularly refered to in the media however, NDCS artificially supresses this number through several actuarial tricks.
First, they combine the men's, women's, and youth facilities when calculating the average overcrowding. Beds in those facilities are not fungible, or interchangeable, with beds in a men's prison. For example, if there is an empty bed in a women's facility you can't put a man in it to reduce the overcrowding at the men's facilities. Given that both the women's and youth facilities are less crowded, averaging 118% and 85% respectively since June, 2016 (8), they are being used to mask the true level of overcrowding in the men's system.
Additionally, NDCS omits from their calculation the appriximately 100 men who are warehoused in the County Jail Program. NDCS does not count them towards the total population even though they are still state inmates and must return to an NDCS facility for programming needs or to eventually be released. They can't just be written out of the NDCS total population count.
If you calculate the overcrowding for just the men's facilities, without the women (NYCF+160 women's beds at CCCL) and youth (NCYF) while adding in those in the County Jail Program, the current level of overcrowding is 173% (9), not 163% as it is popularly dipicted. NDCS is using the systems that are not in crisis to hide the true nature of the overcrowding in the men's system. The difference between the NDCS miscalculated percentage and the true number will increase when they add a new 100 man dorm at NSP. Such "in-filling," without increasing the core support facilities like medical, dining, recreation, and programming space, isn't really increasing the design capacity. It structurally enforces the overcrowding.
The actual total NDCS population has remained fairly stable for at least the past 2 years (10). If you use the current population numbers but add the 100 beds NDCS plans to build to project for the overcrowding percentage in 2020, using the NDCS method of (mis)calculating you get 150% (11). That is close enough that NDCS could send 509 total people out to county jails and avoid declaring an emergency. If, however, you calculate just the men's system, add the state inmates in county jails you get the real overcrowding of 173% (12 and see graph). The NDCS numbers have been under-reporting the overcrowding by an average of 13% but that error will grow to 23% after adding the 100 man dorm at NSP and far worse in 2025 when they complete the 384 beds at LCC. NDCS must not be allowed to hide the true nature of the crisis in the men's system by merely shuffling numbers.
There is another number that aught to be brought to public attention. When an emergency is declared, NDCS must drop the population to 125% of design capacity (13). If an emergency were declared today, calculating all the systems together, they would have to parole 1039 people but there are only 908 parole eligible people in all of NDCS. The numbers get worse when you calculate just the men's system. They would have to parole 1394 people to get to 125% but there are only 852 men currently eligible for parole (14). That means NDCS would be short 542 men and could only decrease the men's overcrowding to 144%, 19% short of the statutorily required 125%.
The true overcrowding in NDCS's men's system is 173% which means we surpass Alabama's 163% (as of Dec. '18) and are the most overcrowded system in the US. Let's measure the issue acurately in order to begin fixing it.
| . (1) Office of Inspector General of The Nebraska Correctional System 2017/2018 Annual Report, pg. 42. (2) Neb. Rev. Stat. 83-962 (1). (3) Department of Correctional Services Special Investigative Committee - Report to the Legislature, Dec. 15, 2014, chart on pg. 36. (4) LB 598 (5) Neb. Rev. Stat. 83-962 (1). (6) "Nebraska prison population hits new high; 'I hope it's an anomaly' corrections chief says," Omaha World-Herald March 19th, 2019 (7) NDCS Quarterly Datasheet, April - June 2017. (8) Personal calculations from NDCS Datasheets. (9) Personal calculations from NDCS Datasheets. Some inacuracy due to women at CCCL and CCCO but NDCS doesn't separate these numbers. (10) Office of Inspector General of The Nebraska Correctional System 2017/2018 Annual Report, pg. 99. (11) Office of Inspector General of The Nebraska Correctional System 2017/2018 Annual Report, pg. 36. (12) current pop of 5413 / (current cap of 3375 + 260 at CCCL and NSP) = 149% (13) (current male pop with county jail program of 5118) / (male cap of 3032 + 104 male beds at CCCL)/ = 163.2% (14) Neb. Rev. Stat. 83-962 (5). (15) Personal calculations from NDCS Datasheets |
The Lincoln Journal Star, Sunday 8/4, had an op/ed piece from Robert on how NDCS is miscalculating the overcrowding.