191 Letter

May 10, 2017

Senator,

I wrote you earlier this year about my concern that NDCS is misapplying the good time

created in 2011 by LB 191. I contend that a careful reading of the relevant statutes would

require that the 191 good time be applied to both a person’s parole eligibility date (PED) and

their tentative release date (TRD or “jam’ date). NDCS and the Ombudsman believe it should

only be applied to a person’s TRD. I would like to present why I believe NDCS’s interpretation

is incorrect, why it is counter to logic, and why it contributes to the overcrowding crisis. After

the arguments I will suggest what you, as a state senator, can do to remedy the

misinterpretation of the statute.

First, I would like to give an overview of the relevant Neb. Rev. Statutes and their specific

subsections. From this point forward I would recommend having a copy of the sections on

hand to refer back to. The relevant sections are 83-1,107 and 83-1,110. The relevant

subsections in 83-1,107 are (2)(a)-(2)(c). Subsection (2)(a) creates the pre-2011 good time,

which is basically a day off for every day served. It is credited automatically at the start of a

sentence and can be forfeited if a person misbehaves. (2)(b) was created in 2011 by LB 191

and grants 3 days good time for every month served. This good time must be earned by

getting no major write ups for 1 year then a person can start accruing 191 good time. (2)(c)

directs to apply the previous 2 subsections to calculate when someone should be released

from state custody, i.e. their TRD. Section 83-1,110 governs the calculation of a person’s PED.

Now, let’s do a careful reading of the statutes. NDCS and the Ombudsman both point out that

LB 191 added new good time in (2)(b) to section 83-1,107 but PED is governed by 83-1,110.

They claim therefore that 191 good time prima facie does not apply to PED. I completely agree

with them that 83-1,110 governs PED however, let’s take a close look at it’s language. The

whole relevant text is: “Every committed offender shall be eligible for parole when the

offender has served one-half the minimum term of his or her sentence *as provided in

sections 83-1,107 and 83–1,108.” The Ombudsman argues that this section simply “sets” the

PED at 1/2 the minimum term but this acts as if there is a period (.) after the word “sentence”

and ignores the phrase “as provided in sections…”. Their interpretation is grammatically

incorrect.

When PED was originally moved to 83-1,110 by LB 371 in 1995 there was a period after

“sentence” and no phrase “as provided in…”. At that time the Ombudsman’s claim that the

PED is simply “set” at 1/2 the min. sentence was correct. However, in 2003 LB 46 added the

phrase “as provided in…”. The phrase was obviously added for some purpose and

grammatically that would be to refer back to 83-1,107 to explain the good time calculation.

But NDCS and the “literati” of sentencing calculations, as the Ombudsman calls them, never

changed their interpretation.

The Ombudsman also argues that 83-1,107(2)(c) says specifically to use the good time in

(2)(a) and (2)(b) to calculate TRD. I completely agree; (2)(c) reads “the total reductions

under this subsection…shall be deducted from the maximum term to determine the date when

discharge from the custody of the state becomes mandatory.” This clearly states how to

calculate TRD but it does not state that (2)(a) and (2)(b) will be exclusively used for TRDs.

Also (2)(a) and (2)(b) use the non-specific word “term,” not min. or max. Since both good

time subsections are not specific to min. or max term, since (2)(c) does not say (2)(a) and

(2)(b) will be exclusively used to calculate TRD and since 83-1,110 says to calculate PED “as

provided in” section 83-1,107 a clear and careful reading shows that 191 good time should be

applied to both PED and TRD.

In addition to the text, logic dictates that 191 good time should be applied to both PED and

TRD. If it is only applied to TRD then it is possible to have a sentence structure where, after

earning 191 good time, the TRD would be lower than the PED. To “jam” before your parole

eligibility date makes no sense and is obviously contrary to the intent of any judge who gives

a sentence maximum that is greater than the sentence minimum.

My final argument is that applying 191 good time to TRD but not PED contributes to the

overcrowding crisis and leads to more people jamming out without any post release

supervision. If the TRD alone is reduced and not the PED, then the window of opportunity for

someone to earn parole is narrowed. Decreased opportunity to earn parole means that, on the

whole, fewer people will be paroled, which will exacerbate the overcrowding crisis and cause

more people to hit their TRD and therefore be released without supervision. If both PED and

TRD are decreased equally by 191 good time then the window of parole eligibility remains the

same.

The Ombudsman found my points to be good “lawyerly” arguments but he was still

unconvinced because the statute was not explicit enough. That brings me to why I am writing

you. If NDCS remains unconvinced by a careful reading of the text, by logic, and by the need

to address overcrowding then I would suggest that the legislature make the statute more

explicit. If 83-1,110 were simply changed from “…when the offender has served one-half of

his or her sentence as provided in…” to “…when the offender has served *a portion of* the

minimum of his or her sentence as provided in…” then it would be clear an unambiguous.

If you, senator, found my arguments to be persuasive then I would ask that you consider

proposing that simple clarification in a future session of the legislature.

If you wish to send me comments or questions my address is:

Robert J. Heist II #83796

P.O. Box 900

Tecumseh, NE 68450

Thank you for your time and attention,

Robert J. Heist II

CC:

Judiciary Committee

LR 34 Committee

Director of NDCS

State Ombudsman

Inspector General of Corrections

ACLU of NE

NET Radio

Lincoln Journal Star

Omaha World-Herald

John Krejci

Nebraska Criminal Justice Review

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