I wrote to members of the Judiciary and LR 34 committees before about, what I
consider, NDCS’s misapplication of 191 good time rules. See the referenced letter at the
Now I’m writing about a more far reaching problem: NDCS is offering inadequate access
to and availability of programming required to earn parole.
As you know, there is an overcrowding crisis in NDCS. They have only two and a half
years to reduce the population to 140% from the current 162% (NDCS Quarterly Data
Sheet Jan –Mar 2017, including NDCS’s county jail population) before it becomes an
official “emergency” (Neb. Rev. Statutes Section 83-962). The ACLU of Nebraska has
already filed a lawsuit. Time is running out to solve this problem.
Nebraska, with the help of the Council of State Governments (CSG), developed the
Justice Reinvestment Initiative to deal with NDCS’s overcrowding crisis. The initiative
identifies 2 main solutions to the overcrowding: 1. Sentencing reform, which the
legislature started in 2015, and 2. Increased use of post-sentence supervision. For
those who are already serving sentences and are part of the existing population this
means increased use of parole before they “jam out” (serve their max. sentence).
Increased use of parole not only directly decreases the prison population but it also
decreases recidivism by having post-release supervision rather than forcing the person
to jam out without any help in transitioning to the streets.
There is one key obstacle to efficient use of parole and that is inadequate access to
required programs. If a person receives a programming “recommendation” and does
not complete it before their parole eligibility date (PED) they will not be paroled, even if
the reason they haven’t completed it is lack of access to programs. NDCS is required by
statute to “provide adequate access or availability to mental health therapy prior to the
first parole eligibility date” (Neb. Rev. Statutes Sec. 83-1,110.01). Their failure to
provide “adequate access or availability” to programs is the major obstacle to increased
use of parole. The CSG’s Justice Program Assessment report of June 21,2016 found that
“the Board of Parole declined to set a parole hearing for 33% of people within a year of
their PED because of incomplete programming” (LR34 committee annual report, Dec.
2016, page 34). The inadequacy of programming in NDCS was clearly identified by the
Clinical Programs Evaluation – Phase 1 from July 2016, which was attachment #36 of
the Inspector General of Correction’s first annual report last fall.
The Clinical Evaluation contains a qualitative analysis of the Residential Treatment
Community (RTC) for those diagnosed with substance abuse issues, the Violence
Reduction Program (VRP) for violent offenders, and the sex offender programs iHelp
and oHelp. These are the “core programs” according to Parole Board Chair Rosalyn
Cotton that, if not completed, will automatically cause parole to be denied (LR 34
report, Dec 2016, page 34). Here is a summary of the evaluation’s findings by program.
On average 1,837 people per year come in with a substance abuse diagnosis which they
get before leaving the Diagnostic and Evaluation Center (DEC). Of those only 73% are
able to start RTC before their PED and only 52% complete the program before their
PED. This means barely half are able to complete their recommended programming by
their PED. The other half, 882 people, will not be eligible for parole at their PED.
On average there are 374 people a year who are recommended to take VRP and it takes
an average of 715 days for the Clinical Violent Offender Review Team (CVORT) to even
make that recommendation. This means it is almost 2 years before one even knows
they will be required to take VRP and then there is an average 539 day wait, another
1.5 years, to get into the program. 50% of those with VRP recommendations start the
program before their PED but only 9% complete it in time. This adds up to 340 people
who are ineligible for parole at their PED due to lack of programming.
There are on average 276 recommendations a year for the sex offender programs iHelp
and oHelp. It takes the Clinical Sex Offender Review Team (CSORT) on average 1094
days (3 years) to make a recommendation. From there it takes an average of 576 days
(1.6 years) to start iHelp and 792 days (2.1 years) to start oHelp. That is from 4.6-5.1
years just to start programming. 50% of those recommended for iHelp begin before
their PED but only 31% of those recommended for oHelp do. 0% (yes, ZERO!) complete
iHelp before their PED while a comparatively huge 1% complete oHelp in time to be
considered for parole. That makes 274 people who won’t be considered for parole at
their PED. This complete lack of programming clearly contributed to the parole board,
between 2004 and 2013, granting parole hearings to only 12% of sex offenders (Neb.
Justice Reinvestment Approach by the CSG from May 2015, page 20).
In order to offer adequate access and availability to programs before a person’s PED 2
things must change: 1. Program recommendations must be done in a timely manner,
and 2. Program offerings and availability must be increased until the number of those
graduating each year is comparable to the number receiving a program
recommendation. The first bottleneck for many programs is the extreme delay in
receiving a recommendation to take it. Substance abuse diagnoses and
recommendations are made before a person leaves the DEC but CVORT and CSORT
take on average between 2-3 years to screen someone and make a program
recommendation. This is in spite of the fact that a persons personalized program plan is
supposed to be done within 60 days of initial classification and modifications to their
personalized program plan may only be made to account for a change in the person’s
abilities or the availability of any program (Neb. Rev. Statutes Sec. 83-1,107).
According to the Clinical Programs Evaluation – Phase 1, CVORT averages 25 screenings
per meeting for a total of 600 a year. With an average of 404 new intakes each year
who need screening and an 805 case backlog this means CVORT will take 4 years to
catch up. CSORT had screened 121 cases in the first half of 2016 for a total of 242 per
year. With 245 new intakes each year with sex offenses that means they will never get
through the 550 case backlog. Both CVORT and CSORT meet only 2 times a month. The
number of meetings and/or staff for CVORT and CSORT must be increased to address
the first bottleneck to adequate programming.
The second obstacle is that there are not enough seats in the required programs and
they are not offered at all facilities in NDCS. For example, even though most sex
offenders end up in protective custody (PC) and the only PC housing unit is at the
Tecumseh State Correctional Institute (TSCI), there are no sex offender treatment
programs offered at TSCI. According to a list of Clinical Programs created on Oct. 18,
2016 by Program Analyst Ada Alvarez there are 52 seats in iHelp at LCC, 24 seats in
oHelp (8 each at OCC, NSP, NCCW) and 24 seats in bHelp (8 each at OCC, NSP,
NCCW). That is a total of 100 seats in programs that are mostly more than a year in
length and in 2016 the total that successfully completed any of these programs was 39
when there are 245 new intakes each year with sex offenses. According to the list there
are 12 seats in VRP at NSP. I can also attest to the fact that they have recently started
VRP at TSCI. Even if you count the non-VPR programs for domestic violence and anger
management the total is only 80 seats with a total of 141 successfully completing any
of them in 2016 compared to 404 new intakes a year with violent offenses. For the
substance abuse programs there are a total of 312 seats across all facilities and 481
successful completions in 2016 with 1,837 intakes a year with a substance abuse
diagnosis. Clearly the output of all clinical programs fails to match the input of those
who need them, which leads to a backlog, parole denials and overcrowding.
NDCS is mistaken to make the increase in the number of protective service staff as it’s
top priority in addressing the overcrowding. This seems to be the primary focus for
both the legislature and the Inspector General of Corrections (IGC) too as it was the
first topic addressed in both the LR34 committee and IGC’s annual reports last year.
This focus on increasing protective service staff is treating the symptom rather than the
cause. No increase in the number of correctional officers (COs) will lead to a decrease in
the incarcerated population; it is actually accommodating the overcrowding. If the top
priority were actually to decrease the population then the focus would be on increasing
programming staff and availability so parole could be more efficiently used. With a
decreased population there would then be less need for more COs. Address the root
cause of understaffing and security threats, both caused by overcrowding, and the
symptoms will be alleviated proportionally.
If NDCS, and the legislature, truly wish to address the overcrowding crises then the top
priority needs to be adequate access to and availability of programming to expedite
parole. To accomplish this NDCS must increase the speed of program recommendations
and increase the number of seats in programs and offer them across all facilities.
Increased programming and thus parole is directly treating the cause of overcrowding
and will ultimately help alleviate the issue of understaffing, not visa versa. Please help
keep NDCS’s focus on the core problem and the solution of programming.
If you wish to write me with any questions or comments, or if the LR 127 committee is
visiting TSCI, feel free to contact me. 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 127 Committee
Director of Corrections
Inspector General of Corrections
ACLU of NE
Lincoln Journal Star
Nebraska Criminal Justice Review