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NDCS and the Parole board have no plan for how to handle an overcrowding emergency.

The Nebraska unicameral passed legislation in 2018, Neb. Rev. Stat. Section 83-907, to require NDCS and the Parole Board to submit a report on their plan for accelerated parole review if an overcrowding emergency is automatically declared in 2020. Neb. Rev. Stat. Section 83-962 declares an overcrowding emergency if the prison system's population exceeds 140% of design capacity in July of 2020. (See earlier article describing how NDCS is hiding the real degree of overcrowding.) 83-962 also requires that NDCS and the Parole Board implement an accelerated parole review process to release people until the system reaches 125% of design capacity. The legislature was asking them to detail how this process would work and here is their response:

https://nebraskalegislature.gov/FloorDocs/105/PDF/Agencies/Correctional_Services__Department_of/682_20181203-170300.pdf

The first thing that might strike you is that this report reads like a middle schooler wrote it at midnight the night before it was due. They copy and paste some barely relevant data from earlier reports into this one to fill it out and make it seem researched. For example, they provide certificates when someone completes a program. Really? How is that going to help when an emergency is declared? Also, mission specific housing may help manage certain groups while they are incarcerated but it has little to nothing to do with making them parole eligible, accelerating their parole review, or managing them once on parole so how is that relevant? All of these points lack concrete data (i.e. how many people have had their parole review or hearing dates moved up, or how much have they decreased the time between intake and when someone is assessed for rehabilitation and programming needs - by statute, 83-1,107, this should be no more than 60 days) and most points are just reiterating highlights listed in NDCS's and the Parole Board's annual updates.

Then the report responds to the 7 questions that the legislature specified. In this section there are 2 factual errors and one glaring omission. The first factual error is in response to the first question: The process by which the NDCS director shall certify that an overcrowding emergency exists. They stated that "the Director is required to certify that the prison population is above 140 percent capacity or that it has reached 125 percent of design capacity..." but the emergency declaration is tied to 140% design capacity, not 125%. The emergency will continue, i.e. accelerated parole will continue, until the population reaches 125% of design capacity. Both percentages are tied to design capacity. One triggers the emergency and the other ends it. The author doesn't show a basic understanding of the Overcrowding Emergency Act, 83-962, as if they hadn't even read it.

The second factual error is in the answer to question 5: A review of the analysis for granting parole pursuant to section 83-1,114 and whether this process and the factors set forth in such section are sufficient or adequate for the accelerated review process required by section 83-962. This question is essentially asking if the standards for denying parole in 83-1,114 are compatible with the accelerated parole review standards in 83-962. The response given is just to reitorate the standards from 83-1,114 and to say they are compatible but let's read the 2 sets of standards and compare them.

Here are the 4 factors from 83-1,114(1):
(a) There is a substantial risk that he or she will not conform to the conditions of parole;
(b) His or her release will depreciate the seriousness of his or her crime or promote disrespect of the law;
(c) His or her release would have a substantially adverse effect on institutional discipline;
(d) His or her continued correctional treatment, medical care, or vocationaal or other training in the facility will substantially enhance his or her ability to lead a law abiding life when released at a later date.

Here are the 3 factors from 83-962(3):
(a) It is more likely than not that the offender will not conform to the conditions of parole;
(b) His or her release would have a very significant and quantifiable effect on institutional discipline;
(c) There is a substantial risk that the offender will commit a violent act against a person.

These 2 sets of standards are significantly different which is plainly clear by the fact that there are 4 compared to 3 factors. Even the first standard in each, which is the most similar, changes from "a substantial risk" to "more likely than not" that they will not conform with the conditions of parole. 83-1,114(1)(c), that release would have a "substanntially adverse effect" on institutional discipline becomes "a very significant and quantifiable effect." 83-1,114(1)(d), that further treatment or training will substantially enhance his or her ability to lead a law abiding life, becomes "there is a substantial risk that the offender will commit a violent act against a person." 83-1,114(1)(b), that release would "depreciate the seriousness" of the crime, doesn't even exist under the accelerated parole review process at all. The standards for denying parole under the accelerated parole review process are clearly different and much higher but the report ignores these factual differences.

The final critique is a glaring oversight in what is supposed to be a report on how NDCS and the Parole Board plan to meet the requirements of the Overcrowding Emergency Act. If, or when, an emergency is declared, they must begin the accelerated parole review process and release people until the population decreases to 125% of design capacity. If you look at the calculations in this spreadsheet you will see that at least since 2016 (as far back as my data went) there have never been enough parole eligible people to bring the overcrowding down to 125%. The legislature repeatedly asks if there are any legislative changes that NDCS would recommend but it is clear that no one at NDCS has even glanced at their own data to see if they COULD comply with the Overcrowding Emergency Act let alone seriously thought about how to implement it. If the overcrowding emergency were declared today, even using NDCS's miscalculated numbers, they would have to parole everyone who is eligible (making a sham of any parole review standards) AND they would still be 261 people short. If you properly calculate the overcrowding for just the male system (see my earlier article again), they would be 464 people short (see spreadsheet).


You would think that a report to the legislature on how NDCS and the Parole Board plan to handle an overcrowding emergency would address the fact that they can not meet the requirements of the act, but it doesn't even acknowledge there is a problem. It seems clear that no one at NDCS or the Parole Board gave this report much thought, or has seriously considered how to handle the looming declaration of an overcrowding emergency. Maybe the next legislature can force them to actually make a better report than a middle schooler would write the night before it was due.