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NDCS is still miscalculating good time credits

In '15 there was quite an uproar that NDCS had been miscalculating good time credits for those who had mandatory minimums. NDCS had to recalculate many sentences and even had to reincarcerate some people they had released early. NDCS is still miscalculating good time, though now it isn't in favor of those who are incarcerated so there isn't a huge public uproar over the error.

The basic issue is that NDCS is misapplying what is known as 191 good time. It is currently only applied to tentative release dates (TRDs or "jam"/mandatory release dates) and not to parole eligibility dates (PEDs) but the wording of the statutes and the intent of the legislature state it should apply to both.

NE has 2 types of good time in NEB. Rev. Stat. Sec. 83-1,107, the original 1-for-1 good time which is in subsection (2)(a) and what is called 191 (after LB191 from 2011) which is in subsection (2)(b). Both (2)(a) and (2)(b) use the generic word "term," not minimum or maximum, so they are non-specific. Subsection (2)(c) gives directions for calculating TRDs and states that "the total reductions under this section...shall be deducted from the maximum term, to determine the date when discharge from custody of the state becomes mandatory." Sec. 83-1,110 gives directions for calculating PEDs with "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."

My argument is that the language "as provided in sections 83-1,107 and 83-1,108" is used to apply the 1-for-1 good time to PEDs so it should also include 191 good time as both are part of 83-1,107.

NDCS and the Ombudsman's office argue that the language "shall be deducted from the maximum term" in 83-1,107(2)(c) means that 191 good time, from (2)(b), should only be applied to TRDs. However, (2)(c) applies to the whole subsection (2) so if it limits 191 good time in (2)(b) from applying to PEDs it would also limit the 1-for-1 good time in (2)(a), which it doesn't. Additionally, (2)(c) is not exclusive; it does not say "shall ONLY be deducted from the maximum term" so both (2)(a) and (2)(b) can also be applied to PEDs, which is what 83-1,110 calls for.

In a previous exchange Ombudsman Lux (now retired) stated that:

"...when it comes to a question like that the mere inference from statutory language and structure won't be enough to convince a judge. In other words, if the Legislature was going to allow parole eligibility to be advanced through the application of LB 191 good time, the Legislature would have said so, explicitly, and in no uncertain terms...which, of course, they didn't." 

He argues that the language of the statute would not be enough to convince a judge and I would have to show intent. He claimed that they had not explicitly stated that 191 good time should apply to parole dates so I couldn't win a suit. However, I recently received the transcripts of the Legislative Floor debate on LB 191 from 2011 and Sen. Council, the author of the bill, explains how it would work this way:

"By way of example, an individual sentenced to a term of four years is eligible for parole after two years. Under LB191, that inmate would have the opportunity to earn an additional 36 days of good time."

The very example she uses to clarify how LB191 would work is how it would reduce a person's parole eligibility date. Later debate also centers around parole eligibility dates. That shows the intent and understanding of the Legislature was for LB191 good time to apply to PEDs.