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Nebraska Criminal Justice Review Article

Hello Mel and John,

I have heard that you are restarting the Nebraska Criminal Justice
Review (NCJR) and I would like to offer some material for your first
new issue. The first thing could go in the letters section and is an
announcement of the new community forum created for friends, family
and the formerly incarcerated to find and share information about the
NE corrections system and to organize for change and to reform the

The second article is a summary of several articles I've posted on the
forum and letters I've sent to state senators. Feel free to use it if
you are looking for articles to fill the first issue.

Thank you for restarting the NCJR. I look forward to reading it again
and I know many others are too.


I am excited to inform you of a new resource for friends, family, and
formerly incarcerated people, anyone interested in the Nebraska
prisons, jails and courts. With the help of some friends we have
created a free, public, community forum for anyone seeking information
on the NE criminal corrections system. People can post questions or
give answers and as the number of posts grows it will become a
searchable index of data on the system for the public. Hopefully, the
community can also use it to organize for change and to promote reform
as well. All posts are public for everyone to read without signing up
but if you wish to post a question or answer you will have to
register, which is free. We hope this resource will help anyone
looking for information on the NE system.

Please check it out at and feel free to
share it with anyone you think might be interested.

Thank you,

Robert J. Heist II




Steps To Addressing The Overcrowding Crisis

by Robert J. Heist II

Director of Corrections has admitted before the Legislature's
Judiciary Committee that a declaration of an overcrowding emergency is
inevitable in 2020. The question is, what steps should be taken to
address it. The current answer from NDCS seems to be to build more
beds. Since 2017 the legislature has quietly appropriated
approximately $145 million to build around 750 beds at CCCL, NSP and
LCC (see LB 330 from 2017, programs 927 and 928 with over $96 mill.,
and LB 297 from 2019, program 906 with almost $49 mill.). The $145
mill. doesn't account for the added increased operational costs; for
the 384 new beds at LCC the operational cost increase would be almost
$4 mill. every year going forward. Even with the planned expansions
they won't be able to avoid the emergency declaration so $145 mill.
wasn't enough to build their way out of the crisis.

I would like to suggest three things that must be done to address the
overcrowding crisis: 1. Immediately start measuring the overcrowding
accurately. 2. Once an emergency is declared next year, make sure that
the Parole Board follows the new statutory guidelines for releasing
people. 3. In the long run sentencing reform and changing the culture
of prosecutors and judges is the only way to stem the increasing
in-flow of people to prison.

Before we can even discuss the overcrowding, we must agree on how to
measure it. Currently, NDCS calculates the overcrowding for the whole
system, men’s, women's, and youth facilities together, and they say it
is at 163%. As the women's and youth facilities are less crowded than
the men's and because beds in a women's or youth facility aren't
interchangeable with a bed in a men's (you can't put a man from NSP in
an empty bed in a women's or youth facility) this masks the true
severity of the overcrowding in the men's system. Additionally, NDCS
is adding more beds to facilities without expanding their support
facilities. For instance, they built 100 beds at CCCL and said that
increased their design capacity though they never added more food
prep, medical, rec. or programming facilities. Finally, there are over
100 state inmates who are sent out to county facilities that NDCS just
doesn't even count towards their population. If you calculate the men
system properly the overcrowding is over 169%. NDCS must be held to
account for the true nature of the overcrowding crisis rather than
hiding it with actuarial tricks.

Next year an emergency will be declared but what does that mean? The
only change under an emergency is that the conditions under which the
Parole Board can deny someone parole become more stringent so,
presumably, more people will be paroled (see Neb. Rev. Stat. Sec.
83-962). The problem is that the Parole Board doesn't even follow the
current standards set forth in Neb. Rev. Stat. Sec 83-1,114. In that
section there are 4 specific conditions under which the Parole Board
can deny parole but in the last 2 annual reports from the Parole Board
the substantially most common reasons for denying parole at hearings
was "other" and the second most common in 2017 was "no reason listed."
If the Parole Board isn't following the current requirements under
83-1,114 then why does the legislature expect them to follow the
higher standards in 83-962? If the emergency declaration is to have
any effect the Parole Board must be held to account for following the
new standards or maybe the emergency needs to change good time
calculations, like applying 191 good time to parole eligibility dates,
not just release dates.

Ultimately, in the long run, the only fiscally responsible solution to
the overcrowding is to implement sentencing reform and change the
culture of prosecutors and judges. According to research by the
Council of State Governments in Jan. of 2015 Nebraska judges sentenced
11% more felony cases to prison than the national average. The
national average was 41% of felony cases received a prison sentence
but the NE average was 52% with some districts as high as 61%. This
could be because of mandatory minimums in NE and/or because of a more
punitive judiciary. It could also be because a prosecutorial culture
of abuse of discretion which leads to overcharging and forces higher
sentences rather than focusing on what really serves public safety.
The legislature has been promoting diversion/problem-solving courts
but they spent less than $5 mill. on them this year while approving
just under $50 mill for more beds. Another step would be to pass Sen.
Pansing-Brooks' LB 131 (2019) which would reinstate the 1/3 rule which
limits a minimum sentence to 1/3 of the max. possible. Removing
mandatory minimums would could alleviate the prison sentence disparity
with the national average. I would also advocate for efforts to change
the culture of prosecutors and judges. Maybe forcing judges to
announce the estimated cost of a incarcerating someone when they
sentence them might help (currently $39,000 x # of years so 10-20
would be $390,000 to $780,000). Also, implementing training for
prosecutors like that advocated by Adam Foss, Prosecutor Impact could
help them focus on public safety over simply conviction rate and
sentence length. There is also a national trend to set up Conviction
Review Units (CRUs) within prosecutors' offices. These units review
and fight to overturn cases that were improperly prosecuted, but just
having them would change the culture of a prosecutor's office making
them less likely to overcharge in the first place.

The bottom line is that after getting NDCS to actually calculate the
overcrowding properly, there isn't much they can do to address
overcrowding besides build more beds. If we wish to address the causes
of the crisis, we need to look at the system's input and output,
prosecutors and judges, and the Parole Board. Only by changing the
rule and culture for these entities will we be able to avoid spending
hundreds of millions of dollars more on corrections.