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Robert's article for the Nebraska Criminal Justice Review about overcrowding

Will NDCS declare an overcrowding emergency in 2020? 

The Correctional System Overcrowding Emergency Act was passed in 2002 (1) and gave the governor the power to declare an emergency "whenever the director certifies that the department's inmate population is over one hundred forty percent of design capacity" (2). The population has been over the 140% mark since 2006-2007 (3) yet no governor has ever declared an overcrowding emergency. Thus, in 2015 the legislature amended the Neb. Rev. Stat. 83-962 to give a deadline (4). "Beginning July 1, 2020, a correctional system overcrowding emergency shall exist whenever the director certifies that the department's inmate population is over one hundred forty percent of design capacity" (5). First, I would like to address how NDCS may be planning to avoid certifying that the population is over 140%. Then, I would like to examine what is supposed to happen even if an emergency is declared.

The current popularly cited percentage for overcrowding in NDCS is 155% (6). This is the number regularly refered to in the media and it looks to be improving from a high of 161% in June, 2017 (7), down 6% in a year. However, NDCS artificially supresses these number through several actuarial tricks. 

First, they combine the men's, women's, and youth facilities when calculating the average overcrowding. Beds in those facilities are not fungible, or interchangeable, with beds in a men's prison. For example, if there is an empty bed in a women's facility you can't put a man in it to reduce the overcrowding at the men's facilities. Given that both the women's and youth facilities are less crowd, averaging122% and 78% respectively since June, 2016 (8), they are being used to mask the true level of overcrowding in the men's system. 

Additionally, NDCS omits from their calculation the approximately 100 men who are warehoused in the County Jail Program. They are NDCS inmates but NDCS does not count them towards the total population even though they must return to an NDCS facility for programming needs or to eventually be released.

If you calculate the overcrowding for just the men's facilities, without NCCW (women) and NCYF (youth), the current level of overcrowding is 164% (9), not 155% as it is popularly dipicted. NDCS is using the non-crisis systems to hide the true nature of the crisis in the men's system. The difference between the NDCS miscalculated percentage and the true number will increase in 2019 when construction is completed on a new 160 person facility at CCCL, work-release in Lincoln. That facility will be an all women's facility and will only free up 104 male beds (10). NDCS is also planning to add 100 new dorm beds to NSP but such "in-filling," without increasing the core support facilities like dining, recreation, and programming space, isn't really increasing the design capacity.

The actual total NDCS population has remained fairly stable for at least the past 2 years (11). If you use the current population numbers but add the 260 beds NDCS plans to build to project for the percentage in 2020, using the NDCS method of (mis)calculating you get 145%. That is close enough that NDCS could send 180 more people out to county jails and avoid declaring an emergency. If, however, you calculate just the men's system, add the state inmates in county jails, and only count 104 beds to the design capacity you get the real number, 159% (see graph). The NDCS numbers have been under-reporting the overcrowding by an average of 9% but that error will grow to 14% after adding the 160 women's beds at CCCL. NDCS must not be allowed to hide the true nature of the crisis in the men's system by shuffling numbers.

There is another number that aught to be brought to public attention. If an emergency is declared, NDCS must drop the population to 125% of design capacity (12). If an emergency were declared today, calculating all the systems together, they would have to parole 1043 people but there are only 870 parole eligible people in all of NDCS. The numbers get worse when you calculate just the men's system. They would have to parole 1187 people to get to 125% but there are only 830 men currently eligible for parole (13). That means NDCS would be short 357 men and could only decrease the overcrowding to 132%, 7% short of the required level.

In December, NDCS and the Parole Board release their plan to deal with an overcrowding emergency. We will have to see how they plan on dealing with the shortage of parole elilgible people. We should also hold them accountable for the real overcrowding statistics for the different systems.

(1) Office of Inspector General of The Nebraska Correctional System 2017/2018 Annual Report, pg. 42.
(2) Neb. Rev. Stat. 83-962 (1).
(3) Department of Correctional Services Special Investigative Committee - Report to the Legislature, Dec. 15, 2014, chart on pg. 36.
(4) LB 598
(5) Neb. Rev. Stat. 83-962 (1).
(6) NDCS Quarterly Datasheet, April - June 2018.
(7) NDCS Quarterly Datasheet, April - June 2017.
(8) Personal calculations from NDCS Datasheets [link to pdf].
(9) Personal calculations from NDCS Datasheets. Some inacuracy due to women at CCCL and CCCO but NDCS doesn't separate these numbers. [link to pdf].
(10) Office of Inspector General of The Nebraska Correctional System 2017/2018 Annual Report, pg. 99.
(11) Office of Inspector General of The Nebraska Correctional System 2017/2018 Annual Report, pg. 36.
(12) Neb. Rev. Stat. 83-962 (5).
(13) Personal calculations from NDCS Datasheets [see attached pdf graphics and data table].