Neb. lawmakers consider mandatory minimum alternatives
Mandatory minimum sentences remove incentives for inmates to behave and can endanger COs and other inmates, said Sen. Ernie Chambers
By Julia Shumway
LINCOLN, Neb. — Nebraska lawmakers have two options to lessen the impact of mandatory minimum sentences under a pair of bills presented to a legislative committee Wednesday.
Mandatory minimum sentences remove incentives for inmates to behave and can endanger prison guards and other inmates, said Sen. Ernie Chambers of Omaha. He introduced a bill that would eliminate mandatory minimums for class 1D and 1C felonies.
Sen. Paul Schumacher, a former county attorney, said judges had discretion on a large range of sentencing options before the Legislature introduced mandatory minimum sentences. Currently, they must enforce minimum sentences for crimes including robbery, possession of 10 or more grams of certain drugs, assault on a police officer and manufacturing or distribution of child pornography.
"The mandatory minimum says 'Judge, even if you feel that justice will not be served, even if you feel the defendant really doesn't deserve it, you're going to give him that penalty anyway,'" said Schumacher.
His bill would allow the sentencing judge and two other judges randomly selected by the Nebraska Supreme Court's chief justice to review cases and determine whether a mandatory minimum is appropriate. It would apply only to nonviolent drug offenses.
Having a three-judge panel instead of simply doing away with mandatory minimum sentences addresses concerns of prosecutors who use the threat of harsh sentences to negotiate guilty pleas with defendants, Schumacher said.
"The uncertainty is still there to negotiate down, but it also provides an escape valve for judges to say this sentence doesn't fit this case," he said.
Schumacher's bill is a "novel approach" to a serious problem, said Spike Eickholt of the Nebraska Criminal Defense Attorneys Association, which supported both bills. Mandatory minimum sentences can affect first-time offenders carrying less than half an ounce of cocaine or methamphetamine, regardless of what they intended to do with the drugs, he said.
"I've had judges state on the record at the time of sentencing that they would use probation, but they have no choice," Eickholt said.
The state Attorney General's Office and the Nebraska County Attorneys Association opposed both bills.
"The more flexibility that a judge has increases the potential for unequal treatment under the law," Deputy Douglas County Attorney Jim Masteller said.
In fact, according to the American Civil Liberties Union, mandatory minimum sentences disproportionately affect black men, who are four or five times more likely than white people to be convicted of drug possession.
Schumacher's measure also would allow three-judge panels to determine whether a defendant who would have been considered a habitual criminal, which comes with a 10-year mandatory minimum prison sentence, should have to serve those 10 years.
Many judges view this as "double-sentencing," Chambers said.
"You have two crimes the person has been punished for in accordance with the law, then punishment again has been heaped on the other two," he said. "That's baloney."
Money now spent on longer sentences for repeat offenders instead could be used for programs that rehabilitate inmates and reintegrate them into society, said Kenneth Ackerman, a military veteran who served five years in an overcrowded California prison and now works with fellow incarcerated veterans.
The Nebraska Department of Correctional Services estimated Chambers' measure would result in between 19 and 27 fewer inmates in 2019 and save the state more than $180,000. The agency estimated Schumacher's bill also would save money but it's not clear how much.
If either bill advances, Nebraska could join nine other states, including neighboring Iowa, that recently passed laws reducing their mandatory minimum penalties for many drug offenders. Unlike Iowa, though, the pending Nebraska legislation won't apply retroactively to offenders already serving time.