Senators: Lawsuit could prompt Neb. prison crowding fix

Lawmakers and Gov. Pete Ricketts have increased funding for prisons and passed laws designed to reduce the crowding

By Grant Schulte 
Associated Press

LINCOLN, Neb. — After years of failed efforts to reduce overcrowding in Nebraska's prisons, some lawmakers say a recent federal lawsuit may be the only way to force state officials to fix the problem.

The lawsuit filed by civil liberties groups came as no surprise to senators or other state officials, who were repeatedly warned they could face legal action if they didn't address the issue.

Nebraska lawmakers and Gov. Pete Ricketts have worked with national consultants, increased funding for prisons and passed several major laws designed to reduce the crowding, but the problem has persisted.

Some lawmakers say the state still isn't spending enough to address a lack of prison mental health services to keep inmates from reoffending, and they doubt anything will change in next year's session.

A lawsuit "is probably one of the poorer ways to handle the situation, but lacking the political will to handle it any differently, it's the only way there is," said Sen. Paul Schumacher of Columbus, who has worked extensively on prison issues. "Unless you have an outside intervening force like a judge, it will be business as usual."

Some lawmakers pointed to California's prisons, which were forced to release inmates after the U.S. Supreme Court ruled in 2011 that prison overcrowding in that state violated constitutional protections against cruel and unusual punishment.

The Nebraska lawsuit alleges that state officials have failed to provide adequate medical and mental health care to inmates, a problem exacerbated by overcrowding and staffing shortages. The American Civil Liberties Union of Nebraska and other groups filed the lawsuit on behalf of 11 inmates against Nebraska's corrections department, director Scott Frakes and other prison officials.

Ricketts criticized the lawsuit earlier this month, saying it could lead to the early release of "dangerous criminals" and make it harder to manage the population. He pointed to the millions of dollars he and lawmakers have approved to expand prison services.

Lawmakers may try to "chip away" at some of the problems attributed to overcrowding, such as eliminating mandatory minimum sentences, said Sen. Laura Ebke of Crete, chairwoman of the Legislature's Judiciary Committee.

But those efforts are likely to face resistance. Ebke said lawmakers may wait to see whether a judge forces the state to act.

"There's no comprehensive plan out there that I'm seeing right now," Ebke said.

Ebke said she would like to allow more time for some recently passed prison laws to work. In the last two years, lawmakers have expanded the use of inmate mental health screenings and treatment as well as probation for nonviolent offenders. The laws were designed to keep inmates from committing new crimes after they're released, thus reducing the number of prisoners in the system.

"I think our history shows we've been trying to make changes," Ebke said.

ACLU of Nebraska Executive Director Danielle Conrad said her group would prefer to work with lawmakers collaboratively.

"It would be extremely disappointing if senators chose to kick the can down the road or choose to sit idly by while this case progresses through the federal courts, leaving Nebraska taxpayers on the hook for unknown liabilities and allowing human suffering to persist," Conrad said.

Sen. Bob Krist of Omaha said he will introduce a bill next year that would force Ricketts to declare a state prisons emergency before the end of 2018 — moving up a 2020 deadline already established in state law. Doing so would require officials to consider paroling all eligible inmates immediately, but would still let the state parole board decide each case.

The bill's prospects are uncertain, but Krist said it's important for lawmakers to keep working on the problem.

"We'll see if (senators) are willing to take that kind of step," Krist said. "I believe it's a necessary step moving forward."

State law allows governors to declare prison "emergency" when the inmate population exceeds 140 percent of the prison system's design capacity, but Ricketts and former Gov. Dave Heineman declined to do so. If the population is still above that threshold on July 1, 2020, the prison system will automatically fall into a state of emergency.

Nebraska's prisons hold an average of 5,278 inmates in facilities that were designed to hold 3,275 — more than 160 percent of the system's total design capacity, according to the most recent statistics available.

Krist, who is likely to run for governor against Ricketts in 2018, said he was concerned that if a federal judge orders more inmates released, state officials won't have as much control over the process.

Associated Press
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