Political deadlock kills data-driven criminal justice initiative in Nebraska
“We just passed up our best opportunity to make a difference,” Omaha Senator Steve Lathrop said.
Lathrop, drafted LB 920, which was born out of a months-long study by the Crime and Justice Institute, a non-profit called in by Lathrop, Governor Pete Ricketts and Chief Justice Michael Heavican in January 2021. CJI dove into Nebraska’s prison overcrowding problem and why the population continues to grow, and handed their analysis over to a group of Nebraska stakeholders who came up with 21 policy solutions, ranging from streamlining the parole process to reduce jam-outs, expanding problem solving courts and various sentence reforms.
CJI said it would have meant between now and 2030, only 300 inmates would be added to the population, compared to 1,300, which is the current projection.
But the Governor, and some senators, including Senator Suzanne Geist, said sentence reforms suggested were “soft” on crime and would jeopardize public safety.
“Things that law enforcement, judges and county attorneys told me some of those things would really jeopardize public safety,” Geist said. “I’m not a law enforcement officer, judge or county attorney so I take their advice very seriously.”
Geist took particular issue with the reforms Lathrop said would make the biggest difference including limiting the use of mandatory minimums, making possession of small amounts of drugs a misdemeanor instead of a felony, limiting the use of consecutive sentences and the habitual criminal charge.
Senator John Stinner, head of the appropriations committee currently contending with potentially building a $270 million prison, said these reforms weren’t drastic or dangerous.
“These were measures recommended by professionals who came in,” Stinner said. “They’ve been incorporated in other states and we have evidence they have been working and are keeping people safe, actually safer, because promoting the idea of prisoners getting programming and going out on parole and actually have parole officers, that’s safety as opposed to jamming out without any kind of programming or reforms and no supervision.”
Stinner said the bill fell victim to “soft on crime rhetoric.”
Geist proposed an amendment to LB 920 which eliminated sentence reforms and focused on consensus items and other services for mental health and substance abuse issues.
“I’d contend if we got a handle on those populations I bet we could decrease those populations,” Geist said.
A CJI analysis of the amendment Geist proposed would only cut 125 inmates from the 2030 projections, 875 fewer than the bill in its original form.
Geist also said the state should build a new prison regardless of reforms passed, to increase the quality of life for inmates.
Stinner, who has appropriated but not allocated the money necessary for a new prison, agrees something needs to be done about the State Penitentiary, but it won’t solve overcrowding.
“In my eight years we’ve added 808 beds and haven’t moved the dials,” Stinner said. “We’ve added over $100 million to budget for corrections and it’s probably one of the fastest growing items we have in the budget and we need to confront it. We had the opportunity to do that and we didn’t.”
Lathrop contended, the decision to kill LB 920, didn’t come down to public safety, but politics.
“The data shows, we’re sacrificing public safety by maintaining the status quo,” Lathrop said.
Lancaster County Attorney Pat Condon said he and other prosecutors agreed that LB 920 would impact public safety.
“Our job is to keep the community safe,” Condon said. “That’s what we want to do, that’s why we opposed the legislative changes they wanted to make.”
Condon said he watched the progression of LB 920 closely. So did Public Defender Joe Nigro.
“I thought this bill held the most promise for real significant reform and reduction in prison overcrowding than anything else that’s come up in recent years,” Nigro said.
Nigro said he thought the proposal to change the classification of some drug possession charges from felonies to misdemeanors would have the biggest impact.
“There are so many people caught up in the criminal justice system because of the war on drugs,” Nigro said. “We should be treating addiction as a health problem not a criminal justice problem.”
Condon said this proposal was one of the main reasons he opposed the bill.
“We would have seen a large reduction in problem solving courts,” Condon said. “They wouldn’t have been addressing the issues causing them to come into the system, they’d get their fine or their 30 days in jail and be off.”
Condon also worried this would cause the county jail to become overcrowded.
Another aspect of the bill Nigro supported, was limiting the use of the habitual criminal charge, which is when prosecutors can enhance a sentence for repeat offenders. Nigro said he believes the charge is used to convince defendants to take plea deals, while Condon said it’s a valuable tool.
“We all have stories of why habitual criminal is good,” Condon said. “I had an individual who was involved in a domestic situation and had a knife and small amount of drugs who had been previously convicted and twice before been in prison so we could charge habitual criminal on a small amount of drugs. To me, my victim was reluctant to come forward as domestic violence victims often are, so to be able to put him in prison for 10 years that was a way to protect the community.”
Condon said while he’s willing to consider and discuss sentence reform, he doesn’t think it’s the answer. He cited Nebraska having the 15th lowest incarceration rate in the country, 285 inmates per 100,000 people.
“I think as prosecutors we are prosecuting the right people for the right reason,” he said.
Data also shows Nebraska is one of four states whose prison population is growing, while 46 other states are seeing their prison populations fall.
It’s why Nigro said a comprehensive approach is necessary.
“If you combine sentence reform with an increase and strengthening of services and combine that with probation I think you wind up with a safer community and a smaller prison population and those should be two goals everyone should be able to agree on,” Nigro said.
But in this session of the legislature, the senators couldn’t agree.
Lathrop said this isn’t disappointing because it’s a bill with his name on it, it’s disappointing for the state.
“We made the case for making reforms that actually make a difference, not gift cards and pilot programs,” Lathrop said. “Ideas based on data and the Nebraska experience. It would have saved us from having to build and build and build. That’s going to be an expensive vote for this state. If people want to maintain the status quo we’re going to need two prisons not one by 2030.”
Corey Steel, state court administrator, sent a statement saying the judicial branch assisted in the CJI study by providing data and they would have implemented any changes had the legislature passed them.
“We will continue to be engaged in any additional initiatives such as Justice Reinvestment and CJI in the future, as agreed upon by all three branches of government,” Steel said.
As for what happens next, while Lathrop is leaving the legislature and passing on information he learned in this process, Geist said she’s going to start meeting with fellow senators to come up with new solutions.
“It just makes me more determined to get at it and do something for next year,” Geist said.
