Vice President of Criminal Justice Policy
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Marc Levin | April 24, 2015
Applying successful reforms from other states can help Nebraska improve public safety and control costs in the state’s correctional system. Currently the state’s prisons are operating well over capacity, and Nebraska is projected to spend almost two hundred million on new facilities. Right on Crime Policy Director Marc Levin provided recommendations with the Nebraskan Platte Institute.
Like most states, the growth of government in Nebraska has outpaced the growth in the private sector economy. Since 2000, state spending has increased over 80 percent, far outpacing the general rate of inflation. Worse, certain outmoded elements of criminal justice policy still threaten to weigh down the state budget and undermine the productivity of the state’s workforce.
As Nebraska faces a prison overcrowding problem that continues to worsen, policymakers have the opportunity in the coming legislative session to reform criminal justice policy to streamline costs, bolster the economy, and protect public safety. By implementing smart, simple reforms, the legislature can empower criminal justice stakeholders with the tools to reduce re-offending, make whole victims of crime, and reintegrate rehabilitated ex-offenders into the workforce. To this end, it is recommended that the Nebraska Legislature:
As highlighted in Controlling Costs and Protecting Public Safety in the Cornhusker State, Nebraska’s criminal justice system is in need of reform.1 During the 103rd legislative session, several items were passed into law that stand to benefit the safety and tax bill of the average Nebraskan, yet still more must be done to alleviate the looming capacity and budgetary crisis.
Since the document’s initial publication, the percentage of inmates incarcerated for Part I offenses (violent offenses including murder, manslaughter, and robbery, amongst others) has increased by nearly one percentage point.2 Unfortunately, this indicates a counterproductive use of costly prison space in housing nonviolent and low-level offenders; those which could be more adequately supervised under community corrections. The total prisoner count also increased by 346, further straining capacity and putting the Department of Correction Service’s (DCS) facilities at 59.1 percent over design capacity; a year-on-year increase of over 7.4 percent.3 Conversely, most states, as well as the federal government, have lowered correctional populations through common sense policy changes.4
Should these trends continue, Nebraska’s legislators will find themselves in the dubious position of having to approve large initial capital expenditures (to say nothing of ongoing operational overhead) to increase prison capacity. However, legislators still have a compendium of options available that will reduce the strain on the correctional system and on the state’s budget.
The 103rd Nebraska legislative session did see some watershed legislation signed into law. Of note, Legislative Bill 907 was passed 46-0-3 and approved by Governor Heineman on April 16, 2014. This legislation, amongst other reforms, addressed mental health treatment, prioritized community correction with the expansion of reporting centers, and established a criminal justice research center at the University of Nebraska–Omaha.
Further, LB 907 compels DCS to develop a reentry plan to better facilitate an inmate’s transition back into his or her community. This mandate also contains a provision setting a completion point for the transition at eighty percent of the inmate’s sentence.
LB 932 mandated that the state and political subdivisions delay inquiring about criminal history until after a job- seeker has had their application reviewed and it has been determined that they meet the minimum employment qualifications. This will prevent a superficial rejection of the application based solely on the applicant’s criminal record. LB 932 was amended into LB 907 on a 46–0 vote.
In spite of these advances, there is still much fertile ground for criminal justice and correction reform. The Unicameral should move quickly in the 104th legislative session to ensure that Nebraska achieves safer streets without incurring a needlessly large tax bill.
Opportunity Probation with Enforcement
As was written in Controlling Costs and Protecting Public Safety in the Cornhusker State, one potential solution to Nebraska’s climbing prison population is Opportunity Probation with Enforcement, modelled after Hawaii’s HOPE Court program. The HOPE Court seeks to intercede with substance-abusing probationers through randomized drug testing and immediate punishment upon violation.
While involved in a HOPE-style program, probationers must call in every morning to find out if they must report to court for drug testing. If they skip the appointment or if they fail the test, they are immediately issued several days in jail. This period is often served over the weekend, allowing the probationer to maintain employment while precluding any leisure activities they may have planned.5
Oversight of the probationer’s case is not terminated upon one positive drug screening. Rather, jurisdiction is reestablished upon release of the short jail period and the monitoring process continues. Subsequent drug test failures are met with progressively longer jail terms and, ultimately, full revocation of probation should the probationer continue to fail.
In a randomized, controlled trial of the program’s implementation in Hawaii, positive drug tests were reduced by 91 percent and revocations and new arrests were reduced by 66 percent.6 New crimes dropped by over 50 percent.7
Nebraska has yet to implement a graduated sanctions- oriented probation court. Several states have adopted similar court models and have experienced initial success.8 While 14 specialty “drug court” dockets exist in Nebraska, HOPE-style probation offers an effective, complementary approach to ensuring individuals cease substance
abuse and conform to the terms of their community supervision. In Hawaii, some of the very few participants who do not desist the use of drugs through the HOPE Court are triaged into a drug court. This is an efficient use of resources since drug courts cost more per participant due to a smaller docket and more intensive treatment. Many HOPE Court participants do not meet the medical definition of chemical dependency and are able to quit simply through the incentive of the swift, certain, and commensurate sanction.
In Texas, the SWIFT (“Supervision With Intensive enForcemenT”) Court of Tarrant County has managed to see an 8 percent reduction in technical revocations, at a fraction of the cost required to house those same offenders in prison or jail.9
Probation Time Credits
To further strengthen probation, the Unicameral can move to implement a time credit in probation supervision. In 2013, the American Legislative Exchange Council adopted model legislation under which probationers would accrue “earned compliance credit.”10 Similar to the penal concept of “good time,” earned compliance credits allows probationers who display exemplary conduct to earn a designated amount of days off their term. This would allow probationers who achieve educational milestones, earn an occupational license, or maintain gainful employment to terminate supervision earlier than those who are simply “logging their time.”
Arizona enacted earned time credits for probationers as part of their 2008 Safe Communities Act. The results suggest that this incentive for exemplary performance has made a positive difference. In the first two years that the policy was in effect, the number of probationers convicted of new felonies fell by 31.1 percent and probationer revocations to prison dropped by 29.3 percent.11
Clarify Fiscal Notes
Under Nebraska law, the Legislative Fiscal Office is compelled to generate a “fiscal note”—an estimate of increases or decreases in revenues and expenditures associated with an item of legislation. These notes are then published, allowing the legislature and the general public to weigh the potential costs and benefits of proposed legislation.
While a necessary and transparent tool to a functioning democracy, the fiscal note process oftentimes fails to capture the true long-run costs—and savings—associated with criminal justice and correctional policies. As a fully interdependent system, the criminal justice process may take years for even the smallest adjustment in sentencing policy to lead to measureable outcomes. Unfortunately, these outcomes are rarely captured in fiscal notes.
Fiscal notes tend to account for immediate capital and operational expenditures or those foreseeable in the near term based on current data. This primarily includes using a rote cost-per-day metric multiplied by the expected number of new cases that would appear if the law was passed. These notes often omit the necessary capital expenditures when the correctional population exceeds a tolerable threshold or the percentages of offenders expected to grow as the general population increases.
Legislators should mandate that the fiscal note process be more precise for criminal justice bills, including taking into account the potential impact on jails and other local governmental functions, when calculating a final estimate. For example, in regard to LB19, which was enacted in 2011 to create an offense for synthetic marijuana (also known as K2 or spice) at the same level of marijuana, there was no cost estimated in the fiscal note and it included no reference to the possible impact on local courts, prosecutors, indigent defense, and jails.12 Given that possession cases would typically be misdemeanors except for very large amounts, it would have been more important to examine any possible local impact rather than simply noting that the Department of Corrections estimates no impact.
Beyond probation and supervision, there are other opportunities to reform corrections policy and practice. Adequate post-release supervision and the ability to procure gainful employment are essential to a successful penal policy.
Commonly, the drive to solidify reentry is heard by policymakers as a plea for more government handouts
to be earmarked for a population that has already— directly or indirectly—taken copiously from the public and, expectedly, is met with consternation and dismissal. However, reentry support does not need to be in the form of an entitlement. Several options exist that will allow for better transition back into the community and remove unintended barriers that an offender may face and thereby lower costs and increase public safety.
During the great crime spike of the late 1980s and early 1990s, policymakers passed waves of legislation increasing the potential sentence one may face for committing a crime. To ensure that the anticipated deterrent effect of these laws was not squandered by lenient judges and parole boards facing external pressure, both state and federal initiatives were advanced seeking to keep offenders in jail for a greater duration of their prescribed sentence. By the year 2000, the federal government, along with one- third of all states, had abolished discretionary parole.13
Unfortunately, the unintended consequence of these policies was that offenders were being kept incarcerated for longer periods of time, irrespective of the risk level of the individual or progress in rehabilitation. Self- improvement—an undertaking that requires effort and uncomfortable introspection—had little intrinsic value to the inmate. This has led to an increasing number of prisoners “maxing out” their sentence; that is, being held until the state no longer has supervisory jurisdiction over the offender. The offender is then released directly back into society with no supervision. Research has shown that comparable offenders released without supervision are 36 percent more likely to commit a new offense.14
In 2013, Nebraska’s max-out rate was nearly 35 percent, well above the national average of 21.5 percent the previous year.1516 Further, 30 percent of new admissions will “max out” in one year or less.17 This is known as “short maxing.”
Nebraska in particular has a problem with “short maxing.” This occurs when an offender is given a relatively short sentence, and most to all of the sentence is served behind bars. Given the brevity of the sentence, when it abruptly terminates, the offender is quickly released back onto the streets. The average “short max” offenders are usually not eligible for release until three months after the start of their sentence, though the average length-of-sentence is only 4.8 months.18 This typically offers too little time for effective rehabilitation services to be rendered, especially given the significant time it takes prison systems to classify and assess inmates to determine what level of custody and type of services they need.
There is a two-fold solution to fixing the problem of “short maxes” and offenders “maxing out” in general. First, legislators should permit parole reviews to be conducted shortly after an individual enters a facility, allowing rehabilitation to begin in earnest when a release decision is made. Second, legislators should consider creating a “carve out” for longer sentences; a period of time that the offender must serve on post-release community supervision. ALEC has also adopted a model policy to address this.19
Nebraska spends over $11 million per year on housing “short max” offenders.20 While some of these individuals are not suitable for community supervision, many are at appropriate risk levels. Further, simply releasing offenders without even a modicum of treatment or supervision upon release fails to address the criminogenic risk factors that contributed to their initial offending, leaving the public having paid for confinement but with no greater safety after the offender is released.
End Direct Release from Administrative Segregation
Administrative segregation, colloquially known as solitary confinement or simply “solitary,” is a valuable tool for prison administrators. It allows inmates who present a clear and present threat to their peers to be isolated, and even offers a brief reprieve for an inmate who might be in danger. Unfortunately, the ease of use often leads to overuse, which is problematic in its own right.
Nebraska is reportedly one of the most frequent users of administrative segregation, housing nearly 19 percent in such conditions during a recent period of analysis.21 While administrative segregation is necessary, it is inefficient for housing inmates and perhaps exacerbates preexisting mental illness.22 Worse, inmates who “max out” while in administrative segregation are released into society in short order. One must ask, how are inmates who cannot be trusted amongst a prison’s general population to be trusted in society only a few days later?23
Legislators can better ensure public safety by instituting graduated release programs that segue the inmate back into the general inmate population (and any rehabilitative programming on offer) before their release.
While LB 932 positively contributed to an ex-offender’s ability to find gainful employment after incarceration, their record may harm their employment prospects long after their sentence (and risk to society) has expired. While Nebraska is to be lauded for its stewardship of confidential juvenile records, there remains work to be done in sealing adult records that have long outlived their usefulness.
The Unicameral should consider enacting a series of graduated periods in which individuals—so long as they have not reoffended in the interim or been revoked from probation or parole—can seek to have to their records sealed from the public. This could be structured as 3 years for most misdemeanors, 5 years for Class I and W misdemeanors, 7 years for a Felony Class IV, 10 years for a Felony Class III and IIIA, and progressively longer periods before the individual can seek sealing.
This would be different from the existing set aside law in that it would not be limited to those who received probation rather than any term of incarceration. Additionally, unlike a set aside, an order of nondisclosure would, as it does in Texas, seal the original conviction, except to judges, law enforcement, prosecutors, and certain other state entities identified in statute. The set aside in Nebraska is a less useful remedy because the original conviction remains public along with a notation that a set aside was granted.
The research shows there is no significant public safety benefit derived from stamping individuals who have been law-abiding for many years with a permanent scarlet letter. Studies have found that individuals whose last offense occurred many years ago are very unlikely to re-offend. Researchers at the University of South Carolina and University of Maryland concluded in a 2006 longitudinal study of ex-offenders that “after approximately 7 years there is little to no distinguishable difference in risk of future offending between those with an old criminal record and those without a criminal record.”24 Even after five years, the risk of a new offense is only slightly higher than someone who has never offended.25
As with sealing provisions in other states, law enforcement, prosecutors, and judges should retain access to the entirety of the records. This enables the prior offense to be used to enhance the penalty for any future crime. One of the states which most recently enacted a comprehensive record sealing statute with provisions similar to those proposed above is Indiana, where Governor Mike Pence signed Act 1482 in 2013.26
Limiting Employers’ Liability for Hiring Ex-Offenders
As discussed in Controlling Costs and Protecting Public Safety in the Cornhusker State 2014, the ability to secure gainful employment is an important component of reentry policy. The American Bar Association has calculated that 30 percent of adults have a criminal record. 27 Studies have shown that ex-offenders face more difficulty in obtaining employment than illegal immigrants.28 Yet, ex-offenders who are employed are three to five times less likely to re-offend, according to the Federal Bureau of Prisons.29
While LB 932’s provisions incorporated into LB 907 do well to help lend a second chance to those who have committed to bettering themselves, an element of liability still remains for their employer, making them less likely to undertake the risk of hiring an ex-offender.
In 2013, Texas passed just such a law, immunizing employers from negligent hiring lawsuits so long as the person’s offense was unrelated to their job. In the unlikely event an ex-offender was entrusted with responsibilities similar to their initial offense, the employer could still bear liability.30
Recalibrating Felony Thresholds
One dollar today does not go as far in purchasing goods and services as it did 50 or even 10 years ago.
Unfortunately, this is problematic when felony theft thresholds are statutorily enshrined: as the real value of a dollar decreases, the real value of the threshold decreases as well. To that end, Nebraska’s Class IV felony for theft established in 1992 at $50031 had the functional equivalent to $841.59, nearly 68 percent greater value. This persistent devaluation allows low-level offenders to easily cross the felony threshold, even if the real value of what was being stolen remains static.
The figure below illustrates that, as the dollar loses value over time, the threshold established in statute becomes more punitive. Low-risk offenders exposed to costly felony-level sentences represent an inefficient and ineffective use of prison bed space, and prevent criminals from remunerating their victims.32
The Unicameral should strongly consider recalibrating these offense thresholds to bring the statute more in-line with the original legislation. Nearly 180 individuals are sentenced to prison under the Class IV felony thefts each year, costing the state $8.5 million per year-cohort.33 Many of these individuals could be supervised in the community at no cost to public safety and far more efficiently. Furthermore, they would be much more likely to find employment and housing if they had a misdemeanor, rather than a felony, on their record.
Presumptive Community Corrections Sentence for Low-Level, Nonviolent Offenses
In 2013, there were 1,049 felony IV and misdemeanor admissions to Nebraska prisons.34 Of those, 35 percent were for property offenses, of which 59 percent were for theft, and 25 percent were for drug offenses, of which 91 percent were for possession.35 Since 2003, the average sentence length for felony IV offenders sent to prison has increased 15 percent.36 Of those felony IV and misdemeanor offenders admitted to prison in 2013, 63 percent were repeat offenders, with 35 percent having been sent to prison for a prior felony IV or misdemeanor and 28 percent for a more serious felony.37 By adopting a presumption of a community corrections sentence for nonviolent, first-time felony IV and misdemeanors offenses, most of the remaining 37 percent could be diverted. The presumption of an alternative to prison could be overcome by the judge entering findings into the record explaining why the offender was unsuitable for any of the available alternatives to incarceration, such as probation, drug court, and electronic monitoring.
In 2012, Kentucky enacted a comprehensive justice reinvestment package (House Bill 463) that included presumptive probation for low-level drug possession offenses while strengthening probation and treatment programs.38 While results of this landmark 2012 reform legislation are still being determined, it is encouraging that the FBI index crime rate in Kentucky plummeted 9.3 percent in 2013.39
A presumptive sentencing policy is important because wide variations can exist across various regions of the state in sentencing similar offenders for similar crimes. In Nebraska’s 2012-13 fiscal year, the percent of felony IV offenders receiving prison, rather than probation or county jail time, ranged from 21 percent in District 11 to 59 percent in District 10.40 These variations could not be mostly explained by differences in criminal history scores.41 While some judicial discretion is necessary and valuable, there is also a role for elected lawmakers to provide guidance that channels the exercise of that discretion through creating a presumptive sentence that can help prioritize prison space for violent and dangerous offenders.
The rationale behind record-based sentence enhancements is to provide a suitable deterrent to spree criminals. Unfortunately, when calculating sentences, habitual offender statutes can result in needlessly lengthy sentences being issued when the offender has a qualifying offense in his or her past. Under current law, this offense can attach itself to the calculation of habitual offender sentence decades after the original offenses were perpetrated.42 Thus, under the state’s “three strikes” law, a third felony occurring decades after the previous two could result in a prison term of 60 years.
While the desire to enhance sentences based on past behavior is understandable, it does not follow from
the original intent of the statute nor the criminological literature. In the community, an offender’s risk of recidivism decays over time. The propensity for recidivism eventually crosses—and then trends below—that of those never arrested. For example, this threshold is roughly 7.5 years for robbery and 5 years for burglary.43
Legislators can implement responsive sentencing by implementing a “cleansing period” relating to the calculation of criminal sentences, similar to Louisiana in 2014.44 Louisiana Senate Bill 383 specified that, in the calculation of sentences for habitual offenders, if the present felony occurred more than 10 years after the expiration of the maximum sentence for the initial offense, the initial offense does not count towards enhancing the penalty.
While such cleansing periods can reduce the costs associated with lengthy sentences that in many such cases will result in geriatric individuals who no longer pose a risk to the public being incarcerated and inmates dying in prison, there is also a philosophical justification. The primary rationale for an enhancement that effectively punishes someone again for a previous offense that was already punished is that the individual in question is on a crime spree and, therefore, poses a greater risk to the public than a first-time offender. However, where the previous offense occurred decades ago—perhaps even as a juvenile, the old offense is more likely to be disconnected from the current offense and not be indicative of someone on a crime spree. There is a substantial correlation between the freshness of a prior conviction and the chance that a defendant will commit more crimes in the future45
Indeed, the U.S. Sentencing Guidelines which are used to sentence federal offenders exclude convictions as “stale” if they are more than 15 years old and those that are at least 10 years old result in fewer criminal history points than more recent convictions.46
Resisting Sentencing Enhancements
Finally, the Nebraska legislature can resist the dated and only superficially “tough on crime” practice of enacting new sentencing enhancements. Crime control policy matters pose difficult questions for elected officials, and the reliance on retributive platitudes provides an easy— though wholly ineffective and costly—solution. While enhanced sentences are sometimes necessary for bringing statute in-line with prevailing morals, too often it is used as a form of “moral exhibitionism.”47
Legislators pondering the addition of new sentencing enhancements to extant criminal law should ask themselves the following:
Several components of the Nebraska criminal justice system are deserving of praise. Nebraska provides exemplary confidentiality of juvenile records, allowing children convicted of youthful indiscretions to have a second chance at success. Nebraska also is among the third of states with the lowest incarceration rates in the nation, though that number is climbing fast.
Unfortunately, Nebraska’s long-term economic picture has been called into question as of late. In 2014’s Rich States, Poor States, Nebraska’s economic outlook—an amalgam of variables regarding public debt, employment, and tax policies—was ranked 35th in the nation.49 The fiscal burden of building additional prison capacity is a serious fiscal and policy commitment, and should only be undertaken as a last-resort option. Nebraska’s state ledger does not need to include the cost of additional prison beds.
To achieve better public safety outcomes at a more reasonable cost to taxpayers, legislators should work to implement the reforms discussed herein, in Controlling Costs and Protecting Public Safety in the Cornhusker State, and also in proceedings of the Council of State Governments-convened Justice Reinvestment Working Group. The seminal report produced in anticipation of these reforms, Justice Reinvestment in Nebraska, suggests many like-minded reforms that are sure to benefit the state.50
Originally posted at: http://www.platteinstitute.org/library/docLib/Securing-Nebraska-Correctional-Policy-Improvements-in-the-Cornhusker-State.pdf