Mistakes happen. Perfection is seldom reality. So it is not impossible to understand and accept as fact that officials and bureaucrats at the Nebraska Department of Correctional Services (DOCS) didn’t grasp the law correctly, causing them to miscalculate the release dates on hundreds of prisoners.
But goodness, what a mess has come to light; a mess that indirectly erupts at a time there are already festering problems in the correctional system, most notably the Nikko Jenkins saga and overcrowding, which has all three branches of state government—administrative, legislative and judicial—justifiably concerned and motivated to do something.
The June 15 publication of a “wow” investigative report by the Omaha World Herald has caused a big stir, and rightfully so.
It isn’t often that you see the term “screw-up” used in the lead of a news story, but it was there on this.
A prominent district court judge called the situation “unbelievable.” A police union official described it as “a stunner” and “maddening.” A well-known defense attorney and former prosecutor used a blunt term: “colossal mistake.” An early public response reported from DOCS analogized it thusly: “We’re in a triage mode.” The politically-tinged reaction of one state senator referred to it as, “arguably, one of the most shocking mismanagements that people have ever seen in state government.” (He probably said something similar about the Department of Health and Human Services in the not-too-distant past.)
As best we understand, since as far back as 1995, state correctional management erroneously applied good-time calculations—day reduction for every day served—to mandatory (minimum) sentences, including cases which had 10 mandatory years added for those classified as habitual criminals. The result was miscalculated, incorrect, premature release dates for hundreds of felons, men and women. The Nebraska Supreme Court provided guidance in a 2002 ruling and then again in February 2013; that the correct calculation was to apply the day-for-day, good-time reduction only to the term of the maximum sentence remaining after the mandatory portion. Apparently, DOCS was uninformed about, oblivious to, or somehow still misinterpreted the clarified law. That is, until notified by the World Herald on June 13. Uh-oh.
The numbers, although changing as days pass, are staggering and alarming. As reported by the newspaper, the sentences of 873 inmates were miscalculated. Of those, more than 550 have remained incarcerated awaiting their erroneous, premature release dates. Recalculations are adding more than 2,000 years in aggregate to their sentences, a range of one to 35 years and an average extension of three-and-a-half years.
That leaves about 300 inmates who were released erroneously and prematurely. More than 250 of these have been out of incarceration longer than the recalculated release date and won’t be returned to prison for those crimes. The Governor’s office has reported that 45 of the prematurely released “still owe time.” These represent a variety of circumstances, such that the number for round-up and return dropped to about 15.
The recalculation of sentences causes a recalculation of cost as well. The World Herald has estimated that the added time will cost the state $50 million pre-inflation. The preliminary estimate from the Legislature’s perspective, per the chairman of the Appropriations Committee, is a budget impact of $56 million. That will be on top of new spending on reforms to address an overall (and growing) prison population that is nearly 160 percent of current design capacity.
A “colossal mistake” is never good, but on this one, the timing is horrible.
As to the matter of overcrowding, a Justice Reinvestment Working Group has been formed to develop a long-term strategy; as the governor describes it, “innovative and sensible solutions to our prison challenges.”
This initiative stems from LB 907 of the Unicameral’s 2014 session and has been jointly launched by Chief Justice Mike Heavican (Judicial), Speaker Greg Adams (Legislative) and Governor Dave Heineman (Administrative). Its membership also represents all three branches of state government and local government as well. There are four state legislators, two district court judges, the Holt County sheriff and the Omaha police chief, the Lancaster County attorney and the Hall County public defender, the Supreme Court’s probation administrator, the state court administrator, the Board of Parole’s chairperson, the executive director of the Nebraska Crime Commission, the director of DOCS and Lieutenant Governor Lavon Heidemann.
“On-the-ground” technical assistance is being provided by the Council of State Governments’ Justice Center. Input will be solicited from stakeholders throughout the state.
Chief Justice Heavican has made it clear that this Justice Reinvestment initiative won’t just be looking at what’s going on in the correctional system, but also will examine “alternatives to incarceration and effective community-based programs.
This also will be an opportunity for input regarding the faith-based concept of restorative justice, which is an important and expanding element of Catholic social teaching.
And finally….
A not-quite-bold prediction: journalism prizes of national noteworthiness are on the horizon for the OWH reporters who investigated and reported on the sentencing mess, especially Todd Cooper and Matt Wynn.
