On September 4, a special investigative committee of the Nebraska Legislature conducted an hours-long hearing on the mind-boggling debacle of erroneous sentence-length calculations by the Department of Correctional Services. The entire proceeding at the State Capitol was live-streamed via Nebraska Educational Television. It was worthwhile viewing.
The subject matter was the mess that came to light when newspaper reporters discovered that DCS for years had been using an incorrect formula. This was happening because bureaucrats failed to follow interpretive guidance set forth (twice) by the Nebraska Supreme Court. The consequences were errors involving hundreds of prisoners, including some 300 premature releases (15 or so of whom were re-incarcerated) and the addition of more than 2,000 years aggregate to the otherwise anticipated sentences of more than 750 prisoners.
To describe the nearly 12 hours of questioning and testifying as “riveting” would be a bit much, perhaps. To describe it as “entertaining” would be insensitive and underserving. To describe it as interesting and compelling seems adequate and fair. It was theatre at the Capitol: tragedy, comedy (of errors) and drama wrapped together.
The Legislature’s special committee draws its origin and authority from Legislative Resolution 424, which was passed without dissent on March 7. It stemmed from the involvement of DCS with notorious criminal Nikko Jenkins. In addition to specific authorization to study those circumstances, the seven-member committee also was authorized to address more generally: good-time laws; administrative segregation of inmates; rehabilitation programs; mental-health care; and transition from incarceration to community.
So, some irony is at play in this scenario; irony with some strangely positive implications. The Legislature already had a special investigative committee established for corrections issues when the release-date-calculation fiasco was brought to light in mid-June. It landed in the committee’s lap. The agenda expanded. The recent hearing came onto the schedule.
Two current DCS employees and three recently retired employees were subpoenaed to testify and given limited immunity from prosecution. A retired attorney who served as a consultant to DCS for the state Attorney General’s office also testified.
Much of this testimony was uncomfortable, to say the least. Responses to both basic and sharply pointed questions from committee members constituted the interesting theatre.
The only witness who seemed to enjoy testifying was a former records administrator who retired in 2008. He had little reluctance or hesitancy to expound upon his answers (or to cite his own experience and expertise). His recollections helped to make a record.
Each person “on the hot seat” revealed that, to some extent, he or she had relied on someone else. There was “buck-passing” and not much of that concept termed “plausible deniability.” Each one, especially the lawyers, pointed out a large and distracting workload.
No one directly admitted as much, but the specter of pressure stemming from overcrowded facilities hovered over the testimony. The legislators obviously were thinking about that as a possible factor. That possibility is likely to have attention in the report the committee will issue.
Rather clearly, calculating sentence release dates got messed up in the bureaucratic structure. The best example of this: the head lawyer, who testified that he did not even read the Supreme Court’s 2013 opinion when it was released, unconvincingly explained that he did what he thought he was expected to do by asking and relying upon the records administrator.
As one editorialist aptly observed in commenting on the debacle: “We can’t use ‘bureaucracy’—even with its obvious challenges—as an excuse for ineffective government.”
And finally… on another important front:
Irrespective of the merits, or lack thereof, associated with expanded gambling and whether or not machines that allow players to bet on the outcomes of already-run horse races—a bemusing concept—are akin to slot machines, the Nebraska Supreme Court re-taught a good lesson in ruling unanimously that the gambling amendment proposed by 30 legislators, doesn’t qualify for the General Election ballot. That lesson: legislators, honor the Constitution.
Article XVI, Section 1 of the Nebraska Constitution provides that if the two or more amendments are submitted at the same election, they must be so submitted as to enable the electors to vote on each amendment separately. In other words, a proposed amendment cannot have more than one subject. (A similar provision in the Constitution governs legislative bills.) With LR 41CA (Amendment 1), supportive legislators proposed not only the subject of authorizing a new form of gambling, i.e., “historic horseraces” on instant terminals, but also the subject of distributing the state’s proceeds from horse-racing, i.e., property-tax relief and K-12 education.
The latter subject was motivated by the desire to attract votes for the former.
The Supreme Court ruled unanimously that Amendment 1 ended up with two subjects and was, therefore, invalid. The Court issued a mandamus order, that the Secretary of State keep it off the ballot.
