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Proposed sentencing change would decrease Nebraska prison overcrowding and save money, lawmaker says

February 3, 2018

LINCOLN — Some state lawmakers are renewing a political fight they lost in 2015 over requiring criminals to receive prison sentences that provide for a meaningful period on parole supervision.

Three years ago, after a last-minute push by the state’s criminal prosecutors, a proposal to reinstate a so-called “one-third rule” in prison sentences was stripped out of a major package of sentence reforms because of claims that it was soft on crime.

But State Sen. Patty Pansing Brooks of Lincoln, who has introduced a bill to resurrect the one-third rule, rejected that idea Thursday. She said her proposal would enhance public safety by giving inmates an incentive to behave and take rehabilitation programs. It would also increase the chances they would be released on parole, which usually translates into being better citizens when they’re done with their prison sentence.

Getting more inmates out of prison and on lower-cost parole, Pansing Brooks added, could save as much as $18 million a year and reduce Nebraska’s chronic prison overcrowding.

“This is going to show a substantial cost savings and keep our communities safer,” she said.

The Legislature’s Judiciary Committee took no action on the senator’s proposal, Legislative Bill 884, after a somewhat combative public hearing Thursday.

Prosecutors again indicated that they will fight any attempt to resurrect the one-third rule, which, they argue, would allow serious criminals, such as rapists and murderers, to get out of prison earlier.

Douglas County Attorney Don Kleine told the committee that tough, longer sentences haven’t caused Nebraska’s prison overcrowding, but “the person who sticks a gun in someone’s face or rapes a woman in her own home or tries to strangle someone.”

Under the one-third rule, which was dropped three decades ago, judges must issue minimum prison sentences for criminal offenses that are no longer than one-third of the maximum sentence. Under the rule, someone sentenced for a crime that carried a 50-year maximum sentence would get a minimum sentence of no more than 162⁄3 years. The minimum sentence determines when an inmate is eligible for release on parole, so a shorter minimum sentence results in a quicker release from prison, according to prosecutors.

But Pansing Brooks argued that getting more inmates out of prison earlier is not a bad thing because of Nebraska’s prison overcrowding, which ranks second-highest in the country and has sparked a civil rights lawsuit from the ACLU of Nebraska. The State Parole Board, she said, would ensure that no dangerous inmates get out.

A former prison inmate at Thursday’s hearing, Jason Witmer, said giving inmates a better chance at parole is an incentive to behave and take the rehabilitation programs to qualify for release.

Pansing Brooks said the legislative fiscal note on LB 884 provides a powerful incentive to bring back the one-third rule. It states that up to 660 more inmates might be released on parole, reducing prison overcrowding from the current 155 percent of design capacity to 136 percent.

While Pansing Brooks calculated that the state could save $18 million a year — an eye-opening number in a year when lawmakers are seeking such savings — Crete Sen. Laura Ebke, who heads the Judiciary Committee, came up with a more conservative estimate of $2.4 million a year.

Both Pansing Brooks and Omaha Sen. Bob Krist said the removal of the one-third rule from the reform proposal in 2015 is one of the main reasons prison overcrowding hasn’t dropped as projected by the Justice Center of the Council of State Governments, which helped craft the sentence reforms.

Corey O’Brien of the Nebraska Attorney General’s Office said that his agency wants to be “part of the solution” to prison overcrowding but that reviving the one-third rule would result in the earlier release of too many violent criminals.

He also pushed back on comments that prosecutors had helped cause the prison overcrowding by seeking harsh sentences. O’Brien said Nebraska’s rate of prison incarceration is 270 inmates per 100,000 people, which is about half the rate in Missouri and lower than other neighboring states.

Ebke said the panel will decide later which of several bills on corrections to advance to debate by the full Legislature.

Officials with the Nebraska Department of Corrections did not testify on any of the five bills heard Thursday by the committee. But the department, along with the State Board of Parole, released figures that stated that the number of inmates released from prison under supervision had increased 24 percent and that the number of inmates who “jammed out” without any rehabilitation programming had dropped 21 percent.

State Corrections Director Scott Frakes, in a press release, said the numbers show significant progress by his agency.