By Dick Clark
Nebraska has a prison problem. Though Nebraska has historically had a lower incarceration rate than many other states, its corrections facilities currently house far more prisoners than they were designed to hold, and the number of incarcerated offenders in the state continues to climb. Nebraska Department of Correctional Services (DCS) facilities are now at 159.1 percent of design capacity.
This overcrowding means that Nebraska could face expensive lawsuits alleging that conditions are cruel and inhumane for the offenders subjected to them. In a 2011 U.S. Supreme Court ruling, the justices intervened in California and ordered the state to reduce its prison population to 137.5 percent of design capacity within just two years. The Court also required a reduction of nearly one third in the number of total prisoners held in California prisons.
Crowding in prisons can mean that program areas are not available for services that would otherwise help prepare inmates to transition back into their communities upon release. That makes these correctional programs less effective at preventing future crimes. But the evidence suggests that overcrowded prisons are not just less effective at rehabilitating inmates — they are significantly more dangerous for the inmates and for corrections officers, too. A federal Government Accountability Office study in 2012 reported that overcrowded facilities led to more violence between inmates as well as more violence against corrections staff. While some have proposed building a new prison to reduce overcrowding, the price tag is certain to be expensive. One bill currently pending in the Nebraska Legislature would appropriate more than $261 million dollars to Corrections, largely for this purpose. For comparison, Nebraska currently spends about $185 million in state general funds per year to operate DCS.
In addition to a cure for overcrowding at Nebraska’s prisons, Nebraska’s correctional system is in need of additional reforms that ensure ex-offenders are less likely to reoffend. While inmate-on-inmate violence is largely out of sight of the public, flawed corrections policy ultimately becomes a public safety problem when these offenders leave custody and return home. In a new report from the Platte Institute, nationally recognized scholar Marc Levin of the Texas Public Policy Foundation examines the current state of Nebraska’s corrections system and offers a series of recommendations to make the state’s criminal justice and corrections systems more effective at protecting public safety and protecting the taxpayer, too.
Levin notes that reforms implemented in the 2014 legislative session were a good start for addressing the mental health treatment needs of many inmates and prioritizing community corrections over incarceration for nonviolent offenders. Levin concludes that Nebraska’s probation system is already among the best in the nation, but that implementation of graduated sanctions for probationers would be a way to effectively prevent re-offense while avoiding full revocation and longer terms of incarceration that have been shown to be less effective in curbing future violations. Policy reforms in Hawaii and other states have shown that starting with smaller sanctions for bad behavior, such as requiring a probationer to report to jail for the weekend after missing an appointment or failing a drug test, has proven effective at preventing violations without disrupting employment, housing, and other factors crucial to lasting rehabilitation and successful community reentry.
Additionally, Levin suggests that probation time credits could be implemented, where exemplary conduct during a term of probation could shorten the overall length of probation supervision. Arizona implemented such a policy in 2008. In the first two years, the number of Arizona probationers convicted of new felonies fell by nearly a third, with probation revocations reduced by a similar proportion.
To promote meaningful rehabilitation and prevent future crime, Levin’s report also recommends addressing the problem of prisoners who “max out” of prison, meaning those who serve most or their entire original sentence behind bars until the state has no further supervisory authority over them. Uncooperative prisoners who are confined and then released with no supervision are more likely to reoffend, and Nebraska’s 2013 max-out rate of nearly 35 percent is dangerously high — the national average is 21.5 percent.
The report recommends introducing earlier parole reviews and other programming that focus staff and inmates on engineering a successful — and crime-free — reentry into the community. Levin notes that Nebraska uses administrative segregation, or “solitary confinement” at a greater rate than most states, with nearly one in five inmates subjected to this treatment during the course of one recent evaluation. Some of these inmates may be released directly from segregation, meaning they will be particularly unprepared to rejoin their communities. The report also recommends changing state law to provide for broader post-release community supervision for former inmates.
Levin’s report recommends a number of changes that would encourage past offenders to stay out of trouble. Allowing past offenders to have their criminal records sealed years after their sentence expires would mean eliminating one possible challenge for individuals seeking to find a place in the world outside the prison walls. While sealed records would still be accessible to police and courts, they would not as readily become a barrier to future employment or other opportunities. This is vital, because ex-offenders who are employed are three to five times less likely to reoffend. For this reason, Levin also proposes limited civil immunity for employers who take a chance on hiring an ex-offender.
Finally, Levin suggests far greater use of community corrections measures for low-level, nonviolent offenders. A significant percentage of the Nebraska prison population is incarcerated as a result of these low-level drug and property crimes, and while incarceration is necessary for violent criminals, incarceration of petty criminals is counterproductive in preventing future criminality and expensive for the taxpayer. Levin’s report also suggests recalibrating felony thresholds to adjust for inflation since they were last updated decades ago; ensuring that devaluation of the dollar does not automatically turn misdemeanors into felonies.
Members of the Nebraska Unicameral are currently contemplating several corrections bills that incorporate the policy reforms recommended by Levin and in a recent report by the Council of State Governments. Senator Heath Mello’s LB 605 would implement a variety of related changes to sentencing, probation and parole, criminal records, and victim restitution. Senator Bob Krist’s LB 505 would provide for the sealing of old criminal court records relating to cases where an offender successfully completes a drug court program or where no conviction was obtained.
Rather than spending hundreds of millions of dollars on poor policy, lawmakers have the option of reducing costs and enhancing public safety at the same time. Fixing Nebraska’s corrections system is not a political problem, it is a policy problem, and the policy experts from across the political spectrum are in strong agreement. Nebraska’s lawmakers should be, too.
 “Prison Populations and State Incarceration Rate Data.” Governing. 2010. [URL: http://www.governing.com/gov-data/state-prison-population-incarceration-rates.html]
 Levin, Marc. “Securing Nebraska: Correctional Policy Improvements in the Cornhusker State.” Platte Institute for Economic Research. February 2015. [URL: http://www.platteinstitute.org/library/docLib/Securing-Nebraska-Correctional-Policy-Improvements-in-the-Cornhusker-State.pdf]
 Brown v. Plata, 131 S.Ct. 1910 (2011) [URL: http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf]
 Davidson, Joe. “Prison Crowding Undermines Safety, report says.” Washington Post. October 15, 2012. [URL: http://www.washingtonpost.com/local/prison-crowding-undermines-safety-report-says/2012/10/15/ab77de02-16fc-11e2-a55c-39408fbe6a4b_story.html]
 “Appropriate funds for correctional facilities.” Legislative Bill 237. Nebraska Legislature. 2015. [URL: http://nebraskalegislature.gov/bills/view_bill.php?DocumentID=25259]
 Levin, citing Young, J. “Nebraska may be one of the highest users of solitary confinement.” Lincoln Journal-Star. September 4, 2014.
 “Justice Reinvestment in Nebraska: Analysis and Policy Framework.” Council for State Governments. January 14, 2015. [URL: http://csgjusticecenter.org/jr/nebraska/publications/justice-reinvestment-in-nebraska-analysis-and-policy-framework/]
 “Change classification of penalties, punishments, probation and parole provisions, and provisions relating to criminal records and restitution and provide for a special legislative committee.” Legislative Bill 605. Nebraska Legislature. 2015. [URL: http://nebraskalegislature.gov/bills/view_bill.php?DocumentID=24635]
 “Change provisions of the Security, Privacy, and Dissemination of Criminal History Information Act.” Legislative Bill 505. Nebraska Legislature. 2015. [URL: http://nebraskalegislature.gov/bills/view_bill.php?DocumentID=24983]