February 2015
Securing
Nebraska:
Correctional Policy Improvements
in the Cornhusker State
BY Marc Levin, Esq. of the Texas Public Policy Foundation
Table of Contents
Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
w ww . p l a tte instit ute . org
Criminal Justice Policy in 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Improving the Effectiveness of Administrative Responses. . . . . . . . . 4
“Closing the Revolving Door:”
The Importance of Successful Reentry Programs. . . . . . . . . . . . . . . 5
Address Shortcomings in Sentencing Policy . . . . . . . . . . . . . . . . . . 8
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Endnotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
The Texas Public Policy Foundation is a 501(c)3 non-profit, non-partisan
research institute. The Foundation’s mission is to promote and defend liberty, personal
responsibility, and free enterprise in Texas and the nation by educating and affecting policymakers and the Texas public policy debate with academically sound research and outreach.
The Texas Public Policy Foundation launched the Right on Crime initiative in 2010.
Right on Crime is the nation’s clearinghouse for conservative criminal justice reforms
and brings together some of the nation’s most prominent conservative leaders who have
signed its Statement of Principles that provides a framework for applying core values such
as personal responsibility and limited government to criminal justice.
Marc A. Levin, Esq. is a director of the Center for Effective Justice at the Texas Public
Policy Foundation. Levin is an attorney and an accomplished author on legal and public
policy issues, with articles appearing in publications such as the Wall Street Journal, USA
Today, Texas Review of Law & Politics, National Law Journal, and Reason Magazine. He
has served as a law clerk to Judge Will Garwood on the U.S. Court of Appeals for the
Fifth Circuit and Staff Attorney at the Texas Supreme Court. In 1999, he graduated with
honors from the University of Texas with a B.A. in Plan II Honors and Government. In
2002, Levin received his J.D. with honors from the University of Texas School of Law.
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Securing Nebraska: Correctional Policy Improvements in the Cornhusker State
Executive Summary
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:
• Create a specialized drug court docket that applies
a graduated sanctions model to revocation;
• Implement time credits to incentivize probationers
to maintain employment, acquire professional
licenses, or meet educational goals;
• Provide more depth to fiscal notes, allowing more
precise estimates of the true costs and benefits
associated with criminal justice legislation;
• Stop the practice of “short-maxing” and releasing
offenders back into society with no supervision;
• Stop the practice of releasing inmates directly from
solitary confinement back to the streets;
• Allow long-reformed offenders to seek their
records be sealed to all but to those in the criminal
justice system;
• Erect a liability shield to protect employers who
seek to give reformed offenders a second chance;
• Recalculate theft offense thresholds to account for
inflation, keeping the deterrent value on par with
the original intent;
• Allow low-level, nonviolent offenders to serve their
sentence in the community;
• Allow a “cleansing period” in the calculation of
subsequent offense penalties;
• Avoid further sentencing enhancements unless
absolutely necessary.
Introduction
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.
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
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
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.
3
Platte Institute Policy Study
Criminal Justice Policy in 2014
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 jobseeker 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.
Improving the Effectiveness of
Administrative Responses
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
4
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 sanctionsoriented 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
Securing Nebraska: Correctional Policy Improvements in the Cornhusker State
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.
“Closing the Revolving Door:”
The Importance of Successful
Reentry Programs
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.
Max-out Reform
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.
5
Platte Institute Policy Study
By the year 2000, the federal government, along with onethird 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. Selfimprovement—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
Figure 1: Admission Characteristics of “Short Max” Offenders
Offense Category
6
Offense Tier
Securing Nebraska: Correctional Policy Improvements in the Cornhusker State
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.
Record Sealing
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
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Platte Institute Policy Study
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
Address Shortcomings in
Sentencing Policy
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.
Figure 2: Real Value of Felony Theft Thresholds (Real $)
8
Securing Nebraska: Correctional Policy Improvements in the Cornhusker State
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.
Cleansing Periods
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
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Platte Institute Policy Study
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:
• Are current sentences already greater than the original
intent of the law when the behavior was criminalized?
• Is there evidence that current penalties are ineffective?
• Is there evidence that an enhancement will deter the
conduct?
• Does the enhancement reduce the discretion of
judges, juries, and correctional officials?
Conclusion
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
• Will the enhancement skew the penalty relative to
similar penalties?
• Are there alternatives to sentence enhancement?48
Endnotes
1.
Levin, M., & Cohen, D. “Controlling Costs and Protecting Public
Safety in the Cornhusker State 2014” Platte Institute. February,
2014, http://www.platteinstitute.org/library/doclib/PlatteControlling-Costs-Policy-Study-Final-REVISED-031214.pdf.
http://www.pewtrusts.org/en/multimedia/data-visualizations/2014/
imprisonment-and-crime
5.
Hawken, A., & Kleiman, M. (2009). Managing Drug Involved
Probationers with Swift and Certain Sanctions: Evaluating Hawaii’s
HOPE: Executive Summary. Washington, DC: National Criminal
Justice Reference Services.
2.
Nebraska Department of Correctional Services Data Sheet,
November 30, 2014.
3.
Ibid.
6.
Ibid.
4.
Pew Public Safety Performance Project. “Most States Cut
Imprisonment and Crime.” November 10, 2014. Available at:
7.
Ibid.
10
Securing Nebraska: Correctional Policy Improvements in the Cornhusker State
8.
Mitchell, M. “In Tarrant County, it’s probation with some pop.” Fort
Worth Star-Telegram. August 6, 2014.
9.
Ibid.
10. American Legislative Exchange Council, “Earned Compliance Credit
Act Model Bill.” Available at: http://www.alec.org/docs/ALEC_
Earned_Compliance_Credit_Act.pdf
11. Pew Charitable Trusts, “The Impact of Arizona’s Probation Reforms,”
March 2011, https://www.acgov.org/probation/documents/
PEWStudyonImpactofArizonaProbationReform.pdf.
12. Fiscal Note for LB19, Feb. 8, 2011, http://nebraskalegislature.gov/
FloorDocs/102/PDF/FN/LB19-2.pdf.
13. Pew Charitable Trusts, “Max-out: The Rise in Prison Inmates
Released Without Supervision.” June, 2014. Available at: http://
www.pewtrusts.org/~/media/Assets/2014/06/04/MaxOut_Report.
pdf
14. Pew Charitable Trusts, “The Impact of Parole in New Jersey,“
November 2013, http://www.pewtrusts.org/~/media/legacy/
uploadedfiles/pcs_assets/2013/PSPPNJParoleBriefpdf.pdf.
15. Nebraska Department of Correctional Services. “Admissions and
Releases.” 2013. Available at: http://www.corrections.nebraska.gov/
pdf/annualreports/2013%20NDCS%20Stats.pdf
29. Offender Workforce Development Aims to Curb Recidivism, Third
Branch: Newsletter of the Federal Courts, May 2006, http://www.
uscourts.gov/ttb/05-06/offender/index.html.
30. Texas Civil Practice and Remedies Code, Title 6, Chapter 142.002
31. ebraska Revised Statute 28-518
32. Lowenkamp, C. T., & Latessa, E. J. (2004). Understanding the risk
principle: How and why correctional interventions can harm low-risk
offenders. In National Institute of Corrections (Series Ed.), Topics in
Community Corrections: Assessment issues for managers. Washington,
DC: National Institute of Corrections. Available at: Retrieved from
http://nicic.gov/pubs/2004/period265.pdf
33. Pelka et al. “Justice Reinvestment Working Group: Second Meeting.”
Council of State Governments, August 26, 2014.
34. Council of State Governments Nebraska Justice Reinvestment
Working Group Third Meeting, Oct. 22, 2014, http://
csgjusticecenter.org/wp-content/uploads/2014/10/Nebraska-JusticeReinvestment-Third-Meeting.pdf.
35. Ibid.
36. Ibid.
37. Ibid.
16. Pew Charitable Trusts, “The Impact of Parole in New Jersey,“
November 2013, http://www.pewtrusts.org/~/media/legacy/
uploadedfiles/pcs_assets/2013/PSPPNJParoleBriefpdf.pdf.
38. “Public Safety and Offender Accountability Act (HB 463):
Justice Reinvestment Summary,” National Conference of
State Legislatures, http://www.ncsl.org/documents/nalfo/
JusticeReinvestmentMikeMullins.pdf.
17. Pelka et al. “Justice Reinvestment Working Group: Second Meeting.”
Council of State Governments, August 26, 2014.
39. Kentucky Crime Rates 1960-2013, http://www.disastercenter.com/
crime/kycrime.htm.
18. Ibid.
40. Council of State Governments Nebraska Justice Reinvestment
Working Group Third Meeting, Oct. 22, 2014, http://
csgjusticecenter.org/wp-content/uploads/2014/10/Nebraska-JusticeReinvestment-Third-Meeting.pdf.
19. American Legislative Exchange Council, “Resolution in Support of
Post-Release Supervision of Offenders.” October 11, 2014. Available
at: http://www.alec.org/model-legislation/resolution-support-postrelease-supervision-offenders/
20. Pelka et al. “Justice Reinvestment Working Group: Second Meeting.”
Council of State Governments, August 26, 2014.
41. Ibid.
42. Nebraska Revised Statute 29-2221
21. Young, J. “Nebraska may be one of highest users of solitary
confinement.” Lincoln Journal-Star, September 4, 2014.
43. Blumstein, A., & Nakamura, K. (2009). Redemption in the Presence
of Widespread Criminal Background Checks. Criminology, 47(2),
327-359.
22. Grassian, S. (2006). Psychiatric effects of solitary confinement.
Washington University Journal of Law & Policy, 22, 325.
44. Louisiana Senate Bill 393; Louisiana Revised Statutes §574.4
23. DeRoche, C. “Testimony on Solitary Confinement, Prepared for the
Senate Committee on the Judiciary.” February 25, 2014.
24. Megan C. Kurlychek, Robert Brame, Shawn D. Bushway, “Enduring
Risk? Old Criminal Records and Short-Term Predictions of Criminal
Involvement.”
25. Ibid.
26. Indiana Civil Rights Commission, “House Enrolled Act 1482
Updates Indiana’s Criminal Records Law,” http://www.in.gov/
icrc/2689.htm.
27. Sherman, Mark, ABA plan limits access to public records, USA
Today, (August 8, 2007), http://www.usatoday.com/news/
topstories/2007-08-08-3056442146_x.htm.
28. Holzer H., S. Raphael and M. Stoll (2003). Employer Demand for
Ex-Offenders: Recent Evidence from Los Angeles. Discussion Paper
Presented March 20, 2003 Urban Institute Roundtable on Offender
Re-Entry. New York.
45. Julian V. Roberts, “The Role of Criminal Record in the Sentencing
Process,” 22 Crime & Just. 303, 316–17 (1997), http://www.jstor.
org/discover/1147576?sid=21104967328751&uid=3739256&uid=4
&uid=2.
46. U.S. Sentencing Guidelines Manual § 4A1.1 cmt. nn.1–3 (excluding
stale convictions from a defendant’s Criminal History Score).
47. Will, G. “The Plague of Overcriminalization.” National Review
Online, December 10th, 2014.
48. Levin, M. “Look Askance Before You Enhance.” Texas Public Policy
Foundation. April 19, 2013. Available at: http://www.texaspolicy.
com/center/effective-justice/reports/look-askance-you-enhance
49. Laffer, A., Moore, S., & Williams, J. (2014) “Rich States, Poor
States.” 7E. American Legislative Exchange Council.
50. Council of State Governments. “Justice Reinvestment in Nebraska.”
June 2014. Available at: http://csgjusticecenter.org/wp-content/
uploads/2014/06/JR_Nebraska-Overview.pdf.
11
The Platte Institute for Economic Research: Leading the Way
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Warren
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Jim, a lifelong Nebraskan, adds to his record
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Sid Dinsdale
Jason Dworak
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northcentral Nebraska
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Brian Gubbels
Kyle Hanson
J. Patrick Keenan
Owen Palm
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