The problems facing Nebraska’s prisons are well-documented: A near-catastrophic staffing shortage and severe overcrowding that for years has been among the worst in the U.S.
Amid apparent progress hiring staff, Nebraska legislators are poised to address the long-standing overcrowding and underlying issues that contribute to that trend during the 60-day legislative session that starts Wednesday. Armed with fresh analyses of state data, lawmakers will also weigh a pitch to build a new state prison.
“We have a thoughtful (Judiciary) Committee,” said Sen. Steve Lathrop of Omaha, committee chair. “We have a diversity of perspectives on the committee, and we have an opportunity with the work that’s been done through the interim to follow through with asking the question, and coming with an answer to: How do we best spend taxpayer dollars on criminal justice?”
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Legislative efforts aimed at criminal justice reform are nothing new, but past pushes have done little to alleviate crowding in state prisons. In fact, a World-Herald analysis of national corrections data shows Nebraska has now surpassed Alabama to become the state with the nation’s most overcrowded prison system.
At the end of 2020, Nebraska’s prisons held 5,250 inmates, 48.5% more than the system was designed to hold. Alabama was second at 46% above capacity.
Nebraska and other states also sometimes measure overcrowding based on operational or rated capacity — essentially their ability to accommodate their prisoners. At 19% above operational capacity, Nebraska was the only state in the nation that exceeded such limits.
The confluence of issues has Nebraska at what Lathrop has referred to as a “crossroads,” where the state can decide to “build its way out” of overcrowding or enact reforms. He sees an opportunity for the state to spend money more wisely while addressing the issue and leading to the best possible outcomes for people who’ve broken the law.
To what extent he and other lawmakers agree on a course forward is a question that will hang over the session.
In recent months, a group of public officials from across the criminal justice system and government has been digging into state data with the help of the nonprofit Crime and Justice Institute.
Lathrop was one of a handful of officials who initially sought CJI’s assistance. He and two others who signed on to the request, Gov. Pete Ricketts and Chief Justice Mike Heavican, chair the 15-member working group.
That federally funded process is expected to inform legislation. The final report — including key data findings, the working group’s discussions, and potential policies for the Legislature to consider — is expected to be published before lawmakers convene in Lincoln.
The group has discussed changes that fall into a few broad categories, said Len Engel, CJI’s director of policy and campaigns: sentencing policy, release policy and supervision and support services.
In many other states, Engel said, the process has identified a “silver bullet” — an area that’s “glaring” in its influence on prison population growth.
But Nebraska didn’t have a silver bullet.
“I think what’s clear — what had become clear from the analysis and the discussion — is that this is sort of an across-the-board series of changes,” Engel said.
Sen. Terrell McKinney of Omaha, who’s part of the working group, said the changes could be transformative, if people are willing to “get away from being the problem” and be the solution.
While the group agrees on many of the improvements, members say, they’re working through disagreements.
One source of tension may be around potential changes related to sentencing. Engel said policies in that area tend to be controversial.
Sen. Suzanne Geist of Lincoln, who is also part of the working group, said she’s not in favor of changing sentencing or lowering penalties for certain crimes, citing concern for public safety.
“I think our justice system needs to reflect firm justice, which would equal penalties and sentencing,” she said. “And I think those should change very rarely. But what I would like to see is more robust options for those who do want to rehabilitate and for the possibility for rehabilitation.”
She emphasized that there’s consensus around the majority of recommendations that are coming out of the initiative, but there are also “philosophical differences,” and those will have to go through the legislative process.
One matter Lathrop said the group did not discuss, to his knowledge: A new prison.
In December 2020, corrections Director Scott Frakes said he . The cost would be spread over five years, Frakes said at the time, with $115 million being sought in the current two-year state budget. Ricketts has backed the proposal.
An interim budget request from the department has an updated project cost of about $236 million. Operational costs were initially expected to be $34 million a year, but that estimate is out-of-date. Costs should be higher after recent pay raises in union agreements that cover Department of Correctional Services workers, which were widely supported and seen as overdue.
Staffing accounts for the majority of operational costs.
Officials say those new contracts have shown early promise in addressing a staffing crisis that in some facilities has forced long shifts, limited inmate activity and jeopardized safety.
By Christmas, corrections had received more than 630 applications for corporal positions since salary increases were announced in November, according to the department. It had received just 162 such applications in the five weeks prior.
The initial new prison pitch included repurposing the aging Nebraska State Penitentiary in Lincoln as a minimum-security facility. But the framing has changed. Frakes now speaks about the new prison as a replacement for the penitentiary.
Frakes said a key reason for that shift was the CJI study. If the resulting changes curb population increases, there may not be a need for the state penitentiary after the addition of a new prison, he said.
Lawmakers earlier this year approved a compromise that put nearly $15 million toward design and planning for a new facility, a fraction of what the department requested. It set aside another $100 million, some of which was allocated for specific uses.
They allocated money to update the department’s 2014 master facilities plan, a comprehensive document assessing the integrity of current facilities and the need for expansion.
The compromise also required an engineering study of the penitentiary to assess its useful life. Corrections contracted with the Omaha-based DLR Group for design and work identifying a site for the new facility, work that is underway.
Frakes expects the engineering study to be finished by late February, while the Legislature is still in session, and the master facilities plan to wrap up by late summer, months after senators return to their districts.
Would the Legislature approve the specifics of a new prison without that updated master plan in hand?
Sen. John Stinner of Gering, who chairs the Appropriations Committee, said he’d like to have all the data necessary to know what to build before making such a decision with “major tax dollars.”
“I believe we can sequester the money right now and honor the (budget) request — because something needs to be done, I think we all understand that,” he said. “What that something is, is to be determined.”
Bob Houston, who’s now a faculty member at the University of Nebraska at Omaha, worked for the Corrections Department for 39 years and was prisons director when he proposed the original 2014 master plan.
That nearly 230-page document said that a 600-bed new prison could be needed past 2024, but would be recommended only if earlier projects didn’t take care of space needs.
Houston said lawmakers reached out to him earlier this year and they discussed the need for the master plan update. While facilities studies are done periodically regardless, an update is necessary before beginning to chart out what a new prison would look like, he said.
“You need to make sure you’re fully utilizing the resources you have in your existing facilities,” he said.
However, Frakes doesn’t think it’s necessary to complete the update to advance the project. He hopes to get full agreement this session from the Legislature on moving forward with a new prison — complete with the number of beds and specific custody levels.
He has argued that the system has been underbuilt for decades, and said his “intent has never been to grow the Nebraska prison system so we can put more people in prison.”
In fact, Frakes said, he’d like for part of his legacy to be that he helped contribute to work that accomplishes the opposite. Frakes is another member of the CJI working group.
“Here’s an opportunity for us — between the CJI work and all the other pieces that we’re talking about — to right-size the prison system for the people that need to be incarcerated,” he said.
Not all stakeholders are keen on the idea of building new space. Those in opposition include the ACLU of Nebraska and McKinney, who favors investing dollars elsewhere.
“I just hope that we can get some real legislation passed that’s really going to be transformative for the criminal justice system and the prison system before anyone signs off on that prison,” he said.
World-Herald staff writer Henry Cordes contributed to this report.