Proponents of criminal justice reform await debate on issue in waning days of 2023 session

LINCOLN — A key advocate for criminal justice reform said Friday that concessions have been reached with those opposing efforts to adjust criminal sentences and enhance rehabilitation and supervision programs.

State Sen. Justin Wayne said that a meeting Thursday with representatives of the Governor’s Office, Attorney General’s Office and county prosecutors led to agreements on what measures can be supported this year and what ideas need more study.

“We’re going to set a good framework going forward,” Wayne said of the agreements.

“I was actually pleasantly surprised,” added the senator, who chairs the Legislature’s Judiciary Committee, which deals with crime and punishment issues.

A debate on an amended bill could occur as early as next week, he said.

The Judiciary Committee had faced pushback from the state’s prosecutors and Gov. Jim Pillen’s office after advancing a package of criminal justice reforms, Legislative Bill 50, two weeks ago.

That led to a series of meetings and negotiations led by Wayne with prosecutors, law enforcement groups, the Nebraska Attorney General’s Office and Pillen’s office.

Fears nothing would get passed

There were fears that 2023 would be a repeat of 2015 and last year, when proposals to address Nebraska’s critical prison overcrowding faced grievances from county prosecutors and were ultimately watered down or, last year, abandoned.

A fellow member of the Judiciary Committee, Omaha Sen. Terrell McKinney, has said several times during the current session that if no reforms are passed this year to reduce the flow of inmates to state prisons, Nebraska will be faced with building not one new 1,500-bed prison, but two.

State prisons already hold about 1,500 more inmates than they were designed to hold, and projections indicate more and more inmates. The overcrowding has forced dozens of inmates to sleep on floor cots in day rooms and has led to disruption in programs and visits from families.

While prison populations nationally have dropped by about 11% over the past decade, Nebraska’s prison numbers have risen 21%, leading to questions about what’s wrong here.

“We have been waiting to do something for three years,” McKinney said Friday. “We probably won’t get everything we want but have to get something over the finish line.”

Wayne said a meeting Thursday resulted in some concessions on both sides and a commitment to conduct a study of the state’s sentencing laws.

End jam-outs

Among the agreements in the as-yet drafted amendments to LB 50 was to prevent inmates from “jamming out” of prison without taking rehabilitation programs.

Felons, Wayne said, need incentives to participate in the voluntary programs, and such participation should lead to fewer inmates returning to prison because of repeat crimes.

“Jamming out” led to tragic consequences in 2013 when a mentally disturbed inmate, Nikko Jenkins, murdered four people within a month after his release from prison without undertaking rehab efforts.

Proposals to streamline release on parole for good-behaving inmates also got general support, Wayne said, as did expansion of problem-solving courts.

Sentencing reforms to be studied

Wayne said efforts to reduce prison sentences by restricting the use of consecutive sentences and mandatory minimum penalties were dropped out of LB 50, as was reducing the penalties for possession of small residues of drugs.

A committee will be formed to study those changes, the senator said, in hopes of adopting reforms next year.

Also needing more discussion is Wayne’s idea to require “mandatory” post-release supervision of all inmates. He said that is part of a larger conversation about whether the state’s Board of Parole should be moved back under the Department of Corrections.

Last year, he said, the changes proposed were “so big that people couldn’t digest them,” which led to the defeat of a criminal justice bill pushed by then-State Sen. Steve Lathrop of Omaha.

Earnest Jackson case

One aspect of LB 50 that was also dropped was a provision to allow a new trial if a witness refused to testify for a co-defendant, but later testified at their own trial and provided new evidence.

That provision was contained in LB 18 and was designed to address the controversial case of an Omaha man, Earnest Jackson, who was convicted of a slaying two decades ago that a co-defendant later testified that he had committed, in self-defense.

Wayne said that the involvement of Lt. Gov. Joe Kelly — a former county prosecutor and U.S. attorney — in the meetings was important in reaching some of the concessions this year.

LB 50, as originally advanced last month by the Judiciary Committee, contained many recommendations generated by a review of the state’s court system by the nonprofit Criminal and Justice Institute.

The review was done in conjunction with a justice reinvestment committee headed by then-Gov. Pete Ricketts, Lathrop and Chief Justice Mike Heavican of the Nebraska Supreme Court.