NATE JENKINS / Lincoln Journal Star | Posted: Monday, June 19, 2006 7:00 pm
Prisons are bulging at a level state lawmakers warned against three years ago, but reaching that mark isn’t prodding Gov. Dave Heineman to take immediate action.
All told, prison cells are holding about 4,480 inmates, 40 percent more than they were designed to — a threshold lawmakers said could make the state legally vulnerable to charges prisoners face “cruel and unusual punishment.”
The concern motivated them to pass a state law in 2003 that says when the 40 percent mark is reached, the governor may declare an emergency and order prisoners be released on parole to reduce capacity.
Heineman’s response when learning prisons are at more than 140 percent of capacity: “The director (of the Department of Correctional Services), Robert Houston, advises me that the correctional institutions continue to operate safely … as a result, I have determined not to declare a correctional system overcrowding emergency.”
State Sen. Kermit Brashear of Omaha led the charge to encourage the state to keep the population from reaching 140 percent. In 2003 he said that “failure to address inmate overcrowding will result in federal litigation that will be expensive for the state to defend and could result in costly remedies imposed by the courts.”
Brashear said Tuesday he still believes that is possible. But he did not criticize Heineman for deciding not to take action.
Brashear, whose legislative term expires at the end of the year because of term limits, is chairman of a council that has been devising ways to keep more nonviolent offenders, mainly drug users, out of prisons and put them in community-based rehabilitation programs and on probation instead.
The group has also helped craft sentencing guidelines for felony drug offenders. Brashear predicted the long-awaited guidelines could be used voluntarily by judges within two or three months to reduce prison sentences.
The programs and sentencing guidelines, when fully implemented, may be enough to keep the population below 140 percent of capacity, Brashear said.
A judge and member of the Community Corrections Council that Brashear chairs questioned whether there is enough willpower among different branches of government, including the executive branch, to reduce prison populations.
The fact that the 140 percent mark was reached shows the legislative, executive and judicial branches, in regard to efforts to reduce prison populations, “didn’t take it seriously enough,” said Judge John Icenogle, a district court judge in Buffalo and Hall counties.
Programs are late starting, he said, and money is short even though building a new prison, at a cost of maybe $150 million, would be much more expensive. Also, reducing growth rates could be made tougher by the Legislature’s decisions the last couple years to stiffen penalties for some offenders, such as meth sellers.
“I think reaching 140 percent is fulfilling the prophecy that the Community Corrections Council suggested back when it formed — if we don’t take community corrections seriously as a major alternative … we are going to go up to 140 percent and face the reality of federal intervention,” Icenogle said.
Houston said he did not know of any group or individual considering legal action against the state that could prompt federal intervention.
Though the prison population is rising, Houston said the department has taken actions to boost safety such as slowing the rate of growth of prisoners in maximum security areas. That is important, he said, because problems caused by overcrowding most often occur in maximum security settings.
Also, the American Correctional Association has audited the prison system and decided it deserves to be fully accredited.
“We believe the public is safe, the inmates are safe and the staff is safe,” said Houston. “We’re over our capacity by 40 percent but believe we’re managing the institution very well.”
State prisons have been strained more in the past. Before the new prison in Tecumseh opened in 2001, state prisons were at 164 percent of capacity.
A consultant’s report that considers the system’s current capacity and ability to contain growth in different sectors of the prison population is expected to be the basis for recommendations of if, and where, the system should expand, said Houston. That report is expected later this summer.
As it stands, Heineman doesn’t know at what percentage of capacity the prison population may pose a risk.
If it’s not 140 percent, then what is it?
“There’s no magic number,” said Aaron Sanderford, spokesman for Heineman.
Reach Nate Jenkins at 473-7223 or njenkins@journalstar.com.
Prison populations — going up
Current population: 4,480
Projected populations (by fiscal year):
2008: 4,514
2009: 4,540
2010: 4,555
2011: 4,590
2012: 4,670
2013: 4,750
2014: 4,830
2015: 4,921
Source: Department of Correctional Services