ACLU advisory panel sends warning to state senators

The legislation aimed at reducing the prison population would lessen but not solve the overcrowding crisis in the state's prisons, the ACLU Prison Litigation Advisory Panel said. Even if the series of bills is passed, the state cannot stop there on reform, the panel said.

The ACLU advised the state in February of potential individual and class action lawsuits. 

"Meaningful policy reform, like the initial effort underway in the Nebraska Legislature is the most efficient, most certain and least expensive route to cure constitutional violations in the prison system and mitigate state liability," the panel advised state senators. 

In an evaluation of the Legislature's prison reform efforts, the panel said prison conditions caused by overcrowding may violate the Eighth Amendment’s prohibition of cruel and unusual punishment, the Americans with Disabilities Act and the Rehabilitation Act.

The panel said the state may also be violating other federal and state laws because of the "continued failure to meet minimum custodial standards, mistreatment and inadequate care for mentally ill and vulnerable inmates, abusive overuse of solitary confinement, and overall, a long-term systematic reduction in the rehabilitation function of corrections in our state." 

Several bills from the Judiciary Committee that are working their way through the legislative process are intended to ease crowding at the prisons -- now at 159 percent of design capacity -- by reducing the prison population of nonviolent offenders and ensuring that offenders have supervision to avoid relapsing into criminal behavior after they are released. Legislation is also aimed at ensuring segregation, or solitary confinement, of inmates is done appropriately. 

One inmate, in a letter to the Journal Star dated March 1, described the conditions in the Diagnostic and Evaluation Center, which is at 316 percent of capacity, as a health and safety concern. 

His unit had 53 inmates rather than the recommended 32, he said. Use of phones, for access to attorneys, and use of showers and access to adequate cleaning supplies are limited, he said.

The inmate described people sleeping on cots in front of emergency exits, near bathrooms and in front of inmate lockers, which are high traffic areas. Inmates walking around and over other inmates causes arguments and altercations, he said. 

A request to the department this week to interview the inmate, who is sentenced to one year and eight months to four years for felony shoplifting, was denied. A spokesman said the inmate was in "restrictive housing."

Department of Corrections spokesman James Foster said the department has been working with the Legislature, Council of State Governments, the Ombudsman's office and ACLU on the crowding in prisons.

If an inmate believes he has been denied access to an item or service, there is a process in place to seek relief, Foster said.

Inmates who are not assigned to a cell are assigned a specific cot that has an assigned location. The cots are put out at lockdown, and traffic, if any, is minimal, he said.

The ACLU panel said the pending legislation could help mitigate the current risk of state liability to some degree. 

One of the major reform bills (LB605) would implement key recommendations of a justice reinvestment working group, advised by the Council on State Governments. It would increase the use of probation for nonviolent offenders, revise sentencing alternatives and provide reforms to reduce costs and avoid building new prisons. 

In addition to increased spending for the prisons, the Legislature's Appropriations Committee is considering recommending leasing and reopening the Lancaster County work-release facility in Airpark, which possibly could accommodate 250 beds, at a remodeling cost of $2 million to $3 million. 

Members of the ACLU advisory panel are attorneys Bob Bartle, Sean Brennan, Maren Chaloupka, Marsha Fangmeyer, Denise Frost, Robert Mullin, Alan Peterson, Jerry Soucie, Michael Gooch, Amy Millier and David Fathi.