Crowded prisons and a shortage of corrections officers and mental health workers have created a humanitarian crisis, ACLU of Nebraska officials say.  

They describe prisoners sleeping in hallways, or double-bunked in cells the size of a parking space, deprived of needed health care or of basic accommodations for deafness or blindness or other disabilities. 

They report inmates suffering and dying from treatable medical conditions, and injuries and deaths in violence that erupts within the prisons. 

The organization, working in conjunction with local and national attorneys, made good Wednesday on a long-term promise to force prison improvements by way of the courts, if it couldn't get them for their clients in any other way. 

"We view it as historic litigation," said ACLU of Nebraska Executive Director Danielle Conrad. "We view it ... as laying down a marker in Nebraska state history, saying: 'No more. This is where the trajectory changes and we come together and take a fresh look at policy reform.'"

The ACLU filed the class action lawsuit on behalf of Nebraska inmates early Wednesday in U.S. District Court, saying the prisons have reached a state of chaos that daily endangers the health, safety and lives of prisoners and staff. 

The Journal Star was given an early copy of the lawsuit. A news conference is scheduled at the Capitol at 10 a.m. Wednesday. 

Remedies could include a prisoner release order to bring down crowding that has hovered around 160 percent of prison capacity for at least two years, building over recent years despite attempts at relief by the Legislature. 

There is no longer the luxury of addressing the issues in a discreet fashion, Conrad said.

"Our criminal justice system is so broken and so unwieldy that we must utilize all strategies ... to peel back the system of mass incarceration which has ensnared far too many Nebraskans," she said. 

For the work, ACLU of Nebraska has assembled a local and national team that includes Nebraska Appleseed, ACLU National Prison Project, the National Association of the Deaf, DLA Piper Global Law, a multinational law firm, and attorney Michael Bien, who helped lead a successful trial that imposed a population cap on the California prison system in August 2009.

Lawsuit has been in the works a long time

Amy Miller, the ACLU's legal director, said the organization has been considering the lawsuit since 2014 because of persistent crowding and serious understaffing, but tried first to work within the system, through the Legislature and the Department of Correctional Services and with outside help from the Council of State Governments. 

Protective services staff vacancies systemwide have ranged from 150 to 200 over the past few years. The turnover rate has reached 31 percent. 

While some legislative efforts have started to take hold, the political will to go the next important steps is just not there, she said. And nothing the Legislature has done, including sentencing reform and special investigations, has helped to solve the problems of what is happening now to men and women behind the walls of Nebraska's 10 prisons. 

"Although we have tried vigilantly to sound the alarm for the last year or two, it has become clear to us that people are being hurt. People are being killed," Miller said. 

Without changes, the vast majority of inmates -- the average prison stay is 22 months -- will return to their communities, but not better off than when they were accused, arrested, sentenced and locked up. 

"We can't torture them, deprive them of basic medical and mental health care and expect that there's going to be a success for them or society as a whole," Miller said.

Failed policies contributed to 'perpetual crisis'

For more than 20 years, Nebraska state prisons have been crowded, under-resourced and understaffed, the ACLU's federal complaint says. "The result is a dangerous system in perpetual crisis."

Twenty years goes back to the leadership of Gov. Ben Nelson, followed by Mike Johanns, Dave Heineman and Pete Ricketts. Heineman had the longest term during that period, of 10 years. Ricketts inherited the prison problems in 2015. 

Failed policies such as the "war on drugs" that started in the 1970s and the "tough on crime" political cry that began in the 1980s contributed to growing prison populations, Conrad said. 

The lawsuit lists five defendants, including the Nebraska Department of Corrections, Director Scott Frakes, Director of Health Services Harbans Deol, the Nebraska Board of Parole and its administrator Julie Micek. 

The ACLU has used 11 plaintiffs to represent the prison population: three women and eight men, ages 17 to 62, housed at five prisons. All have medical conditions, mental illnesses or disabilities that have gone untreated or without competent care.  

The complaint says prisoners have been left to suffer with untreated or undiagnosed medical conditions, many of them serious. Like Michael Gunther, 62, who became blind in one eye since entering prison because, it said, of mismanagement of his diabetes. 

Others with mental illnesses, like Dylan Cardeilhac, 19, have been kept long periods of time in isolation or in five-point restraints which have been deemed dangerous because of prisoner deaths caused by asphyxiation, strangulation or heart attacks. 

Prisoners with disabilities, like James Curtright, 52, who is deaf, have been denied access to basic accommodations to allow them to live and move around safely. 

And then there are the suicides, like the 2014 death of Patrick Howley, 42, who died in 2014 in isolation after he had begged for help, which the complaint said went unheeded, until he used a plastic biohazard bag in his cell to cover his head and suffocate himself. 

Suicides are a horrific example and reminder of how broken the prison system is, Conrad said.

Nebraska's suicide rate is more than 30 percent above the national average for state prisons, and more than double the rate for federal prisons. From 2001 to 2014, the rate was 21 per 100,000 prisoners. 

"Staff ignore prisoners’ suicide attempts as 'attention seeking' and place prisoners with psychiatric disabilities in isolation as a punishment for self-mutilation, where the prisoners’ condition only further deteriorates," the complaint said. 

There's nothing normal about what is happening in Nebraska prisons, Miller said. Suicide rates, use of segregation, riots and attacks are higher here. 

Fourth most-crowded prison system

The prison population increased 19 percent between 2004 and 2017, the seventh largest increase of any state. Nebraska is the fourth most-crowded state prison system.

"There is a serious failure here," Miller said. 

The ACLU continues to hope for a resolution to be worked out with the state, Conrad said, but it doesn't sound likely. 

In April, when it offered one more chance for the state to make immediate changes, for Ricketts to declare an emergency and find a safe way to reduce the prison population, Frakes answered that prison reform is difficult and dangerous work, and it takes time for strategies to work. 

So, the lawsuit asks for a host of remedies, some of which may have a hefty price tag. They include a prison release order that could be worked out with the department, keeping in mind public safety, to relieve crowding and pressure on the system. 

"We're talking about alternatives to incarceration. We're talking about a more robust parole and probation," Conrad said. "It's happened in other jurisdictions. It's happened without a threat to public safety, and is really a very thoughtful, very careful process."

The requested solutions also include increasing the numbers of trained staff, screening for medical, mental and dental conditions that require treatment, providing timely and competent access to acute and chronic health care and emergency care and ensuring sanitary conditions. 

The ACLU is also asking to prohibit isolation of prisoners that put them at substantial risk of physical and mental harm, and to provide accommodations for those with disabilities.  

Conrad and Miller said they are confident the lawsuit will succeed. 

"But it's not a silver bullet," Conrad said. 

The Legislature still must continue to work on sentencing reform, including ridding the system of mandatory minimum sentencing and three-strikes laws, and to divert more people who are sick or who committed nonviolent crimes, Conrad said. And to keep infusing resources into facilities, programs, services and staffing. 

"We have so much to do," she said.