Mass incarceration is straining our severely overcrowded state prison system and fueling overcrowding in many county jails. Recent news reports show that the three largest counties in Nebraska are all facing extreme county jail overcrowding.
Douglas County is working to head off an overcrowding crisis with some promising new initiatives while it struggles for space, staff, and to provide adequate medical care. Sarpy County is actively exploring constructing a new jail. The relatively new Lancaster County jail has hovered near capacity the last two years. Corrections costs are an ever-increasing burden on Nebraska taxpayers.
Mass incarceration and overcrowding are caused by a variety of factors such as state policy decisions, local prosecutors' decisions and judicial practices. While it is important to note that one initiative designed to ease state prison overcrowding -- LB605 passed with broad support and signed into law in 2015 -- is a contributing factor to the increase in local jail populations, it’s not the only factor.
Another key driver in county jail overcrowding has not received as much public attention and needs to be a bigger part of these discussions: modern-day debtors prison practices.
County jails -- particularly in Douglas, Sarpy and Lancaster -- are filled with pretrial detainees. These people are presumed innocent and have not been convicted. Since they are too poor to post the money bonds sought by prosecutors and set by judges, they sit in jail until their trial date. Many pretrial detainees are being held for nonviolent, low-level misdemeanor offenses.
This is troubling from a constitutional and public policy standpoint. These practices also come with devastating human costs for low-income Nebraskans, sometimes costing them their jobs and their families. Additionally, being held in jail while awaiting trial means one is more likely to be found guilty and receive a harsher sentence.
A recent study by the ACLU of Nebraska showed that, before they even get to trial, Nebraska defendants charged with nonviolent offenses spend an average of 48 days behind bars -- and more than half of the county jail populations in our largest counties were pretrial detainees unable to afford bail.
These practices unnecessarily fill our jails and unnecessarily strain county budgets and increase pressure on property taxes. It’s also important to note significant racial disparities at each stage of our criminal justice and bail systems.
When a bill I introduced, LB259, was signed into law in 2017, it enacted significant bond reform and changes to how courts impose fines.
The legislation required local judges and prosecutors to consider the individual financial circumstances of pretrial detainees when setting money bonds, broadened the authority for courts to release pretrial detainees under community supervision programs and provided for courts to specifically make findings about defendant’s ability to pay fines. If defendants cannot afford to pay, the bill broadens the ability of the courts to discharge fines altogether, allow community service or installment payments.
I urge Nebraska’s hardworking and thoughtful judges and attorneys to continue their commitment to implement these important changes to the law and to develop alternatives to the money-bond system to reduce the burden jail populations place on our counties without jeopardizing public safety.
Disproportionately incarcerating low-income people prior to trial or requiring a very poor defendant to “sit out” a fine in jail costs much more than counties recoup and does little if anything to advance our shared public safety goals.
It’s time for all stakeholders to roll up their sleeves and update our practices to conform with the law, uphold the rights of poor Nebraskans, ease the burden on our taxpayers and front-line corrections staff and dedicate scarce public resources to where they are needed most.