Judge's math let Nikko Jenkins out of prison early

Nikko A. Jenkins

LINCOLN — “Good time” credit is tough to lose in Nebraska prisons, even if a person behaves badly.

Even when an inmate violates the prison rules, a World-Herald analysis shows, officials rarely apply penalties that would extend the time spent behind bars.

Over the past five years, inmates have been punished for 92,000 infractions, yet good time credit was taken away in less than 5 percent of those cases.

The state's good time law gives prisoners a day of credit for every day they spend behind bars, effectively cutting sentences in half.

While state law provides for good time, prison officials decide when to take it away.

Prison rules allow officials to add back time, but in relatively small amounts. Even cases of homicide or serious assault carry a maximum loss of one year of good time.

A court can also impose additional prison time for crimes committed in prison.

New questions about the use of good time pose a dilemma for state officials as they also work to address chronic prison overcrowding.

The process of finding a solution was complicated last week when longtime State Corrections Director Bob Houston abruptly retired.

The World-Herald requested information on the removal of good time after accused killer Nikko Jenkins was released July 30, about halfway into a 21-year sentence. In a 10-day span following his release, Jenkins is accused of killing four Omahans.

From 2005 to 2011, prison records show, Jenkins was written up at least eight times, for refusing to submit to a search, aggravated assault on a corrections officer, three episodes of using threatening language, two episodes of “tattoo activities” and creating a weapon out of a toilet brush.

A judge sentenced him to four more years for his assault. For all his transgressions, prison officials took away just under 18 months of good time credit, including three months for the assault.

Good time is sometimes restored, although prison officials couldn't say how often. Jenkins was given back at least a month of good time after it had been taken away, a prison spokeswoman said.

Records show his treatment was typical. Prison officials routinely use other punishments instead of keeping prisoners behind bars longer.

“There's no relationship between good behavior and good time, and that's troublesome,” said State Sen. Steve Lathrop of Omaha. “My working assumption of good time was that it was getting taken away. Nikko Jenkins is an appalling example.”

Gov. Dave Heineman declined to comment last week on the rate of good-time loss, referring questions to the Department of Corrections.

But in the wake of Jenkins' arrest, the governor called for an end to automatically awarding good time to hardened criminals. He said the system should change to require violent convicts to earn good time, and not just assume they will get it.

Dawn-Renee Smith, a spokeswoman for the Corrections Department, said good time is taken away when appropriate. If the punishment were used more often, she said, it could lose its significance.

She said the people who oversee the discipline process don't view the removal of good time as a tool to keep dangerous offenders — such as Jenkins — in prison longer.

Instead, she said, it's just one of many deterrents that can keep prisoners in line.

Former state prison warden Dennis Bakewell, who retired this past spring, echoed that, saying good time is an “excellent management tool” for managing inmates' behavior.

Bakewell said the department is in a tough spot: It has been criticized in the past for taking away too much good time and has been under pressure to reduce prison overcrowding, a problem that would worsen if good time was taken away and inmates kept behind bars longer.

“It's not always appropriate to take away a lot of good time,” he said. “That doesn't mean the system we have can't be improved, but from my viewpoint, there are just too many inmates and not enough (prison) staff or facilities.”

State prison facilities in recent months have hovered at about 150 percent of capacity, holding about 1,600 more inmates than their 3,175 capacity.

Prison rules give officials fairly broad power to take away good time. Minor offenses, such as poor sanitation or swearing, could be punished with up to an extra month in prison.

But in practice, records show, good time is more likely to be taken away for serious offenses. Escape attempts prompted one of the highest rates, with good time removed in 89 percent of cases; 61 percent of assault charges led to good time losses.

Prisoners who were in “violation of regulations,” the most common rule broken, lost good time less than 1 percent of the time.

Smith said that shows prison officials are careful about meting out the best punishment for the crime.

“We could take good time away for not making their bed,” Smith said. “Not sure that makes a lot of sense.”

Smith said the low rate of good-time punishments is not a product of overcrowding in the prison system. Punishments are based only on the facts of each case, she said.

But in February 2011, then-Corrections Director Houston testified in support of a bill that would let inmates earn extra good time off their sentences.

“This provision has the potential to lower the prison population and therefore reduce costs,” he told the Legislature's Judiciary Committee. “I believe this bill is a positive step in managing both the behavior and the size of the inmate population.”

The testimony came amid a state budget-cutting effort, shortly after Houston told legislators that his department could save $15 million by speeding up the release of inmates via parole.

Sen. Heath Mello of Omaha, who heads the Legislature's budget-writing Appropriations Committee, said it's not hard to conclude that the rare removal of good time was related to an effort to alleviate prison overcrowding.

Lincoln Sen. Colby Coash, a member of the Judiciary Committee, said he wants to hear from corrections officials about how good time and denial of good time are viewed within the department. He said it seems that good time should be removed more often, especially in cases of violent criminals.

“They're not using the tool they asked for, and that's the concerning piece for me,” he said. “It's to manage the inmates who are doing their time well, appropriately. But it's also to manage the people who continue to show danger, like Nikko.”

Sen. Ernie Chambers said he would “stand like the Rock of Gibraltar” against any changes in good time. He said he was pleased that statistics show it is rarely removed.

Twenty years ago, Chambers said, corrections officials used it arbitrarily and unfairly as a “bludgeon or a club” to keep inmates in prison long after they should have been released. That led to the 1992 legislation that standardized good time: one day per day spent in prison.

Chambers said the main issue in the Nikko Jenkins' case was prison officials' failure to provide proper mental health treatment and re-socialization for him, despite warnings and several requests. The problem isn't whether good time is taken away, he said.

“Inmates are dehumanized and become the scapegoats any time there's a breakdown in the system,” Chambers said.

Bakewell, the retired warden, said concerns raised by Chambers and others two decades ago prompted the department to appoint hearing officers specifically to decide disciplinary cases, rather than rotating the job. That led to a standardization of punishment, he said, so inmates who committed the same offenses got the same punishments.

State lawmakers are now looking to the governor, who appoints the director of corrections, to come forward with a plan to revamp good time and address the overcrowded prisons.

Mello, in a letter to Heineman last week, said the state faces the possibility of spending $150 million on a new prison or it could risk a federal court order to release “moderate to high-risk offenders” to alleviate overcrowding.

He wrote that the state has an Oct. 23 deadline for submitting a request for a supplemental appropriation to build a new prison or increase funding to alternatives to incarceration, such as probation, parole or drug courts.

“We see this crisis coming now. We need to deal with it now,” Mello said in an interview. “We need to see the executive branch lead on this issue.”

State Sen. Brad Ashford of Omaha, who has launched a study of what he called a crisis of overcrowded prisons, said he is concerned that the Governor's Office is “disengaging” from that process.

A representative of the governor's Policy Research Office and the head of the State Crime Commission attended a meeting of Ashford's group in August, but they indicated that they cannot attend the next meeting on Oct. 4. Ashford said he also wonders whether corrections officials will attend.

He says he wants to explore creating a new commission, independent of the governor, to better coordinate and oversee the three agencies that handle convicted felons: probation, corrections and parole.

“We can't wait for the appointment of a new director,” Ashford said.

He said he's willing to look at changes in good-time rules but wants to hear from corrections experts about whether forcing hardened criminals to earn it would really make the public safer.

“There are no easy answers to this situation,” Ashford said. “I really think it's a much deeper problem (than good time).”

How inmates can lose good time

Prison rules and regulations outline how much good time can be taken away for a variety of infractions. Here's a sampling.

Up to 365 days:

Any time someone is injured.

Up to three Months:

(If no one is injured)

» Mutinous actions

» Possession of weapons or flammable materials

» Escape

» Refusal to submit to a search

» Drug abuse

Up to a month and 15 days:

» Bribery

» Cruelty to animals

» Sexual assault

» Destruction of property worth $100 to $500

» Disobeying an order

Up to one month:

» Flare of tempers

» Receiving unauthorized articles

» Swearing

» Destruction of property worth less than $100

» Disruption

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