Gov. Dave Heineman and others are calling for changes to the state's system for carrying out criminal sentences in the wake of allegations that Nikko Jenkins killed four people within weeks of his release from prison.
Now there's debate as to whether changes are needed in the law itself or in the way the prison system handles its responsibility under the law.
Heineman and others are calling for dramatic changes to the state's “good-time law,” which gives most prisoners one day off their sentence for each day they spend behind bars without violating prison rules.
“Good time shouldn't be automatically given to a prisoner,” said Heineman, who is calling for a two-tiered approach to how prisoners earn time off their sentences.
“And that's the way the system works right now. With the really hardened criminal, the really bad guy, we've got to protect the public.”
Others say that the law is fine and that the problem is prison rules that make it difficult to keep dangerous criminals behind bars.
“There's a failure here in the system … the rules and regulations,” said State Sen. Brad Ashford of Omaha.
Prison rules are under Heineman's purview, while any overhaul of the law would go through Ashford's Judicial Committee. Each seems to be putting the problem at the other's feet.
Heineman said he'd like to explore a more stringent policy for violent offenders, one that keeps them in prison for the duration of their sentence unless they demonstrate good behavior. The current law presumes that prisoners are behaving, he said, then takes credit away when they break rules.
While that's a good incentive for nonviolent criminals, he said, dangerous inmates should plan to serve their whole sentence or earn time off.
Sen. Burke Harr of Omaha, though, said attacking the good-time law would have unintended consequences.
Judges know how good time works, he said, and sentence accordingly. A 25-year sentence means they'll be out in 12½.
“It's rote. Everyone knows. Every judge understands that,” he said. “If we tell our violent criminals, 'You have no reason to behave,' then they have no reason to behave.”
Sen. Ernie Chambers of Omaha went one step further.
“I will fight tooth and nail anybody who tries to take it away,” he said.
Sen. Colby Coash of Lincoln, a Judiciary Committee member, said lawmakers need to decide whether this case represents a failure of the system or an unusual situation.
“When we have a tragedy like this, we have to take a look at it,” he said.
But Coash said he doesn't want to make sweeping changes in good time policy based on one case. He also is hesitant about getting the Legislature more deeply involved in the operations of an executive branch agency. Corrections officials have more expertise than lawmakers in weighing the risks involved when setting good-time policies.
“What I've been told, and what I believe, is that good time is an effective way to motivate individuals,” he said.
The good-time law isn't unique to Nebraska. Alison Lawrence, a senior policy specialist with the National Conference of State Legislatures, said 32 states offer inmates good-time credit. The laws are designed to reduce prison populations and save money, she said.
It's hard to compare Nebraska's law to others because the details can vary dramatically from state to state. Like Nebraska, most states leave it to their corrections departments to administer the programs, making them even more difficult to compare.
For example, Jenkins was originally put in prison for robbery. Had that happened in Iowa, he would have faced a mandatory sentence of either 10 or 25 years. He would have to serve at least 70 percent of the sentence.
Then, depending on his behavior in prison, he could be released.
“The devil of these policies is in the details, and it's often given to the Department of Corrections,” Lawrence said.
Such is the case in Nebraska.
The rules for docking a prisoner's good time are crafted by the Department of Correctional Services. They've remained fundamentally unchanged for more than 20 years, according to a department spokeswoman.
For egregious offenses, such as assault or murder, the maximum amount of time a prisoner can lose is just one year.
For nonviolent offenses, the maximum is three months, and for many infractions it's even less.
In addition, prison officials don't always take away good-time credit to punish an inmate. Instead, they can opt for segregation.
Last year, about 1,600 inmates were punished for class one misconduct, which is breaking one of 13 prison rules that cover the most serious offenses, such as manslaughter, weapon possession, escape and drug abuse.
The average good-time credit those inmates lost last year was six days.
“It does seem absurd,” said Ashford, the Judiciary Committee chairman. “We have to review it. We have to.”
One option, he said, would be for the Legislature to take control of how prisoners lose good-time credit once they're in prison. As it stands, the punishments are spelled out by the Correctional Services Department.
The department could change those rules without going through the Legislature, or the Legislature could put rules into law to either make it easier for prison officials to essentially add time to a sentence or to require them to do so.
Ashford said the good-time law isn't the problem, rather “it's the implementation of sanctions. We need to ask the department why the administrative sanctions were not given.”
Even under existing rules, prison officials could have kept Jenkins behind bars through at least April of next year.
While in prison, he assaulted another inmate, he was involved in an attack in the shower, he was caught with a toilet-brush shank and attacked a corrections officer.
He lost good-time credit on eight occasions, which kept him in prison about another year and a half.
Because of those violations, prison officials under current rules could have kept him at least another 9½ months. He lost three months for an assault but could have been punished with up to a year for that. He lost a month for “tattoo activities,” which could have carried an extra 15 days.
There may have been other times where Jenkins was punished with time in segregation rather than a loss of good-time credit, but those records aren't made available to the public.
Dawn-Renee Smith, a spokeswoman for the Department of Correctional Services, said prison officials don't take away good-time credit without careful consideration.
“We don't use good time as a hammer,” she said.
In the coming months, she said, the department will evaluate how often it takes away prisoners' good-time credit and whether officials are going as far as they should in disciplinary cases.
The department is doing a full review of how they handled Jenkins while in custody and the circumstances of his release. The department is already looking at procedures that might need to change, she said.