LINCOLN — A court order to reduce overcrowding.
Sentencing nonviolent felons to county jails rather than more expensive state prisons.
Shortening sentences of habitual criminals.
These and other changes could happen now that Nebraska is the subject of a civil rights lawsuit about prison overcrowding and inadequate health care for inmates.
Early Wednesday, the ACLU of Nebraska followed through on threats to file a federal lawsuit against the state prison system.
Its 87-page lawsuit claims that “extreme” overcrowding in state prisons is causing “needless suffering and death” of inmates, as well as unsafe conditions for staff.
Gov. Pete Ricketts responded that the lawsuit could lead to the early release of “dangerous criminals” and limit tools to manage the inmate population.
“Over the past few years, all three branches of state government have made justice reinvestment and corrections reform a top priority,” he said Wednesday in a statement. “Together, we have invested millions of taxpayer dollars to protect public safety and expand state prisons.”
The lawsuit, he said, is a threat to public safety.
But a handful of state lawmakers interviewed in the wake of the lawsuit — as well as ACLU officials — disagreed that such a threat is looming.
They said Nebraska can take “common sense” and low-cost steps to reduce overcrowding.
State Sen. Laura Ebke of Crete, who heads a legislative oversight committee on the Department of Corrections, said the lawsuit will force proposals that move beyond “the status quo.”
“If we can figure out how to reduce the overcrowding, a lot of the problem becomes moot. That’s going to be the trick,” Ebke said.
Lincoln Sen. Patty Pansing Brooks, who headed a prison reform committee a year ago, agreed, saying that Nebraska needs to do what Texas has already done: Invest in new prison programs that lead to future cost savings, in terms of lower prison populations and fewer repeat offenders.
Pansing Brooks said the real danger comes from releasing inmates who aren’t prepared for release, or denying proper medication to inmates, or forcing long stays in solitary confinement that worsen mental illnesses.
The lawsuit by the ACLU asks the U.S. District Court to intervene to reduce overcrowding and the use of solitary confinement, and to remedy substandard health care and mental health treatment.
As of Tuesday, Nebraska’s prisons held 5,217 inmates, which is about 160 percent of their design capacity of 3,275.
One state prison in Lincoln holds about three times its capacity, forcing dozens of inmates to sleep on temporary plastic cots — called “boats.” The state has also shipped inmates to county jails — 91 inmates this week — as a stop-gap measure to avoid further crowding.
David Fathi, director of the ACLU’s National Prison Project, said Nebraska has the fourth-most overcrowded prison system in the nation He said two of the states with worse crowding problems, Illinois and Alabama, already face civil rights lawsuits.
Such overcrowding, he said, causes a breakdown in prison security and forces the overuse of solitary confinement because there aren’t other options.
Inmates, especially those with disabilities and mental health problems, are denied adequate health care, the lawsuit alleges; medical treatment and prescription drugs are routinely delayed or denied to inmates.
“This is an urgent humanitarian crisis that cannot wait any longer,” Fathi said.
He added that it is not “normal” that Nebraska has had two prison riots in the past two years, with four inmates killed, plus a rash of attacks on corrections staff.
The state has worked with the Justice Center of the Council of State Governments on sentencing and parole reforms designed to reduce overcrowding, changes that have yet to result in a significant reduction, state officials have said.
State lawmakers, after months of hearings and debate, also increased spending on rehabilitation programs and allocated $26 million for an expansion of the Community Corrections Center in Lincoln.
A new 100-bed modular dormitory will soon open at the same prison, and $75 million was set aside this year to build a prison addition for elderly and mentally ill inmates.
The question moving forward, assuming that the lawsuit is not dismissed immediately, is whether the state and the ACLU can work out a plan to improve prison conditions without going to trial or an expensive legal battle lies ahead.
In California, a series of lawsuits over substandard prison conditions resulted in a 2011 ruling by the U.S. Supreme Court that the state reduce its inmate population by about 24 percent, so that its prisons were operating at 137.5 percent of design capacity. That is a level that hasn’t been seen in Nebraska for a decade.
Fathi said that in more than half of the prison lawsuits filed by the ACLU, out-of-court settlements are reached, avoiding expensive trials. Danielle Conrad, the director of the ACLU of Nebraska and a former state senator, said such a lawsuit is a way to force a resolution and cut through the “political rhetoric.”
That’s what happened in California, as Gov. Jerry Brown forced through a series of sentencing reforms and a plan to house offenders with non-violent, non-serious and non-sexual felony crimes in county jails rather than state prisons. The state shifted some tax revenue to make that happen.
Those steps and others have allowed California to meet the court-ordered reductions in prison populations.
Both Ebke and Pansing Brooks joined ACLU officials in saying that it’s time to pass a proposal, now stalled in the Legislature, to eliminate mandatory minimum sentences and sentences for habitual criminals that serve to increase overcrowding — proposals opposed by Nebraska prosecutors and Attorney General Doug Peterson.