Unintended Consequences ... Part Two of Two 1/20/17 01/22/17 11:26:56 PM
By Lorraine Boyd
The Daily Record
A prison sentence impacts not only the perpetrator, but a family as well, and not in a good way. It’s an unintended consequence of incarceration.
The problem and some solutions were spelled out by the American Bar Foundation (ABF), the Nebraska Bar Foundation (NBF) and Nebraska judicial and legislative leaders at a special panel forum held in conjunction with the Nebraska State Bar Association’s Annual Meeting in October. We heard from ABF prize-winning researcher Professor John Hagan, Ph.D. about the seam-bursting prison population and the laws that are designed to improve the outlook for prisoners and families alike.
The panel consisted of Prof. Hagan as moderator, Nebraska State Sen. Burke J. Harr, Nebraska State Sen. Bob Krist, Hon. Leigh Ann Retelsdorf, Hon. Gerald E. Moran (Ret.) and Hon. Randall L. Rehmeier (Ret.), who is a board member on the Nebraska Board of Parole.
Now we’ll hear from the rest of the panel members, who each present a unique piece of the pie.
Sen. Bob KristSen. Bob Krist – whose nickname, according to Sen. Harr, is “Hurricane” for “always being in the eye of the storm,” – took on the Unicameral’s investigation of solutions for the prison overcrowding in 2013-14, launching three separate task forces. Among other things, their impetus was the case of confessed serial killer Nikko Jenkins, who had been released from prison in 2013 without supervision (“jamming out”) despite his plea for mental treatment, which exemplified system failures.
In a nutshell, from 1990 to 2004, the state – especially southeastern Nebraska – had become a national model of efficiency and effectiveness in handling the treatment of the mentally ill with various agencies, including the Lincoln Police Department.
Then in 2004, a mental health reform bill was introduced with good intentions and goals. It allowed for stepped reentry into society by inmates who suffered from mental illness, reducing hospital beds by nearly 60 percent. Unfortunately, according to an expert witness, “none of that best practices document was ever implemented.”
With Sen. Steve Lathrop, Krist introduced LR 424, creating the Department of Correctional Services Special Investigative Committee of the Legislature to study the situation with mental health facilities both in and out of prisons, where they found error after error.
Testimony in the Committee included the following give and take:
JOE NIGRO: I mean we could dramatically reduce the flow of people into prison if we started looking differently at nonviolent offenses.
SENATOR SCHUMACHER: So if we really limit down the number of offenses that qualify for the penitentiary, okay, and then give the judge back the discretion. It seems with the drug courts and mental health courts …, we’re making a real effort not to engage a bad system because we know that those people really aren’t served by the bad system. So maybe the overall needs to be bigger than creating special diversion routes out of the system. … From my perspective it’s always good to have flexibility. But clearly we’re putting too many people in prison right now.
JOE NIGRO: I just think spending money on mental health, whether you’re doing it for people in the prisons, whether you’re creating mental health courts, putting in probation, parole, but most importantly, spending money on mental health in the community … it’s going to be money well spent.
… Fifty years ago, we used to put too many people in mental hospitals and there was a move to get people out and to create the right to hearings and commitment process. But we never funded community programs and so now our jails and prisons have become our biggest mental health providers. And it’s cruel and it’s ineffective and it’s expensive. And we can do better.
Those serious setbacks were addressed in the legislation (LB 605) to “[p]rovide, change, and eliminate penalties, punishments, sentencing, restitution, probation, parole, and crime victim provisions and provide for post-release supervision, grants, and suspension of medical assistance for inmates.”
Former Nebraska Sen. Heath Mello’s website provided a summary, presented here in the accompanying box. (Below)
A Summary of LB 605In the last session of the Unicameral, senators urged the governor to “preserve investments in the Department of Corrections by exempting the agency from across-the-board reductions.
In Governor Pete Ricketts’ budget address on January 12, 2017, he exempted Corrections from budget cuts to close the upcoming gap income and spending.
LB 605 (“The Justice Reinvestment Act”) institutes a data-driven justice reinvestment policy framework that is the product of extensive work by a bipartisan, inter-branch working group established under LB 907, enacted in 2014.
LB 605 is designed to slow Nebraska’s prison population growth, ease prison overcrowding, contain corrections spending, and reinvest a portion of savings in strategies that can reduce recidivism and increase public safety.
The policies in this bill address three major challenges facing the state’s criminal justice system: (1) overcrowded prisons house a large number of people convicted of nonviolent, low-level offenses; (2) the felony sentencing system fails to ensure that people sentenced to prison receive post-release supervision or pay victim restitution; and (3) the parole supervision system lacks the resources necessary to handle a growing parole population, has not fully adopted evidence-based practices, and is not positioned to respond effectively to parole violations.
The legislation employs three strategies to address these challenges: (1) use probation for people convicted of low-level offenses; (2) ensure post-release supervision, and address victims’ needs; and (3) improve parole supervision to reduce recidivism among individuals released from prison.
Gov. Ricketts signed the bill in 2015, saying it would cut the prison population by 1,000 inmates over the next five years, preventing the need for a new prison.
In the panel discussion, Sen. Krist looked ahead to the budget [which was presented last week by Gov. Ricketts] and said that despite the $600 to $799 million deficit,
“[i]t is up to us to say ‘you can’t cut in these areas … for public safety.’ The investment we have made so far is at the minimum level and needs to be retained.” Prior to the budget presentation, the Governor had said Corrections would be off limits for cuts.
“The smartest thing we’ve done,” Sen. Krist said, “is establish a Nebraska Center for Justice Research [housed at UNO] because you can’t change things without metrics or without data that supports what you need to do. You’ve got to prove to me it’s worth spending the money.”
He said he attended a meeting of youth who identified foster care among the top-five problems they faced. A 17-year-old girl said, “The happiest day of my life will be when I age out of foster care.”
“That was my inspiration to look at foster care, juvenile justice, kids in the system any place,” Sen. Krist said. “Thirty-two bills have allowed us to have pilot projects to eliminating shackling of kids. I’m pretty proud of that. The focus has been on evidence-based resources. The bottom line is ‘we use data’ and ‘we make sure that data tells us the right thing to do.’ We don’t need to recreate the wheel. We need to look at examples in other states.
“We have reduced the number of kids in foster care by 30 percent and the number continues to go down – a good benchmark. We’ve reduced detention numbers in the Youth Rehabilitation and Treatment Centers in Kearney and Geneva by over 50 percent. And we’ve used other alternatives like family courts and specialty courts. Juvenile justice is moving the right way.”
But that’s not the only way to address mass incarceration, as Hon. Leigh Ann Retelsdorf told the panel.
Hon. Leigh Ann RetelsdorfRetelsdorf is a Douglas County District Court judge who has become very involved in the county’s Adult Drug Court, another tool in the court system’s arsenal of ways to dispense justice while not contributing to prison overcrowding.
In Douglas County alone there are several specialty, or problem-solving courts: Adult Drug Court (there are 25 in Nebraska), Young Adult Court, Juvenile Drug Court, Family Drug Court (including 0-3 Family Dependency Drug Court), and the new Veterans Court. They are post-plea programs for non-violent felony cases.
“The effectiveness of Drug Court is proven. There’s a significant reduction in arrests and reconviction, sometimes as high as 28 percent. Participants report higher employment and higher income and slightly higher education opportunities,” Judge Retelsdorf said.
“Drug courts are cost effective. In Douglas County, we save over $2.25 for every $1 that is spent on drug court. It’s a savings to the criminal justice system not only in money, but safety. It reduces law enforcement contacts, use of court resources, appointed attorney costs and, of course, the cost of jail or prison beds.”
She noted that there may also be “reduced foster care placements and health care service utilization, although those have not been studied as much [yet] to know what the positive net gain is. The problem is, many of the children are probably already placed in foster care.”
Judge Retelsdorf said to be effective “you have to have five things: a multiple-disciplinary approach, ongoing frequent judicial status hearings, weekly drug testing, contingent sanctions and incentives, and standardized treatment. All have to be there.”
In Douglas County, at any given time, there are around 3,000 felony cases pending. Only 150 of them are in drug court, partly because they require so much interaction with the judges and staff. “Defense attorneys will tell you that about 75 percent of their cases are drug-related. The challenge is to extend these courts, without diluting the intervention needed to get results.”
And on an even more positive note, one unintended consequence of successful drug court completion can be seen in the faces of 128 babies born drug-free to drug-free mothers, which was recently celebrated at the 95th commencement of Adult Drug Court.
Hon. Gerald E. MoranHon. Gerald E. Moran, a 17-year Douglas County District Court judge who retired six years ago, had his own way of dealing with the unintended consequences of incarceration. Before becoming a judge, he had also worked as both a criminal defense attorney and a prosecutor.
“We were not social workers, but we made observations. So much criminal defense work showed that if you could keep kids from getting a felony conviction until about age 25, you wouldn’t see them in court again.”
But how to accomplish that?
“The worst crimes are the easiest to sentence. Below that level is where the judge and judgment coalesce.”
“In the ’80s and beyond, I would see a lot of sentences where a young kid with cocaine in pocket, pleads [guilty], goes to the probation office, where if he’s in a bad home, he won’t get probation. Then, the alternative sentence was 1 to 1 or 1 to 2 [years]. We thought we were doing them a favor.
“But once you put that ‘hickey [felony]’ on a kid, that’s a game changer. Employment opportunities plummet; he’s not going to get any good jobs. He’s now in that second, third tier of people hunting for jobs.
“I would use this metaphor. They can go to McDonald’s and make $10 or $11 an hour, or make $500 in an hour on a street corner selling drugs,” Moran said.
Here’s where judicial discretion comes into play.
“So, I felt in cases like that, I made something up called ‘bench probation.’ I created a form that covered six months. I had them come in the first month. They had to have either a job or school. And keep it for six months. Then I would expunge their record.
“How many times would they disappoint? Zero. I wish I had had tools, like specialty courts, then. They are wonderful, if they are staffed right and vet the participants. They have to stay on top of them. I always found I did better [in sentencing] when I took my foot off the gas.”
It seems Hon. Moran was ahead of his time. Today’s proposals call for similar treatment. Fewer prison sentences, more rehabbing.
Sen. Harr agreed, with a stipulation. “The most important side of sentencing comes after jail. Parole.” Who better to tackle that topic than Nebraska Parole Board member Hon. Randall L. Rehmeier, Ret.
Hon. Randall L. RehmeierWhen Rehmeier retired from the bench, he wanted to stay engaged, and in 2015, he accepted a full-time position on the Nebraska Board of Parole. The Board of Parole is not part of the judicial system, but rather an entity created constitutionally, whose members are appointed by the Governor, he noted. “It is not part of the Department of Corrections’ services. We work together; we use their information.”
His job became more challenging when parole administration was moved from the judicial branch to the executive branch last July, resulting in an increase from nine to 74 employees.
The parole process is the “forgotten stepchild” of justice, he said. Getting tough on crime meant a big increase in sentences and mandatory minimum, he said.
Prisoners may be eligible for parole after serving a percentage of their sentence, which is automatically halved at the outset. Currently, about one-third of inmates “jam” out of prison without any parole supervision or oversight.
The Department of Corrections does a “personalized plan” of services for each prisoner and recommends what needs to be completed before being eligible for parole.
“As prisoners get close to eligibility for parole, then the parole board looks at their progress. We also look at institutional behavior,” he said.
What are the effects of mass incarceration? It is having a significant impact on programming because the system can’t keep up with it, partly because of a lack of adequate funding. But no one wanted to increase taxes, so for years there has been a neglect of the needs of correctional services and the inmates, he said.
The current legislature is looking at ways to make changes. In 2015, they passed the Justice Reinvestment Initiative, where the money saved by not putting people in prison is reinvested in data-driven, evidence-based programs that reduce the rate of recidivism, which is now at 31.1 percent in Nebraska.
“The one thing that is going to have a big impact is the change in structuring of sentences. Previously, the judge had two choices – probation or prison. Now there are determinate sentences, then offenders are released on post-supervised probation. Parole doesn’t see them.” It will take a year or two to see the effects of this.
Parole is now in the process of programming, “bootstrapping” off of probation. If, for example, programming is intensive outpatient therapy, we are allowing them to do that on parole.
“New programs include substance abuse, mental health, moral recognation therapy and ‘thinking for a change.’ All are new programs we wholeheartedly support. Cognitive thinking programs are aimed at preventing recidivism, at developing skills, resolving problems.”
It is costly. “We will spend about $800,000 a year on substance abuse programming; $34,000 on electronic monitoring and continuous alcohol monitoring devices.”
After a prisoner is paroled, what can we do to make it better? “The key is collaboration. Once probation took on supervised release, we [were] both essentially doing the same thing. And they have a much better system at probation than parole [does]. We need to collaborate to prevent redundancy,” Judge Rehmeier said.
As far as keeping people out of prison, he noted that not every violation results in revoking parole. “We could put them in jail for up to 30 days; that’s a good tool. But we don’t have a line item for funding ($9-a-day in county jail) right now.”
Parole, and corrections in general, has also been hampered recently by a severe shortage in mental health professionals. Only 11 psychology positions had been filled out of 23 openings. But they are making a concerted effort to fill that gap, starting with the recent hiring of a new mental health director.
If the unintended consequences of incarceration put children and families at risk, the steps being taken to rehabilitate criminals and get them out of prison faster and back to being productive members of society are addressing that aggressively.
On a positive note, Gov. Ricketts said in his State of the State address on January 12, 2017 that his proposals give priority to the troubled corrections system and to K-12 education. He said he would put another $20 million into the state prison system to increase staff and add programs for inmates. He also would take $75 million from the state’s cash reserve fund for a prison expansion project and $1.1 million for security system upgrades.