Prison Leaders Wrote a Bill to Release Prisoners Earlier. They’re Applying the Law in a Way That Doesn’t.
Nebraska State Correctional Institution in Tecumseh, Neb. on Monday, May 11, 2015. Photo credit: Ryan Soderlin/Omaha World-Herald
By Natalia Alamdari, Flatwater Free Press
In 2011, the Nebraska Department of Correctional Services wrote a bill that would allow well-behaved prisoners the chance to shorten their time behind bars.
Eleven years later, that same department is applying the resulting law in a way neither the state senator who sponsored the bill nor the then-director of Nebraska’s prisons intended.
Prison officials now shorten a prisoner’s final release date, but never change the day that prisoner becomes eligible for parole.
The result: Thousands of prisoners sentenced under the law have potentially stayed in prison days, weeks or months longer than the law’s authors intended.
The debate over semantics – namely, the meaning of three dozen words buried in state law – has reached the Nebraska Supreme Court, whose decision could shorten the stays of thousands of people in the state’s chronically overcrowded prisons.
The Flatwater Free Press, in partnership with the Omaha World-Herald, dug into the case, which has flown under the radar as state leaders debate how to fix overcrowding and whether to build a new prison.
On one side: The department argues that it’s properly following the law. If there’s a flaw, it’s in the law’s language itself, state lawyers have argued.
On the other: Robert Heist II, who has been imprisoned since 2016, argues the department is misreading the law and delaying parole eligibility.
Robert Heist II
In some cases, prisoners end up being released with no supervision – “jamming out” in prison-speak – before they even become parole eligible.
“When you become parole eligible after you’re done with your sentence, it doesn’t make any sense. That’s just ridiculous,” Heist said in an interview. “And it is contributing to overcrowding, because if you postpone people’s parole eligibility, they’re just sitting around longer.”
Nebraska’s prison good time law has gone through several makeovers during its half-century on the books.
LB191 was meant to add to the state’s already existing good time – day-for-day credit prisoners earn, which effectively cuts many sentences in half. The change proposed by prison administrators in 2011 allowed prisoners to earn three days of good time each month if they avoided certain disciplinary offenses after a year in prison.
The bill, written by the Department of Corrections and sponsored by then-Sen. Brenda Council, was expected to save at least $1.08 million over a decade.
Robert Houston
“This provision has the potential to lower the prison population, and, therefore, reduce costs,” Robert Houston, former director of the Department of Correctional Services, said at a 2011 hearing. “It also rewards good behavior within the prison system.”
The current interpretation of the law – correct or not – quietly contributes to the state’s struggle with overcrowded prisons, keeping the thousands of parole-eligible prisoners sentenced since 2011 from earning up to 36 days per year toward their parole eligibility date.
Nebraska continues to grapple with one of the most crowded prison systems in the country, recently reaching 152% of the system’s design capacity.
But little attention has been paid to corrections’ interpretation of the current law. Heist first filed a grievance of the parole calculation in June 2019. To date, neither prison leaders, the administration of Gov. Pete Ricketts nor any state senator have publicly suggested a tweak.
Getting prisoners in front of the parole board sooner is “a good thing as it relates to overcrowding,” said Sen. Steve Lathrop, chair of the Legislature’s Judiciary Committee. “Anything we can do that gets someone parole eligible sooner, I think is beneficial.”
The question now before the Nebraska Supreme Court: Should the three days a month earned for good behavior be applied to when a prisoner first becomes eligible for parole?
The state senator who sponsored the bill and the former head of prisons say yes.
Making prisoners parole eligible sooner was an intended result, both Council and Houston told the Flatwater Free Press.
The days were meant to apply to both a person’s parole eligibility date and jam date, Council said.
“If they’re not calculating it that way, they’re calculating it wrong,” Council said.
“If they’re not calculating it that way, they’re calculating it wrong.”
Former Sen. Brenda Council, sponsor of LB191
Paroling prisoners sooner would have played a major role in the law’s expected cost savings, Houston said.
“I would have definitely been in favor of affecting the minimum as well as the maximum so that people’s parole eligibility date could come sooner,” said Houston, who retired as corrections director in 2013 and is now a University of Nebraska at Omaha criminal justice instructor. “Even though the maximum is coming down, the real effect of reducing the population is their ability to parole sooner.”
But the state is simply following the law, state lawyers have argued to the Nebraska Supreme Court.
Parts of Heist’s claim are outside the court’s jurisdiction, the state argued during oral arguments in September. State law outlines that “...every committed offender shall be eligible for parole when the offender has served one half of the minimum term of his or her sentence…” and that good time “shall be deducted from the maximum term.”
This interpretation has potentially affected thousands of prisoners who could have had at least a little time shaved off their sentences.
The most egregious cases are those prisoners who “jam out” before even becoming parole eligible.
In March 2022, the prison’s roster listed as many as 306 people sentenced since 2011 who were released before they became eligible for parole.
Parole is generally regarded as a better way to reacclimate prisoners to society. Parolees have required check-ins with their parole officer, and must line up a job and a place to live.
Under questioning at the Nebraska Supreme Court, the state’s lawyers agreed that inverted sentences – when mandatory release actually comes before parole eligibility – do happen.
“Yes, it is possible that [inverted sentences] can occur,” Scott Straus, Nebraska assistant attorney general, said during oral arguments. “However, the plain language of the statute does not let us even get to whether that result is absurd or not.”
Six months later, the court has yet to issue an opinion.
The Nebraska Department of Correctional Services won’t respond to questions about ongoing litigation, spokeswoman Laura Strimple said in an email.
A longtime judge says the legal issue at play isn’t clearcut.
After reading the good time law, Douglas County District Judge Peter Bataillon said he could see how applying those extra three days a month to parole eligibility could be argued either way.
“Thank God that’s up to the Supreme Court to make those big decisions,” Bataillon said. “But the Legislature could very easily change that law if they wanted to.”
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