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Good time law built on 45 years of trial, error

Good time law built on 45 years of trial, error

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Nebraska’s good time law, which has been on the books in one form or another for at least 45 years, has become a hot issue in two of the state’s highest profile political races.

The election-year debates echo arguments that broke out last year in the immediate aftermath of Nikko Jenkins’ homicidal rampage, which occurred shortly after his release from prison.

In response, Gov. Dave Heineman and others called for changes in the state law so that certain criminals must earn all of their good time — which reduces prison sentences — instead of receiving it automatically.

In the race for the 2nd Congressional District, Republican Rep. Lee Terry has criticized Democrat Brad Ashford for not supporting toughening the good time law in the wake of Jenkins’ 2013 killing spree. A current Terry TV ad criticizes Ashford, a state senator, for supporting a good time law “that allows violent criminals to get out way too early.’’

Ashford said the main problem with good time was the failure of the Department of Corrections to administer the existing law properly.

Heineman himself ramped up criticism of Ashford on the issue Wednesday, commenting at a press conference and in a column he distributed to news outlets. He blamed Ashford, who heads the Legislature’s Judiciary Committee, for “blocking” his proposal that violent criminals earn good time reductions in their sentences.

Heineman added that the Legislature had time to debate issues such as “novelty lighters” but not earned good time.

Ashford pointed out, in response, that in 2011 the Heineman administration lobbied successfully to increase the amount of good time given to inmates.

“The governor needs to kind of stop at the mirror on the way out of town,” Ashford said.

In the governor’s race, Democrat Chuck Hassebrook has criticized Heineman for not taking better advantage of current law to remove more good time based on prisoners’ misconduct. He has promised that, if elected, he would be aggressive “on day one” in changing the good-time rules drawn up by prison officials.

Pete Ricketts, the Republican candidate for governor, like Heineman, has put his focus on the state law.

State law outlines the awarding of good time and allows prison officials to take it away if inmates break prison rules. Prison rules spell out how much good time officials can take.

A World-Herald investigation last year showed that prison officials rarely took away the good-time privilege, regardless of behavior. Inmates were punished for 92,000 infractions over five years, yet good time credit was taken away in less than 5 percent of those cases.

In Jenkins’ case, he could have spent at least another 9½ months in prison if officials had given him the maximum penalties for breaking prison rules.

In August, former Corrections Director Bob Houston admitted under oath that the low incidence of good time revocations was related to prison overcrowding.

While it’s a hot topic now, good time in Nebraska law dates back to at least 1969, when the state created the then-named “Division of Corrections.”

The goal of good time is to encourage good behavior behind bars: Since prisoners generally want to get out as soon as possible, the practice helps keep them in line, said Sarpy County Attorney Lee Polikov.

And while critics say the practice cuts judges’ sentences in half, Polikov said that judges take the law into consideration.

“The judge picks the numbers he wants them to serve, and doubles (them),” Polikov said.

The 1969 law outlined a stair-step approach to awarding good time.

In the first year of a sentence, prisoners would get two months shaved off “for good behavior and faithful performance of duties.”

By the fourth year in prison, that credit grew to four months for every year. Offenders could get further reductions of five days per month “for especially meritorious behavior.”

End result? By year four, inmates could get six months of credit per year.

That law was confusing, a prison records manager told The World-Herald in 1988.

“Nobody could understand it. The (prisoners) never knew when they were getting out,” Ron Riethmuller said.

Good time calculations were further complicated because prison administrators could remove good time for poor behavior: “Reductions of such terms may be forfeited, withheld and restored by the chief executive officer of the facility after the offender has been consulted regarding the charges of misconduct,” the law stated.

That changed slightly after a 1974 U.S. Supreme Court ruling held that good time could not be taken away without some form of due process. Although the law didn’t change, the prisons instituted a process similar to a trial for infractions, held behind prison walls.

In 1975, the Legislature made some tweaks to good time. The base amounts — two months to four months per year — were then awarded for good behavior alone.

The five extra days each month were made entirely reliant on an inmate performing duties behind bars.

In the late 1980s, State Sen. Ernie Chambers said the law gave too much discretion to prison guards in deciding what acts to punish. Good time was regularly revoked for “silly” reasons, he said.

In 1992, he was the sole sponsor of a bill that simplified good time and got rid of the idea of earning good time. The stair-step good time credit was replaced with flat, day-for-day credit for the duration of time behind bars.

Ashford was in the Legislature at the time. On first reading, which passed 28-0, Ashford was present but didn’t vote. He wasn’t present for the final vote, when the measure passed 27-6.

The mid-1990s brought a wave of fear about gang violence, and with it came a slew of “tough on crime” legislation across the country. The largest crime bill in U.S. history, the Violent Crime Control and Law Enforcement Act, went into effect at the federal level in September 1994.

A few months later, the Nebraska Legislature was discussing the Safe Streets Act of 1995. (Ashford was no longer in the Legislature.)

The bill made substantial changes to good time. It created mandatory minimums for certain crimes, establishing a new class of prisoners who couldn’t earn any good time on that portion of their sentence.

It also reinstated the system of making prisoners do something proactive to earn a portion of their good time. Under the law, prisoners could still qualify for six months off each year (after any mandatory minimums). But the good time was split into two categories: three months for staying out of trouble and three months for participating in rehabilitative programming.

The change was short-lived.

In 1997, Chambers and State Sen. Kermit Brashear co-sponsored a bill that removed the requirement to participate in programming to receive a portion of their good time.

According to the state ombudsman, lawmakers were concerned that the law might be unfair to people with intellectual or reading disabilities, who would have trouble meeting the expectations of their programming.

In floor debate, lawmakers also worried about the law’s effect on prison overcrowding.

“We may be incarcerating ... inmates for longer than we reasonably believe is necessary for the good of society. And it may cost the taxpayers millions and millions of dollars,” Brashear said. “There is no question that the citizenry wants to be protected and maintained safe. But we do need to occasionally ask them, at what price?”

The bill passed, 27-18.

Then-State Sen. Jon Bruning of Sarpy County supported the elimination of earned good time that year. As attorney general, however, he has been a strong supporter of returning to that system.

The most recent change to the good-time law came in 2011.

Ashford and State Sen. Brenda Council co-sponsored a bill that year — on behalf of the Corrections Department — that gave prisoners an extra three days of good time for every month they stayed out of trouble. Then-Corrections Director Bob Houston told the Judiciary Committee that the change would ease overcrowding and save money.

“This bill ... could result in the savings to the department of $108,000 in the second year due to the population reduction,” Houston said.

The 36 days a year cannot be taken away once earned.

“Reductions earned under this subdivision shall not be subject to forfeit or withholding by the department,” the law reads.

The bill passed unopposed and was approved by Heineman.

All other good time is automatically awarded but is subject to removal if prisoners break prison rules. Prison officials, under current rules, can take away anywhere from two months to two years of good time for infractions ranging from swearing to assault or weapons possession.

Those penalties can be changed without legislative approval. Last year, after a World-Herald investigation revealed that prison officials rarely took advantage of their authority to remove good time, the state quickly doubled the penalties.

The most recent legislative proposal to change good time — which has been the subject of the current debate — died last spring in committee.

In January, State Sen. Scott Lautenbaugh introduced a bill on behalf of the governor that would have required some inmates to earn all their good time.

The bill focused on 15 offenses, ranging from escape to murder. For those crimes, inmates would essentially earn 15 days a month of good time for staying out of trouble and 15 days a month for participating in rehabilitative programming.

In a Judiciary Committee hearing for the bill, Ashford, the committee chairman, questioned how earned good time would help prison officials keep prisoners behind bars.

“In essence, someone’s sentence who is misbehaving ... can be lengthened for a significant period of time under the current law, correct?” he asked Corrections Director Mike Kenney.

“Yes, that’s right,” Kenney responded.

Other committee members described the proposal as an “illusion” because it would grant good time to inmates for simply signing up for rehabilitation programs, even if they never actually attended the classes.

The bill, which would not have been retroactive, was indefinitely postponed in April.

World-Herald staff writer Paul Hammel contributed to this report.


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