JudiciarySession Review 2013

Session Review: Judiciary

Measures relating to human trafficking, sentencing options for juveniles and parenting programs for incarcerated parents were passed by lawmakers this session. Senators also approved significant reforms to the juvenile justice system.

Juvenile justice

Senators approved two bills this session dealing with juvenile justice.

LB561, introduced by Omaha Sen. Brad Ashford, expands the Nebraska Juvenile Service Delivery Project statewide through a three-step process beginning July 1, 2013.

Under the bill, the Office of Probation Administration will take over the community supervision, juvenile parole and evaluation duties currently held by the Office of Juvenile Services.

The bill will require the state Department of Health and Human Services to develop a model alternative response to reports of child abuse or neglect under the Child Protection Act. Alternative response is a practice that handles low-risk child welfare cases by empowering families to build on their strengths, rather than criminally investigating them or placing them on the Child Abuse and Neglect Register.

Under the bill, the model must include costs, eligibility, procedures and assessment protocols necessary for the implementation of alternative response. The department is required to provide the model in a report to the Nebraska Children’s Commission by Nov. 1 and the commission is required to electronically submit the report to the Legislature by Dec. 15.

The bill includes provisions from three other bills.

LB562, introduced by Ashford, would provide probation officers information to make decisions regarding crossover youth.

LB86, originally introduced by Lincoln Sen. Amanda McGill, would place the supervision of staff-secure juvenile detention facilities with the Jail Standards Board of the Nebraska Commission on Law Enforcement.

And LB471, introduced by Lincoln Sen. Colby Coash, provides that a juvenile would not be required to undergo an evaluation prior to his or her commitment to the Office of Juvenile Services if one already has been completed in the past 12 months or if an addendum to a previous evaluation would be appropriate.

The bill was passed with an emergency clause on a 44-1 vote.

Ashford also introduced a bill that establishes a new 40-year minimum sentencing option for a juvenile convicted of a Class IA felony.

LB44 establishes that offenders younger than 18 years old at the time that an offense was committed who were denied parole will be eligible for a parole hearing each year thereafter. The parole board must review and consider the juvenile’s:
• educational and court documents;
• level of participation in the offense;
• age at the time of the offense, level of maturity and intellectual capacity;
• ability to appreciate the risks and consequences of his or her conduct;
• efforts toward rehabilitation and participation in available rehabilitative and educational programs while incarcerated; and
• any other mitigating circumstance submitted by the juvenile.

The bill passed on a 38-1 vote.

Another bill introduced by Ashford that would result in fewer juvenile offenders being tried in adult court remains on select file.

Under LB464 as amended, all charges against juveniles younger than 18 years old would be filed in juvenile court. Cases could be transferred to adult court upon a motion by the prosecutor and be heard before the juvenile court if the alleged law violation is either a felony or a misdemeanor and the juvenile was 16 or 17 years old at the time the crime was committed.

The bill would no longer require juveniles who are committed to the Office of Juvenile Services to remain committed until they are 21 years old or legally discharged.

Criminal justice

A bill that enhances penalties for pandering, soliciting and harboring people for prostitution was passed this session on a 47-0 vote.

LB255, introduced by McGill, makes a person under 18 years old immune from charges of prostitution. A law enforcement officer who takes a person under 18 years of age into custody is required to report an allegation of prostitution immediately to the state Department of Health and Human Services, which will commence an investigation within 24 hours under the Child Protection Act. A person under the age of 18 who is involved in prostitution will be placed in the juvenile court’s jurisdiction.

The bill also increases the penalty for soliciting a minor for prostitution, currently a Class I misdemeanor carrying a maximum one year in jail and $1,000 fine, to a Class IV felony, which carries a maximum five years in jail and a $10,000 fine. Keeping a place of prostitution, currently a Class I misdemeanor, would be a Class IV felony when those kept as prostitutes are under the age of 18. In cases involving a trafficking victim between the ages of 15 and 18 years old, the offender will be guilty of a Class III felony.

Finally, LB255 requires a trafficking task force formed last year to use information and research that is available from the Innocence Lost National Initiative to recommend a model of rehabilitative services for victims of human trafficking.

Senators passed a bill 46-0 regarding the collection of racial profiling information.

Omaha Sen. Heath Mello introduced LB99, which removes the sunset date for the Nebraska Commission on Law Enforcement and Criminal Justice to collect racial profiling data and adds requirements for the commission and law enforcement.

The bill also eliminates requirements that a victim suffer at least a 10 percent loss of financial resources to qualify for compensation from the Nebraska Crime Victims Reparations Fund and that the Crime Victims Reparations Committee include in its biennial report a listing of the names, description of facts and the amount of compensation awarded to applicants. The committee will be required to electronically submit the biennial report to the Clerk of the Legislature.

A pilot program for the state Department of Correctional Services to improve parenting skills of incarcerated parents also was approved this session on a 41-1 vote.

LB483, introduced by Lincoln Sen. Kate Bolz, appropriates $250,000 to the department to implement a two-year pilot program that provides incarcerated parents of children up to five years old evidence-based parent education, early literacy, relationship skills development and re-entry planning prior to their release.

Additionally, the bill allows the department to award competitive bid contracts to operate the pilot program and requires them to gather program participation and recidivism data.

A bill that would repeal Nebraska’s death penalty failed to pass this session.

LB543, as introduced by Omaha Sen. Ernie Chambers, would replace death penalty provisions with the sentence of life without the possibility of parole. The provisions of the bill would apply retroactively to inmates currently serving capital punishment sentences.

Chambers offered a motion to invoke cloture and force a vote on the bill. The motion failed 28-21, falling five votes short of the number required for adoption.

The bill remains on general file.

A bill that would permit nonprofit corporations to enter into work arrangements with inmates of the Work Ethic Camp (WEC) was laid over this session.

LB52, introduced by Imperial Sen. Mark Christensen, would permit WEC inmates to enter into working arrangements with any charitable, fraternal or nonprofit corporation that provides a public benefit. WEC inmates currently may enter into work arrangements with political subdivisions and state boards and agencies.

A bill that adds substances and compounds to the Schedule I controlled substances list passed this session.

In order to be classified as a Schedule I drug under federal law, a drug or substance must have a high potential for abuse, lack an accepted safe use under medical supervision and have no currently accepted medical treatment use in the United States. No prescriptions may be written for Schedule I controlled substances and they are subject to production quotas by the federal Drug Enforcement Administration.

LB298, introduced by Omaha Sen. Beau McCoy, makes adamantoylindoles, tetramethylcyclopropanoylindoles, adamantylindole carboxamides, phenethylamine, tryptamine and their compounds Schedule I controlled substances.

The bill passed with an emergency clause on a 44-2 vote.

Judges and law enforcement

A bill was passed this session that clarifies the revocation and suspension provisions for law enforcement training certificates and diplomas.

LB538, introduced by Chambers, defines incapacity relating to a law enforcement officer as “incapable of or lacking the ability to perform or carry out the usual duties of a law enforcement officer in accordance with the standards established by the commission due to physical, mental or emotional factors.”

The bill also clarifies that a law enforcement officer will not be deemed incapacitated if he or she remains employed as a law enforcement officer in a restricted or limited duty status.

Law enforcement agencies will be required to report to the Nebraska Police Standards Advisory Council an officer who is separated from the agency due to a physical, mental or emotional incapacity. The officer’s law enforcement certificate will be suspended until such incapacity no longer prevents him or her from performing essential duties.

The bill passed on a 45-0 vote.

LB232 was introduced by Omaha Sen. Steve Lathrop to increase Nebraska judges’ salaries. The bill was indefinitely postponed on select file and instead its provisions were included in LB306, which extends an increase in Nebraska judges’ retirement contribution rates.

The current judges’ salary is $145,614. Under the amended bill, the salary increases 5 percent annually over the next two fiscal years to $152,895 on July 1, 2013, and to $165,040 on July 1, 2014.

LB306 passed on a 41-6 vote.

A bill that changes nonconsensual lien filing provisions also was passed.

Omaha Sen. Bob Krist introduced LB3, which requires a claimant to notify the sheriff in order to serve a copy of the recorded lien to the property owner and file proof of service with the register of deeds. The claimant will be required to file a judicial proceeding to enforce the nonconsensual lien within 10 days after recording it or such lien will lapse and be legally void and unenforceable.

The bill also clarifies that a nonconsensual common-law lien is not binding or enforceable at law or in equity and, if recorded, is void and unenforceable. Those who fraudulently file a nonconsensual lien, financing statement or document that attempts to harass an entity, individual or public official or obstruct a government operation or judicial proceeding will be guilty of a Class IV felony.

Additionally, the bill establishes filing and notification provisions for commercial real estate liens and requires a real estate broker to have a lien in the commission amount on commercial real estate or any real estate in which a buyer is interested in leasing, purchasing or conveying.

The bill passed with an emergency clause on a 46-0 vote.

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