State funds to counties for jail incident costs advanced

Lawmakers gave first-round approval March 7 to a bill intended to assist counties facing costs from correctional institution incidents.

LB861, introduced by Syracuse Sen. Dan Watermeier, would require the state to pay a county’s prosecution costs that arise from a single correctional institution incident—defined as one in which a crime is allegedly committed by one or more inmates confined in a state correctional institution—if it exceeds the threshold amount for the county.

Under the bill, the threshold amount is the amount of property tax revenue raised by the county from a levy of 2.5 cents per $100 of taxable valuation of property subject to the levy. The threshold amount would be determined using valuations for the year in which the correctional institution incident occurred.

Costs of prosecution would include, but would not be limited to, the costs of defense for indigent defendants, such as attorney and expert witness fees.

“I look at LB861 as a catastrophic insurance policy,” Watermeier said. “It will only kick in when the prosecution costs become an extreme hardship for the county residents. It may never kick in and I hope it never is needed.”

Watermeier said the threshold amount for Johnson County, which includes the Tecumseh State Correctional Institution, is approximately $228,000. The potential costs of the Mother’s Day riot that occurred at Tecumseh in 2015 may exceed that amount, he said, adding that while the state Department of Correctional Services paid for some expenses related to the riot, it will not pay any additional claims.

As a result, he said, the county must bear the cost of prosecuting inmates for murders that occurred during the incident. While the public defender and the Nebraska Commission on Public Advocacy will assist with the costs, he said, the county will be required to hire additional attorneys to represent numerous co-defendants.

“Counties cannot fail to prosecute a murder just to save the money,” Watermeier said. “The county must bear the cost even though, since 2007, I am not aware of even one person—not one person in [the Tecumseh facility]—that has been charged with a crime who was originally from Johnson County.”

An Appropriations Committee amendment, adopted 26-0, would limit the bill’s provisions to incidents occurring on or after May 1, 2015. It also would define an incident as one in which one or more crimes were committed.

Watermeier said the change would specify that an event such as the Mother’s Day riot would be considered one incident even though several crimes were committed during the course of the riot.

Lincoln Sen. Kate Bolz supported the bill and the amendment, although she cautioned lawmakers that it could mean an unknown commitment of state resources down the road.

“Voting for this bill could have future fiscal impacts for people who are serving in this Legislature in the future,” she said.

Omaha Sen. Burke Harr offered an amendment to incorporate into the bill provisions of his LB883. The amendment would outline a process through which the Nebraska attorney general could request that a district court appoint an independent counsel in a case where there is a perceived personal or ethical conflict in the prosecution of an alleged crime.

Harr said the amendment simply would clarify that the attorney general has the same ability as county attorneys do to have alternate counsel appointed in such a circumstance.

“This [amendment] allows the attorney general—does not force the attorney general, but allows them at their discretion if they believe they have a conflict—[to] go to a judge and ask that a conflict counsel be appointed,” Harr said.

The amendment was adopted 26-1 and LB861 advanced to select file on a 27-0 vote.