Criminal justice bill amended, advanced

A bill introduced to require certain felony sentences to be served in a county jail was replaced with provisions to address mental and physical health concerns of incarcerated individuals and given first-round approval April 8.

Under current state law, an individual sentenced for a felony charge is required to serve the sentence in a state correctional facility. LB921, as introduced by Omaha Sen. Steve Lathrop, would have required that all sentences for Class III, IIIA or IV felony charges or for a maximum term of imprisonment of less than one year be served in a county jail.

Lathrop said LB921 could save the Nebraska Department of Correctional Services $25 million in marginal costs and would reduce the average population at the NDCS to 3,200 inmates — roughly 400 below capacity. Additionally, he said, the bill could incentivize counties to look for alternatives other than incarceration.

“If we passed LB921, prisons would immediately be at 88 percent of capacity,” Lathrop said. “It would be unnecessary to build a new prison that would cost $270 million.”

A Judiciary Committee amendment, adopted 39-0, gutted the bill and those provisions. Lathrop said that due to a lack of time, the Legislature could not properly debate the bill as introduced.

“We don’t have enough time left in this session to try to hammer this out and so we have amended this bill to take this provision out,” Lathrop said. “But, I hope you’re thinking about this as a solution for next year because it has merit.”

The amendment instead incorporated provisions of two other bills, including an amended version of LB952, introduced by Omaha Sen. John Cavanaugh, which would require the state Department of Health and Human Services to provide Medicaid enrollment assistance to individuals prior to leaving incarceration.

Under the amendment, DHHS would be required to provide assistance at least 60 days prior to an individual’s release date, or as soon as practicable for inmates with fewer than 60 days left on their sentence. The department could contract with a third-party provider and could provide assistance in person, by telephone or video.

Cavanaugh said 56 percent of incarcerated individuals have a mental illness. If they can be set up for Medicaid prior to release, they can receive their medications and continue their progress and treatment after release, he said.

“Access to healthcare is a barrier to reentry,” Cavanaugh said. “By making sure more people are eligible for Medicaid as soon as they are released will not only help the reentry population get back on their feet, but will also help reduce the long-term costs of the state’s uncompensated care.”

The amendment also added provisions of LB1223, introduced by Lincoln Sen. Matt Hansen, which would require DHHS to reimburse a county jail if a person is ordered to be committed for competency restoration but remains in jail. The rate of reimbursement would be $100 per day and would be adjusted for inflation annually beginning July 1, 2023.

The provisions would apply to individuals with mental illness so severe that they are deemed incompetent to stand trial.

Hansen said there were 77 people on the waitlist for the Lincoln Regional Center earlier this year who were being housed in county jails due to lack of space. On average, he said, the waitlist is between 90 and 120 days, but often can be up to 150 days.

“These are people who are supposed to be in state care who are typically waiting in county jails, which is where the burden comes from on the counties,” he said. “They are housing people on a waitlist because the state is not stepping up to provide their end of the bargain.”

The amendment also would designate those individuals as a priority group for admission to state hospitals and require that 15 percent of capacity be reserved for them.

Finally, the amendment would create the Legislative Mental Health Care Capacity Strategic Planning Committee, which would be required to contract with an independent consultant to determine the necessary capacity of inpatient mental health care in Nebraska.

Sen. John Arch of La Vista spoke in support of the amendment, but expressed concern about the provision that would require 15 percent of beds be retained for incompetent individuals. Mandating certain types of capacity can be costly and lead to inefficiencies, he said.

Arch said the Health and Human Services Committee is aware of capacity issues and will be studying the state’s regional centers over the interim.

Following the adoption of the committee amendment, senators voted 39-0 to advance LB921 to select file.