New sentencing procedures proposed

The Judiciary Committee considered three bills Feb. 11 that would alter sentencing procedures for Nebraska courts.

LB172, introduced by Omaha Sen. Ernie Chambers, would repeal the mandatory minimum sentencing option from Class IC and ID felonies. Currently, the mandatory minimum imprisonment for a Class IC felony is five years. The minimum sentencing option for a Class ID felony is three years. Both classes are punishable by up to 50 years’ imprisonment.

Chambers said eliminating mandatory minimum penalties would allow inmates to begin immediately accruing credit for good behavior, or “good time,” which reduces sentences by 50 percent. Currently, inmates cannot earn good time until minimum sentences are served.

Chambers said that according to the legislative fiscal analyst and the state Department of Correctional Services, the bill could result in inmates being released 2.3 years sooner, which would save the department money and reduce the prison population.

According to the bill’s fiscal note, LB172 would result in average daily population decreases of 11 to 25 inmates in fiscal year 2016-17 at a savings of $6,000 to $19,000, and 29 to 51 inmates in FY2017-18 at a savings of $79,000 to $180,000.

Dick Clark of the Platte Institute testified in support of the bill, saying it would address needed prison reform in Nebraska by reducing overcrowding through letting judges have more say as to who must be imprisoned.

“Eliminating mandatory minimum sentences means trusting our judges to use their discretion,” he said.

Lancaster County Public Defender Joe Nigro agreed, saying current statute limits sentencing options for judges. Some nonviolent offenders would be better served by probation than by mandatory incarceration, Nigro said, in support of the bill.

Marty Bilek of the Omaha Mayor’s Office testified in opposition to the bill, saying the mandatory minimum penalties were created to send a message that gun and drug crimes require more severe punishment. He added that mandatory sentences keep criminals out of communities longer.

“The longer the gunman stays in prison, the safer Omaha is,” he said.

LB173, also introduced by Chambers, would require that only those convicted of three violent crimes be considered a habitual criminal. All three of an offender’s convictions would have to be violent crimes, which include:
• first degree murder;
• second degree murder;
• manslaughter;
• first degree assault;
• kidnapping;
• first degree sexual assault;
• sexual assault of a child;
• robbery; and
• motor vehicle homicide.

The bill also would remove the mandatory minimum sentence option for habitual criminals. Offenders still could be subject to a possible sentence of 10 to 60 years’ imprisonment.

Thomas Strigenz of the Nebraska Criminal Defense Attorneys Association testified in support of the bill. He said attorneys routinely use the habitual criminal penalty to coerce nonviolent offenders into confessing to a lesser crime.

“It’s a bully tactic,” he said.

Jerry Soucie, also of the association, also spoke in favor of the bill. Under current statute, he said, people with three forgery convictions could face 10- to 60-year sentences.

“We need to look at the fairness of the process,” he said.

Lancaster County Attorney Joe Kelly testified in opposition to the bill. Repeat felony offenders typically vary the types of crimes they commit, he said, and the habitual criminal statute should include crimes against property and people.

LB483, introduced by Lincoln Sen. Patty Pansing Brooks, would expand the court’s indeterminate sentencing options to include all felony classes, except in cases where life sentences are imposed. Currently, Class IV felonies are excluded from indeterminate sentencing.

Under the bill, the minimum sentence limit imposed by the court for felonies could be no more than one-third of the maximum sentence limit.

Pansing Brooks said the bill would reinstate a rule that kept courts from setting minimum and maximum sentences too close together. By limiting minimum sentences to one-third of the maximum sentence, she said, inmates would be given enough time to participate in rehabilitation programs that make them better candidates for parole.

“This bill encourages attendance in programs that we know work,” she said.

Sarah Newell, representing the Nebraska Commission on Public Advocacy, testified in support of the bill. With parole at stake, she said, inmates would be incentivized to maintain good behavior.

Alan Peterson, representing American Civil Liberties Union Nebraska, also spoke in favor of the bill, saying it would help prison reform by resuming a proven rehabilitation-based policy.

“To return to something that worked makes so much sense,” he said.

Don Kleine, representing the Nebraska County Attorneys Association, testified in opposition to LB483. Limiting the minimum sentence restricts a judge’s ability to fit a punishment to a crime, he said. The bill is not needed, Kleine said, because current statute already allows judges to tailor sentences to include rehabilitation and parole.

The committee took no immediate action on the bills.