Session Review: Judiciary

Lawmakers abolished capital punishment, allowed research on medical marijuana and made wide-ranging revisions to the state’s correctional system this session.

Correctional system

Lawmakers abolished Nebraska’s death penalty this session.

LB268, introduced by Omaha Sen. Ernie Chambers, abolished capital punishment by eliminating the Class I felony classification and the corresponding penalty of death. This changes the maximum penalty for first-degree murder in Nebraska from death to life imprisonment.

LB268 was approved on a 32-15 vote. Gov. Pete Ricketts subsequently vetoed the measure, saying it countered the beliefs of an overwhelming majority of Nebraskans who support capital punishment as an important public safety tool.

Senators voted 30-19 to override the governor’s veto and enact LB268 notwithstanding his objections. Thirty votes were needed.

LB605, introduced by Omaha Sen. Heath Mello, was drafted with the assistance of the Council of State Governments (CSG) Justice Center and follows the release of their recent report, which identified three challenges in Nebraska’s criminal justice system: overcrowded prisons, limited post-release supervision and insufficient supervision. To address these challenges, CSG suggested using probation for people convicted of low-level offenses, ensuring post-release supervision and improving parole supervision.

LB605 will increase the use of probation for those convicted of low-level offenses that do not include an element of violence by creating a presumption of probation for Class IV felonies. This presumption can be overcome if the person also is being sentenced for a more serious felony or if there are other compelling reasons.

The bill amends the penalties for Class III, IIIA and IV felonies to provide for a period of incarceration followed by a period of post-release supervision. Several Class III and IV felonies are reclassified.

For a conviction of a Class IA, IB, IC, ID, II or IIA felony, supervision following release depends on a window of parole eligibility in the indeterminate sentence imposed by the court. For sentences with a parole eligibility window, the bill requires the adoption of parole board guidelines to ensure a minimum period of nine months of parole supervision after release.

Parole administration staff must be trained in evidence-based practices and Parole Administration must develop an evidence-based risk and needs assessment instrument for offenders on supervision. The bill also requires the Parole Administration to develop a matrix of administrative and custodial sanctions to be imposed in lieu of revocation, and allows custodial sanctions of up to 30 days for parole violations.

The bill created a grant program to enable counties to apply for additional funding to cover the costs of an increase in jail population as a result of implementing LB605.

Provisions of Sen. John McCollister’s LB354 were added to the bill that increase the maximum compensation from $10,000 to $25,000 allowed from the Victim Compensation Fund.

Also incorporated into the bill were provisions from Sen. Bob Krist’s LB12, which require the state Department of Health and Human Services to suspend, rather than terminate, inmates’ eligibility for medical assistance.

Senators passed the bill 45-0.

Introduced by Sen. Paul Schumacher of Columbus, LB598 requires the state Department of Correctional Services, beginning July 1, 2016, to use the least restrictive manner consistent with maintaining institutional order when separating inmates from the general prison population.

The bill permits restrictive housing, defined in the measure as housing that provides limited contact with other inmates and limited out-of-cell time. LB598 prohibits solitary confinement, which, as defined in the bill, deprives an inmate of all visual and auditory contact with other inmates.

The department director must submit a report to the governor and the Legislature that outlines a long-term plan for the use and reduction of restrictive housing. Due by July 1, 2016, the report will detail the behavior, conditions and mental health status under which an inmate will be placed in each confinement level and regulations for transitioning inmates back to the general prison population or to society.

Additionally, the director is required to report annually by Sept. 15 to the governor and the Legislature the number of inmates in restrictive housing, their mental health status and the duration of their segregation.

LB598 also creates a long-term restrictive housing advisory group, consisting of the department director and other department officials, mental health professionals and prisoners’ rights advocates appointed by the governor.

Provisions of LB606, introduced by Mello, were amended into the bill and create the Office of Inspector General of the Nebraska Correctional System. The inspector general will be appointed and supervised by the Office of Public Counsel and serve a five-year term. Duties will include conducting investigations of misconduct and death or serious injuries, audits, inspections and other reviews of the Nebraska correctional system. The inspector is required to provide a summary of all reports and investigations to the Judiciary Committee and governor by Sept. 15 each year.

Provisions from LB606 also require the governor, beginning July 1, 2020, to declare an overcrowding emergency when the director of correctional services certifies that the prison population is over 140 percent of design capacity. Declaration of an overcrowding emergency mandates that the state Parole Board immediately consider or reconsider all eligible inmates for parole.

Currently, the governor has the option whether or not to declare an emergency when the population reaches the 140 percent threshold.

Other provisions added to LB598 from LB592, a bill introduced by Lincoln Sen. Kate Bolz, require the department to administer a mental health evaluation of all inmates within the first two weeks of their incarceration. The department is required to treat mentally ill inmates and re-evaluate them prior to release.

The chief executive officer of a correctional facility is now authorized to segregate or transfer mentally ill and dangerous inmates to a psychiatric facility outside of the department. Additionally, the department’s Parole Administration Office will be organized under the state Board of Parole beginning July 1, 2016.

Senators passed LB598 on a 47-0 vote.

A court may order DNA testing of previously tested material if current technology could provide more accurate or probative results under LB245, introduced by Sen. Patty Pansing Brooks of Lincoln. Previously, material could be retested only if a court determined that forensic testing did not exist at the time of the trial.

The bill incorporated provisions of LB244, also introduced by Pansing Brooks, that permit the filing of a motion for a new trial whenever new non-DNA evidence is discovered. The motion cannot be filed more than five years after the date of the verdict, unless the new evidence could not with reasonable diligence have been discovered and produced at trial and such evidence is so substantial that a different result may have occurred.

LB245 passed on a 42-4 vote.

Introduced by Norfolk Sen. Jim Scheer, LB294 increases penalties for pandering and keeping a house of prostitution and permits search warrants and subpoenas to be issued for entities located outside of Nebraska.

The measure creates a human trafficking victim assistance fund and requires the Foster Care Review Office to collect information on child trafficking victims.

The bill passed with an emergency clause on a 49-0 vote.

Juvenile justice and child welfare

Senators approved LB347, a Krist bill that expands the jurisdiction of the Office of the Inspector General of Nebraska Child Welfare (OIG) to oversee the state’s Juvenile Services Division of the Office of Probation Administration. Currently, the OIG conducts audits, inspections and other reviews of the state’s child welfare system.

Senators passed the bill 47-0.

LB265, introduced by Lincoln Sen. Kathy Campbell, makes a number of changes relating to juveniles and child welfare, including:
• establishing a pilot project to demonstrate how state agency data can be used by state offices to oversee juveniles in out-of-home care;
• permitting the Foster Care Review Office or local board to participate in a foster care placement dispositional hearing;
• defining a young adult as older than 18 but younger than 21; and
• allowing judges access to a juvenile’s sealed record when determining whether to transfer a case to or from juvenile court.

The bill contains provisions of Krist’s LB13, which set aside 10 percent of the annual General Fund appropriation for the Community-based Juvenile Services Aid Program to develop data and evaluate the effectiveness of the program. The provisions require recipients to submit annual reports to the University of Nebraska at Omaha’s Juvenile Justice Institute.

The bill passed with an emergency clause 45-1.

Juveniles charged with running away, acting uncontrollable or being truant cannot be fingerprinted or placed in a juvenile detention facility or out-of-home care unless certain factors exist under LB482, sponsored by Krist.

Passed 44-2, the measure allows the restraint of juveniles during court proceedings only if they present a substantial risk of flight from the courtroom or have a history of disruptive courtroom behavior that has placed others in potentially harmful positions.

LB15, also introduced by Krist and passed 47-0, requires a guardian ad litem to follow rules established by the Nebraska Supreme Court. Responsibilities include consulting with the assigned juvenile in person unless other methods are approved, attending all hearings, limiting their own caseloads and submitting itemized billing statements. The bill permits guardians ad litem to be compensated on a per-case or multi-case contract basis.

Introduced by Lincoln Sen. Colby Coash, LB566 changes provisions of the federal Indian Child Welfare Act (ICWA) to clarify the responsibilities of Nebraska child welfare providers.

The bill ensures that Native American tribes have representation in custodial proceedings involving native children. Those efforts will include exhausting all available tribally appropriate family preservation alternatives, engaging tribally designated state ICWA representatives and facilitating a family’s access to culturally appropriate resources.

Senators passed the bill on a 45-0 vote.

Coash also introduced LB292, which prohibits youth ages 11 and younger from being placed on the child abuse offender registry. Only youth ages 12 and older designated as agency- or court- substantiated can be entered into the registry under the bill.

Another provision of LB292, incorporated from Coash’s LB290, removes a requirement that registered sex offenders provide information and report changes regarding their email address list, Internet communication identifiers, domain names and blogs and websites that they write or maintain.

Lawmakers passed the bill on a 46-0 vote.

Bellevue Sen. Sue Crawford’s LB219, passed 49-0, provides a legal framework for parents and judges regarding care for children when a military parent is deployed. The law also clarifies parenting arrangements required when a deployed parent returns.

LB314, sponsored by Lincoln Sen. Matt Hansen and passed 47-0, clarifies several different areas of jurisdiction for county courts that are consistent with the court’s existing jurisdiction regarding probate, guardianship and conservatorship.

Drug policy

Introduced by Crawford, LB390 creates a pilot study at the University of Nebraska Medical Center (UNMC) to allow access to low-tetrahydrocannabinol (THC) oil for patients who suffer intractable or treatment-resistant seizures.

The bill authorizes the University of Nebraska and Nebraska Medicine to produce and possess cannabidiol for research. The cannabidiol can contain up to three-tenths percent of THC, the active ingredient of the cannabis plant.

UNMC is required to submit a report annually to the Judiciary and Health and Human Services committees of the Legislature beginning Sept. 15, 2016, which details the number of patients currently and previously enrolled in the study, changes in intractable seizure frequency and severity, adverse effects of treatment and a summary of appropriate dosing.

The bill contains provisions of LB546, introduced by Lincoln Sen. Adam Morfeld, which exempt an individual from prosecution who prescribes or dispenses naloxone, a morphine-like synthetic drug, to a person experiencing an opioid-related overdose.

Provisions of LB390 included from LB326, introduced by Gothenburg Sen. Matt Williams, update the state’s Uniform Controlled Substances Act to prohibit the newest compounds of synthetic cannabinoids, also known as K2.

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

Other bills

LB88, introduced by Campbell and passed 42-4, increased the fee charged by counties from $15 to $25 for issuing and recording marriage licenses and to administer oaths or affirmations for marriage. The bill also increased the fee charged by counties from $5 to $9 to make a certified copy of a marriage record.

LB72, sponsored by Schumacher, prohibits a trustee of a revocable trust that has become irrevocable due to the death of the trustor from transferring trust property to a beneficiary prior to satisfaction of all claims for Medicaid reimbursement.

The state Department of Health and Human Services (DHHS) may waive the restrictions within 60 days if there are no claims for Medicaid reimbursement or insufficient assets to satisfy the claims. The bill permits certain trustees to distribute assets from a trust prior to receiving a waiver from DHHS if the trustee signs a recital under oath that no claims for medical assistance exist.

The bill also requires that if a petition is filed to determine inheritance tax, notice of the hearing will be sent to DHHS if the decedent was 55 or older or resided in a medical institution that potentially would subject them to debt for Medicaid services.

LB72 passed on a 40-8 vote.

Introduced by Hastings Sen. Les Seiler, LB194 creates the Nebraska Supreme Court attorney services cash fund. The fund will consist of mandatory assessments, fees, grants, donations and gifts to be expended for regulation of the practice of law and administered by the state court administrator.

The bill passed on a 47-0 vote.

A bill remains on general file that would expedite the eviction process for certain tenants.

LB385, introduced by Omaha Sen. Brett Lindstrom, would permit a landlord or his or her representative to begin eviction litigation three days after notification of the termination of a rental agreement. Currently, the Uniform Residential Landlord and Tenant Act requires landlords to wait 30 days to evict a tenant after notification.

The bill would apply only in cases where tenants, roommates or their guests threaten the health, safety or peaceful enjoyment of the landlord or other tenants.

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