Omnibus criminal justice reform bill amended, advanced

A bill that would enact a variety of criminal justice programs and other reforms was amended and advanced from general file May 23 on the promise of continued negotiations before the next round of debate.

Sen. Justin Wayne
Sen. Justin Wayne

LB50, originally introduced by former Lincoln Sen. Suzanne Geist, would create several programs to improve the state’s criminal justice system, including a program to expand problem-solving courts, a pilot program to establish parole-violation residential housing and creation of a probationer incentive program.

During the 2022 legislative session, Geist offered an amendment to LB920, a criminal justice reform measure introduced by former Omaha Sen. Steve Lathrop that stalled on the first round of debate. LB50 is a combination of LB920 and Geist’s previously offered amendment based on consensus items from the 2021 Criminal Justice Reinvestment Group findings.

As introduced, the bill contains a number of provisions intended to address courts, reentry, release and supervision, including:
• requiring each judicial district to establish a problem-solving court;
• creating a pilot program to administer virtual behavioral health treatment for court-involved individuals;
• requiring a court or a probation officer to notify an offender who may be eligible for a set-aside and information on filing a petition;
• creating a pilot program to hire assistant probation officers in a probation district;
• providing for stream-lined parole contracts for qualified offenders;
• prioritizing restitution payments;
• establishing a housing program for parolees who commit technical parole violations; and
• terminating the Legislature’s Committee on Justice Reinvestment Oversight.

A Judiciary Committee amendment, adopted 27-9, replaced the bill. The amendment contains all of LB50’s original provisions and adds the provisions of several additional bills, including Omaha Sen. Justin Wayne’s LB352.

Debate centered on two provisions of Wayne’s proposal related to habitual criminal enhancement and parole eligibility.

Currently, a third offense requires a 10-year mandatory minimum sentence. Wayne’s proposal would lower that to a three-year mandatory minimum for a felony charge that does not include offenses relating to violence, firearms or sex.

The provisions also would allow an offender to be eligible for parole consideration two years before mandatory discharge on a maximum sentence up to 12 years, three years before mandatory discharge on a maximum sentence up to 16 years, four years before mandatory discharge on a maximum sentence up to 20 years and five years before mandatory discharge on a maximum sentence of more than 20 years.

Wayne, chairperson of the Judiciary Committee, said the amendment was offered in an attempt to address “jamming out” — a term used to describe when an inmate exhausts their sentence before becoming parole eligible. Individuals who have committed Class I and Class II felonies — the state’s most violent offenders — currently are jamming out, he said, without any programming or supervision to help them successfully reenter society.

“The fear … for law enforcement is not the person who is getting parole,” Wayne said. “The fear of the one now is the one who packed their bags up and walked out of that prison system without any support system, guidance, job or a family to go back to.”

Omaha Sen. Terrell McKinney spoke in support of the committee amendment, saying the state’s prison overcrowding crisis, which has disproportionately impacted Black people in Nebraska, will not improve without access to programming and other reforms. The committee amendment could go even further, he said, but LB50 is a good starting point.

“Our criminal justice system and our prison will continue to be overcrowded and that is a huge issue because the data shows that once that new facility is open, it’s going to be overcrowded,” McKinney said.

Omaha Sen. John Cavanaugh also spoke in support. Increasing parole eligibility does not automatically release an inmate earlier, he said, but instead provides them the opportunity to work toward an earlier release date and eventually become parole eligible.

“There are currently 1,000 people in our Department of Corrections who are still there past their parole eligibility date,” Cavanaugh said.

Lincoln Sen. Carolyn Bosn spoke in opposition to the provisions included in the committee amendment related to habitual criminal enhancement and parole eligibility. Under those provisions, an individual who is serving a 20-year sentence could be eligible for parole after only six years, she said.

As a former prosecutor, she said that would be difficult to explain to a crime victim.

Bosn said the two sides were close to an agreement, however, and asked fellow senators to adopt the amendments and advance LB50 to select file to allow time for negotiations to continue before the next round of debate.

The amendment also includes other provisions of Wayne’s LB352 to create geriatric parole eligibility for certain offenders over age 75 who have served 15 years of their sentence. Offenders convicted of a Class I or Class IA felony or sex offenses, or those serving a life sentence, would be excluded.

The provisions also would create a misdemeanor offense for possession of less than a tenth of a gram of a controlled substance other than fentanyl.

Also included in the committee amendment are provisions of several additional bills, including:
•LB18, introduced by Wayne, which would allow a motion for a new trial if a witness exercised constitutional privilege to testify in a defendant’s trial but later testified in the witness’s defense;
•LB27, introduced by Lincoln Sen. George Dungan, which would clarify the appointment process of a public defender to an indigent defendant who files an appeal;
•LB59, introduced by Cavanaugh, which would temporarily pause the statute of limitations for a post-conviction action while an appeal to the Supreme Court is pending;
•LB76, introduced by Lincoln Sen. Eliot Bostar, which would allow law enforcement to access certain probation and parole supervision information;
•LB137, introduced by Bosn, which would create an enhanced penalty for controlled substance offenses if use of the substance results in death or serious injury;
•LB162, introduced by Omaha Sen. Mike McDonnell, which would create a new Class I misdemeanor charge for tampering with an electronic monitoring device; and
•LB314, introduced by Omaha Sen. John Fredrickson, which would require suicide prevention materials to be provided to firearm purchasers.

Wayne offered an amendment to the Judiciary Committee amendment, adopted 27-5, which would create a Sentencing Reform Task Force and include provisions of the following bills:
•LB337, introduced by Ralston Sen. Merv Riepe, which would clarify when mental health practitioners may share an individual’s medical records when consent cannot be obtained;
•LB30, introduced by Dungan, which would authorize pleas of no contest in juvenile court cases; and
•LB494, also introduced by Dungan, which would allow for custodian certification of business records by an affidavit signed under penalty of perjury.

Following adoption of the Wayne amendment, senators voted to advance LB50 to select file 28-8.

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