Nebraska inmate files lawsuit challenging prison’s failure to recalculate sentences

Kirk Robinson said Director Rob Jeffreys issued a memo to the incarcerated population that the department would not be recalculating any incarcerated individual’s sentence decided before Sept. 2, the date LB50 took effect. 

The law, which passed in a 34-15 vote, covers a wide range of criminal justice reforms, including increasing Nebraska’s problem-solving courts and making certain offenders eligible for parole earlier.

It was the latter that has raised questions, among Jeffreys and Rosalyn Cotton, chairperson of the Nebraska Board of Parole, who sought a formal opinion on the interpretation and constitutionality of LB50 from Attorney General Mike Hilger’s Office.

Lawmakers made their intention clear that the law was to be applied retroactively, but Hilger’s office on Sept. 6 issued an opinion that it likely was a violation of the separation of powers and, therefore, unconstitutional.

His office since has filed a lawsuit challenging that portion of the law.

They sought first to directly file the case with the Nebraska Supreme Court, which denied the move. The case now will be heard by Lancaster County District Judge Susan Strong. 

In response to the opinion, which isn’t binding on courts, Jeffreys said the department would not impose the new requirements retroactively on inmates sentenced before Sept. 2, the day LB50 took effect.

In the petition for injunctive relief seeking to force the state to apply the law, Robinson, who is representing himself and is a prolific lawsuit filer, said he is currently housed with a cellmate in a cell designed for only one person, due to overcrowding. 

According to the prisons’ website, NDCS is at 150% of design capacity, as of fiscal year 2022.

Robinson said a new prison, which lawmakers approved funding for last session, may not be needed if LB50 was applied as intended, which would reduce the tax burden. 

“LB50 does not make parole mandatory. It merely intends to try to expedite the parole process. The parole board still can deny an individual parolee if it so chooses,” he wrote. 

Before passing, LB50 faced pushback this year during every round of debate, primarily from a handful of Republican lawmakers and the County Attorneys Association, concerned among other things that it could reduce sentences for repeat offenders and substantially decrease the time inmates would serve in prison before being granted parole.

Omaha Sen. Justin Wayne, who sponsored the bill, argued it was essential to the success of Nebraska’s criminal justice system and said measures in it could help reduce recidivism rates contributing to Nebraska’s prison overcrowding problem.