A decade ago, Nebraska’s corrections department allowed hundreds of inmates to leave prison early through a program that few — including judges, lawmakers and the public — knew existed.
Corrections devised the early-release initiative as part of a larger, and ultimately scandal-plagued, effort to ease overcrowding in Nebraska’s packed prisons. Leaders scrapped the scheme shortly after probing lawmakers revealed it.
Now, as the Nebraska Department of Correctional Services continues to grapple with overcrowding and converts one prison into an immigration detention center, it is trying to create a similar program and allow some inmates out into the community under intense supervision.
It’s already prompting pushback, including from lawmakers in both political parties.
“What you’re saying is, ‘OK, we don’t really think the judges knew what they were doing, or this Legislature (knew what they were doing) when they said what factors to consider. We just think, internally, NDCS can make those ultimate determinations.’ And I, respectfully, disagree with that,” said State Sen. Carolyn Bosn, a former prosecutor who chairs the Judiciary Committee.
Bosn, a Republican from Lincoln, and State Sen. Terrell McKinney, a Democrat from Omaha, both said a program like this could have merit.
But, echoing a criticism of the controversial program from the past, both said it should be created by the Legislature — not the department itself. They and others, including the state’s watchdog for corrections, also knocked the current proposal for its lack of details.
“I’m not opposed to it, it’s just about the implementation and how it’s going to work,” McKinney said. “The less people in prison, I’m always for. It’s just how it’s executed and what are the stipulations around it.”
Unlike with the previous initiative, the department is following a public process this time around.
Corrections filed a notice on its proposal — dubbed PATH, or the Program for At-home Transition Housing — with the secretary of state’s office three weeks after Gov. Jim Pillen unveiled plans to turn the McCook Work Ethic Camp into a federal immigration detention center.
A spokesperson for the department didn’t mention overcrowding or answer questions about any links between the proposal and the McCook center conversion.
Spokesperson Dayne Urbanovsky said the PATH proposal was driven by the department’s “commitment to efficient and meaningful population management strategies, while improving reentry opportunities” for inmates.
Nebraska’s prisons have long been some of the most overcrowded in the country. The system entered an overcrowding emergency in 2020 when its overall population exceeded 140% of its design capacity.
It remains in that emergency, according to a recent report from the state’s inspector general for corrections, Doug Koebernick. The same report found that, depending on the metric used, Nebraska has either the most or second-most overcrowded prison system in the U.S.
Overcrowding concerns fueled questions from McKinney and others about Pillen’s push to take the roughly 200 beds at the McCook center offline so that the prison could be used to detain up to 300 immigrants.
In a letter to McKinney, the administration disputed the notion that the move would trigger an “overcrowding emergency.”
“The addition of 300 criminal illegal aliens to the system will not put NDCS facilities anywhere near the 140% occupational capacity threshold needed to trigger an emergency declaration,” wrote Kenny Zoeller, director of the governor’s Policy Research Office.
The state has since relocated the roughly 180 inmates previously housed in McCook, according to Urbanovsky. Last week, Pillen’s office announced that ICE inspectors had OK’d the center to start operating.
McKinney drew a connection between the McCook center and PATH, the department’s current proposal.
“Taking away that which was a facility for people who were transitioning, they needed something to try to backfill that,” McKinney said. “And that’s probably this program.”
PATH bears some broad similarities to the program Corrections created in 2008.
That program started small, with only eight inmates furloughed in fiscal year 2008, according to Koebernick. Initially, certain violent and repeat offenders were excluded.
But that changed in 2010, the same year an internal policy directive allowed for violent offenders to be eligible. In fiscal year 2010, 58 inmates were furloughed through the program. That number ballooned to 435 in 2011.
The program largely flew under the radar until a 2014 investigation by the Omaha World-Herald found that — independent of the furlough program — Corrections had mistakenly released dozens of inmates early. That prompted an investigation by a special legislative committee, which uncovered the so-called “Reentry Furlough Program.”
Among those furloughed in 2011, about 120 had been convicted of violent offenses, including assault, robbery, assault of an officer and manslaughter, according to The World-Herald. Three had been convicted of murder.
The revelations perturbed several judges who were unaware the program existed and who felt Corrections had overstepped, the newspaper reported.
The legislative committee found the corrections department had developed the furlough program “outside of the law” and blurred lines between Corrections and the Parole Board, which is meant to serve independently.
The committee recommended abolishing the program, adding that such an effort “should be created legislatively.”
The department discontinued the program in 2015, according to Urbanovsky, and has not had a similar program since.
For PATH, the department is following a formal rule-making process that provides a heads-up to lawmakers and allows some public feedback.
However, few members of the public appeared to be aware of it during a recent hearing at Corrections headquarters in Lincoln.
Many of the 10 people who testified had questions.
“When I tried to look up information about the PATH program online, there was absolutely no information,” said testifier Shannon Roeder, who said her incarcerated husband told her about the proposal.
The draft contains few answers.
“The Inspector General’s office is taking no position on the PATH Program but would suggest that if NDCS does go forward with this program outside of the legislative process, that much more detail and specifics be included in the rules and regulations,” Koebernick testified.
Inmates in PATH would be responsible for their own housing and daily living costs, according to the draft, and for their own health care coverage. They would live in “approved private residences” and keep full-time jobs or attend approved programming.
Oversight by NDCS staff, such as a parole officer, would include reporting, curfews and employment verification. Participants could leave their residence only for “approved activities” and could be monitored electronically. No weapons, illegal drugs or alcohol allowed.
“The program promotes stability, access to employment and services, and a smoother transition into the community,” the draft reads.
As to who would qualify, the draft defines a participant only as “an individual nearing the end of their sentence, or with limited time to serve following commitment.”
Jasmine Harris, director of public policy at the reentry nonprofit RISE, said the organization is always looking for ways for people to have successful reentry after incarceration.
But this proposal needs “more meat on the bone,” she said.
“This is a different pathway that they’re taking with this program, and we don’t know much about it, so just want to ensure that it’s a thoughtful process, that they are learning from any past mistakes and ensuring that it’s something that’s set up for folks as they’re coming home to actually succeed,” Harris said.
Former State Sen. Steve Lathrop, who led the legislative investigation into the old program, reviewed the draft regulation as part of his role on the board of directors for RISE. He too noted the lack of detail, saying that crucial components of the program could be left to the discretion of the department’s director.
“I’m not critical of having a furlough program, but I think that there needs to be criteria in the regulations so that the public knows who’s going to get on furlough,” Lathrop said.
Bosn laid out several ways such a program could benefit the state and individual prisoners. It could be an incentive for people to work on programming or follow rules while incarcerated, she said. And it could help the state’s workforce and save taxpayer money.
“There’s a whole bunch of different ways that you can market something like this,” Bosn said, “but I do think you want to make sure, if and when you put that ultimately forward, that you’ve really considered it from every single perspective.”
Bosn said she wasn’t involved in the creation of the regulations and hadn’t seen them until the Flatwater Free Press sent her a copy.
At least one critic of the old program is withholding judgment about the new proposal.
In 2012, then-Lancaster County Attorney Joe Kelly had privately expressed his own concerns with the program to the then-director of corrections, The World-Herald reported. He encouraged the state to “seek specific legislative authority” for furlough.
Kelly went on to serve as the U.S. attorney for Nebraska and is now the state’s lieutenant governor. He did not respond directly to an interview request but issued a statement:
“The current proposed rule is going through the (Administrative Procedure Act) process and is not yet at the Administration’s desk. Once the rule reaches Gov. Pillen’s desk, he will then have an opportunity to approve or deny the change based on the merits.”
Typically, regulations go to the attorney general for review after they have had a hearing. Then they go to the governor for approval.
But in this case, the public may get another chance to weigh in. Urbanovsky said the department was “looking into” it after Flatwater found that only 28 days had passed between the state’s official notice and the hearing in October. State law typically requires 30 days.
This story was originally published by Flatwater Free Press and distributed through a partnership with The Associated Press.
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