Corrections Business as Usual: Part I

© 2004 Last Updated: 02/16/2004

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On October 24, 2003, the Judiciary Committee held their last hearing on Corrections issues. However, prior to that public hearing, the majority of the Committee had already made up its mind and issued a report. Despite having been charged with investigating the Department of Correctional Services (DCS) classification and disciplinary systems, the majority's report dealt only with the issue of closing the Lincoln Correctional Center (LCC). The majority report claims the Committee did "thorough information gathering," held a public hearing, and still came to the conclusion of restoring the funds needed to allow DCS to keep LCC open.

The Positive Effect of LB 46

Prior to the Committee's report, DCS had seemed pressured to mend its ways and to assist the new Parole Board chairman in making the parole system work again. Meetings were had between the new Parole Board chairman, Judge Vampola, and the caseworkers and casemanagers here at the Nebraska State Penitentiary (NSP). Following these meetings, NSP staff was issuing recommendations for parole right and left. They had been told that holding inmates beyond their parole eligibility dates was increasing their punishment and that should only be done in cases where the inmate's serious misconduct warranted it.

Undoing the Positive Effects

DCS staff didn't even wait for the Judiciary Committee report to be issued to change their tune. Once the Lincoln newspaper reported that funds would likely be restored for LCC, caseworkers and casemanagers started telling inmates that things were going to change; and they did. DCS staff are back to using petty and improper excuses to withhold recommendations for parole. Inmates have now been told that they would not receive a recommendation for parole because they filed too many grievances. Those inmates were told they "have a bad attitude." However, the DCS rulebook states that inmates shall not be subject to adverse action for filing grievances. It would seem that the ecstasy of DCS staff has led them to ignore their own rulebook.

Business as Usual

DCS's response to the majority report is business as usual. DCS has gone back to trying to limit the number of inmates that will be paroled. This will keep their facilities overcrowded for the foreseeable future. DCS's course of action will lead to requiring another men's prison to be built before the end of the decade. This direction undermines the Legislature's efforts to create community corrections options with LB 46.

What Have They Done?

How could the majority of the Judiciary Committee agree to that? The simple answer is that the majority relied upon what DCS told them. (We assume that there wasn't an element of corruption involved.) Let's look at what DCS provided to the Judiciary Committee.

DCS provided the Committee with projections of inmate population into the year 2008. These projections were created by Steven King, DCS's Director of Planning. Despite the Legislature's passage of LB 46 (the second Community Corrections bill passed by the Legislature) to increase the usage of the parole process and reduce the number of inmates entering the DCS prison system, Mr. King's projections show an increasing number of inmates entering the prison system and (more telling) show an increase in the number of inmates having to "jam" their sentences. "Jamming" means leaving prison at your mandatory release date without being on parole. The Committee's majority accepted these projections without question even though they contradict the Legislature's intent in LB 46.

Planning? ...

King provided the Committee with seven spreadsheets which the Committee attached to its report. Every spreadsheet but one shows an increase in the number of inmates jamming out of prison without parole. The one spreadsheet that shows the number of inmates jamming remaining constant is the one spreadsheet that assumes both that LCC will be closed and that the Governor will invoke the Emergency Overcrowding provisions of LB 46. (Was that meant to send a message to someone?)

King's projections for 2008 show another overcrowding of the male inmate population such that another prison will have to be built to alleviate the overcrowding. Remember the reason we built the Tecumseh prison? King's 2008 spreadsheets show DCS will reach 160% overcapacity if LCC stays open and 179% overcapacity if LCC is closed. The system is currently just under 140% overcapacity (where it has consistently stayed since the Emergency Overcrowding statutes were passed). I can hear the DCS spokesperson in 2007 telling the Legislature (after most of the current legislators are gone because of term limits), "We told you this would happen back in 2003," pointing to these spreadsheets as proof. Has the majority of the Judiciary Committee signed off on building another prison in 2008? By approving DCS's projections that is what it looks like. These projections show DCS will have the same need for a new prison in 2008 as they did when the Tecumseh prison was opened. On the day of the Open House ceremony for the new Tecumseh prison the newspaper reported the prison system was at 164% overcapacity.

We Don't Need No Stinking Planning

King's assumptions are too simple. Any high school student could have created them. King assumes a simple extrapolation of the growth in the past three years. He assumes that 100 more inmates will come into the system each year and that only 85 more of those inmates will be paroled each year. So much for the Legislature's desired increase in parole; that looks like a losing battle under King's projections. On top of these assumptions King adds that 50 more inmates will have to jam their sentences each year. There are no high or low estimates that would produce a range of potential outcomes. Is this what taxpayers pay for "planning?" No wonder we have an expensive mess at DCS.

Understanding the Controls

Does Mr. King know what "queuing theory" is? If so, why doesn't he apply that to his "planning" process for DCS? With a queuing theory model of DCS reasonable simulations could be run to show the possible and likely outcomes over a period of years. Such a model would reveal the chokepoints that DCS can use (and is using) to manipulate the system to accomplish their goals instead of the Legislature's. A queuing theory model would show each "knob" that can be turned and what effect the turning of that knob has on the outcome. One example of what I call a "knob" would be the recently repealed (by LB 46) statute that stated an inmate with a drug misconduct report would not be eligible for parole for one year following that misconduct report. To reduce the number of inmates eligible for parole DCS can (1) increase their drug testing of inmates within one year of their parole eligibility, (2) use a testing machine that the manufacturer admits should not be used for such testing, (3) not be as vigilant in stopping drugs from getting into the prisons, etc. Any of these actions by DCS can turn the knob and slow down the number of inmates eligible for parole.

Knobs don't have to come from statutes either. The Parole Board has adopted policies and procedures that DCS can take advantage of. The Board has a policy that an inmate must not have any misconduct reports in the six months prior to being paroled. The Board gets its authority to make such a policy from Neb.Rev.Stat. 83-1,114(1) (c). This is an easy knob for DCS to manipulate, they simply write up inmates for any petty reason. The number of misconduct reports goes up and the number of paroles naturally goes down. Sound familiar? The 2001 Corrections Yearbook shows Nebraska had the highest rate of inmate write ups of any state. We've seen, and are paying for, the predictable results.

Who is in Control?

With a queuing theory model you can learn where all the knobs are. When you know where the knobs are you can look at the existing situation and determine which knob(s) got turned to cause the situation. Then you can figure out who turned the knob and why. Without the Legislature knowing what the knobs are, the outcome is easily manipulated by someone who does; like DCS. This is what DCS has been doing with the parole, disciplinary, and classification systems. This is why the Judiciary Committee was supposed to investigate the disciplinary and classification systems. As long as DCS is allowed to manipulate the knobs they can make all kinds of excuses for why the system remains overcrowded. And DCS is very good at making excuses. We will examine some of the specific excuses DCS gave the Judiciary Committee about LCC in the second part of this article.

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