Nebraska Returns Ex-Offenders to Prison after Sentence Miscalculation Scandal
by Matt Clarke
Nebraska authorities have re-incarcerated nearly two dozen state prisoners who were released early because officials miscalculated their release dates. The state decided not to pursue hundreds of other offenders who had also been released prematurely.
Two Nebraska Department of Correctional Services (DOCS) employees were disciplined and several others retired due to the sentence computation problems, which apparently had been taking place since 1995.
“Their actions were inappropriate, inexcusable and irresponsible,” then-Governor Dave Heineman said at a joint August 15, 2014 press conference with Corrections Director Mike L. Kenney.
According to prison officials, 306 prisoners were released early after their release dates were miscalculated. Some still had up to eight years remaining on their sentences, and some were freed prior to their parole dates.
The miscalculations occurred despite two Nebraska Supreme Court rulings that detailed how good time was to be applied to prisoners’ sentences. In 2002, the state’s high court held that it would not serve the intent of the legislature if a prisoner was released prior to becoming eligible for parole. See: Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191 (Neb. 2002). The Supreme Court further defined good time in a February 8, 2013 ruling, which stated that credit was to be applied to a sentence only for non-habitual offenders, or for prisoners who had first finished serving any mandatory minimum term required by law. See: State of Nebraska v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (Neb. 2013).
As it turned out, DOCS was calculating release dates based on a prisoner’s entire sentence, not just on the time following the mandatory minimum portion. Kenney said DOCS legal counsel continued to miscalculate the release dates even though they knew they were doing it incorrectly based on the state Supreme Court’s rulings.
“Honestly, it was more than an act of deliberation,” he stated. “It was an act of negligence. It wasn’t an action that someone took. It was actions people failed to take.”
DOCS General Counsel George Green and Associate Legal Counsel Sharon Lindgren were allowed to resign, Kenney said, adding that he would have recommended their firing had they not agreed to leave on their own. Neither received severance pay but they were allowed to keep accumulated vacation pay and 25% of their sick leave and retirement.
Another employee, DOCS records administrator Kyle Poppert, was suspended without pay for two weeks, while Associate Legal Counsel Kathy Blum received a one-day suspension.
The state did not pursue most of the 306 prisoners who were released early because, given credit for time served while erroneously released, they had completed their sentences. Another three prisoners had died and five successfully completed their terms of parole. DOCS also agreed not to re-imprison anyone who had became eligible for parole counting the time they were mistakenly released.
That was what happened to Jordan Lybarger, who was released early and turned himself in, only to spend a night in custody before being told to return to parole supervision.
“They said they miscalculated my time,” said Lybarger, who promptly reported to DOCS after being told to by his parole officer. “How can you mess up on a mess up?”
DOCS had agreed not to pursue released prisoners eligible for parole after state Senator Ernie Chambers intervened on behalf of Pierce Hubbard-Williams, who was given three hours to report to prison to serve another five years despite having been released in July 2011.
“I am going to do everything I can to help resolve this and bring as few people back to prison as possible,” Chambers said. “Since the state discharged these people from state custody, it would be unethical, in my opinion, and unjust to put them back in prison.”
Miscalculations were made on a total of 873 prisoners’ sentences, but only 306 had been released. According to hundreds of emails to and from DOCS officials obtained by the Lincoln, Nebraska Journal Star, attorneys, prison employees and even the state Attorney General’s staff were aware that sentences were being miscalculated and that some release dates were occurring before prisoners’ parole dates.
Following the state Supreme Court’s ruling in Castillas, DOCS records administrator Poppert sent emails to fellow employees Jeannene Douglass – who later retired – and Ginger Shurter, saying it was his opinion that the Supreme Court justices had misinterpreted previous case law with respect to how sentences should be calculated.
In October 2013, the high court’s ruling came under further scrutiny at a DOCS sentence review committee meeting that included Poppert, Blum, Green, Lindgren and four other staff members. According to the meeting minutes, the committee concluded that DOCS’ practice of calculating release dates was different from the “court’s assumption,” but before taking action the department needed to clarify the Supreme Court’s intention.
The minutes stated, “Conclusion: We have been performing calculations our current way for years. We are now aware of this situation, we will act when we are specifically told our current way is wrong and it needs to be changed.”
Poppert later defended the miscalculations. On June 15, 2014, the same day that Omaha World-Herald reporter Todd Cooper broke the story of the scandal, Poppert emailed his staff to say he hoped they realized how complicated sentence computations were.
“We work with seven different good time laws that include statutory good time, meritorious good time, jail credits, blood credits, discretionary parole, mandatory parole and mandatory discharge by the Board of Parole,” he wrote, adding that almost 1,500 good time calculations were processed each month.
“Furthermore, issues are complicated when [we] are required to interpret court rulings, opinions from the attorney general’s office, and our own legal counsel regarding their effect on a particular sentence or good time law,” he said.
The Attorney General’s staff had raised the sentence miscalculation issue as early as February 2013, when Assistant Attorney General Linda Willard inquired how DOCS was calculating mandatory minimum sentences, to ensure the department was complying with the state Supreme Court’s rulings. She failed to press the issue, however.
Willard retired following the scandal, which became an issue in the 2014 gubernatorial election. Several lawsuits have been filed by prisoners who were released early and returned to prison, a criminal investigation was launched and Corrections Director Kenney retired effective March 2015.
Some critics, including Tyler Richard with the ACLU of Nebraska, blamed the erroneous early releases on the state’s overcrowded prison system – resulting from mandatory minimum laws – which has created logistical problems and a need to reduce the prison population.
At a September 4, 2014 legislative hearing, it was revealed that former DOCS General Counsel Green and DOCS attorneys Lindgren and Blum had not even read the state Supreme Court’s Castillas ruling before the sentence miscalculation scandal came to light. Green was singled out by lawmakers for harsh criticism.
“I find your lack of knowledge and competency to be very disturbing,” state Senator Chambers told him. “Obviously you think people on this panel are fools.”
Green responded, “I should have read the case.”
In November 2014, following an investigation by the State Patrol, prosecutors decided that no criminal charges would be filed against current or former DOCS officials in connection with the sentence miscalculations.
“The level of incompetence we’ve seen from the legal department at Corrections is beyond the pale,” said Attorney General Jon Bruning. “However, mere inaction, incompetence, lack of action or negligence is not sufficient for a criminal violation.”
Bruning left office in January 2015 after unsuccessfully running for governor; he was defeated in the primary election.
Sources: Omaha World-Herald, Associated Press, www.nebraskaradionetwork.com, www.1011now.com, www.omaha.com, www.journalstar.com, www.watchdog.org, www.cjr.org
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Related legal cases
State of Nebraska v. Castillas
|Cite||285 Neb. 174, 826 N.W.2d 255 (Neb. 2013)|
|Level||State Supreme Court|
Johnson v. Kenney
|Cite||265 Neb. 47, 654 N.W.2d 191 (Neb. 2002)|
|Level||State Supreme Court|