Nebraska’s Criminal Justice Crossroads

The artist’s renditions paint a pretty picture. Several stories of glass and stone rising from the city blocks of downtown Omaha. People dressed in business casual walk across blue-grey carpet while sunlight beams in.

For Kim Hawekotte, the new $128 million Douglas County Juvenile Justice Center currently under construction is a sign of how times are changing. More than two decades ago, Hawekotte was an attorney trying, often unsuccessfully, to convince people to prioritize diversion programs over jailing kids. Now as deputy administrator for the Douglas County Attorney’s Juvenile Division, Hawekotte is encouraged that this new facility will have fewer beds than its predecessor to meet a downward trend of youths in detention. A decade ago there might have been 160 kids in detention on any given day, now there’s about 60, Hawekotte said. And politicians, attorneys and others who influence the juvenile justice system seem more willing than ever to talk about early intervention and social supports for at-risk kids before they ever come to court.

“We have people that want to see reform happen, along with resources to be able to do it,” Hawekotte said. “And so when you get that perfect storm, I think you need to take advantage of it.”

But as much as it’s a sign of change, it’s also a reminder that some problems remain as pervasive as ever.

People of color, African Americans in particular, are still wildly overrepresented in Nebraska’s criminal justice system. Meanwhile, the same people are underrepresented in diversion programs, which often don’t receive the same financial support as jails and prisons despite studies showing preventive measures could save thousands of dollars per person.

Advocates say Nebraska is at the precipice of seeing change that’s long been in the works. Signs at the local and state level show people are more open than ever to talking about reform. But some wonder, as the state proposes building a new prison and its largest county constructs a new juvenile justice center, if Nebraska is still having trouble diagnosing and facing the problem.

For Hawekotte the progress is complicated. While the new justice center is a good sign, she’s still having to lean on private donations to create resource centers in struggling neighborhoods to connect families with services such as therapy, child care, job training and more.

“If you’re spending [millions on a new juvenile justice center],” she said, “shouldn’t you invest $3 to $5 to $6 million into programs and services?”

Shifting Mindsets

Matt Kuhse has pushed for more preventive services and loosening strict requirements for entry since he became city prosecutor for Omaha in 2016. Kuhse is currently Omaha’s interim city attorney but said he will return to leading the city’s team of prosecutors full time once a new candidate is chosen. 

Before 2016, only a narrow set of offenders with fairly clean records would have been eligible for educational, multi-week diversion classes as an alternative to courts, fines and incarceration. Kuhse, the Douglas County Public Defender’s Office and the Douglas County Community Mental Health Center developed a better way to service those struggling with mental illness that begins with identifying repeat offenders who’d benefit more from rehabilitation than incarceration. Those identified may then receive care at the Douglas County Community Mental Health Center, after which Kuhse said people rarely reoffend.

“Over the past two or three years we’ve been doing it [we have] seen … maybe 10 people commit a future crime of substance,” he said. “That’s a pretty high success rate.”

Effectively serving those with mental health issues can go a long way to reducing incarceration. In 2014, the American Psychological Association estimated of the United States’ world-leading incarcerated population, half have mental health concerns and 10-25% suffer from a serious mental illness. 

Kuhse wants more people to have access to mental health programs, but they typically take months to complete, which means wait lines are long, and currently staff only has capacity for about 40 to 50 people. Kuhse said his office is also looking at creating a veterans’ diversion program.

While Kuhse’s office doesn’t keep data on the race, gender or any other characterization of the people they prosecute, he said all people, regardless of their background, are offered diversion at the same rates. Tracking ethnicity is something he said his office has worked on since the summer, since advocates raised the issue with him.

The biggest hindrance, he said, to expanding preventive measures are the people charged with crimes themselves.

In 2020, 1,063 people were eligible for criminal diversion, and only 549 people enrolled, according to internal numbers from the city prosecutor’s office that The Reader was unable to verify.

Kuhse said he doesn’t have a solution about how to win over those holdouts. Some people would rather pay a fine than spend time in diversion, he said, while others may have trouble finding the time fitting in diversion classes with work or other commitments.

As for how to reach people so they’re more likely to take diversion classes, Kuhse said he thinks the City of Omaha is doing a good job of that right now. That doesn’t mean his office can’t improve, he said, especially as the amount of money Nebraska spends on prisons continues growing faster than its allotment to programs like education and health services.

“If Douglas County did not have diversion, mental health diversion, young adult court, veterans court, drug court, all of these things that we do here in Douglas County, to divert people from the criminal justice system … If we didn’t have these types of diversion programs, established, successful and already in place,” Kuhse said, “I think our prison numbers would be much higher than what they are now.”

Jasmine Harris, executive director of RISE, an organization that advocates for criminal justice reform with an emphasis on prison reentry, said that’s not good enough. 

While some progress has been made to keep people out of jail and prison, there’s been much less attention paid to the root causes of crime. Underinvestment and overpolicing in neighborhoods that already suffer from poverty are not going to lead to equitable outcomes, she said.

“To be honest, we have to start diverting people at the beginning of the system,” she said. “We have to start putting money into our communities. Those are those things that people don’t want to talk about.”

Much of the heavy lifting seems to fall on volunteers or nonprofit organizations like RISE. They work inside jails and prisons teaching classes to prepare incarcerated people for post-sentence life. Some have pen-pal programs, others lobby for bills that could release some tension on Nebraska’s prisons, which are currently the second-most overcrowded in the country. 

Oftentimes, organizations like hers do it all, Harris said, addressing issues that city and state leadership need to recognize and address.

“We are in an overcrowding crisis, we’re in a understaffing crisis, and we are not doing well,” Harris said. “Douglas County is saying they’re the number one institution for mental health services right now; a jail is not a mental health service.”

Others say while significant progress still needs to be made, aspects of criminal justice reform are leagues ahead of where they were years ago. Anne Hobbs, director of UNO’s Juvenile Justice Institute, has spent decades researching and trying to reform juvenile justice in Nebraska, which is still inextricably connected to adult prison populations.

Like Hawekotte, Hobbs remembers the days when it was a struggle to make people understand why it’s better to address the root of a child’s behavior before punishing them, particularly those who have experienced trauma or spent time in the foster care system. These kids are also disproportionately kids of color; about half have been cited, arrested or jailed by the time they turn 17 and have unmet needs that won’t get solved in a courtroom.

Hobbs has long advocated for restorative justice, an approach that has found success from Chicago Public Schools to Singapore. Restorative justice involves bringing two sides of a dispute together to talk out the problem and hopefully walk away with empathy for the reason each other reacted.

“I’ve seen restorative practices used in everything from, you know, in a victim crime, it plays out where they bring in the victim and the victim and the youth speak to each other about the facts,” she said. “Man, there are beautiful outcomes when that’s done. It’s remarkable, really.”

The Omaha Police Department recently adopted a restorative justice trial program following the 2020 summer protests. OPD arrested about 420 people for crimes ranging from breaking mandated curfews to blocking a roadway. The arrests remain highly controversial with an OPD-authored report praising the police response and claims that police instigated violence from protesters.

Kuhse’s office and the police department decided that rather than charge people a fine for low-level offenses such as breaking curfews, they could use it as a learning opportunity for both sides.

For OPD’s program, participants take a four-hour class with officers involved in their arrest to foster open discussion. They must also complete 12 hours of community service and commit no other crimes for six months. After a final meeting with the city’s Human Rights and Relations Department, which is overseeing the program, the charges will be dropped and the record sealed.

The resulting conversations had an effect on OPD Deputy Chief Michele Bang. Protesters and police officers had frank conversations, and Bang said both sides walked away, maybe not totally transformed, but at least understanding each other better. Bang hopes that will lead not only to less crime, but also, and maybe more importantly, more empathetic policing.

“We’re just a cog in an entire system,” Bang said. “But it’s an important cog. And we can take responsibility for ourselves in that interaction. So that’s where it’s been meaningful for me, and that, while we’ve come a long way, there’s still a long way to go.”

Growth like that gives Hobbs hope. State legislators, city officials and others are starting to listen, especially after 2020, which opened the floodgates for conversations about increasing social services. But Hobbs wonders whether the public listened enough. Though a new juvenile justice center is needed in Douglas County, it’s still a $128 million investment in a physical location to try, sentence and process kids in the criminal justice system. Not only that but the state has proposed a $230 million new prison to ease a severely overcrowded adult prison system.

“Right now, we’re at a point in the world where people are gonna say, ‘Hey, let’s do something differently,’” Hobbs said. “But that hope is a little bit crushed when we talk about building bigger facilities.”

For Ja Keen Fox, an organizer and political advocate, the hope for a better future has to start with recognizing the city’s priorities. After Chief Todd Schmaderer retires, he’ll receive a pension of $15,000 per month, netting him $180,000 of taxpayer money per year for the rest of his life. Meanwhile protesters have been repeatedly told the city doesn’t have the time or resources, resources or interest in addressing changes protesters have called for. To Fox that shows whatever progress the city seems to have been on, needs to be reevaluated.

“They could care less how the system impacts people, if they’re going to be a millionaire after this,” Fox said. “That’s disgusting to me. Yeah, we have to bargain for a couple bucks for mental health for people to live longer, better, healthier lives, and achieve is going to be a millionaire afterwards. Yeah, it’s insane. Yeah, it’s insane to me.”

Bad Data

Rerouting funds from building new criminal justice facilities to preventive, rehabilitative and restorative practices is hard to do with so little data to show where Nebraska’s criminal justice system is succeeding and failing.

When Leah Butler, an assistant professor at UNO, put together a report for UNO’s Center for Public Affairs Research showing racial disparities, she could only look so deep.

“Ideally, we would have information on every person at every point of contact with the criminal justice system, you know, the race and socioeconomic status and education level and the nature of the crime for every person arrested, brought into a court sentence,” Butler said. “That’s not what we had; we had very basic data.”

Likewise, when the Racial Justice Coalition of Nebraska formed last year, its members wanted to look at opportunities for inmates to challenge their convictions based on systemic racial bias. What they found, said the center’s policy director, Jahne’ Maddock, was little data to even research whether racism was occurring.

Data points like the race of the judge, the jury members, the cop who stopped the incarcerated person or even just details about the stop were either hard to find or had not been studied. So instead of focusing on advocating for legislation that could provide change, they’ve switched their focus to requesting data, doing reports and readying themselves for fact-based arguments.

“In Nebraska, we’ve come to realize that there aren’t a lot of studies about racial disparities, disparities and bias, really, in any area of the justice system,” Maddock said.

State Senator Tony Vargas has worked for the past several years on a bill that would add racial impact statements to certain legislation. The statement would perform a similar function to a fiscal note, which shows how much proposed legislation would cost. Both are performed by state legislative analysts.

Vargas said the truth is many people don’t believe systemic racism still exists within the criminal justice system, despite studies like Hobbs’ 2012 report that showed kids charged with similar crimes were often treated more harshly or were less represented in preventive programs depending on their race. 

Having the reports come from the state will legitimize these figures, Vargas hopes. Because he, or other senators, can’t pass legislation to address issues like people of color’s overrepresentation in the criminal justice system if they have to first convince their peers it’s a problem.

“It’s not sort of a fact to them,” Vargas said. “My real hope, at the most basic level is we can begin to get past the questioning whether or not the disparities exist. And that will be step one.”

By legitimizing the studies of racial impacts, Vargas also hopes it will make the need for clear, available data about these issues a priority.

In 2008, Iowa became the first state to pass a racial impact statement measure, specifically for criminal justice bills. Since then it’s had a modest effect, killing six of 26 bills shown to have a disproportionate effect on minorities, the Associated Press reported.

Other states have followed suit, including Colorado, Connecticut, Oregon, New Jersey, Florida and Minnesota. Vargas hopes the same can happen in Nebraska and that this can spur future efforts.

“We don’t know why,” Vargas said. “Why? Why does the disparity exist? So we can focus more on the ‘why’ once we get past that their problems even exist.”

A Prime Opportunity

Advocates say Nebraska is sitting on the tipping point of what’s been a long push for reform-minded approaches to criminal justice, especially when it comes to addressing racial disparities. It started with trying to shift people’s tough-on-crime mentality. Then came trying to cobble together the data to build fact-based solutions. Now they have an audience. But this issue is complicated. The societal ills long discussed are not easy to solve. 

Poverty, a struggling foster care system, an economy that doesn’t provide everyone the same opportunities — it’s not the criminal justice system’s job to solve these issues. But with more direct ties to these issues than most government services, advocates hope it will be part of the solution.

“I think we are sitting at a prime opportunity to deal with a lot of the issues and to have thorough discussions about it,” Hawekotte said. “Did we really three to five years ago even talk about disproportionality or systemic racism or what is really going on and taking a look at the different points of our system and, and how race, and poverty impact each one of those? We’re having those rich discussions now, which are important. I also think we have the change coming.”