When it comes to impacting crime or the state’s prison overcrowding crisis, the Douglas County attorney plays a big role — overseeing close to a third of the state’s population and sentencing 38% of its current prisoners.
For the last 16 years, Douglas County Attorney Don Kleine has led the office, carrying out responsibilities spelled out in state law as well finding answers in the wiggle room. What offenses do you go after? How do you decide the punishment? Do you use your role as a public official to affect policy?
This November, voters will decide whether Kleine, who’s spent decades in a variety of the office’s roles, or his challenger, Dave Pantos, an attorney and former executive director of Legal Aid of Nebraska, have better answers for those questions, as well as bigger ones about the future of the county’s criminal justice system.
Politics as (Un)usual
Top of mind for many voters will probably remain summer 2020. That was during the Black Lives Matter protests when Kleine declined to press charges against Jake Gardner, a bar owner, after he shot and killed protester James Scurlock in downtown Omaha. Kleine said it was self defense. Protests outside Kleine’s home ensued. An appointed special prosecutor and grand jury later filed an indictment against Gardner, but there was never a trial as Gardner commited suicide in Oregon.
Kleine again received blowback after saying the special prosecutor seemed to have “his mind made up” before investigating the case. The Nebraska Democratic Party then passed a resolution saying Kleine, one of their members, had perpetuated white supremacy, which Kleine said he wasn’t given a chance to respond to. Kleine publicly switched to the GOP.
“If you knew my history, particularly with minorities … we work so hard in that regard,” Kleine said in a recent interview with The Reader. “You could call Don Kleine a jerk or clown or whatever. But white supremacist or racist? Yeah, sorry, I couldn’t handle that.”
But politics are secondary to bigger issues, said Pantos, who in addition to Legal Aid also has experience in private practice, federal district court, an Indiana city prosecutor’s office and Douglas County’s eviction court. Pantos also recently found his personal choices making headlines when anonymous sources accused Pantos of unfairly promoting a Legal Aid employee with whom he was in a relationship.
“We have the worst prison overcrowding problem in the country. We have the worst racial disparities in incarceration and sentencing in the whole country,” said Pantos. Reports from organizations such as the Sentencing Project say Nebraska has some of the highest disparities in the nation but not the worst. “We’re stuck in the 1980s when it comes to sentencing policies. Where’s that all originating from? The more I looked, I saw that it really just traced back to Douglas County.”
Choices to Make
In Douglas County, Black people are more than nine times as likely to go to prison than their white counterparts and twice as likely to get life sentences, according to a Reader analysis of state data. Disparities aren’t unique to Nebraska, and neither are suggested causes such as poverty, over policing and others that start long before a prosecutor gets the case.
But Pantos said there are still opportunities being left on the table.
“It’s all about leadership,” Pantos said. “As a county attorney, you can sit there and just run an office and prosecute the cases that are brought to you. Or you can show leadership in the community, build partnerships and directly impact policy.”
To Kleine, it’s ludicrous to suggest his office isn’t trying to alleviate the causes of crime. In 1997, Kleine said he helped establish the state’s first drug court in Douglas County, which offers programs and offense forgiveness. It’s one of many “problem solving courts” the county offers today, which also include veterans treatment and young adult courts as well as diversion and mental health programs.
In 2020, 1,313 people participated in problem solving courts statewide. However, Kleine could not say how many people completed these programs or what effect they have had on overall crime trends.
“If we had another $100,000 or $200,000, we could have more people, or maybe keep better statistics, and have that luxury,” he said. “And I wish we did.”
Kleine and his chief deputy, Brenda Beadle, said they also meet with local pastors and superintendents as well as serve on boards such as Project Harmony’s, which advocates for children victimized by abuse and sex crimes. In his tenure, Kleine said he’s added additional victim advocates who speak a variety of languages and created attorney niches in everything from homicides to DUIs.
“The best way to prevent crime is to give people hope,” Kleine said. “Make sure they have an education. Make sure they have family … we don’t want to send people to prison if we don’t have to.”
Crime and Punishment
What effect all of this is having on the overall prison population is complicated.
Statewide convictions are down over the past decade, but Douglas County’s share of the admissions is up.
Some possible explanations could be a rise in crime. The Omaha Police Department reported an 18% increase in violent crime arrests since 2011, and the Douglas County attorney’s office is filing 25% more felonies in district court compared to 2007 — both of which outpace population growth.
In looking for answers, some researchers pay attention to how much time people are serving.
“It’s so easy to add another month,” said Molly Robustelli, senior policy specialist with the Crime and Justice Institute, which released a major study of Nebraska’s criminal justice system in January 2022. “But when you’re doing it across all admissions … that’s when time served across the board increases and leads to this population.”
In the last decade and before COVID-19, minimum sentence lengths statewide increased 25% according to CJI data.
One factor potentially contributing to longer sentences is a 2009 law that established harsher penalties for gun crimes.
The number of people serving time for a gun crime went from 85 in 2008 to 777 in 2020, according to the Omaha World-Herald.
For Kleine, the punishment still fits the crime.
“If you’re going to do a gun crime, if you’re going to shoot somebody with a gun, if you’re going to hold up a gun in robbery, if you’re a felon that’s in possession of a firearm, you’re going to do time,” Kleine said.
Kleine also opposed a recent bill in the Nebraska Legislature that would have reduced mandatory minimums and felony convictions for drug crimes, among many other major criminal justice reforms. It failed. In his testimony to lawmakers, Kleine pointed to Nebraska’s relatively low ranking, 36th, in prisoners per capita.
“The idea is, we want to help people,” Kleine told The Reader. “And sometimes it’s like, ‘OK, you’re getting charged with this felony for having fentanyl or heroin or methamphetamine.’ And maybe they’ll realize what’s going on in their life and they’ll be willing to seek the help that we’re offering.”
Others opposed changing harsher sentences for “habitual criminals,” a term assigned to people with multiple charges and used to gain harsher sentences. Kleine said his office only brings out the tool when necessary, although some such as Pantos argue it’s used to force disadvantageous plea deals that lead to prison time. Forty six people sentenced from Douglas County are listed as habitual criminals in the state system — 30 of whom are Black.
But some say the hammer may still be falling too hard. While decriminalizing drugs further can impact problem solving courts, Robustelli said she’s seen others find new ways to reach people.
“The [district attorney] in Tulsa shifted away from misdemeanor drug court and now has a really strong mental health diversion program,” she said. “The model just shifts.”
A Different Approach
Kleine has used his influence to change other policies. He said in 2009 he helped erase the statute of limitations for many sex crimes. He also worked on the study that led to last legislative session’s major criminal justice reform bill — although he opposed certain pieces of it, such as more leniency toward drugs.
Pantos said that’s a problem because charges such as marijuana possession — which makes up less than 1% of convictions from Douglas County, according to state data — are being “stacked” with other offenses to build harsher cases. Kleine said there’s no such thing.
Pantos also said he would not prosecute abortion cases if they were to become illegal in Nebraska. Kleine said it would be unethical to promise anything before, and if, laws are passed.
Pantos also wants bail reform. He said the current system penalizes the poor, keeping people in jail if they can’t pay the hundreds or thousands of dollars judges assign to make sure they won’t skip court if released.
“Why can’t we envision a system that doesn’t discriminate against people because of their inability to pay bail?” Pantos said. “Someone might end up languishing in jail, and other people will plead guilty just so they can get released. And now, they won’t be able to get a job because that’s on their record.”
Pantos, as well as some public officials and city employees, have raised concerns about the number of attorneys who’ve left Kleine’s office in the past few years. Kleine said some attorneys have left to take better paying jobs or been appointed to judgeships. However, Kleine and the Douglas County Department of Human Resources said they could not provide past staff lists.
Despite their differences, both candidates agree Douglas County needs more money for mental health services. That means getting more mental health professionals regionaly, expanding opportunities for outpatient services, processing and treating people better at the Lincoln Regional Center, growing mental health courts and responding appropriately to mental-health-related crimes.
The Right Person for the Job
Kleine said his tenure has been fair and dynamic, and he’s the right person to tackle new concerns, such as addressing crime without making hasty decisions.
“People are more worried about crime than they ever were before because they see … maybe some of these ideas that some people had aren’t working very effectively,” he said of trends such as decriminalizing all drugs or sending more offenses to diversion. “I think change can be very effective if it’s appropriate.”
For Pantos, there’s been a lot of good over the years — the rise of problem solving courts in particular is something he wants to see more of. But the office needs new vision, he said.
“We’re going to go after [serious crimes] hard. But what we’re not going to do is waste our time on nonviolent offenders. We’re not going to waste our time prosecuting people with mental illness … there’s so many more things we can do in terms of diverting nonviolent offenders from the system.”
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