State Sen. Justin Wayne of Omaha speaks on the floor of the Legislature regarding school funding on Monday, April 3, 2023, in Lincoln, Neb. (Zach Wendling/Nebraska Examiner)

This story was originally published in the Nebraska Examiner.

LINCOLN — A debate over a law and order issues Wednesday featured a rare disagreement between county prosecutors and Gov. Jim Pillen and law enforcement officials.

On one side was State Sen. Justin Wayne and his criminal justice reform proposal, aimed at discouraging release of prison inmates without rehabilitation programming — something called “jamming out.”

His much-amended Legislative Bill 50, after a meeting and another amendment Wednesday, had won support from Gov. Jim Pillen and Attorney General Mike Hilgers, as well as the Omaha and state law enforcement unions and Douglas County Sheriff Aaron Hanson.

‘Goes too far’

But county prosecutors, including those from the state’s three largest counties, continued to oppose the bill, saying it still goes too far in permitting the possible earlier release of some inmates.

Wayne said he was siding with “boots on the ground,” the law enforcement officers who “are pulling over cars along dark highways, and walking into a domestic violence situation …

“I’m proud to say that law enforcement is supporting this bill,” the Omaha lawymaker said. “Nothing against prosecutors.”

 State Sen. Carolyn Bosn of Lincoln. (Zach Wendling/Nebraska Examiner).

Opponents, led by Lincoln Sen. Carolyn Bosn, a former Lancaster County prosecutor, said that despite the new amendment, LB 50 would severely weaken the state’s habitual criminal statutes — the “three strikes and you’re out” provision that allows for mandatory prison terms for those convicted of three felonies.

‘Not standing up for victims’

“I don’t know how many of you have asked victims (of crime) what they think of this,” Bosn said. “What we have lost in all of this is justice for the crime victims.”

 State Sen. John Lowe of Kearney  (Zach Wendling/Nebraska Examiner).

“We are voting for the people who committed the crimes, not standing up for the victims,” said Kearney Sen. John Lowe, who advocated for longer criminal sentences, not earlier parole.

LB 50, after a sometimes contentious debate, was ultimately advanced to final-round debate on a 30-7 vote. Opponents did force Wayne to ask to invoke cloture to shut off debate and advance it.

The bill is the second attempt in two years to enact recommendations developed a year ago with the help of a national group, the Crime and Justice Institute, that helps states reduce prison expenses. Last year, prosecutors blocked a bill pushed by then-Sen. Steve Lathrop.

Wayne and other have argued that Nebraska must adopt more, lower-cost alternatives to incarceration or be faced with building not one, but two new state prisons.

Avoiding two new prisons

This year, the state budget includes the final funding for a $366 million, 1,500-bed prison to be built in the Omaha/Lincoln area. But inmate population projections indicate that by 2030 — shortly after the new prison is expected to open — Nebraska will need to build another large prison.

LB 50 includes many of the recommendations in the CJI report that everyone agreed with a year ago. Those include encouraging more “problem-solving courts” that use tough restrictions to overcome addictions, creating pilot projects to see if adding “assistant probation officers” would help, and forming a task force to review possible changes in state criminal sentences.

‘Drag queen story hours’

Hastings Sen. Steve Halloran tried, and failed, to get an amendment attached to LB 50 that would make it a misdemeanor crime for a “drag queen” or “drag king” who presented “lewd or lascivious dancing, presentations, or activities” to minors in a public place or school.

Halloran said he was inspired to introduce the amendment by a bill introduced by Glenvil Sen. Dave Murman to ban minors from attending so-called “drag queen story hours.”

“This is about protecting kids,” Halloran told fellow lawmakers.

Omaha Sen. Justin Wayne said the proposal from Murman, which had failed to advance from the Judiciary Committee, had technical problems.

Sen. John Arch, the Speaker of the Legislature, said that traditionally, it isn’t appropriate to attach proposals like Murman’s LB 371, that aren’t prioritized and haven’t been subject to a committee vote, to other legislation. 

The amendment failed on a 32-6 vote. Voting for the amendment, in addition to Halloran and Murman, were Sens. Kathleen Kauth, Ray Aguilar, Steve Erdman and Brian Hardin.

But Wayne and Bosn, along with county prosecutors, could not reach an agreement on two issues: changing the habitual criminal laws to allow a chance at earlier parole eligibility for nonviolent offenders; and allowing other felons to become parole eligible earlier, as an incentive to participate in prison rehab programs.

‘Flat sentences’ provide no incentive for rehab

Right now, Wayne said, some “flat” criminal sentences — such as one with a minimum of 20 years in prison and a maximum of 20 years — provide no incentive for inmates to participate in the voluntary programs so they might be released on parole supervision, which requires holding a job, no drug or alcohol use and good behavior.

He said his goal is to get more serious felons to participate in prison programs that help manage anger and avoid substance abuse. If they did, Wayne said, they would be less likely to commit repeat crimes and return to prison — contributing to the state’s nation-leading prison overcrowding.

Wayne emphasized that becoming eligible for parole earlier doesn’t ensure that an inmate would be released. But, he said, the opportunity of an earlier release would provide an incentive for inmates to participate in the rehab programs necessary to win parole.

Bosn and others said that the proposed parole eligibility changes go too far and that Wayne’s reform of the habitual criminal statutes would help those convicted of serious crimes like kidnapping, robbery and sex trafficking get out of prison earlier.

Lancaster County Attorney Pat Condon, along with Cheyenne County Attorney Paul Schaub, both wrote emails to legislators Wednesday expressing serious concerns and opposition to the amended LB 50 that had won support from the governor, attorney general and law enforcement groups.

This is ‘not OK’

The last-minute opposition by the county attorneys prompted a stern rebuke from Elkhorn Sen. Lou Ann Linehan, an ally of Wayne’s on many bills. Linehan said it was “not OK” after Wayne, who heads the Judiciary Committee, had worked so hard on compromises.

Wayne said his changes were only slightly different from a proposal supported by Bosn and the prosecutors. Under his plan, for instance, he said that an inmate sentenced to 40 years in prison would be eligible for parole after 16 years, as opposed to 17 years under a plan support by prosecutors.

“The governor is not going to support a bill allowing someone to just walk out of prison,” Wayne said.

“Public safety,” he added, “was my number one goal throughout this process.”

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