Overcrowding in Nebraska’s Prisons Has Led to Constitutional Violations That Endanger the Health, Safety, and Lives of Prisoners and Staff

LINCOLN, Neb. — The ACLU of Nebraska, the ACLU National Prison Project, Nebraska Appleseed, the National Association of the Deaf, and the law firms DLA Piper and Rosen Bien Galvan & Grunfeld LLP filed a class-action lawsuit today on behalf of eleven prisoners in Nebraska state prisons. The lawsuit seeks class action certification on behalf of all current and future prisoners in Nebraska. The lawsuit asks that the Nebraska Department of Corrections and the Nebraska Board of Parole immediately address overcrowding, and the lack of adequate health care including medical, dental, and mental health care as well as provide accommodations for prisoners who are blind, deaf, hard of hearing, or have other disabilities.

“Nebraska’s prison system has an overcrowding crisis,” said Danielle Conrad, Executive Director of the ACLU of Nebraska. “The overcrowding exacerbates already severe problems that threaten the lives and health of its prisoners. The lack of appropriate mental and physical health care hurts prisoners while inside, and upon release hampers their reentry into society. In order to protect the constitutional rights and wellbeing of incarcerated Nebraskans we need reform to the Nebraska state prison system at all levels. The diversity of the legal organizations which are working on this case show how alarming the current conditions are and the need for immediate reform. While many current lawmakers in Nebraska did not pass decades of failed tough-on-crime legislation, we cannot wait any longer for smart-on-crime policies to become the standard.”

Overall, the Nebraska prison system is at 159 percent of capacity, currently housing 5,228 people in a system meant for 3,275. The system has been under-resourced, understaffed, and over capacity for more than twenty years and hit emergency levels of 140 percent capacity a decade ago. The result is a dangerous system in perpetual crisis. Plaintiffs have repeatedly alerted state officials to these problems, most recently in a comprehensive letter sent to Gov. Pete Rickets on April 10, 2017. Despite these efforts, there has been no meaningful action taken to address the overcrowded and unsafe conditions in Nebraska state prisons.

The lawsuit alleges that prisoners are routinely denied access to minimally adequate health care, held in extreme isolation, exposed to violence, and denied accommodations for prisoners who are blind, deaf, hard of hearing prisoners or have other disabilities. This includes:

• Juveniles who have been placed in isolation repeatedly and held in five point restraints for days on end.
• A prisoner whose diabetes went untreated, causing him to lose 90% of his eyesight in one eye.
• A prisoner who repeatedly complained of chest pain and shortness of breath suffered a heart attack and was left to die alone in his cell.
• Multiple prisoners who are denied auxiliary aids and services for their hearing, vision, or mobility disabilities. Prisoners with disabilities are also not provided accommodations in the parole hearing process, leading to denial of parole, longer stays, and contributing to overcrowding.
• Multiple instances when overuse of solitary confinement, including putting two prisoners into an isolation cell designed for one, has led to violence and death.

For instance, Hannah Sabata who is 24 and incarcerated at the Nebraska Correctional Center for Women in York. She has schizophrenia and is also living with HIV. Incarcerated since June of 2013, she has had repeated lapses in her prescription medications. Hannah has spent more than two years in isolation, which has only worsened her psychiatric disabilities. Hannah is repeatedly put in isolation solely as a means of punishment, including for failing to return a food tray. R.P, a minor with psychiatric disabilities, has been placed in restraints so frequently that the shackles have scarred his wrists and ankles. R.P is also routinely held in his cell for 23 hours a day and only allowed to exercise in a small pen.

In recent years, multiple riots, deaths and other incidents have sparked legislative committees, reviews from the Ombudsman’s office, and investigations from nationwide criminal justice experts. Despite these events, repeated warnings from prison staff, multiple reports by outside consultants, and recommendations from the Nebraska Legislature, the Department of Correctional Services, led by Director Scott Frakes and Medical Director Harbans Deol, has failed to take any meaningful actions to address these well-known and long-standing problems.

The overcrowded conditions have contributed to frequent violence and the overuse of isolation, inadequate mental health care, and the failure to provide rehabilitation and pre-release and reentry planning have led to dangers not only to prisoners and staff, but to public safety. Additionally, the failures in the parole system further contribute to overcrowding. Prisoners can’t complete the parole board’s requirements because there are too many prisoners for far too few programs and classes. Instead, prisoners serve more time than is needed and are released without any supervision or supports to help them transition back into the community.

The horrendous conditions — as well as the lack of programing and diversion for substance abuse issues — impact Black Nebraskans disproportionately. In 2015, 28 percent of the prison population was Black, when only 5 percent of Nebraskans were Black. A Black person in Nebraska is 4.65 times more likely to be arrested for marijuana possession than a white Nebraskan. The groups say that adding diversion services for those with substance abuse issues could play a role in reducing these disparities.

Among those in Nebraska’s prisons, about one-third are serving time for an offense classified as non-violent. In recent years, conservative states like Oklahoma and Texas have instituted smart on crime policies designed to improve public safety and reduce prison crowding and expenses by reserving prison for more serious offenders and diverting low level offenders and offenders with mental health or substance abuse issues to appropriate community programs. These policies and programs have been championed by conservative leaders like Newt Gingrich and Grover Norquist.

While Nebraska’s prison system has made efforts to reduce the use of solitary confinement in recent years, the system still has a daily average of over 13.9 percent, which is far above the national average. Mental health experts have repeatedly warned the state of Nebraska that the use of solitary confinement, particularly involving prisoners with mental health conditions, would likely lead to violence and other harms.

"The crisis in Nebraska prisons threatens the health, safety, and lives of both prisoners and staff," said David Fathi, director of the ACLU National Prison Project. "When state officials abdicate their responsibilities, it's up to the courts to protect basic constitutional rights."

“Other states, including the state of California, have been able to reduce overcrowding, without putting public safety at risk through sentencing reform and increasing opportunities for prisoners to earn discharge through good behavior and completion of educational and rehabilitative programs” said Michael Bien of Rosen Bien Galvan & Grunfeld LLP. “There is no reason such efforts cannot work in Nebraska.”

“We cannot wait any longer for the actions needed to address the systemic failures of Nebraska’s prison system,” said Nebraska Appleseed Executive Director Becky Gould. “Daily, people are going without adequate health care and necessary treatment, as well as dealing with the other side effects of a system that for the last decade has continued to swell well beyond its intended capacity. This case is not only about protecting the constitutional rights of Nebraskans in our prisons, but ensuring urgent action to restore a safe and effective corrections system that benefits our entire community.”

“The state of Nebraska should immediately declare an emergency to increase programming, staffing, and parole options,” said Conrad. “More and more, it is county taxpayers who are having to pick up the tab for these failures. Public safety in Nebraska is threatened every day. The state has a responsibility to address funding for mental health and medical care and accommodations for prisoners with disabilities immediately. State senators should continue the work they have begun in addressing Nebraska’s drug sentencing laws and diversion for nonviolent offenders and those with mental health and substance abuse issues.”

The complaint and more information about the lawsuit is here:
https://www.aclu.org/cases/sabata-v-nebraska-department-corrections-et-al