Nebraska's Good Time Fiasco

September, 2014

Lincoln -- Yesterday I watched, via the Internet, the Nebraska Legislature's entire (morning, afternoon, and evening) televised hearing at which a special committee took court-compelled testimony from Department of Corrections' employees and others to try to get to the bottom of a prisoner sentencing scandal.

The Nebraska Supreme Court determined in early 2013, in State v. Castillas, that the Department's way of calculating "good time" was incorrect. Some prisoners were being released too early. Department officials did nothing to change their method until the Omaha World-Herald discovered the problem over a year later and made it a headline story for months. Or so the scandal has unfolded. The State has since been attempting to round up the released prisoners in question and make them spend over 2000 additional man-years in prison at a cost to taxpayers of perhaps 50 million dollars.

Several state senators on the committee sensed that responsibility for the fiasco might rest at the feet of the Governor, who wanted to reduce prison overcrowding but also wanted to cut state budgets and taxes, hence no new construction to house prisoners and no compliance with the holding of the Supreme Court. Or that responsibility might rest at the feet of the Attorney General, whose office is understaffed and did not properly coordinate with the lawyers at the Department of Corrections.

But it became clear during the hearing that something else was at work: run-of-the-mill bureaucratic bungling. A call was not returned; an email attachment was not read; false confidence was placed in the idea that someone else was on top of the matter. When state senators began to piece together what the committee chairman called a comedy of errors, they were merciless in their condemnation of the employees. The employees did not help their cause, as most of them pointed fingers at each other. Polite senators said the testimony was unbelievable; one impolite senator called the Department's record administrator a fool, and baited the Department's former general counsel into trying to get him to admit he was incompetent.

The Attorney General himself decided to join the fun the next day, calling the legal staff at the Department of Corrections incompetent.

As a former Nebraska state employee, I'm not going to join the condemnation. Yes, the records administrator seems to have had one promotion too many into his position of responsibility, but the others do not deserve to have their names muddied forever. They were solid citizens who worked day after day, year after year, making state government work. They were public servants in the best sense.

Twice (long ago) I was a department head in state government. Every day I knew that something might go horribly wrong, and I might be held accountable because I chose to work on one stack of paper late into the night rather than another and something would fall through the cracks. But that was a risk I took every day, and I was prepared to take the consequences. If I was compelled to appear before a legislative committee, however, I would have behaved a little differently than the employees did yesterday. I would have said yes, I was culpable, and to every name I was called by a state senator, I would have said "at least" in regard to my action or inaction as related to the fiasco. I would have said I was there to take my medicine. If it meant rebuilding my life elsewhere, so be it. My words would not be cheeky; I would mean it.

One employee, Sharon Lindgren, almost did that. Clearly she was marginal to the whole affair, but took her medicine. Because heads had to roll, one was hers. She retired rather than being fired by the Director of Corrections (who, incidentally, was not disciplined himself). A senator asked why she did not fight the impending dismissal, if she was telling the truth of her limited involvement in the fiasco. She said she was not a wealthy woman and did not have the resources to employ counsel for the long appeal process and that she had her pride; if the Department did not want her services, she did not feel she could do a good job there. She is an experienced, capable attorney. It's a loss for the State.

In her last act as a public servant, Sharon Lindgren also opened up a line of inquiry that the committee would do well to pursue. What if the Nebraska Supreme Court decision was not thoughtfully made, and the Department of Corrections was right to resist implementing it immediately? After all, implementing it was a lose-lose-lose-lose-lose proposition. It would be costly; prisoners who had been released and were doing well would have their lives disrupted; dangerous criminals who did not want to return would resist, perhaps violently; crowding in the prisons would intensify; implementation might set off a litigation nightmare. State senators seemed to think there was no option but to implement the Supreme Court holding immediately, and berated those who did not do it, but were there no other options?

Sharon Lindgren informed the committee that in at least one case, Payan v. State, the Attorney General's office advised the Department of Corrections not to comply with a Supreme Court decision. She disagreed strongly with that advice and told everyone she knew that the advice was wrong, to no avail. If this is true, it is ironic, to say the least, that the Attorney General is calling Ms. Lindgren incompetent. Be that as it may, is there no way the executive branch could have brought an action to determine if the Supreme Court was fully aware of the consequences of its decision? True, the judicial branch may have quickly slapped down such an action but given the circumstances and what was at stake, I would not blame the Governor and the Attorney General for such leadership. After all, they are both elected officials who head the co-equal executive branch. This is not Andrew Jackson saying "John Marshall has made his decision, let him enforce it." (Which he actually didn't say, but might as well have.) Moreover, the way the Department of Corrections had been administering "good time" prior to the Supreme Court's 2013 decision had a legal rationale, the committee learned from a former records administrator, it just wasn't the one the Supreme Court eventually picked in its holding. And when a reader actually pores over State v. Castillas, it can be read so as to deal only with a mistake of a trial judge; there is no mention of how the Department of Corrections makes its computations. I look in vain for any clue that the author of the opinion (or his clerk) researched the whole matter concomitant with the implications of his holding.

If the executive branch is more interested in pointing fingers than leading the state out of this mess, there is always the legislative branch. A special session could deal with the Supreme Court's decision in any number of ways to mitigate its effects. If the Governor won't call one, the legislature can vote to call a special session itself.

One upshot of the fiasco so far, especially after the hearing yesterday, is that state employees will see how their careers can end in ignominy, with no one to defend their years of underpaid, overworked service. It will send a message to those who might think a career in state government is for them: Think again.