ACLU Nebraska report: Omaha and Lincoln courts still creating modern-day ‘debtor prisons’

The ACLU of Nebraska revealed Wednesday that a study of bail-setting by judges shows that recent state legislative reforms have failed to halt modern-day “debtors’ prisons.” 

In seeking to discover how judges treat financially struggling Nebraskans, a team of 24 court watchers tracked more than 2,300 bail and sentencing hearings in the state’s two largest counties, Douglas and Lancaster. 

“What this project uncovered is a cause for concern,” stated the civil rights organization in a report entitled: “Broken Rules: Laws Meant to End Debtors’ Prisons are Failing Nebraskans.”

The University of Nebraska-Lincoln’s Legal Decision Making Lab assisted with data analysis, and financial support came from the Woods Charitable Fund and Omaha Community Foundation.

‘Not going to rest’

Nebraska lawmakers in 2017 clarified that jail time before an actual trial should be a last resort. The law calls for judges to “consider all methods of bond and conditions of release to avoid pretrial incarceration.”

But the ACLU (American Civil Liberties Union) said its court-watching team identified that “systemic disregard of laws” remain, despite U.S. Supreme Court precedent and reforms at the federal and state levels.

Mindy Rush Chipman, ACLU legal director and acting executive director, said the release of the report marks the start of the next phase to implement solutions.

Some proposed fixes can be quickly integrated, she said, others likely will take years of lobbying and legislative work. Contact with key court officials has begun.

“We’re not going to rest until freedom does not rely on how much money we currently have or have access to,” Rush Chipman said.

Underlying the ACLU investigation is the belief that fairness and freedom should not depend on how much money an individual possesses. 

The project launched last summer, and led to three months this year of intense court-watching.

Cash bail was frequent option

The report says the Nebraska Constitution guarantees a broad right to pretrial liberty, which can be restricted only in certain circumstances such as a murder charge or sexual assault or treason. The same provision prohibits excessive bail.

Among the findings in the ACLU report:

— Judges assigned cash bail more than any other option. Of 501 cases in which a judge did not find an individual to be dangerous or a flight risk, judges released fewer than 20% on their own recognizance.

— Judges often did not ask about financial ability to afford cash bail. In 38% of cases monitored, judges did not ask about ability to pay and, in most, the public defender never brought it up.

— Judges, in about 40% of the cases that were monitored, did not advise Nebraskans of the right to present information on ability to pay a fine and fee. In fewer than half the cases, judges explained the right to request payment plans, community service or a waiver of fines and fees.

Ron Murtaugh, judicial administrator of Douglas County Court said he hadn’t yet seen the report and therefore couldn’t respond.

Becky Bruckner, his counterpart in Lancaster County, was not available for comment.

Solutions 

The report recommended various solutions, including “bench cards,” or tools to remind and guide judges on the law with regard to bail-setting options.

It urged training for judges to ensure compliance with laws. Rush Chipman offered assistance from the ACLU.

Also recommended was legislative action to require more transparency from prosecutors and to eliminate cash bail in the state.

Legal forms for defendants without lawyers also are being created, in five different languages, to request help related to fines or court costs. 

One leader of the court-watching team, Demetrius Gatson, said state senators “did the right thing” by passing laws in 2017 to address debtors’ prisons. She said she’d now like to see courts follow through.

‘Collateral consequences’

“Any amount of time in jail, pretrial or sitting out a fine, can mean serious collateral consequences, costing someone their job, custody of their children or their home,” said Gatson.

Rose Godinez, ACLU Nebraska’s senior legal and policy counsel, said that every day in Nebraska courtrooms, dozens if not hundreds of Nebraskans look at jail time because they can’t afford bail, fines or fees. She said that may mean that this holiday season, some financially struggling Nebraskans are behind bars, being held pretrial and presumed innocent, while other accused defendants with more resources are home celebrating.

“The difference? Money, resources and knowledge of their rights,” she said.

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