Attorney general challenges more than one effort to reduce Nebraska prison overcrowding

LINCOLN, Neb. (Nebraska Examiner) — Attorney General Mike Hilgers is challenging more than one effort to reduce the state’s chronic prison overcrowding.

And his efforts are sparking the ire of two leading state senators. One said Thursday that it appears to be an effort to account for building a new state prison, a $366 million project.

“We’re building a new prison, we’ve got to fill it up, we have to justify it,” said State Sen. Justin Wayne of Omaha, the chairman of the Legislature’s Judiciary Committee.

Wayne, who introduced the two laws that Hilgers is challenging in court, added that if his “deferred judgment” law is ruled unconstitutional, he would move to eliminate drug- and other problem-solving courts — which provide a similar second-chance for some convictions — because they would also be constitutionally suspect.

“I believe in the (state) constitution,” the senator said.

In 2019, while a member of the State Legislature, Hilgers voted with 45 other senators to pass one of the laws he is challenging, Legislative Bill 686, which allows a “deferred judgment” by a judge.

The other law he is legally attacking, LB 50, (see sidebar) was a much-compromised measure that his AG’s office helped negotiate so it could pass in 2023.

Declined to comment

When Hilgers was asked Thursday to explain the apparent about-faces, he declined comment through a spokeswoman, who said he couldn’t comment on a pending legal appeal.

That sparked criticism from another key lawmaker on criminal justice issues, Lincoln Sen. Danielle Conrad. She said that Nebraskans deserve an explanation about why the attorney general was OK with such legislation while in the Legislature but is attacking the laws now.

“That’s politics at its worst,” Conrad said.

The legislator, now serving a third term in the Unicameral, added that it “challenges the credibility” of the attorney general’s office when it is involved in negotiating legislation.

The challenge to LB 50 made news earlier this week, but the Examiner learned that Hilgers’ office is also challenging the older criminal justice law which allows judges to make a “deferred judgment” in some criminal cases.

That law, described as a “poor-man’s problem-solving court,” allows a criminal defendant to get their conviction expunged from their record, if a judge rules they complied with the strict terms of a probation sentence.

Deferred judgment used widely

The process, in some form, is now used in at least 47 states, including neighboring Iowa and Colorado, allowing mostly first-time offenders a second chance to wipe a felony off their record, if they behave.

Wayne, who introduced the deferred judgment idea as LB 91, portrayed it as a way to reduce the flow of inmates into already overcrowded Nebraska prisons for those who couldn’t get into a problem-solving court.

“(I want) to make sure that we provide opportunities for those who make mistakes one or two times, particularly the first time, to not have a felony around them, holding them back for the rest of their life,” Wayne testified in 2019.

Both he and Conrad have been among advocates of adopting alternatives to incarceration for some lower-level criminal offenses. The legislators, as well as a prison consultant, have projected that if nothing is done to decrease the flow of inmates into state prisons, Nebraska will be required to build a second, pricey new prison within a few years.

Nebraska’s prisons, as of this spring, held about 1,600 more prisoners than they were designed to house, and the planned, new 1,500-bed prison in Lincoln is not designed to reduce the overcrowding, but to replace the aging State Penitentiary, which officials have said will be closed.

Wayne, on Thursday, said he won support for the measure from county prosecutors back in 2019 after narrowing who could qualify for deferred judgment. The bill was later amended into a comprehensive criminal justice measure, LB 686, and passed on a 46-0 vote. Sen. Hilgers voted “yes.”

Deferred judgment has since been used by several judges across the state, but its use has been opposed by prosecutors in some counties, including Lancaster and Madison counties.

Appeal out of Madison County

Fast forward to August, when the Attorney General’s office filed arguments in a Nebraska Supreme Court appeal out of Madison County. In that case, a district court judge ruled that deferred judgment was an unconstitutional violation of separation of powers, agreeing with arguments made by the Madison County Attorney.

Once a defendant is found guilty, the AG’s office argued, a judge — a member of the judicial branch — cannot dismiss a charge without the consent of a county prosecutor — a member of the executive branch of government.

” … This statute violates the explicit and rigorous separation of powers clause .. in the Nebraska Constitution,” the AG’s brief stated.

The public defender representing the Madison County man, Nathaniel Gnewuch, who was convicted of operating a motor vehicle to flee from police, filed an appeal to the judge’s ruling. Also objecting was the Nebraska Criminal Defense Attorney’s Association, which filed a friend of the court brief last month.

The defense attorneys argued that the judge who denied deferred judgment had “overstated” the powers of local prosecutors.

‘Presumption of constitutionality’

“The presumption of constitutionality applies to all statutes, even those recently enacted. And the presumption of constitutionality exists even if prosecutors disagree or do not like the effect of a statute,” argued Lincoln attorney Spike Eickholt for the criminal defense lawyers.

Eickholt cited a similar challenge to a Nevada deferred judgment law, that was upheld in court there.

Legal challenges to systems in Iowa and Colorado also have been rejected, he argued, adding that deferred judgment is legally consistent with Nebraska laws allowing problem-solving courts and probation sentences.

A ruling by the State Supreme Court is weeks away — it must first hear oral arguments from the parties. But if a ruling impacts the state’s problem-solving courts, it would remove the state’s most successful program for turning around lives of people convicted of crimes — and a successful effort in reducing the number of people entering prison.

Conrad said she is upset that the AG, after supporting some “common-sense” measures to reduce prison overcrowding, is now fighting them, without comment and without offering other alternatives.

Pushing culture war cases

She plans to seek more oversight over the budget of the attorney general who, Conrad said, seems more interested in pursuing “culture war” issues like abortion and student debt than in protecting Nebraska consumers and pursuing cold cases. The state needs a lawyer, not an activist, the senator said.

“This attorney general will stop at nothing to forward a radical political agenda, an agenda that’s at odds with how he voted (in the Legislature),” Conrad said.

Wayne also expressed frustration on Thursday, saying he planned to introduce bills to eliminate both the State Parole Board — which decides if inmates should be released early on parole supervision — and the State Board of Pardons, which decides if those convicted of crimes should win an official forgiveness after living crime-free lives.

The Parole Board “isn’t doing its job” in paroling inmates, the senator said. And he feels there’s an “inherent conflict” when the attorney general — the state’s top prosecutor and a member of the Board of Pardons — sits in judgment over those seeking a pardon for a criminal conviction.

Wayne said that his attempts to adopt sentencing reforms have faced filibusters, vetoes from governors and opposition from prosecutors — and now a constitutional challenge.

“I think I’ve completed the hat trick,” he said.

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