Recently, there has been a lot of talk in Nebraska amongst politicians
regarding the large number of people we have sitting in jail or prison
across the state.
According to the Nebraska Department of Corrections, in 2005, the average
number of people incarcerated in Nebraska Prisons was 4,086.In 2014, the
average number of people incarcerated in Nebraska prisons was 4,871.The
increase constitutes a 19 percent increase in less than 10 years.
The number of people currently sitting in jail serving out sentences on
misdemeanor charges is substantially higher.
My experience in the criminal justice system would make me believe that
a majority of the people in jail or prison currently face some sort of
drug or alcohol related addiction, and the crime for which they stand
convicted somehow relate to that drug or alcohol problem.
I am not suggesting that drugs or alcohol is the only reason, but I believe
that a majority of crimes are related to drug or alcohol abuse.
Recent statistics from the Nebraska Department of Corrections support the
conclusion. In 2014, almost 20 percent of the population was in prison
for a drug crime.
In 2014, the Council of State Governments issued a report as to the reasons
incarceration rates in Nebraska were so high. The following are some of
the findings outlined in the report:
• In 2012, Nebraska had the 12th lowest probation rate in the nation,
with 1,019 probationers per 100,000 residents, compared to the U.S. probation
rate of 1,633 probationers per 100,000 residents.
• Nebraska judges as a whole utilized probation 22 percent of the
time, but it was utilized just 16 percent of the time in Douglas County
and 17 percent of the time in Lancaster County. By contrast, the national
average for probation sentences was 27 percent, and judges in Idaho and
Kansas utilized probation sentences at more than double that rate, 58
percent and 69 percent of the time, respectively.
• If judges in the state’s most populous counties sentenced
felons to probation at the same rate as judges nationwide, admissions
to state prisons could be cut significantly, by 500 inmates per year,
the CSG officials reported.
People who have studied the issue frequently point to rehabilitation and
other types of treatment designed to fix the problem as opposed to warehousing
people in jail or prison. As an example, many people believe that drug
treatment for drug addicts is a better use of resources than simply putting
that person in jail or prison.
From a societal standpoint, the option of treatment over incarceration
makes sense. From a legal standpoint it, the option also makes sense.
The issue seems to be “why” aren’t judge’s giving
those people convicted of a crime the option for treatment.
For those of us who practice criminal law, we understand that there must
be a mechanism or rule of some sort in place for drug addicts or alcoholics
to get treatment instead of a sentence of jail or prison.
Under many state statutes governing the types of sentences to be imposed,
a judge only has the option of incarcerating somebody for a long period
of time or giving them a sentence of probation.
Many people outside the legal community mistakenly believe that a judge
could impose whatever sentence he or she believes appropriate regardless
of what the law will allow. That is simply not true. A judge is required
to impose a sentence within the limits outlined by the law.
With that notion in mind, many times a judge can only choose between a
sentence of incarceration or a sentence of probation.
For those that believe in rehabilitation, the best sentence for chronic
drug addict or alcoholic is probation, and as part of the conditions of
probation, the judge orders that a person obtain a drug and alcohol evaluation
and then follow through with the recommendations contained within the
The bigger issues seems to be “why” judges in Lancaster and
Douglas Counties impose a sentence of probation at a rate approximately
five percent lower than the judges in other counties in Nebraska.
One of the reasons that the numbers are higher in Lancaster County could
be related to the “informal rule” that in many cases, a person
convicted of a felony in Lancaster County District Court will not be considered
for probation unless they receive a drug and alcohol evaluation.
Although seemingly simple, sometimes there are barriers for people just
to obtain a drug and alcohol evaluation. In Lincoln, Nebraska, the average
cost for a drug and alcohol evaluation is about $200. There are situations
in which the probation office may help pay for the cost of the evaluation,
but that isn’t the case for all people convicted of a crime awaiting
It seems that an easy solution would be to simply provide resources and
options for everyone who is convicted of a crime to obtain a drug and
alcohol evaluation. The cost to the tax payers would be substantially
lower to have more people on probation than incarcerated in Nebraska prisons.