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World-Herald special investigation: Nebraska prison doors open too soon

World-Herald special investigation: Nebraska prison doors open too soon

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Convicted killer Marvin Buggs could sniff freedom.

The 53-year-old had found himself within two years of release from prison after his manslaughter conviction in the December 2000 strangulation of a mother whose body was left on a snowbank in east Lincoln.

He shouldn’t have been.

A World-Herald investigation showed that Nebraska prison officials — using a flawed formula to calculate sentences — had wrongly shaved five years off the sentence Buggs received. They had him set for release in June 2016. His actual release date: June 2021.

The examination of prison records of Buggs and scores of other inmates also revealed that Nebraska Department of Correctional Services officials had released or were set to release dozens of prisoners years before their sentences were supposed to end.

All told, state officials had carved at least 750 years off the collective sentences of more than 200 of the state’s worst criminals. The problem: The department was using a formula that doesn’t square with how sentences should be calculated.

After The World-Herald revealed its findings Friday to Corrections Director Michael Kenney, he immediately directed staff to recalculate the sentences. He said he had been unaware of the problem.

“We’re in triage mode,” Kenney said. “Public safety is paramount. Correcting the record is paramount. We have people working very hard toward that effort now.”

The cases involve not just any prisoners but the worst of the worst. Killers. Gun thugs. Habitual criminals. Child rapists. Drug dealers. Basically, any prisoners the Legislature has deemed deserving of mandatory prison terms.

The monthlong investigation revealed that because of the department’s faulty calculations:

                    » Inmates received breaks of anywhere from six months to 15 years off their sentences.

                    » Get-out-of-jail-early cards were given to at least 50 prisoners who already have been released. At least two of those — a drug dealer and a robber — are back behind bars for new crimes.

                    » More than 150 inmates were awaiting early release, courtesy of the Corrections Department.

                    » Judges’ sentences were undermined. In the case of one sex offender, a judge fashioned the sentence so that the two-time child rapist would not be eligible for mandatory release until he was 81. By Corrections’ faulty calculations, he would have been released when he turned 66.

                    » Policymakers’ goal of parole supervision for offenders was thwarted. In more than 100 of the 200 cases, Corrections’ calculations resulted in prisoners being released before they were even eligible for parole.

The World-Herald discovered the errors while combing through the department’s website and a database of inmates’ prison dates and sentence lengths.

The results left Corrections officials scrambling, and authorities slack-jawed.

Kenney said he immediately consulted with the Nebraska Attorney General’s Office to confirm that The World-Herald’s findings were right. He then began informing everyone in the prison system, from wardens to inmates. Kenney said his staff was breaking the news to about a dozen inmates slated to be released this month.

The message?

“They will not be going home when they thought they would be,” Kenney said.

Kenney, a longtime prison official who became director in September, said his office will consult with the Attorney General’s Office on whether the department will seek to round up inmates who already had been released.

Kenney said his staff had yet to sort out how many have been released and how many were set to be released.

Nor had he figured out why the department hadn’t acted on a Nebraska Supreme Court ruling from February 2013 that spelled out the proper way to calculate these prisoners’ sentences. Kenney said he hadn’t been aware of the Supreme Court ruling until The World-Herald informed him Friday.

Corrections has a staff of three attorneys, and Kenney said Nebraska Attorney General Jon Bruning’s staff typically keeps Corrections abreast of court rulings.

“It bothers me to the extent that I wish we had done this earlier,” Kenney said. “I take it seriously. I’m concerned that (the ruling) wasn’t applied immediately.”

He wasn’t the only one.

“Unbelievable,” Douglas County District Judge Peter Bataillon said. “When I decide my sentence, I assume it’s going to be carried out correctly by the penitentiary.”

Sgt. John Wells, president of the Omaha police union, pointed out that these criminals aren’t ideal candidates for parole. That makes calculating their release date all the more imperative.

“This is a stunner,” Wells said. “Rarely do you catch me flat-
footed, but I am at a loss for words over this.

“What in the hell is the state doing? We’re not talking about low-level stuff. Violent crimes. Sexual assaults. These are absolutely the people who should be locked up. It’s maddening.”

State Sen. Ernie Chambers said he is no fan of mandatory prison terms, arguing that they take discretion out of judges’ hands.

However, Chambers said, he also abhors the net effect of the Corrections Department’s miscalculations: that prisoners are cast into society without the opportunity for parole. Such supervised release benefits the prisoner — and, he said, it benefits society.

“If a person jams out before he is eligible for parole, the whole system is skewed,” Chambers said.

The root of the faulty formula goes back two decades.

In 1992 the state adopted the foundation for its current version of the “good-time law,” awarding every prisoner a day off for every day served.

Then, in 1995, state senators created Nebraska’s version of a “three strikes and you’re out” law, setting a mandatory term of 10 years for habitual criminals.

The Legislature spelled it out this way: Mandatory terms must be served in full — and prisoners should get no day-for-day credit for that portion of their sentences.

Since then, mandatory terms have been enacted for drug dealing, child sexual assaults and gun crimes.

The equation that lawmakers laid out for such prisoners: Serve the full mandatory term, add half of the remaining sentence and you have the actual years the prisoner should serve.

Corrections officials quickly adopted that formula in calculating a prisoner’s minimum sentence for parole eligibility.

They were less confident in applying that formula to the maximum term, also known as a prisoner’s “jam date.”

Memos and emails obtained by The World-Herald showed that Corrections Department officials were uncertain as to whether they should apply that formula to jam dates.

In 1995, administrators decided that in computing a prisoner’s release date, they would simply cut the maximum prison term in half — or release the prisoner after the mandatory term was served, if that was longer.

That decision ignored large chunks of the remainder of a prisoner’s sentence, leading Corrections officials to set dozens of incorrect release dates.

Consider again the case of Marvin Buggs.

Buggs and another man, Steven Tucker, were charged in the killing of 35-year-old Cheryl Olson Walter. Authorities accused the men of partying with Walter, trying to get her drunk, and then killing her after sexually assaulting her or having sex with her.

The problem: Prosecutors couldn’t prove whether Walter was killed by Buggs or Tucker, or both. Authorities alleged that both men hauled Walter’s body and left it on a snowbank near 70th Street and Arbor Road.

With nothing conclusively pointing to who committed Walter’s murder, prosecutors turned to other tools to keep Tucker and Buggs in prison.

They charged both career criminals with manslaughter and being habitual criminals.

Each pleaded no contest and was found guilty. A judge sentenced Buggs to 30 years in prison, 10 of which had to be served in full.

Corrections then set Buggs’ minimum sentence for parole eligibility at 20 years — the 10 mandatory years plus half of the remaining term.

As for his maximum sentence, the department cut the 30 years in half, setting his release date at 15 years.

In other words, Buggs had been set to be released before his parole eligibility date.

Tucker had received a similar break: five years off his sentence.

“That makes zero sense. None,” Judge Bataillon said. “You cannot have a jam (release) date earlier than a parole date. This is not rocket science. If I can figure it out, it can’t be that hard.”

In the 2013 ruling — and in a 2002 ruling — the Nebraska Supreme Court clarified how Corrections officials should calculate such sentences.

The high court noted, based on its review of the legislative debate preceding the law’s passage, that state senators’ intent was that the mandatory term be served before good time credit starts.

“It would not serve the (Legislature’s) intent if a defendant could be mandatorily discharged before being eligible for parole,” the high court wrote in 2002.

In 2013, Nebraska Supreme Court judges reiterated that position, saying the full mandatory term must be served on both the minimum sentence for parole and the maximum sentence for release.

“Logically, a defendant must serve the mandatory minimum portion of a sentence before earning good time credit toward the maximum portion of the sentence,” the high court wrote in 2013.

“Thus, a defendant would be unable to earn good time (day-for-day) credit against either the minimum or maximum sentence until the defendant had served the mandatory (term).”

That ruling came out 18 months ago.

It wasn’t until Friday that Corrections began to make corrections. “I’m looking into what that lag was,” Kenney said. “I don’t fully understand it.”

Relatives of the woman killed by Tucker and Buggs had an even harder time digesting it. The Walter family members said they weren’t enraged, just dismayed.

To set an early release for “someone with that type of criminal background, when their crime escalated to manslaughter?” a cousin, Larry Bradley, asked.

“People of Nebraska need to be well aware of the lack of ability of state officials to manage these criminals.”

Contact the writer: 402-444-1275, todd.cooper@owh.com

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