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

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

A judge sentences each prisoner to a minimum sentence for parole eligibility and a maximum term for release from prison. Sometimes those sentences are the same.

A prisoner then gets a day off for every day served, under Nebraska’s good-time law.

However, certain prisoners do not receive that day-for-day credit: Gun thugs, drug dealers, child rapists and repeat offenders must serve mandatory terms of 3, 5, 10 or 25 years, depending on the crime.

Those prisoners must serve that mandatory term in full before receiving the “day off for day served” credit that comes with the good-time law.

When a prisoner checks in at either Lincoln or York, prison officials calculate the sentence.

Officials correctly calculated the parole eligibility dates, a World-Herald analysis shows.

The misstep has come with the prisoners’ release dates.

How a release date should be calculated

1. Start with the mandatory term.

2. Add half of the remaining maximum sentence.

3. The sum is the maximum number of years that a prisoner will serve.

Source: Nebraska Supreme Court, State v. Castillas, et al.

How Corrections calculated it

1. Cut the prisoner’s maximum sentence in half.

2. Compare that number with the mandatory term for the crime.

3. The prisoner serves the greater of those two numbers.

Source: Nebraska Department of Correctional Services records, memos and emails

* * *

Example: Randel Borer, 27

1st degree sex assault of a child

7½ years early

Below is the prison time that Borer should serve, based on a Nebraska Supreme Court ruling on another case, compared with how Corrections calculated his term:

A roundup of already released prisoners.

Court challenges.

An investigation into the state’s inability to follow simple sentencing steps.

A special legislative session.

All those possibilities were laid at Nebraska prison officials' doorstep Monday in the wake of a World-Herald investigation that revealed early releases — or early release dates — for hundreds of the state’s worst offenders.

Published Sunday, The World-Herald investigation showed that the Nebraska Department of Correctional Services — using a flawed formula to calculate sentences — had carved at least 750 combined years off the sentences of habitual criminals, drug dealers, gun thugs and child rapists.

Attorney General Jon Bruning said Monday he had been advised by Corrections that 101 prisoners had been released early.

In turn, state officials set their first priority: rounding up those prisoners already released.

No additional totals were given for how many still-incarcerated inmates had been scheduled for early release. However, a conservative estimate by The World-Herald placed that number at more than 200.

The latest Corrections debacle — on the heels of several other controversies — had state senators fuming, public officials scrambling and defense attorneys promising to challenge any attempts to corral the already freed.

Bruning said he met Monday with Gov. Dave Heineman and other officials to discuss the newspaper’s findings.

The World-Herald discovered that Corrections wasn’t following a simple formula — spelled out in 2002 and 2013 Nebraska Supreme Court rulings — requiring inmates to serve a mandatory term before they received day-off-for-day-served credit on their sentences.

As a result, authorities had given early release dates to hundreds of men and women.

Heineman said an investigation eventually will be conducted to determine who was responsible for the miscalculation of the sentences — and they will be held accountable.

“Right now, we have criminals out on the streets that should be in the prison system, and we want to get them back,” Heineman said. “I’m unhappy about what occurred, and that’s the next priority.”

The governor met Monday with State Correctional Services Director Mike Kenney to discuss the problem. Kenney, who first learned of the problem Friday from The World-Herald, took “decisive action” on Saturday by halting the release of any inmates until their appropriate sentence is determined, Heineman said.

“We are going to take all steps necessary to bring these individuals back into the Corrections system to serve out their complete term,” the governor said. “We’re working with Attorney General’s Office to determine what appropriate legal action is needed to do that.”

The early releases bring up both legal and philosophical questions that Bruning’s office is researching.

Bruning said his initial instinct is to have a more layered approach than a state-ordered sweep. The attorney general said he would split the 101 released inmates into two categories:

   » Those who were released early but still should be in prison.

   » Those who were released early but would have finished their sentences by now.

If the latter folks haven’t committed further crimes, Bruning said, he is inclined to let them remain free.

“I think so,” Bruning said. “Public safety is the foremost concern for me. Not all of the 101 will have identical situations. Some should have been out by now. Some of them would have had further time yet to serve. It’s not clear yet how we’ll need to treat each group.”

That approach would differ from court rulings in other states that have taken a strict stance: Any time owed must be served, no matter who’s at fault for the release.

In 2008, the Nebraska Supreme Court took a hard line on premature releases. The Supreme Court said it was an Omaha prisoner’s duty to inform Corrections officials if he knew he was being released prematurely. The high court said a judge would have to determine whether the prisoner was trying to “game” the system by keeping quiet while wardens opened the prison doors.

In this case, State Sen. Ernie Chambers questioned how inmates were expected to know their proper release date when “Corrections couldn’t even calculate it.”

Rounding up prisoners who would have finished their sentences by now would be “cruel,” Chambers said. He equated it to a mock execution.

“They did not escape,” Chambers said. “They stayed as long as they were told they were required to be there.

“They were made to believe that they could go on with their life, and their freedom would not be taken again. They shouldn’t be made to pay because Corrections has been derelict in its duties.”

A veteran prosecutor disagrees. Douglas County Attorney Don Kleine said he didn’t know how the system could be considered fair if one set of prisoners benefits from bad math.

Kleine called the situation urgent. He questioned what kind of liability the state would incur if it didn’t do a roundup — and then one of those should-be prisoners victimized someone else.

The families of two murder victims are seeking damages against the state over the 2013 killing spree committed by Nikko Jenkins, who had been released early under different circumstances.

Another Nebraska family sued the state after an inmate — allowed to drive a prison van on Lincoln streets — crossed the center line, crashed and killed 47-year-old Joyce Meeks.

“The right thing is, you finish your prison sentence just as the judge ordered you to,” Kleine said. “That needs to happen as soon as possible.”

But Douglas County Public Defender Tom Riley urged state officials to “take a breath” and proceed with caution.

Riley said he anticipates that several inmates will move for a court injunction to prevent the state from corralling them. Monday, Riley immediately assigned his law clerks to research options, setting the stage for what could be lengthy court challenges.

“The (released) prisoners didn’t do anything wrong,” Riley said. “My thought is, ‘Hold on before you just round ’em up.’ ”

That sentiment wasn’t shared by state senators who said they were floored by The World-Herald’s investigation.

Several lawmakers said they were particularly dismayed that Corrections didn’t follow the Legislature’s intent: that inmates serve their full mandatory term before receiving good-time credit that cuts the rest of the sentence in half.

State Sen. Brad Ashford noted that the Legislature has methodically enacted mandatory terms for dangerous criminals, including repeat offenders in 1995, child rapists in 2006 and gun thugs in 2009.

“This put the public in jeopardy,” said Ashford, a lawyer who is running for Congress. “It undermines everything we’ve been trying to do, quite frankly.”

If necessary, Ashford said, he will ask the governor to call a special session.

“This is terribly, terribly troubling. We need to find out who did this, what systems allowed something like this to happen, and why the checks were not there within (Corrections) and the executive branch. ... It’s just brutal.”

State Sen. Scott Lautenbaugh, also an Omaha lawyer, said he, too, was shocked.

“You don’t have a constitutional right to an early release,” Lautenbaugh said. “If a mistake was made, you should be put back.”

But Lautenbaugh stopped short of calling for a special session or an investigation of Corrections. He said Corrections should be able to handle the math laid out by the Nebraska Supreme Court.

“We don’t need a witch hunt at Corrections,” he said. “But they’re going to have to fix it. And I don’t think anybody is going to be taking their word for it.”

State Sen. Heath Mello also stopped short of calling for a special session. Mello said he expects a prison reform committee — which begins meeting Wednesday — will conduct a full investigation, using its subpoena powers if necessary to get answers from Corrections.

“This arguably is one of the most shocking mismanagements that people have ever seen in state government,” Mello said. “This literally put the public at risk.

“It begs the questions, ‘What other problems exist right now in the Department of Corrections? How did this not get discovered for years? And was this done in part to ease prison overcrowding?’”

Heineman said the mistakes in computing the prison sentences had nothing to do with overcrowding. They were the product of “misinterpretations” and “mistakes,” he said, and began long before he took office.

The return of inmates and longer sentences for others are sure to put more pressure on the state prison system, which is growing more overcrowded by the month.

As of May 31, state prisons held 1,900 more inmates than their design capacity of 3,275, 58 percent over capacity.

The burgeoning prison population has forced prison officials to double-bunk more cells, use temporary cots, transfer out federal inmates and consider moving state inmates to county jails to ease the deluge.

With the latest mistakes, Corrections officials were scrambling to recalculate sentences and reclassify prisoners.

Dozens of prisoners — once on the cusp of freedom and in less-restrictive work-release settings — were expected to be moved back to penitentiaries.

And Heineman expects released prisoners to be returned.

Once they are, he said, Nebraska needs to do a better job of telling the public when a prisoner will walk free.

“Everyone involved in this system — from the judge to the county prosecutors, to law enforcement — it all needs to be made clear what those sentences actually mean,” Heineman said.

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

Convicted of sexually assaulting a child? How does getting out of prison 15 years early sound? Gun crime? How about six years early? Manslaughter? Five years early.

All because the Nebraska Department of Correctional Services miscalculated the release dates for inmates, carving at least 750 years off the sentences of more than 200 criminals.

How could this happen? Nebraskans want answers.

The staggering revelations from World-Herald staff writers Todd Cooper and Matt Wynn’s investigation are, in a word, unacceptable.

The idea that hardened criminals could be released before even becoming eligible for parole is unacceptable. That prison officials hadn’t sorted out how many criminals already were free and how many were set to be released is unacceptable.

It’s unacceptable to their victims, to the cops, prosecutors, judges and others working to maintain public safety, and to all Nebraska citizens.

They want answers.

The World-Herald findings were clear: Inmates got breaks of up to 15 years off their sentences; at least 50 got out of jail early; more than 150 others were awaiting too-early releases; the intentions of judges who sentenced these criminals were undermined; and lawmakers’ efforts to have parole supervision of released offenders was derailed in more than half of the cases.

Yet the head of the correctional services department, Michael Kenney, said he was unaware of the problem until the newspaper told him. “Public safety is paramount. Correcting the record is paramount. We have people working very hard toward that effort now,” Kenney said.

Good. But not good enough.

State sentencing laws, crafted since the 1990s, twice were clarified by the Nebraska Supreme Court, most recently in February 2013. Yet Kenney said he had not figured out why his department, which has a staff of three lawyers and consults with the Nebraska Attorney General’s Office, hadn’t acted on that 2013 ruling and acknowledged that he was unaware of it until The World-Herald informed him.

Not good enough.

Not good enough for lawmakers. “It is alarming because it undermines our efforts to address violent crime and reform the prison system,” State Sen. Brad Ashford, chairman of the Legislature’s Judiciary Committee, said Monday.

Not good enough for Douglas County District Judge Peter Bataillon, who said, “When I decide my sentence, I assume it’s going to be carried out correctly by the penitentiary.”

Not good enough for Omaha Police Sgt. John Wells, who said, “Violent crimes. Sexual assaults. These are absolutely the people who should be locked up. It’s maddening.”

Not good enough for relatives of Cheryl Walter, who was strangled to death and left on a Lincoln snowbank. Early release, her cousin asked, for “someone with that type of criminal background, when their crime escalated to manslaughter?”

It follows other prison controversies — the “good time” release of Nikko Jenkins despite his repeated disruptive behavior; an inmate-driver involved in a collision that killed an innocent Lincoln motorist; weekend furloughs for a gang member who was shot by police while he lunged for a gun.

It’s all just not good enough.

The Council of State Governments is working with Nebraska on prison crowding. Lawmakers also need to examine their complicated sentencing laws and consider undertaking aggressive oversight, as when serious problems arose at the Beatrice State Developmental Center and in the child welfare system.

Moreover, Nebraskans are owed a full explanation from those involved and those in charge.

How could this happen? Who is responsible for these dangerous blunders? Will inmates released early be rounded up? Does the Attorney General’s Office have an obligation to make sure state agencies know what the Nebraska Supreme Court says and follow the law? Can the Legislature clarify and simplify sentencing laws? How will Gov. Dave Heineman, the state’s chief executive for a decade, hold his correctional services department accountable?

And most importantly, how can we be assured something like this doesn’t happen again?

Nebraskans want — and deserve — answers.

The Nebraska prison system has two sets of attorneys to advise it on incarceration issues.

The Legislature is chock full of attorneys — and has a Judiciary Committee that specializes in legal matters.

And, of course, prosecutors and judges are attorneys — many of whom voraciously read Nebraska Supreme Court opinions.

None of them noticed what The World-Herald discovered in a monthlong investigation: that the Nebraska Department of Corrections failed to follow sentencing steps that the high court has laid out since 2002.

In turn, hundreds of the state’s worst inmates received early releases or early release dates of anywhere from six months to 15 years.

“My question is, why did it take The World-Herald to figure this out?” Douglas County Attorney Don Kleine asked.

As Corrections figures out how to clean up the mess — including whether or how to recapture 101 prisoners released early — those sorting out what went wrong narrowed their focus Tuesday to the two sets of attorneys who have direct contact with Corrections.

       » Corrections’ own in-house staff of three attorneys, including longtime general counsel George Green. Green and his staff generally handles department legal matters, advising the director and overseeing inmate complaints through prison administrative proceedings.

       » Nebraska Attorney General Jon Bruning and his staff of 65 attorneys — some of whom represent the state in contesting appeals by inmates.

Nebraska Corrections Director Michael Kenney said his office relies on the Attorney General’s Office for advice on State Supreme Court decisions.

That advice was given, Bruning said.

Bruning said his staff — under both his administration in 2013 and former Attorney General Don Stenberg in 2002 — repeatedly informed Corrections officials about high court rulings that spelled out how to calculate sentences.

Bruning noted that Kenney himself was named as the defendant in a 2002 case that was the “seminal case” in how to calculate sentences with mandatory terms.

“It was not a particularly difficult decision to discern,” Bruning said. “We can’t do their jobs for them. We can only advise them as to what the law requires — and you assume they heed the advice.”

Kenney, a longtime prison official who took over as Corrections director in September, has said he will look into who was responsible for the failure to follow the Supreme Court decisions. Kenney said he wasn’t aware that the Nebraska Supreme Court had laid out the correct way to calculate sentences until The World-Herald informed him Friday.

The missteps go back 20 years, to Nebraska’s formation of a three-strikes-and-you’re-out law.

In 1995, the Legislature instituted a 10-year mandatory term for habitual criminals.

After that law took effect, one of the habitual criminals, drug dealer James Johnson, sued the state, saying he should be released after five years under another state law that gives an inmate “good-time” — day-off-for-day-served credit.

Johnson’s argument: A judge gives each defendant a minimum and maximum sentence. The habitual criminal law said nothing about the maximum term; it only said the minimum must be 10 years. Therefore his maximum sentence should be cut to five years.

A Lancaster County judge initially agreed, ordering Corrections to release Johnson.

Corrections appealed — using then-Attorney General Don Stenberg’s assistant attorneys.

In December 2002, the Nebraska Supreme Court sided with the state, ordering Johnson to serve the full mandatory term on both the minimum and maximum sentences.

The high court noted that if Johnson prevailed, his sentence would be a nonsensical 10 years until he was eligible for parole but just five years until he was released.

“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 the wake of that ruling, memos and emails obtained by The World-Herald show that Corrections officials were, at best, conservative and, at worst, confused as they calculated sentences.

Corrections followed the ruling when it came to minimum sentences for parole. However, it came up with a three-step method of calculating a prisoner’s maximum sentence:

1. Cut the prisoner’s maximum sentence in half.

2. Compare that number with the mandatory term for the crime.

3. Impose the greater of those two numbers.

In a 2010 email obtained by The World-Herald, a Corrections record-keeper referred to that method as “somewhat confusing and involved.”

It also ignored large chunks of a prisoner’s remaining sentence.

Green, the Corrections attorney, said he believed the 2002 ruling was more about good-time reductions in which an inmate gets a day off for every day served. (It primarily concerned mandatory terms, not good-time calculations.)

“There had been a lot of ambiguity and confusion in how to do this,” Green said. “Now the (2013) ruling gives us clarity. For the first time, it’s very succinct and clear.”

Oakland, Nebraska, defense attorney Clarence Mock, a former prosecutor, said both rulings were straightforward and succinct. The 2013 ruling simply reinforced the 2002 ruling spelling out how Corrections should calculate sentences.

“It is ironic that people who are trained and whose job is to interpret the law could be so abjectly erroneous about its application,” Mock said. “It’s befuddling how a colossal mistake of this nature could happen.”

State Sen. Scott Lautenbaugh noted that the Legislature’s Judiciary Committee apparently didn’t catch the oversight or alert Corrections, either.

“We don’t need a witch hunt at Corrections,” Lautenbaugh said.

Gov. Dave Heineman has called for an investigation, but first he wants a manhunt. The governor said he expects authorities to round up all 101 released prisoners.

Kenney said Corrections officials have corrected improper release dates — adding months or years to the sentences of prisoners who were set to be released this month and next. And, he said, the whole computer system is being “recalibrated” to issue correct release dates.

Bruning said he has about five attorneys trying to sort through those 101 cases of prisoners who have been released early. He said he expects to split them into categories, based on how much time they have left and whether they’ve committed more crimes.

The attorney general said policymakers will have to decide whether taxpayers’ money should be spent sending law enforcement officers across the country to fetch prisoners. Some of the prisoners may have less than six months left on their sentences. Some may have started over with jobs and families, he said.

“It was (Corrections’) erroneous interpretation that led to this,” Bruning said. “But, look, there’s no malice here. People make mistakes. I think everybody’s trying to do the right thing now.”

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

World-Herald courts reporter Todd Cooper appears on "The Bottom Line," The World-Herald's Internet radio show, and chats with host Mike'l Severe about, among other subjects, recent revelations that dozens of Nebraska prisoners were mistakenly granted early release from their sentences. 

The World-Herald revealed Sunday that state officials had miscalculated the sentences handed down to at least 101 inmates, leading to their release as much as 15 years earlier than warranted.

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

* * *

Nebraska will go after some but not all of the prisoners who were released early because of the state’s faulty sentence calculations.

Those who will be corralled: the ones who should be in prison today.

Those off the hook? Prisoners who have not committed new crimes and who would have completed their sentences by now.

That approach — outlined by Gov. Dave Heineman in an exclusive interview — strays slightly from the thoughts he shared last week after a World-Herald investigation showed that the State Department of Correctional Services had carved hundreds of years off the sentences of dozens of the state’s worst criminals.

Heineman initially said the state would take all necessary steps to round up any prisoners who had been released early. He made no distinction between who would be rounded up and who wouldn’t.

Since then, Heineman said, he consulted with the Attorney General’s Office and learned that the law makes some distinction.

Prisoners who have behaved in society can be credited for the time they inadvertently spent outside prison walls, the Nebraska Supreme Court has ruled.

The governor had no timetable for the roundup. However, he said, it won’t take “months.” The Corrections Department and the Attorney General’s Office are sorting the cases.

“Public safety is priority No. 1,” Heineman said. “That’s paramount here. Before you can have a decision, you have to clearly identify the individuals affected by this. We’re in the process of doing that.”

A new World-Herald analysis of online prison records revealed that since the newspaper exposed the faulty formula, the Corrections Department has added more than 1,300 combined years to the sentences of more than 300 current prisoners.

Corrections added as little as a few months to some sentences, the analysis showed. One prisoner’s sentence was short by 30 years.

The majority of the prison terms were extended by anywhere from 18 months to five years. In turn, several prisoners are being handcuffed and shuttled from work-release centers back to prisons.

Corrections officials reported last week that 101 prisoners were out early. Heineman said that number is “not accurate” but declined to comment on whether it’s high or low. Using conservative estimates, The World-Herald has identified at least 60 prisoners on the streets.

Heineman said, “I made it very clear to Corrections: You are going to double-check and triple-check those numbers to make sure they’re right.”

The World-Herald revealed that Nebraska prisons have been prematurely releasing men and women since shortly after 1995, when mandatory terms went into effect for habitual criminals.

The miscalculations are rooted in the Corrections Department’s failure to follow sentencing steps that the Nebraska Supreme Court laid out in December 2002 and again in February 2013. The law requires prisoners to serve a mandatory term before receiving the state’s customary good-time credit of a day off for every day served.

Heineman said the revelations by the newspaper “angered” him — and state officials chimed in, vowing to embark on two steps:

                            » A manhunt to return should-be prisoners.

                            » An investigation to find out who was responsible for unlocking the prison doors early.

“I’m very unhappy, and I’m very angry about the situation,” Heineman said. “I want to get to the bottom of what happened — and when that time comes, we’ll hold people accountable. But the first priority has to be public safety.”

On the public-safety front, Heineman stopped short of making another exception to the list of those who would be rounded up.

Earlier in the week Nebraska Attorney General Jon Bruning had questioned whether Corrections officials should spend taxpayers’ money to corral someone who has led an exemplary life since release and has only a couple of weeks or months remaining on his sentence.

Under Heineman’s plan, those freed felons will be rounded up. No exceptions.

Heineman said he has no idea what the roundup will cost taxpayers. It will certainly add pressure to the state’s already burgeoning prisons, which are 58 percent over capacity.

But overcrowding “has never been the issue for me” in how sentences are carried out, Heineman said. “I hope that’s not the case for the Department of Corrections. We have an obligation to carry out that sentence, period. There’s a cost involved potentially on public safety if we don’t.”

The process will be extensive, he said. The four steps he laid out:

                            » Review the case of any prisoner who has been given a mandatory term since 1995.

                            » Check the criminal records of prisoners who are out and would be done with their sentences by now. State officials have yet to say whether it will take a felony or a misdemeanor to constitute a “criminal record” worthy of recapture.

                            » Calculate the exact length of sentence for those prisoners who still should be in prison.

                            » Execute the manhunt. The Nebraska State Patrol will lead the charge — with the help of local law enforcement and the consultation of county attorneys and the Nebraska Attorney General’s Office.

No warrants have been issued and no captures have been made, Heineman said.

“That has not begun,” he said.

Once it begins, the process is expected to be expensive. Wanted felons living out of state have the right to fight efforts to extradite them back to Nebraska. Defense attorneys already are promising court challenges to the sweep.

Previous high court decisions have paved the way for the state’s action. In 2009 the Nebraska Supreme Court ruled that any prisoner should be returned to custody if let out early. However, a judge can make exceptions if the prisoner would have completed his sentence and had no criminal record since his release.

The high court, however, put an onus on prisoners: If they reasonably could have figured out they were being released early, they should have told the warden.

State officials have conceded that the prisoners would have had little ability to calculate their correct release date.

After all, Corrections didn’t.

The department is working evenings and weekends to fix that, Heineman said. He noted that Corrections Director Michael Kenney was at the office until midnight Thursday.

Said Bruning: “We are working diligently and deliberately to fix this problem.”

Some aren’t thrilled with the diligence.

Several inmates have found themselves in a new home. A sister of one inmate told The World-Herald that her brother, convicted of a shooting, had been on work-release and weekend furloughs through an Omaha work-release center.

The other day, she said, he and a handful of other inmates were handcuffed and transported across the street to an Omaha prison.

The 47-year-old inmate was supposed to get out in three months. He now will get out in three years.

“It’s cruel,” the sister said. “He was so close to getting out. He took every class, got every certificate and had a good job on work-release.

“He didn’t want anything to mess up (his release). Now the state has messed it up and he’s paying for it.”

Contact the writers: 402-444-1275, todd.cooper@owh.com, 402-444-3144, matt.wynn@owh.com

They’re all part of a peculiar club: prisoners who have been released only to find out in the past two weeks that the state let them out early.

Call them the purgatory prisoners.

They’re stuck in limbo, somewhere between society and a penitentiary, as the state considers whether to haul them in after a World-Herald investigation revealed that Department of Correctional Services officials had wrongly carved hundreds of years off the collective sentences of dozens of inmates.

Their stories are varied. Their emotions are not.

They’re worried, wondering if or when the state is coming to get them.

Some have started new lives, new jobs, new families.

Some are up to their old ways.

An in-depth review of 10 cases shows that:

  » True to the national average, half of the early-released prisoners have reoffended. At least two have since completed their additional prison terms for the latest offenses. In other words, they were released early, then committed another crime and were arrested, prosecuted and sentenced. All of that happened — and all the related law-enforcement costs were incurred — during the time they should have been sitting in prison on their original sentences.

  » One prisoner had escaped from prison twice before — only to have the state give him a third get-out-of-prison-early card. He now has filed a lawsuit seeking to prevent the state from recapturing him.

  » One prisoner, a drug dealer facing prison time in both Nebraska and Oklahoma, was given a 2½-year break on his Nebraska sentence. Then Oklahoma put him on parole, even though he should still be in a Nebraska prison.

Such is a sampling of the mess that state officials are sorting through in the aftermath of The World-Herald investigation.

Since the June 15 report, Gov. Dave Heineman has laid out a two-part plan:

1. Retrieve those who still should be in prison. No exceptions. The governor and others have noted the liability if these should-be prisoners reoffend.

2. Review the records of the already-released prisoners who would have finished their sentences by now and leave them alone if they haven’t committed new crimes.

Saying they need to “triple-check” records, Heineman and corrections officials have declined The World-Herald’s repeated requests to provide the public with numbers, even estimates, of the total of should-be prisoners who will be rounded up.

However, two sources familiar with the roundup plans say officials are in the process of preparing at least 40 warrants across the state.

As for those still in prison, a World-Herald review shows that officials have added more than 1,300 combined years to the sentences of more than 300 prisoners.

Family members say those current inmates are reeling — some of them, once on the cusp of freedom, now face anywhere from one more year to 15 more years in prison.

Then there are those who have tasted freedom.

Told they still have time left to serve, they’re doubtful, depressed, even defiant.

After initially challenging whether he had time left, one sex offender seemed resigned. He described himself as an “honest man” who would accept his fate, even if it seems unfair.

Another was downright hostile. In a telephone interview, he offered a glimpse of what the State Patrol and local law enforcement may encounter when they arrive at his doorstep.

“They aren’t taking me back to prison,” he hollered.

Then he hung up.

Here are the stories of some of the other prisoners who were released early:

Mitzi Mohr

When Mitzi Mohr was arrested 10 years ago, she was an 80-pound meth addict with a penchant for petty crime.

It was her fifth prison stay. The others had been short, about a year apiece.

Not this time.

True to form, her crime was minimal. She had stolen till money from a restaurant. But because of her past convictions, she was labeled a habitual criminal.

That meant a 10-year mandatory minimum term and guaranteed release after 11 years.

In hindsight, she says, the sentence was a blessing.

On December 8, 2013, she signed her release papers, becoming free and sober for the first time in her adult life.

Nowadays, she’s a waitress with some management responsibilities at a Grand Island diner. She’s batting down job offers, staying out of trouble and picking up the pieces of a family shattered by her 14 years of drug abuse.

In the six months she’s been free, the 44-year-old hasn’t gotten so much as a parking ticket.

She has been able to do the things she never had the chance to do. She gives her baby grandson, Braxton, afternoon baths. She posts pictures on Facebook. With her customers, she’s a small-talk queen.

There’s just one problem: Mitzi Mohr should still be behind bars.

Her sentence calls for her to serve time until December 2014.

“There are a million people who have made a difference in my life,” Mohr says.

Among them? Gov. Dave Heineman, whose bedroom she cleaned for five years in a prison work program.

During that time, she got to know Heineman and his wife, Sally Ganem — “Miss Sally,” Mohr calls her.

The couple, and others she met there, gave her the confidence to be a better person.

They told her that she could do better. That she was worth it.

They asked her about her life and were genuinely interested in her answers.

“Somebody’s got to care,” Mohr said. “That makes a big difference.”

That made it all the more ironic, then, that it was Heineman who announced that prisoners who still have time on their sentences would be rounded up and required to serve out their sentences.

Mohr said she has called prison officials, trying to find out what will happen to her.

Every time, the answer has been the same: “We don’t know.”

Not good enough, Mohr said.

“I need to know,” she told The World-Herald. “I need to know if officers are going to come to my door and drag me back in. I have a job. I have a family. I don’t want to let everybody down.”

She has already missed so much because of her crimes and prison time.

Her five children are now young adults. The youngest is going into his senior year of high school. Her mother, Judy, died in 2010, while Mohr was in prison.

Still, she says, the sentence was a blessing. Ten years allowed her to get clean in a way those shorter sentences didn’t.

She took classes on addiction. She learned to work. She took college classes.

She’ll accept whatever punishment is handed down, she said. But that doesn’t make it right.

“If I make a mistake, I’m held accountable for it. So all these workers that let people out early should be held accountable — they should probably lose their jobs.”

Peirce Hubbard-Williams

Peirce Hubbard-Williams, 40, is a new father and a soon-to-be husband.

He spends his days watching his 1-year-old son and his fiancee’s two children. He keeps an eye on his ailing mother, whose lung cancer recently went into remission.

As the family’s sole provider, he goes to his job every evening, making manhole covers for cities across the nation.

But Hubbard-Williams appears poised to return to prison because of a sentencing miscalculation that set him free five years early.

“I am in a good place with my company and with my family,” Hubbard-Williams said. “I have never had stability in my life, and I do right now.

“It is an absolute injustice to send people back to serve the remaining of their time that they weren’t told about — especially for people who have worked hard to get to where they are at today.”

A thief and burglar most of his life, Hubbard-Williams frequently spent time in jail.

His repeated criminal behavior caught up with him in 2000. Prosecutors charged Hubbard-Williams as a habitual criminal in a theft case, requiring him to spend 10 years in prison before receiving the state’s customary day off for every day served.

He should have remained in prison until July 2016.

Instead, he was released in 2011 — after the 10-year minimum was served.

Hubbard-Williams was caught with oxycodone in 2012. He returned to prison and was released on parole shortly after his son’s first birthday last January.

Today, he says, he is ready to leave his criminal past behind him and make an honest living. He doesn’t want to return to prison.

“I have been in trouble all of my life, and now I am doing good and haven’t been in any trouble,” he said. “I have abided by everything I am supposed to be doing on parole. Prison changed me.”

David Amesbury

Registered sex offender David Amesbury returned to his family and trailer home in Elwood five years earlier than he should have been.

Life turned out pretty cozy for him: He is a clerical worker for a hotel, he found the Lord, and his wife took him back, he said.

Amesbury, 54, was convicted in 2002 of possessing sexually explicit photos of children and trading them on the Internet.

Gosper County Attorney Todd Wilson said authorities discovered computer disks with hundreds, if not thousands, of images of adult men having sex with prepubescent girls and images of men forcing children to perform sex acts.

Amesbury said his behavioral problems started as a child. He said he lived in an orphanage, was abandoned by his adoptive family and then bounced around foster homes until he dropped out of high school and joined the U.S. Army. He landed in prison twice in the 1970s and 1980s for burglary in Douglas and York Counties.

Those convictions allowed prosecutors to charge Amesbury as a habitual offender in 2002 when he was caught with child pornography.

While in prison, Amesbury participated in sex offender rehabilitation and psychotherapy to better manage his anger, bipolar disorder and depression. When he got out, he turned to the church. He said he has his pastor on speed dial.

“I learned to basically reprogram my thought process,” he said. “Now I turn to my pastor when I need help.”

As a sex offender, Amesbury had a rough time in prison. He said inmates often harassed and assaulted him — one time beating him up so badly that he had to undergo facial reconstruction surgery.

“I already had a hard enough time surviving the first,” he said. “I don’t know if I will survive another sentence.”

Officials haven’t knocked on Amesbury’s door, but he is preparing for his possible return to prison.

“I am an honest man — if they say we have to turn ourselves in, I will do that,” Amesbury said. “But I hope they can look at how clean of living I have been doing since I got out. I have made the changes I needed to. I feel like I was locked up long enough.”

Alvin Long

Alvin Long, 53, has been a thief most of his life. A thief who doesn’t like to show up in court.

In 1997, a judge sentenced him for being a habitual criminal and failing to appear in a theft case. The habitual criminal tag required him to serve a 10-year mandatory term.

However, he was released in 2006, five years too early.

But he soon returned to his old ways.

Four months after his release, Long stole property valued under $100 and landed in jail. Since then, he has been in and out of jail for six misdemeanor thefts. He has failed to attend at least three court hearings.

In April, Lancaster County prosecutors accused Long of stealing from Hobby Lobby in Lincoln; he is still awaiting trial. He also had an outstanding 2010 warrant in Washington County because he didn’t appear on a theft charge. He showed up Monday and pleaded guilty to the theft of less than $500.

When reached by phone, Long began naming all the reasons he shouldn’t go back to prison.

“I got a wife, two adult kids and seven grandkids. I am back into church. I am on dialysis. I am trying to get a kidney transplant. I am trying to live. I am not trying to go back.”

That might be a long shot.

His sentence would have expired by now, but state officials say they will review such cases to weigh whether inmates have stayed out of trouble.

“I have done too much time already,” Long said. “Isn’t that double jeopardy or something? This miscalculation is their fault, not mine.”

Bruce Caton

Bruce Caton had escaped from prison twice.

His third early release came courtesy of Corrections.

The habitual criminal was supposed to be in prison on a burglary charge until 2018, but prison officials allowed him to return to the streets in October 2013.

Now living in Lincoln, he says he has found work and hasn’t committed any crimes since then.

The 57-year-old will be on the sex-offender registry for the rest of his life, a punishment reserved for the most serious sex crimes.

Caton’s violent past includes charges of burglary, kidnapping, rape and robbery.

And there’s his history of eluding authorities. He escaped from prison briefly in the early 1980s.

Then in the late 1980s, he was the subject of a manhunt after he cut through a steel mesh security screen at an Otoe County jail.

At the time, a sheriff called Caton a “dangerous man.”

Caton now is simply a defiant man. He said the governor and other authorities are “insane” to think they can return ex-inmates like himself to prison.

He filed a lawsuit Tuesday, asking a judge to reduce his sentence to time served and to prevent the state from corraling him.

“There is no more time left for me to do,” he said. “They aren’t taking me back to prison.”

Pierre Jones

Some botched release dates have reverberated across state lines.

An Oklahoma state trooper noticed in 2007 that Pierre Jones’ rented Dodge Charger had both a license plate and in-transit tags. He was pulled over on Interstate 80 west of Grand Island, and troopers found 30 pounds of pot, nearly a pound of cocaine and $1,000 in cash.

Jones, 31, was convicted of possession of cocaine and sentenced to a five-year mandatory term.

Months after being booked into prison here, Jones also was sentenced in Oklahoma on similar drug-trafficking charges.

An Oklahoma judge ruled that Jones should serve his Nebraska term, then return to Oklahoma to finish out his time there.

Nebraska corrections officials released Jones in 2012. He should not have been released until later this summer.

An Oklahoma prison official said Jones was subsequently paroled from the Oklahoma system and allowed to serve parole in Alabama.

That was probably because Jones had family or a job awaiting him there, said Jerry Massie, the Oklahoma official.

Oklahoma continues to get annual reports on Jones, he said, and by all accounts, he’s staying out of trouble.

It’s unclear how Nebraska officials will address prisoners who have left the state. Massie seemed to think that Jones will be tracked down.

“If he reads the Omaha newspaper,” he quipped, “he’ll probably disappear pretty quick.”

Contact the writers: 402-444-1275, todd.cooper@owh.com; 402-444-3144, matt.wynn@owh.com; 402-444-1066, alissa.skelton@owh.com

* * * * *

Related video

Nebraska’s prison screw-up is much bigger than originally estimated: 873 inmates erroneously received reduced sentences over the past 20 years, state officials revealed Friday.

The fix will cost the state dearly: an estimated $50 million or more to house current prisoners for the 2,050 years just added to their collective sentences.

At the same time, Gov. Dave Heineman said the roundup of prisoners will be much smaller than he originally outlined.

State officials will focus only on the 41 inmates who were released early and should still be in prison today. They have no plans to round up more than 250 who are on the streets but would have completed their sentences by now.

Those decisions, Heineman said, were not made because Nebraska’s prisons are overcrowded.

The state’s prisons are 58 percent above capacity, a condition that already has prisoners filing lawsuits and an outside consultant advising the state.

“This was not done because of overcrowding,” Heineman said. “This was a mistake. The bad guys need to be locked up, and they will be locked up.”

Most will be imprisoned for quite a while. A June 15 World- Herald investigation exposing the state’s faulty sentence calculations prompted prison officials to add 2,050 collective years to the sentences of 567 current prisoners.

Those 567 inmates — 13 percent of the state’s prison population — will remain in prison anywhere from one year to 35 years longer. Average extension: 3½ years.

Those additional years will cost taxpayers an estimated $50 million or more, before inflation, based on an estimate by The World-Herald.

That’s not the only cost being felt.

The State Patrol — with the assistance of local and federal law enforcement — has ventured across the state to fetch about 20 to 25 should-be prisoners who are still at large. And the prisoners already have begun to file lawsuits to challenge the unprecedented roundup.

Then there’s the emotional toll.

A parole supervisor called Jordan Lybarger, 24, of Lincoln as he left work Wednesday to tell him that he had three hours to report to State Corrections.

Lybarger said he knows of at least five others who received a similar call. The father of two spent the night on a cot. In the morning, he was told to pack his things, no explanation given.

A parole officer dropped him off at home.

He was initially picked up because he had 18 months remaining on his sentence for possessing a firearm and cocaine. He wasn’t told whether his sentence will be recalculated.

Lybarger said he has consulted a lawyer about possible legal action against the state.

“Who knows, I could get a call tomorrow saying I have to go back in,” Lybarger said. “It is not right. It is absolutely ludicrous. I don’t see how it takes them so many years to realize they messed up sentences.”

In Gosper County in central Nebraska, a panicked should-be prisoner, David Amesbury, called The World-Herald as authorities were closing in on him Friday.

Shortly after 1 p.m., Nebraska state troopers showed up at his doorstep with an arrest warrant.

“The (Corrections) department erroneously released the defendant from custody prior to his mandatory discharge date,” the warrant says, before giving the proper calculation.

Amesbury, a convicted sex offender who possessed child pornography, went back to prison peacefully, as he had promised earlier this week.

However, he was clearly shaken. Troopers handcuffed Amesbury and told him that they were taking him to a state facility in Lincoln to be processed before transferring him to the Nebraska State Penitentiary.

“I gotta go now,” Amesbury said as officers gave him instructions. “They are taking me in. I hope I can get assistance so I can try to get out very soon.”

His release date won’t be any time soon, though. Amesbury, 54, has five more years left on his sentence, according to his warrant and World-Herald calculations.

Amesbury doesn’t think it is fair to round up prisoners. His sentence was long enough, he said.

Attorney General Jon Bruning said, however, that he expects the roundup to be upheld in court.

“They can sue — but they aren’t going to win,” Bruning said. “The case law is clear. They owe us the time.

“We hope they (surrender) peacefully. We’re trying to be as humane as we can about it.”

Some questioned whether state officials were being too lenient to inmates who still owe time to the state.

Heineman and Bruning had said the state would review the criminal records of prisoners who would have finished their sentences by now. The state would then review whether those prisoners’ records were clean in determining whether they would remain free.

The governor’s latest plan, however, makes no mention of any review of the criminal records of 257 early-released prisoners whose sentences would have been completed by now.

“Of the (released inmates), 257 individuals have been back in (their) community longer than (their) recalculated release date,” Heineman said in a press release. “Therefore, these 257 individuals have completed their sentence requirement and will not be returned to incarceration.”

Indeed, a 2009 Nebraska Supreme Court ruling allows for “jail credit” for time spent outside prison walls by any individual who was released early. However, that decision also calls for the should-be prisoners to obey laws in order to receive that credit.

The high court, ruling in that 2009 case of an Omaha man released early, said judges must determine whether the early-released prisoner “committed crimes while at liberty.”

“It would offend notions of equity to credit a prisoner for time erroneously spent at liberty if the individual spent that time committing additional crimes,” the high court wrote.

Douglas County Attorney Don Kleine and Sarpy County Attorney Lee Polikov expressed concern that that standard isn’t being applied.

Kleine said he believes that all the prisoners should have to finish their sentences — and “certainly” the ones who committed crimes while out.

“It would make sense to me that we’re not going to allow a person to get (credit) if they were doing something illegal during their time out,” Kleine said.

Polikov agreed. He questioned whether authorities were concerned about putting additional pressure on the prison system.

“Sure, they should be looking at those (prisoners),” Polikov said. “Those people owed society a certain amount of time. They should serve it.”

The 873 messed-up sentences include a curious one: David Castillas.

The convicted gunman was the subject of one of two pivotal rulings in which the Nebraska Supreme Court expressly advised the Corrections Department on how to calculate such sentences.

Still, Corrections didn’t get his sentence right. Officials recalculated it this week — adding 12½ years to his total.

Bruning asserted Friday, as he has before, that his office had advised Corrections about the Castillas ruling and a similar ruling in 2002.

“When you’re a lawyer, you give your clients advice. And they can take it or not,” Bruning said. “Someone over there disagreed, evidently.”

Heineman and State Corrections Director Mike Kenney said an investigation is underway to determine who was responsible for the miscalculations. That investigation will be completed after the prisoners are corraled, they said.

“They made a mistake, and they’re going to correct it,” Heineman said of prison officials. “And they better not make these mistakes in the future.”

Contact the writers:

402-444-1275, todd.cooper@owh.com

402-473-9584, paul.hammel@owh.com

402-444-3144, matt.wynn@owh.com

402-444-1066, alissa.skelton@owh.com

Read some of the email exchanges

* * *

It was the second high court ruling in 10 years expressly telling prison officials the proper way to calculate release dates for some of Nebraska’s worst offenders.

And it essentially informed prison leaders they were violating the law by releasing inmates anywhere from six months to 15 years early.

Yet it was met with doubt, even defiance, from the prison records manager charged with setting inmates’ release dates, according to emails obtained exclusively by The World-Herald.

The emails to her supervisors — combined with memos and legal briefs — paint a picture of a Nebraska Department of Correctional Services that ignored the law despite two Nebraska Supreme Court rulings, a lower court decision and prosecutors’ alarms that two prisoners were on the streets early.

On Feb. 8, 2013, just five hours after the Nebraska Supreme Court spelled out the state’s sentencing law in no uncertain terms, the longtime corrections records manager fired off an email to her supervisors.

Prison officials were “asked if we would ... go with what the Supreme Court says,” wrote Jeannene Douglass. “I said ... we would do what is in the inmate’s best interest, that being, continue calculating the sentences the way we have always done it.”

Douglass gave a few explanations why the prisons could continue to defy the law.

She wrote this: “The inmate, obviously, would not complain since he will serve less time by our calculations.”

And this: “It would also serve (then-Corrections director Bob Houston’s) desires, as well, to not increase our population any more than we must.”

And this: “It would be a real mess to have to go back in and recalculate everyone who has mandatory minimum sentences.”

Nebraska prisons are in the midst of cleaning up that mess, after a June 15 World-Herald investigation prompted officials to add more than 2,000 years to the sentences of more than 750 prisoners saddled with mandatory terms. Since then, Gov. Dave Heineman has called for the recalculation of hundreds of release dates, the return of some of the early-released prisoners and a personnel investigation into who was responsible for the massive miscalculations.

Now government correspondence provided by the Nebraska Attorney General’s Office, in response to a World-Herald records request, shows that:

                 » At least four Corrections officials, including the department’s legal director and the head of the unit tasked with calculating release dates, were made aware in February 2013 that the state wasn’t calculating sentences correctly. Yet no one corrected release dates until the newspaper presented its findings 16 months later.

                 » Long before the 2013 ruling, the department had been made aware of a 2002 ruling that laid out how to calculate such sentences. Nebraska Attorney General Jon Bruning now calls that ruling “very clear,” although emails and legal briefs show that a longtime assistant attorney general did not have a clear understanding of the ruling.

                 » The Attorney General’s Office notified Corrections of the sentencing laws three times from 2002 to 2013. Emails showed limited follow-up to ensure Corrections was complying.

                 » Nebraska’s chronic prison overcrowding — the population currently is 57 percent over capacity — wasn’t far from mind in emails.

Reached by telephone, Douglass — who retired last year after four decades with the state — wouldn’t specifically address whether prison officials felt pressure to ignore the ruling because of overcrowding.

“When you’re a records manager you do what you’re told,” she said. “There was always pressure.”

She declined further comment.

Heineman, who has expressed anger over the debacle, said the current director, Mike Kenney, is “in the process” of sorting out what went wrong. The State Patrol has rounded up all but one of the early-released prisoners who the governor decided should be returned.

“I believe some time in the next couple of weeks the Corrections Department will be able to announce what they’re going to do,” Heineman said on July 16. “They’ve got to get this one right, and I want to make sure they’ve got their facts when they take whatever appropriate action.”

***

At 9 a.m. on Feb. 8, 2013, the Nebraska Supreme Court released its ruling in the case of David Castillas, an Omaha gang member convicted of two brazen shootings.

Castillas, who went by the street name “Peanut,” had shot up two houses in a fit of jealousy over a girlfriend. On June 4, 2010, the then-18-year-old and another gunman fired 23 shots into the house of Donald Betts, who had once dated Castillas’ girlfriend.

The spray of bullets narrowly missed Betts’ parents and his three young siblings.

Six days later Castillas and the other gunman fired 16 shots into the house of a friend of Betts. One bullet pierced the arm of a woman asleep in her bed.

After a jury convicted him, Castillas was sentenced to 30 to 80 years in prison. With mandatory terms for gun crimes, Castillas was to serve 25 years before he could receive the customary day off for every day served under Nebraska’s good-time law.

In turn, Castillas faced 27½ years before parole eligibility and 52½ years before release, according to the Supreme Court ruling.

Corrections set the correct parole date. But the department, using a two-decade-old formula, simply cut his maximum sentence in half. That meant Castillas would be released in 40 years — 12½ years early.

In its ruling, the court rejected Corrections’ formula, ordering the department to factor in the full effect of mandatory terms before cutting the rest of a prisoner’s sentence in half.

“Logically,” the ruling read, “a defendant must serve the mandatory (term) before earning good-time credit toward the maximum portion of the sentence.”

At 9:41 a.m., Linda Willard, an assistant attorney general under Bruning, sent emails to Douglass and Douglass’ boss, records administrator Kyle Poppert.

“The attached case came down from the Nebr. Supreme Court today ... they discuss sentence calculation,” Willard wrote. “It is my understanding that this is how you currently do the calculation. Others in the office thought you might be doing it differently. So I am sending this to you so you can make sure you are doing the calculation in accordance with the Supreme Court’s direction.”

At 11:48 a.m., Douglass responded. The records clerk took issue with the Supreme Court.

“The statements in this (case) regarding the calculation of parole eligibility are correct. The manner presented regarding the discharge date ... is not correct. ... The discharge date is not calculated in the same manner as the parole eligibility date.”

Douglass goes on to argue the sentence length the Supreme Court calculated for Castillas.

“Mr. Castillas will discharge ... after serving one-half of the maximum sentence,” she wrote.

At 1:19 p.m., Willard responded: “Note that the Supreme Court said (that) was wrong. ... If you are doing it differently than what the Supreme Court said is the ‘correct’ way to calculate, do you decide to stay with the ‘right’ way or go with what the Supreme Court said is the correct way?”

At 1:41 p.m., Douglass wrote back. “Wouldn’t the right thing to do be to continue the way we have always done it because it, too, was tried and tested. I don’t know. It would be a real mess to have to go back in and recalculate everyone who has mandatory minimum sentences. What do you think?”

Willard — a 32-year state employee once described as the Corrections Department’s “law firm” — didn’t respond to that email. The Attorney General’s Office said it had no other evidence of emails or memos from Willard on the sentencing issue.

At 2:09 p.m., Douglass sent an email to her supervisor, Poppert, and George Green, Corrections’ longtime general counsel. She copied Willard.

“Linda (Willard) asked me if we would continue to calculate the sentence in the right way or go with what the Supreme Court says,” Douglass wrote. “I said, and she supported me, that we would do what is in the inmate’s best interest, that being, continue calculating sentences the way we have always done it.”

She turned to the Castillas case. Douglass noted that the prisons’ calculation would have let the gang member go free at age 58, instead of 70.

“If we would calculate the sentence in the manner according to the Supreme Court’s decision, Mr. Castillas would serve an additional 12½ years,” Douglass wrote.

She alluded to an exchange she’d had with Willard that day. Douglass wrote that Willard “said the inmate, obviously, would not complain since he would serve less time by our calculations.”

Douglass then closed her email with a parenthetical: “It would also serve the Director’s desires, as well, to not increase our population any more than we must.”

It is unclear what further discussions took place among Corrections officials. The department has yet to provide The World-Herald with any written correspondence from that time period.

The Corrections officials who were notified of the Castillas ruling — Green; his assistant attorney Kathy Blum; and Poppert — either didn’t return calls last week or declined to provide further explanation.

Houston, the former director who retired in September 2013 after several controversies involving released prisoners, said he was not alerted to the Supreme Court rulings and did not instruct anyone to ignore them. Houston said easing the burgeoning prison population was “everybody’s desire.”

“But that had nothing to do with this (sentencing) issue,” Houston said, before declining further comment.

In a telephone interview, Willard said she did not recall exchanging emails with Douglass — or Douglass’ characterizations that Willard supported the status quo on sentencing.

Willard, who retired from the Attorney General’s Office in May, said she normally did not tell Corrections employees what to do — she just advised them of the law.

“I don’t recall if the legal team at Corrections contacted me (further) about the Castillas case,” Willard said. Viewing the emails “doesn’t bring back any clearer recollection of the incident other than I did notify the department about the opinion.”

It is clear, however, what Corrections didn’t do.

The department didn’t correct the sentences. In fact, Corrections didn’t even correct Castillas’ release date — despite the Supreme Court’s explicit instructions.

It was far from the only time Corrections was put on notice that it might be releasing prisoners early.

***

In October 2002 the Nebraska Court of Appeals — a step below the State Supreme Court — ruled that a Scottsbluff man should have to serve, in full, the mandatory term given to him for being a habitual criminal.

No one can cut the mandatory term of a sentence in half, the court ruled.

The Court of Appeals noted that state senators, beginning in 1995, had enacted mandatory terms for some of the state’s worst offenders: serial criminals, drug dealers, gun thugs and child rapists.

“The statute clearly indicates ... and the legislative history establishes that the Legislature intended for (those) inmates to serve the entire mandatory (term) with no reductions,” the appeals court wrote.

Two months later the Nebraska Supreme Court ruled in the case of a habitual criminal, drug dealer James Johnson. Johnson was sentenced to 10 years in prison — the mandatory term for habitual criminals.

He sued the state, saying he should be released after five years under Nebraska’s good-time law.

Johnson’s argument: A judge gives each defendant a minimum and maximum sentence. The habitual criminal law said nothing about the maximum term. It said only that the minimum must be 10 years.

Therefore, he argued, his maximum sentence should be cut to five years.

In December 2002 the Nebraska Supreme Court rejected Johnson’s argument, ordering him to serve the full mandatory term on both the minimum and maximum sentences.

The high court noted that if Johnson prevailed, his sentence would be absurd: 10 years until he was eligible for parole, but just five years until he was released.

“It would not serve the Legislature’s intent if a defendant could be mandatorily discharged before being eligible for parole, ” the high court wrote. “The intent of habitual criminal sentencing is thwarted if good-time credit is applied to the maximum term of the sentence before the mandatory (term) has been served.”

Johnson attempted further appeals but was denied.

In August 2005, Willard, the assistant attorney general, notified Green, Corrections’ legal director, that Johnson’s appeals were over.

Little is known of what discussion took place then. Corrections and the Attorney General’s Office both say emails written before the mid-2000s are not available because the state switched computer software.

But the limited correspondence obtained by The World-Herald shows that Corrections officials were conservative and, at times, confused as they calculated sentences.

When it came to minimum sentences for parole, Corrections and the Supreme Court were on the same page. However, Corrections came up with its own three-step method of calculating a prisoner’s maximum sentence:

1. Cut the prisoner’s maximum sentence in half.

2. Compare that number with the mandatory term for the crime.

3. Impose the greater of the two numbers.

In an email, a Corrections record keeper referred to that method as “somewhat confusing and involved.”

It also ignored large chunks of a prisoner’s remaining sentence.

Green, the Corrections attorney, has said he believed the 2002 ruling was more about good-time reductions in which an inmate gets a day off for every day served. (However, it primarily concerned mandatory terms, not good-time calculations.)

“There had been a lot of ambiguity and confusion in how to do this,” Green said.

Bruning disputed that. He has called the 2002 ruling the “seminal case” in how to calculate release dates — and says the Supreme Court’s ruling was “very clear.”

Confusion persisted, however, within Bruning’s office.

In a May 2012 brief to the Nebraska Supreme Court, one of Bruning’s assistants argued that the high court should take up the Castillas case because the law wasn’t clear on mandatory terms.

“The (Supreme) court has explained how to calculate parole eligibility when mandatory minimums are involved,” Assistant Attorney General James Smith wrote. “But it has not explained how to calculate release (dates) when mandatory minimums are involved. Our statutes on this point need judicial construction. The result will allow attorneys to accurately advise their clients, trial judges to determine sentences ... and most importantly, insure that the Department of Corrections correctly determines the amount of time an offender should actually serve.”

***

Before the Supreme Court could rule in Castillas, the Attorney General’s Office notified Corrections of another out-of-whack release.

Christopher Lohman, a serial burglar from Cheyenne County, was supposed to be in prison until at least 2022 on two habitual criminal convictions.

Instead, prison officials mistakenly paroled him in 2012. Then in January 2013, Lohman assaulted a bar patron who had caught Lohman trying to break into a car outside.

On Jan. 19, 2013, Scotts Bluff County Attorney Doug Warner wrote to the chief criminal prosecutor of the Nebraska Attorney General’s Office, asking for help.

“I saw (Lohman’s) name in a police report this week and could not believe he was out of prison,” Warner wrote. “I did some research and it appears to me that he was released 10 years early by the Department of Corrections. ... He should not have been eligible for parole for 20 years.”

Four days later the attorney general’s chief criminal prosecutor, John Freudenberg, sent Lohman’s sentencing order to Poppert and to Blum, one of two attorneys under Green. Freudenberg also called both Poppert and Blum.

They promised to review the sentencing orders and, if necessary, return Lohman to custody.

Days later, Corrections corralled Lohman and quietly returned him to a Nebraska prison.

Freudenberg followed up on Feb. 19, 2013, alerting Blum to the Castillas decision.

Yet it doesn’t appear that Corrections took any steps to investigate whether other prisoners were prematurely released.

As for Lohman, his mistaken parole was thwarted. The career criminal has since died in custody.

Before he died — even after prosecutors had alerted Corrections to the correct way to calculate his sentence — the department still listed the wrong release date. By 10 years.

***

In May 2014, Rick Barcelona picked up a World-Herald and learned that the man who had shot him in June 2010 was on a prison-release program for inmates who are about three years from getting out.

In fact, shooter Quentin Jackson was appearing at a court hearing on a day pass, wearing a suit and tie rather than a prison-issued jumpsuit as he walked in with his girlfriend.

Not possible, Barcelona thought. That night four years ago Barcelona had kicked Jackson out of the 20s Night Club in Omaha. Jackson, a customer, had been beefing about a bar tab.

An hour later, while standing outside the club, Barcelona watched as Jackson pulled up in a car, braced a handgun on the edge of the driver’s window and smiled. He then fired at Barcelona.

Barcelona ducked. A bullet penetrated his skull but not his brain.

A judge sentenced Jackson to 15 years in prison, including a mandatory five-year term for a gun crime.

Barcelona had good reason — and a good way — to track how much time Jackson had left on his sentence. His daughter was born mere days after his near-deadly encounter.

Every one of her birthdays is a blessing, Barcelona said, a reminder of what he could have missed. Every birthday also is a barometer, roughly marking off how much time his shooter has served.

So Barcelona picked up the phone and called Corrections — eventually getting in touch with Poppert, the release-date administrator.

Barcelona said he told Poppert that Jackson’s original release date should have been in 10 years, not the 7½ listed on prison records.

Poppert responded that he would check into it and get back to Barcelona.

Poppert never did, Barcelona said.

At the same time, The World-Herald was making similar phone calls — pointing out to Corrections that, under the department’s calculations, Jackson would absurdly be eligible for release before he was eligible for parole.

Corrections spokeswoman Dawn-Renee Smith said she had been looking into it.

“I did ask the same question that you asked,” Smith said in May. “I can’t tell you anything more than that’s how it’s been done. That’s how the statute reads.”

That is not, however, how state law reads.

Counting Jackson’s case, Corrections had been alerted that release dates were potentially amiss in at least four cases over 12 years. Yet there’s no evidence of efforts to recalculate those inmates’ sentences — or to research precisely how many other prisoners might have early release dates.

And at least four prison officials — from the longtime records manager up to the longtime legal director — had been informed of the department’s flawed formula.

Chief Deputy Attorney General David Cookson said the attorney general’s duty was only to notify Corrections of the high court rulings. It is up to Corrections’ attorneys and directors to interpret and apply those decisions, he said.

“Beyond what we did, there is not anything we could do,” Cookson said. “It was incumbent on (Corrections) to read the decision and apply the law, which is why they have lawyers.”

Cookson said he hasn’t seen any evidence that prison officials’ inaction was criminal.

Under state law, a public servant commits official misconduct, a misdemeanor, if he or she “knowingly violates any statute or lawfully adopted rule or regulation relating to his official duties.”

Barcelona, Jackson’s victim, said he doesn’t understand how Corrections could let a gunman walk free six years before his actual release date.

And the bouncer-turned-bar manager said he doesn’t understand how Corrections couldn’t follow state law.

How did he figure it out?

“Google,” he said. “I looked at the law. It’s pretty much a stock formula. It’s really not difficult.”

***

Life is a little more difficult now for the hundreds of prisoners who have had their prison stays lengthened.

Several prisoners released early have been brought back in. Others have been handcuffed together in groups and transported from work-release centers to maximum-security prisons.

Jackson, meanwhile, is reeling. After his release date was extended to June 2020, 38-year-old Jackson was transferred from a Lincoln work-release center to an Omaha prison.

He recently had a further hearing on his appeal. This time he “appeared” by telephone from prison. No suit and tie. No girlfriend next to him.

The judge asked how he was doing.

Not good, he said. He told the judge his fellow prisoners are upset that Corrections has increased their sentences.

But the inmates’ ire hasn’t been directed at the prison officials who for decades have miscalculated release dates, he said.

Instead, it’s been directed at the prisoner who turned heads — and started The World-Herald’s investigation — when he walked into court in a suit and tie.

“Everyone,” Jackson sheepishly told the judge, “is mad at me.”

Contact the writers: 402-444-1275, todd.cooper@owh.com; 402-444-1066, alissa.skelton@owh.com

LINCOLN — Some state lawmakers are starting to see big dollar signs attached to the miscalculated sentences that Corrections Department officials gave to hundreds of prisoners.

Dollar signs in terms of additional spending on already overcrowded prisons, expenses for inmates’ expected lawsuits over the recalculated sentences and possible costs for extraditing some released inmates from other states.

“The task ahead of us in addressing prison overcrowding just got more difficult,” said State Sen. Heath Mello of Omaha, who heads the Legislature’s Appropriations Committee.

“It is more likely than not that additional prison beds will need to be added,” said Omaha Sen. Brad Ashford, who has led prison reform efforts in the Legislature.

While public safety must be the top priority, Mello said, the state may be facing a $56 million problem dealing with the longer sentences.

“That’s staggering,” he said. “This is no way to run a Department of Corrections, no way to run state government, and frankly, the Legislature will have a lot of messes to clean up that came from this.”

Gov. Dave Heineman and Attorney General Jon Bruning said it was too early to provide estimates of what it might cost the state for the additional inmates and longer sentences. They emphasized that the state troopers who are rounding up inmates and the state attorneys and Corrections officials who are refiguring the sentences would be working anyway.

Heineman and Bruning said the top priorities were protecting public safety, returning inmates who have uncompleted sentences without incident and making sure inmates serve the correct sentences.

“These individuals committed a crime, they were found guilty, and a judge issued a sentence. The State of Nebraska has the obligation to carry out those sentences,” Heineman said.

Mello said he based a preliminary cost estimate for the added prison time on the Legislature’s appropriation of $4.2 million this year to house 150 state inmates in county jails. That breaks down to about $28,000 per prisoner per year. Based on the inmates’ newly lengthened sentences, the grand total would be about $56 million. A World-Herald estimate also placed the cost estimate at more than $50 million.

Ashford, who is running for Congress, had scheduled a hearing Friday to discuss the implications of the mistaken sentences, but he postponed it after being told that State Corrections Director Mike Kenney would not appear.

Ashford said Friday that Kenney had agreed to meet with him in two weeks to discuss what steps are being taken to address the new burden on prison space.

Ashford said he’ll decide after that meeting whether he thinks the Legislature needs to take additional steps — including consideration of a special legislative session.

The addition of 20 to 25 new inmates — and with at least 567 others who now have longer prison sentences — wasn’t considered this spring when lawmakers passed $28 million worth of legislation to expand prison programming, increase funds for food and medical care, explore reopening a couple of prison facilities and pay to move some state prisoners to county jails.

“The problem now is the added pressure on the corrections system,” Ashford said. “I think it’s a whole new paradigm.”

He said the measures were expected to stem or reduce overcrowding, which won’t be the case now, given the impact of repairing the incorrect sentences.

At Friday’s press conference, the governor rejected the idea of calling a special session, instead suggesting that state lawmakers should have passed his proposal to make violent criminals earn good-time reductions in their sentences.

The current law grants one day of good time for every day served in prison without disciplinary problems, which Heineman and Bruning have criticized as not providing enough incentive for good behavior.

The governor also rejected the need to provide more tools at this time for Corrections to reduce overcrowding. He said a study launched this month using prison reform experts with the Council of State Governments “will help us look at a variety of options, and that process is just beginning.”

Sen. Greg Adams of York, the speaker of the Legislature, said he wants more information before considering a special session. Adams and the governor are co-chairmen of a committee that is working with CSG to seek cheaper and more effective alternatives to incarceration.

“At this point, what we’re dealing with is an executive branch issue,” Adams said. “Our role is working with CSG and policy issues and how we deal with this in the long term.”

Heineman and Bruning said state officials will do all they can not to disrupt the lives of released inmates who have turned their lives around while free. However, they said, if inmates have more than a few months left on their sentences, they will be returned to prison.

The unprecedented roundup was prompted by a World-Herald investigation that uncovered the mistakes in sentencing.

Contact the writer:

402-473-9584, paul.hammel@owh.com

The tally of taxpayer costs is coming, but World-Herald reporting already shows the human costs of sentence-calculation mistakes by the Nebraska Department of Correctional Services.

Among them: the new victims of mistakenly released inmates who committed additional crimes after getting out, and those released inmates who started now-upended, law-abiding lives.

Then there are the released inmates angry enough at the prospect of being sent back to prison that they might choose to run or resist as officers or deputies come to collect them.

That is a lot of risk on the shoulders of prison administrators and the governor in charge of them. All because the prison system needed this newspaper to tell it how to correctly calculate the criminal sentences it carries out and because of a “good time” law that cuts most sentences in half without requiring good behavior and unnecessarily complicates criminal sentences.

Exclusive World-Herald stories by Todd Cooper and Matt Wynn found rampant miscalculations by state prison officials of criminal sentences.

The newspaper conservatively estimated that more than 60 inmates had been released before their sentences were up. At a press conference Friday, the state confirmed that it had released 306 inmates early.

Those released had received mandatory minimum sentences — a penalty typically reserved for gun crimes, sex crimes and habitual, repeat criminals.

One drug dealer released 2½ years too soon in Nebraska got put on probation in Oklahoma for another offense while he should’ve still been in prison. Another got out of prison early despite already having twice escaped from prison.

So it is important that the state complete its work quickly and accurately in recalculating the sentences of each and every inmate affected. The reviews of each individual case are warranted.

It sounds as if Gov. Dave Heineman’s administration is responding appropriately to mistakes that never should have been made. The administration is focused first on public safety, then on accountability, in trying to find some flexibility for law-abiding, prematurely released inmates near the end of their sentences, including parole.

That makes good sense.

And the administration is trying to get the necessary warrants to round up those who have acted poorly while free and those who simply have too much remaining on their sentences to be freed.

In the end, the people responsible for the calculation errors will face whatever consequences come. But it is the public, the inmates and their loved ones who will have paid more.

Taxpayers will foot the costs of all the man-hours it takes to recalculate all those sentences and shuttle inmates from work-release prisons to harder prisons. They will pay the costs of rounding up inmates who got out too soon.

Taxpayers will pay the costs of housing those inmates in already crowded prisons. And communities will bear the societal costs of seeing families once again ripped apart by criminal acts.

“I am in a good place with my company and with my family,” prematurely released inmate Peirce Hubbard-Williams, 40, told The World-Herald. The former thief sentenced as a habitual criminal now has a job, a fiancée and a 1-year-old son. “I have never had stability in my life and I do right now.

“It is an absolute injustice.”

Law enforcement agencies and officers will face the costs and dangers of rounding up inmates who might not be willing to go quietly. Any mishaps will land squarely on state heads.

And lawmakers will have to face the voters this fall. Surely, they can explain why they delayed acting to simplify the “good time” law that lies at the root of so many of these mistakes.

Then they can fix it — and the prison system.

Some early released prisoners checked themselves back into prison. Some were brought back by force. Some surrendered peacefully.

And then there was David Jura.

As state officials provided the latest update Wednesday in their roundup of prisoners whose sentences were mistakenly cut short, an Omaha police account provided insight into the dangers that officers encounter as they work to clean up the state’s mess.

In short: Jura’s capture involved a chase, a Taser and a gun with a defaced serial number.

But first, the numbers:

A World-Herald investigation prompted state officials to add more than 2,000 years, collectively, to the sentences of at least 750 prisoners. Of those, more than 550 remain in prison — but now face longer stays.

Of the about 200 prisoners who were released too soon, Gov. Dave Heineman’s office now has identified 43 people who meet Heineman’s criteria to be rounded up to finish their sentences, up from 41 last week.

Of those:

         • Twenty had arrest warrants issued.

         • Twenty-one have been placed on parole, in furlough programs for prisoners who are close to entering society or on a furlough waiting list.

         • Two are in custody elsewhere: one at the Norfolk Regional Center, one in prison in Oklahoma.

One should-be prisoner was deported, and one is dead.

Police are still looking for three of the 20 people wanted on warrants.

Jura had been one of those sought.

At 10 p.m. Saturday, Omaha police responded to a 911 call about a man urinating in a yard near 32nd and Y Streets.

Officers went there and caught up to a man in a tank top and baggy jeans.

Officers Michael Young and Justin Rudloff stopped the man and noticed that his shirt was ripped, his face was red and his breathing was rapid.

They asked for identification. His name: David K. Jura.

Officers told Jura to sit tight and went back to their cruiser to run Jura’s name through a computer.

That computer database showed Jura listed under a never-before-used classification: Escape — Premature Release.

The entry went on to say that Jura was “Wanted for premature release from Corrections ... (Nebraska) Attorney Generals Office.”

Before the officers could sift through that entry, Jura took off running. He sprinted across 30th Street into an empty lot. The officers gave chase and said they noticed Jura reaching for his waistband as he ran.

At that, officers closed in and fired a Taser at Jura. He collapsed.

Next to him: a 9 mm semiautomatic handgun with the serial number scratched off.

The handgun had no magazine of bullets. However, it had one spent shell casing still lodged in the barrel — indicating that it had been fired at some point.

With Jura in custody, officers returned to their computer search of his record. What they discovered: Jura indeed had been released “prematurely” from prison.

His original crime was shooting his ex-girlfriend’s new boyfriend in the head in November 2009.

The boyfriend, Anthony Flud, survived. And he was able to describe a feud that Jura was having with him over the mother of Jura’s child. Flud had begun dating the woman in 2008.

On Nov. 1, 2009, Flud was driving a pickup truck when he spotted Jura eyeballing him from a car in an alley.

Flud passed by. Jura — a Lomas gang member known as “Little David” — pulled out and gave chase.

Flud began swerving as the vehicles approached 46th and L Streets. Jura pulled out a gun and fired at least twice through Flud’s back windshield.

The next thing Flud heard was ringing in his ears.

Blood dripping from the back of his neck, he stepped on the gas and raced to the parking lot of Beer City, a bar near 42nd and L Streets.

The bullet entered the back of his head and exited near his left ear.

“I didn’t know if I was going to live or die,” he said later.

Rushed to a hospital, Flud survived. He identified Jura as the “(expletive) who shot me.”

“The dude’s a punk,” Flud said in a sworn statement. “I ain’t scared of him. He’s a punk, straight up.”

Jura pleaded no contest to charges of first-degree assault and firing a gun into a car.

Under the sentence handed down by Judge Marlon Polk, Jura was supposed to be in prison until June 2015.

But using a flawed formula that didn’t fully take into account his mandatory term for the gun charge, prison officials released Jura in December 2013.

Omaha police union officials said no one has to look far to see how Jura’s recapture could have ended.

Police were in a similar position in September 2012. Responding to a call of shots fired, two officers arrived and found a gang member with a gun. Jermaine Lucas first dropped the gun. When he lunged to pick it up, officers shot and killed him.

They discovered that Lucas was on his 11th weekend furlough from prison.

Lucas — known as Jermaine “the Brain” — became a poster boy for outrage over Nebraska prison officials’ practice of releasing inmates for weekend furloughs.

Omaha Police Chief Todd Schmaderer, among others, complained that prison officials had not notified law enforcement that they were letting prisoners spend weekends at home — in some cases years before their release date.

Now it turns out that Lucas shouldn’t have been eligible for the furlough.

The World-Herald’s investigation showed that prison officials incorrectly shaved 18 months off his sentence. Had they gotten it right, he wouldn’t have been eligible for weekend furloughs until months after Corrections made him eligible.

A police officer put it this way: Lucas presumably would still be alive if “prison officials could do their math.”

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

Nebraska’s prison breakdown comes with more surprises.

Department of Correctional Services officials didn’t disclose to the public — nor, apparently, to Gov. Dave Heineman — 20 inmates who were rounded up or had their release dates recalculated, a World-Herald follow-up investigation shows.

The undisclosed prisoners included a would-be cop killer who was released 18 years before his maximum sentence should have expired and two serial burglars who were improperly paroled years ahead of their parole eligibility dates.

The World-Herald found the unmentioned inmates by comparing a general database of prisoners maintained by Corrections with the official list the department released to the public and the governor in July. That list included more than 750 prisoners who had their release dates recalculated after the newspaper revealed in June that prison officials had been carving years off prisoners’ sentences for nearly two decades.

It’s not clear why Corrections omitted this batch of prisoners — there appears to be little connection among them, their crimes or their sentences.

But the lack of disclosure further steamed state senators.

“It’s a very disturbing revelation,” said State Sen. Scott Lautenbaugh of Omaha. “It just keeps coming. If it turns out they’re not being forthcoming about what went wrong, that might mean they won’t be helpful about solving the problems, as well. That might suggest a more serious housecleaning than what was coming anyway.”

Among the 20 not disclosed, the World-Herald found that:

      » A career burglar was put on a furlough program seven years before he should have been eligible for parole. In essence, Dennis Krutilek found himself out in 2011 as part of a Corrections furlough program that amounts to “pre-parole parole.”

Then, on Dec. 1 of that year, a patrol sergeant found Krutilek walking out of a Fremont house, his hands full of gold rings, silver necklaces and various gemstones. Asked what he was doing, Krutilek admitted he had burglarized the house.

The kicker on Krutilek: Despite that arrest and subsequent conviction, the Nebraska Parole Board still saw fit to parole Krutilek in August 2013. Then The World-Herald figured out that Krutilek shouldn’t have been eligible for parole until September 2017. Corrections rounded him up — and Krutilek currently is in the State Penitentiary in Lincoln.

      » Another serial burglar was paroled nine years before he should have been. George Earl Jones of Lincoln was paroled July 26, 2006. Then the newspaper investigation prompted Corrections to figure out that his real parole eligibility date should have been in July 2015.

The kicker on Jones: He remains out on parole, even though his earliest parole eligibility date is a year from now.

      » Ten of the undisclosed 20 have reoffended. Their new crimes have included driving under suspension, drug dealing and assault.

And then there’s Johnnie Davis.

In 1995, then-Lincoln Police Officer Mitch Evans thought he would just write a ticket to a speeding driver.

But when Evans approached the pickup truck near 48th Street and Leighton Avenue, the driver pointed a gun at his face. Evans told the driver to drop the gun.

Davis hit the gas.

He blew through stoplights and stop signs, at times going more than 80 mph. He crashed into a ditch north of Cornhusker Highway, ran into a wheat field and began shooting at officers following behind. The officers said they could hear bullets ripping through the wheat shocks.

Evans fired back, and Davis eventually surrendered.

A judge sentenced Davis to 30 to 50 years in prison for attempted second-degree murder and weapon use. Evans thought he had gotten what he deserved.

But to Evans’ surprise, Davis was on the streets in 2012 — 18 years before his maximum sentence should have expired and eight years before he should have been eligible for parole.

“It’s a little disturbing that it could be miscalculated by so much,” said Evans, who is no longer an officer. “If it could happen with somebody like (Davis), it could happen with some very, very violent people we don’t need out on the streets again.”

Heineman had called for the return of the state’s worst offenders. And the governor asked to be kept abreast of the process.

On July 2, he was provided a list of recalculated sentences that didn’t include Davis, the serial burglars or 17 others.

Spokeswoman Kathie Osterman said the governor hasn’t received any updates to the list.

As soon as it was released, the list had omissions. Four prisoners from a previously released list were no longer included, though they should have been.

Davis — who was returned to prison nearly a week before the list was released — wasn’t acknowledged at all.

But his return was plain to see last Tuesday, when his parole status was officially rescinded by the Nebraska Parole Board.

A half-dozen friends and family members showed up for the 9 a.m. hearing. So did Davis, in prison-issued khakis.

The revocation procedures tend to be used when parolees violate the terms of their release or commit new crimes.

Not this time. Failing to fully factor in his 10-year mandatory term for being a habitual criminal, Corrections had incorrectly set Davis’ parole date at 2012 and his mandatory release date at 2020. His proper parole date: 2020. Release date: 2030.

Board Chairwoman Esther Casmer opened the hearing by telling Davis his parole eligibility date was in 2020. “I’m sure this is a huge disappointment, to say the least.”

She listed Davis’ parole qualifications: He was a valet at a Lincoln hotel. He had completed anger management courses. He had led classes offered to prisoners. He was in compliance with the personal plan assigned by prison staff. He was in compliance with the furlough plan assigned by prison staff.

“The last time I saw you was at the Super Saver,” said board member Rex Richard.

Casmer asked whether any of Davis’ supporters would like to testify. They all looked to his fiancee, Melissa Groover.

“I’d like to, but I’ll cry,” she said, and wiped a tear on her sleeve.

After some testimony from a friend, the board went into executive session briefly before Casmer reported back.

“By law and by state statute, we will not be able to see you again till 2017,” Casmer said. “Parole is rescinded due to a change in sentence structure. There isn’t anything else we can do.”

Some of Davis’ supporters started to cry. He asked to speak.

“I was given two hours to say goodbye to everything I worked so hard to get,” he told the board.

He said he’ll serve out his time. He’s done it before, he said, and he’ll do it again. This won’t break him, he told the board members.

“You’re correct. You did it right,” Casmer told him. “And if circumstances were different, we wouldn’t see you,” she said. “We don’t enjoy doing what we have done today. It’s difficult. I’m not going to say it’s fair. I don’t agree with that. Our hands are tied.”

Davis had been living in the community without getting into trouble for two years after his premature release in June 2012. Then came June 25, 2014, when a parole supervisor called Davis and told him he’d have to return to prison because his release date had been recalculated.

“I am not mad about me or anyone else who came back. We did the crime, we have to do the time,” Davis said in an interview. “But it is the families that I am concerned about. Like my fiancee and her kids. Those are the ones that are suffering the most.”

State Sen. Brad Ashford isn’t so sure. Judges’ sentences — and public safety — suffered, he said.

And, Ashford said, perhaps the thing that has suffered the most is public trust in Corrections. The department has had four high-profile scandals in the past two years — none bigger than this, Ashford said.

Corrections continues to sift through the sentencing screw-up. Director Mike Kenney said he believes a personnel investigation will wrap up Wednesday. Once he reviews the findings, Kenney said, he plans to “move expeditiously.” Firings could follow.

Authorities have long complained about secrecy within Corrections. Sen. Heath Mello, the Appropriations Committee chairman who reviews agencies’ budgets, has described Corrections as “a black hole” of information. Omaha police union leaders have railed against the mysterious methods the department uses to release inmates ahead of their “out” dates.

District judges have long complained about a vacuum of information about prison programming.

And with all the haphazard releases, Douglas County District Judge Peter Bataillon said, he now has no idea what to disclose when he delivers his truth-in-sentencing spiel to defendants.

“I guess I’ll just say, ‘You’ll be eligible for parole on this date. But you could be released at any time.’ ”

Ashford said state senators need to enact legislation that will lift the veil.

One simple solution he offered: Sentencing judges should be alerted when Corrections plans to release prisoners such as Davis, Krutilek and Jones. Had that step been in place, Ashford said, the hundreds of mistaken releases could have been thwarted.

“This is about the culture of the Department of Corrections,” Ashford said. “It’s like we have this Balkanized agency that doesn’t interface with anyone else.

“That has to end. There’s been just too many episodes of failure. Everything has to become transparent.”

Contact the writers: 402-444-3144, matt.wynn@owh.com; 402-444-1066, alissa.skelton@owh.com; 402-444-1275, todd.cooper@owh.com

The discipline has begun.

Two employees of the Nebraska Department of Correctional Services have been suspended, “pending completion of the disciplinary process,” Corrections officials said Thursday.

Corrections Director Mike Kenney did not name the employees.

The suspensions come in the wake of a World-Herald investigation that found that sentences for hundreds of prisoners had been incorrectly calculated for nearly two decades. More than 750 sentences have been recalculated, adding a total of more than 2,050 years to their cumulative sentences.

Disciplinary actions for other employees may be forthcoming as well, he said. Kenney said he would share more information as allowed under the state’s personnel procedures, which will take about five working days.

At a press conference Thursday morning, Nebraska Gov. Dave Heineman and Attorney General Jon Bruning announced they were launching a criminal investigation into the matter.

“This has been an extremely trying time for our agency and its employees. The public should be able to trust that when a judge imposes a sentence, it will be carried out with competence and expertise,” Kenney said in his statement. “I take full responsibility for correcting this problem. … Our first commitment is to the public safety of Nebraska citizens, and that safety became compromised.”

State legislators were awaiting more information before commenting on whether the Corrections Department had gone far enough.

“Until we get the details of the action taken and who was involved and what roles they played in the violation of the court order, it is impossible to judge whether the disciplinary action is appropriate,” said State Sen. Brad Ashford of Omaha, chairman of the Judiciary Committee.

Omaha Sen. Heath Mello of Omaha, who has been tackling problems at Corrections as head of the Legislature’s Appropriations Committee, said he has lost trust in the agency to handle its problems and doesn’t think that the actions announced Wednesday have changed that.

“The only way to restore the public trust is to let the Legislature conduct a full, independent investigation,” Mello said.

He referred to a special legislative committee, of which he is a member, that has been convened to probe problems at the agency.

He said he wants to examine a report on the agency done by the Jackson-Lewis law firm but has no confidence that it “details the flaws” of the Corrections Department, which he charged suffers from a lack of accountability and oversight and, Mello said, has thwarted requests for public information.

“Until the Legislature and the public can review all internal investigative reports and documents regarding the recent scandals involving the Department of Correctional Services, I cannot in good conscience believe anything that comes out of this state agency,” Mello said. “They’re doing everything they can to cover up their mistakes.”

Kenney outlined a number of internal changes that, he wrote, would lessen the chance of sentences being miscalculated in the future:

                                     » Kenney said it will be the department’s new policy to flag him when the Attorney General’s Office tells Corrections about court orders or litigation that affects the department. In the past, Kenney said, it was not the agency’s policy to inform the director of court decisions. Kenney was appointed director of Corrections in April.

Departmental emails, obtained through a public records request, revealed that some Corrections employees had ignored repeated warnings and Supreme Court rulings that the department was incorrectly interpreting sentences.

The Attorney General’s Office, for example, emailed Corrections employees a copy of a February 2013 Supreme Court ruling that explained how to properly calculate sentences. But the Corrections Department didn’t change its methods until after The World-Herald’s investigation 16 months later.

Then-Director Bob Houston, when asked for response after the emails were made public, said no one from his legal department had informed him of the Supreme Court ruling. He said he never instructed anyone to ignore it.

                                     » Kenney has begun an “internal systems review” of the agency’s records department. He also has requested an independent review of the records department by the National Institute of Corrections, he wrote, “to ensure our practices are uniform and consistent.”

                                     » From now on, Kenney said Wednesday, Corrections will receive a copy of the judges’ sentencing orders along with each inmate.

“I have discovered that the Nebraska Department of Correctional Services does not receive a copy of the judge’s sentencing order with the delivery of an inmate,” Kenney wrote. “Instead, the agency has relied on the ‘commitment order’ that has usually been provided by the court personnel and accompanies the inmate upon our department’s initial intake. The agency had relied on the commitment orders to calculate the sentences.

“When reviewing inmate records in order to recalculate sentences correctly, it became clear that a commitment order does not always contain all of the same or complete sentencing information.”

Already, the agency’s records department is tracking down sentencing orders for each current inmate and for all new admissions to ensure that the department’s records are correct.

“Had these procedures been in place, the risk of sentence miscalculations or failure to follow a court’s order would have been mitigated or eliminated,” he wrote.

Ashford said the Corrections Department needs to own up to its mistakes instead of trying to shift the blame by saying its officials weren’t getting clear sentencing orders from judges.

Those sentences are clearly spelled out in court documents, the senator said. Kenney’s comments, Ashford said, illustrate the department’s lack of communication with the judiciary and other state agencies.

“If they weren’t getting the right documentation, couldn’t they just pick up the phone and ask for it?” the senator asked. “I don’t know how they can pass the buck on this.”

LINCOLN — The launch of a criminal probe and two staff suspensions were not enough to quiet critics of the state’s handling of a scandal at the Nebraska Department of Correctional Services.

The governor and attorney general announced Thursday that the Nebraska State Patrol would investigate whether state employees committed crimes by miscalculating more than 750 sentences over two decades. They pledged to fully disclose the results of the probe, along with findings from a personnel report that led to two suspensions of Corrections employees, with pay, this week. Officials have said that other suspensions may be forthcoming.

“The magnitude of the issue ... demands full transparency, and we support that,” Gov. Dave Heineman said. “The sooner we do it, the better we’ll feel.”

Attorney General Jon Bruning said: “Accountability and transparency are critical to restoring the public trust. The governor and I are trying to clean up a mess.”

Their comments came almost two months after a World-Herald investigation revealed that release dates for hundreds of prisoners had been incorrectly calculated, despite Nebraska Supreme Court rulings in 2002 and 2013 that spelled out the correct method for calculating mandatory minimum sentences.

Heineman hopes the criminal investigation will restore public trust in the Corrections Department.

The administration’s actions fell short of some state senators’ expectations. State Sen. Ernie Chambers said a criminal investigation, public transparency and disciplinary action of state employees responsible for the sentencing miscalculations didn’t come soon enough.

Instead of suspensions, Chambers said multiple firings should be in order. He suggested that Heineman and Corrections Director Mike Kenney terminate administrators, including legal staff who knew about prison sentence calculations.

“The governor can see that there are some of us who are not going to accept anything short of a complete housecleaning and fumigation,” Chambers said. “That means top-level employees and officials have to be given the boot. The real buck stops with the governor.”

At least four Corrections officials — including the department’s legal director, George Green, and the head of the unit tasked with calculating release dates, Kyle Poppert — were made aware that the state wasn’t correctly calculating sentences, based on emails between Corrections and the Attorney General’s Office in 2013. The department’s records manager, who has since retired, emailed her supervisors after the rulings saying it would be a “real mess” to recalculate prisoner release dates.

Heineman and Bruning said Thursday they were taking responsibility for the mistakes and planned to hold those responsible accountable. Heineman said Corrections will do whatever is needed to correct the mistakes and regain the public’s trust.

Heineman emphasized that an independent personnel investigation conducted by the Jackson Lewis law firm concluded that neither former Corrections Director Bob Houston nor Kenney — the current director, in place for the past 11 months — had been informed of the Supreme Court decisions in 2002 and 2013 dealing with mandatory minimum sentences.

The governor said he emailed every Corrections employee on Thursday telling them that “no one is above the law.”

“If you are asked or told by someone in your chain of command to ignore or to not follow a court order, I want you to contact your director, Mike Kenney, and me immediately,” Heineman wrote.

The governor said he wants that information “within minutes.”

Sen. Brad Ashford said it’s time for all branches of state government to stop playing politics and fix the problems within the Department of Corrections.

“We have to focus on working together to fix the problem,” he said. “It is not just failing to comply with Supreme Court orders. The question we need to answer is what is it about the culture of the Department of Corrections that would cause this to happen?”

Bruning said that based on his reading of the law firm’s personnel investigation, it would be premature to comment on why the sentences were miscalculated.

Chambers said he has little faith that Kenney will be able to turn around his department.

“This department is in such a shambles that Kenney can never gain the confidence and the trust of the people,” Chambers said. “Even Kenney has been at the top of the administration long enough to be implicated in everything that has happened.”

The Nebraska Association of Public Employees said most of the blame for the early release of prisoners lies at the feet of the governor. The group said in a statement Thursday it is concerned that lower-level employees may take the blame for the miscalculated sentences.

The union said Heineman has failed to provide guidance, a reasonable plan or a budget to deal with prison overcrowding, which started at least eight years ago.

“The governor and attorney general can seek to have a criminal investigation done, but the buck does stop at the governor’s desk alone,” the group said. “He is ultimately responsible for the actions of all agencies that answer to the executive branch.”

The Corrections Department has not named the two suspended employees or revealed their positions. Bruning said it wasn’t “prudent” to release the names but said they would be made public in a matter of days.

The state’s rules on personnel records prevent the department from releasing the names, said Dawn-Renee Smith, a spokeswoman for the agency. Disciplinary action is placed in an employee’s personnel file, which is not considered public information.

After personnel hearings for the two employees are held today they will have two working days to provide a “letter of mitigation” responding to the charges, Smith said.

After that, final disciplinary action will be handed down. Possible discipline could include a written warning, reduction in salary, disciplinary probation, demotion, suspension or dismissal.

At that point the state can confirm whether an employee is still working for the department, under personnel records rules.

Chambers said the department should find a way to tell the public who has been suspended.

“There is no need to conceal the names of the people who were suspended,” Chambers said. “When a suspension occurs, that is disciplinary action, and the public should be aware of it, especially since so much of this situation has the appearance and the aroma of still trying to cover up and hope they can release just enough information to take the heat off.”

The speaker of the Legislature, Sen. Greg Adams of York, said Heineman is taking the right steps. Based on his conversations with the governor, Adams said, he is convinced the public will find out who has been disciplined. He added that he is not prepared to make a judgment on how fast the investigation is moving.

“There are due process and personnel procedural issues that have to be dealt with,” Adams said. “Just as soon as they are done, I think we will find out what happened and who was involved.”

Heineman and Bruning said they didn’t want to prejudge the results of the criminal probe.

State Sen. Heath Mello of Omaha, chairman of the Legislature’s Appropriations Committee, questioned via Twitter whether a State Patrol investigation would restore public trust, since it’s an agency under the governor’s authority. Mello suggested that a truly independent probe by an outside agency would be better.

State Sen. Steve Lathrop of Omaha said the Legislature, not the State Patrol, should investigate.

“It’s difficult for law enforcement that works for the executive branch to investigate the executive branch,” said Lathrop, who is heading a special legislative committee created to examine chronic prison overcrowding and other prison issues, including the sentencing miscalculations. “A credible investigation will be done by the Legislature.”

When reached later Thursday, Bruning defended the selection of the State Patrol for the investigation, citing its probes of past cases involving misconduct by public officials, including former State Treasurer Lorelee Byrd, who resigned in 2004 and pleaded guilty to one count of misconduct involving questionable spending practices.

“The State Patrol is beyond reproach. They’re the best in the business,” Bruning said. “They have my complete trust and the public’s trust.”

Kenney also said Wednesday he wanted to get clearer information from judges and court personnel about individual sentences imposed.

He said the department was relying on “commitment orders” relayed by court personnel, rather than the sentencing orders handed down by judges. Kenney initially said Corrections “does not receive a copy of the judge’s sentencing order with the delivery of an inmate.”

The Douglas and Lancaster County District Court clerks said, however, it is common practice to send judges’ sentencing orders as well as commitment orders to Corrections when transferring an inmate to state custody.

Smith clarified Thursday that the agency was pointing out a flaw in its internal procedures, not blaming judges.

“This is an issue within our department and how records are maintained here,” said Smith. “It is an important piece of information that our staff must review to ensure sentences are calculated and applied correctly.”

Contact the writers: 402-444-1066, alissa.skelton@owh.com; 402-473-9584, paul.hammel@owh.com; 402-444-3144, matt.wynn@owh.com

* * * * * 

Gov. Heineman’s email to Department of Correctional Services employees Thursday:

I want every Corrections Department employee to understand that no one is above the law. When the Nebraska Supreme Court issues a ruling, I expect every state employee and every state agency to comply with the law.

If you are asked or told by someone in your chain of command to ignore or to not follow a court order, I want you to contact your Director, Mike Kenney, and me immediately. I want to emphasize that you are to contact both of us and that contact should be made immediately.

I also want you to be aware that the independent personnel investigation by the Jackson Lewis law firm is complete and Director Kenney is in the process of taking disciplinary action.

Today Attorney General Bruning and I directed the Nebraska State Patrol to begin a criminal investigation regarding the sentencing miscalculations.

To the extent legally allowed, I am determined to hold those responsible for these mistakes fully accountable. No one is above the law.

The Corrections Department employees who made these mistakes have embarrassed the Corrections Department and the State of Nebraska. All of us need to acknowledge that the citizens of Nebraska have lost their trust and confidence in the Department and I want to challenge every Corrections Department employee to work very hard every day to regain the public’s trust and confidence.

Public safety is priority number one and I want to work with you to make sure that we accomplish that goal.

-- Governor Dave Heineman

An inmate released early by the Nebraska Department of Correctional Services is protesting his return to incarceration.

Kena Jackson, a prisoner at the McCook Work Ethic Camp, says he is being illegally detained. His attorney, Jerry Soucie, asked the Supreme Court on Thursday to consider hearing Jackson’s case.

The Attorney General’s Office ordered Jackson, 40, to return to incarceration in June after The World-Herald discovered that Corrections miscalculated hundreds of prison sentences.

Corrections officials determined that more than 750 prisoners were affected. Jackson and more than a dozen prisoners were returned to prison to finish out their sentences.

Jackson, of Beatrice, was sentenced in 2004 to 15 years in prison for possessing cocaine. He was also convicted of being a habitual criminal, which requires him to serve 10 years before being eligible to earn a day off his sentence for every day served under Nebraska’s good-time law.

Corrections released Jackson in 2013. His revised release date is in May 2016.

Soucie argued Jackson and other rounded up inmates are owed a court hearing, legal counsel and the opportunity to protest being arrested. Soucie cited a 2011 case, State v. Shambley, in which a judge ruled parolees who violate their conditions of parole are entitled to court hearings.

Soucie has asked the Supreme Court to take Jackson’s case because another prisoner’s attempt to challenge his incarceration was refused.

Bruce Caton, who was also returned to prison in June, has filed two lawsuits against the state and the Attorney General’s Office. Caton, 57, filed his first lawsuit before he had been returned to incarceration.

Lancaster County Judge Robert Otte threw out the case on procedural grounds but pointed to case law that would prevent him from altering the sentence, citing State v. Lantz, which says a judge has no authority to alter a legally imposed sentence.

Caton refiled in July, claiming he is being illegally incarcerated. The Attorney General’s Office has requested the case be dismissed, but the case is pending.

Contact the writer: 402-444-1066, alissa.skelton@owh.com

LINCOLN — The state avoided potentially lengthy legal battles this week when it allowed two attorneys at the center of a prison sentencing scandal to retire rather than be fired.

They were among four employees of the Nebraska Department of Correctional Services who have been disciplined for their roles in miscalculating hundreds of sentences.

Gov. Dave Heineman and Corrections Director Mike Kenney announced the personnel actions Friday, calling them a step toward regaining public trust.

Kenney said the department’s top attorneys, general counsel George D. Green and associate legal counsel Sharon Lindgren, chose to retire immediately when confronted with the disciplinary charges.

“My decision in both of these cases would have been termination,” Kenney said.

In addition, Kyle Poppert, the department’s main records administrator, was suspended for two weeks without pay. Associate legal counsel Kathy Blum was suspended for one day without pay.

Kenney said the sanctions matched each employee’s level of culpability for the sentencing errors.

The discipline comes after revelations that Corrections officials knew about Nebraska Supreme Court rulings pointing out flaws in how sentences were being calculated, yet didn’t make changes until a World-Herald investigation exposed the problems in June.

“As I have stated, those responsible for these miscalculations will be held accountable,” Heineman said. “Their actions were inappropriate, inexcusable and irresponsible.”

Green, 62, stepped down Thursday morning from a position paying $109,828 annually. Lindgren, 63, quit on Friday. She was paid $86,733 annually.

Both had worked in state government for more than 25 years, Kenney said.

State Personnel Director Ruth Jones said the state saved time, money and uncertainty by allowing the two to retire.

Employees have a lengthy appeal process available under state personnel rules if they want to fight a termination action.

Whether employees are fired or leave voluntarily, they can claim their retirement plan and be paid for earned vacation time and one-quarter of their accumulated sick leave.

“There is no benefit to the state for insisting on firing someone,” Jones said.

Green did not immediately respond to a message seeking comment. Lindgren could not be reached.

The personnel actions were based on a report from the Jackson-Lewis law firm, which Corrections hired to conduct an independent investigation into how the sentencing miscalculations occurred.

Corrections officials incorrectly calculated release dates for hundreds of prisoners, despite Nebraska Supreme Court rulings that spelled out the correct method.

Heineman said Green and Lindgren were responsible for implementing the 2013 ruling from the Nebraska Supreme Court that addressed the sentencing problems.

Instead, he said, they chose to ignore the ruling and did not properly coordinate with the Nebraska Attorney General’s Office on a response.

In addition, Heineman said, they did not alert former Corrections Director Bob Houston or Kenney, the current director, about the ruling or about any potential issue with sentence calculations.

“They are the individuals most responsible, and they are being held accountable,” he said.

The governor declined to say now why action was being taken against Poppert and Blum. But he said the full investigative report will be released after the two have had a chance to appeal their suspensions.

Heineman said he wants to be completely transparent on the sentencing miscalculation issue.

He said he overruled state attorneys in releasing information about the employee disciplinary actions, which typically is barred by state personnel rules.

State Sen. Steve Lathrop of Omaha said he could not comment on whether the right actions were being taken against the right employees because lawmakers have not been given access to all the information.

Lathrop is leading a special legislative investigation into prison issues, including chronic prison overcrowding and the sentencing miscalculations.

Criminal charges could be the next step in the sentencing saga.

The Nebraska State Patrol is working on a criminal investigation of current and former state employees. Emails released to The World-Herald show that some of those involved with the sentencing issue retired well before it came to light publicly.

Additional disciplinary measures against state employees could be forthcoming if warranted by new facts and information, Heineman said.

Beyond that, Heineman and Kenney said Corrections will have to work hard to regain public trust, a process that will take considerable time.

The governor said he remains confident that Kenney can do the job. He said the director has been moving forward in the most important areas.

“They’ve got to make sure that everything they do is right,” Heineman said.

Contact the writer: 402-473-9583, martha.stoddard@owh.com

In the aftermath of a 2013 Nebraska Supreme Court ruling explicitly telling prison officials they were calculating sentences wrong, three Corrections attorneys and five records administrators met at department headquarters in Lincoln.

Ten months had passed since the Supreme Court had spelled out the law.

But the prison officials — including four who were disciplined this week after the Department of Corrections was found to have released hundreds of prisoners early — said they still weren’t convinced that the Supreme Court was right and they were wrong.

“Our current practice is different than that of the court’s assumption,” wrote Nikki Peterson, a Corrections records manager who summed up the meeting. “We have been performing calculations our current way for years. ... We will act when we are specifically told our current way is wrong.”

In fact, the department had been told that its formula was wrong in multiple ways over multiple years, according to reams of emails released Friday by prison officials.

But it wasn’t until The World- Herald’s investigation in June that prison officials decided to comply with state law. The newspaper’s revelations have led to an unprecedented roundup of prisoners who had been released too soon, the addition of more than 2,000 years to the sentences of at least 750 prisoners, a personnel probe and a criminal investigation into who was responsible for ignoring the law.

The latest batch of emails, memos and meeting notes — provided by Corrections in two file boxes — showed that:

            » Prison officials had ample alarms. The 2013 Supreme Court order, which reiterated a similar 2002 ruling, was the most resounding, spelling out state sentencing law in no uncertain terms. At least eight Corrections employees, including the department’s legal staff, had discussions about that high court decision. Then-Director Bob Houston and current Director Mike Kenney, however, were not copied on any of the emails released to the newspaper. Both directors have said they weren’t informed of the Supreme Court orders.

            » Prosecutors, judges, government employees and even an inmate raised flags that prisoners were out early or about to be released early.

            » One longtime Corrections administrator questioned whether the state was properly releasing inmates. In a 2007 memo, a department administrator sent a memo to Corrections legal director George Green asking whether the state should calculate release dates in the same way it calculated parole dates. Had the department done so, it would have complied with state law. The records provided gave no indication that Green responded.

Over the years, the department’s reluctance to recalculate sentences turned to resistance — a bureaucratic malaise in which no one acted or was ordered to act.

Then came June 13. The World- Herald revealed to Corrections that its investigation had found that hundreds of inmates had been released, or were set to be released, years before they should have.

Within minutes of being interviewed by the newspaper, Director Mike Kenney sent a memo to wardens and other prison administrators, saying records officials were “in the process of recalculating sentences for all inmates with a mandatory minimum (term).”

So far, that recalculation has added an average of 3.5 years to the sentences of at least 750 prisoners.

“The decision will have a profound impact on inmates with mandatory minimum sentences,” Kenney wrote June 13 in a department-wide email. “I know I can count on each of you to be sensitive and courteous when working with inmates as they digest this information.”

There was plenty to digest Friday as state officials continued to sort out the prison breakdown. Gov. Dave Heineman and Kenney announced Friday afternoon that Green and Sharon Lindgren, one of Green’s assistant attorneys, had been told they would be terminated. The two retired instead.

Kathy Blum, another Corrections attorney who had been notified of the sentencing decision, was suspended for a day without pay.

Records administrator Kyle Poppert, who had received multiple alerts about inmates let out early, was suspended for two weeks without pay.

“I’m so disappointed in the two attorneys (Green and Lindgren),” Heineman said. “It’s clear they didn’t tell the former or current director about the (Supreme Court) ruling. ... Their actions were inappropriate, inexcusable and irresponsible.”

Heineman and Kenney said the Nebraska State Patrol now is investigating current and former Corrections employees for possible criminal wrongdoing.

“It was an act of negligence,” Kenney said. “It was not the action someone took. It was the action someone failed to take.”

Inaction was in abundance at Corrections — long before the 2013 ruling.

On April 23, 2007, then- records administrator Ron Riethmuller wrote a memo to Green, questioning the department’s methods in calculating release dates.

Riethmuller noted that the 2002 Nebraska Supreme Court ruling expressly said that a prisoner must serve his full mandatory term before he gets the customary day off for every day served under the state’s good-time law.

At the time, prison officials were correctly calculating parole eligibility dates. But when it came to maximum sentences, the department was using a convoluted formula to figure out the release date. Under that method, the department made the prisoner serve half of the maximum term or the full mandatory minimum term — whichever was greater.

That formula left off large chunks of a prisoner’s sentence. Riethmuller said he had fielded calls from various judges trying to clarify the calculation of release dates.

“The department hasn’t been challenged on our current method because it benefits the inmate,” Riethmuller wrote in the 2007 memo to Green. “If we adopt the same procedure we use for calculating parole eligibility dates, the inmates will serve additional time.”

Over the years, various state employees inside and outside Corrections questioned how prisoners could be eligible for release before being eligible for parole.

Records managers repeatedly laid out the department’s flawed formula — which they often referred to as “confusing” and “involved.” One manager called it “clear as mud and twice as thick.” Another called it “this crazy complicated calculation.”

Yet the calculation shouldn’t have been difficult. The Nebraska Legislature and the Supreme Court established a simple formula: Drug dealers, habitual criminals, child rapists and gun thugs must serve a mandatory term. After that term ends, the rest of a prisoner’s sentence is cut in half.

The emails showed that records managers routinely double- checked dozens of release dates over the years.

What they didn’t know: Their calculations were warped from the outset. The department was using a 20-year-old formula that didn’t properly take into account a prisoner’s mandatory term.

Yet they pressed on. Emailed about several individual cases, Poppert often confirmed that a prisoner could be eligible for parole after release.

“How can that be?” a prison training coordinator asked in one email.

Another records manager responded by detailing the department’s faulty formula.

The training coordinator wrote back: “I’m sorry I made you type that all out cause you lost me after about the first sentence anyway.”

Prosecutors across Nebraska and officials from other state agencies also asked about curious release dates.

In January 2012, a state data analyst, Beth Boal, asked Poppert why prisoners would have a parole eligibility date after their release date. She said she had analyzed prison records and found at least 61 prisoners where that was the case.

“I could see small variations but ... some vary by 5-8 years!” she wrote.

That was because of mandatory terms, Poppert responded.

Boal persisted, asking whether release dates made sense for a particular inmate.

“Correct. He will discharge before he is eligible for parole,” wrote Poppert.

Then, in January 2013, the Scotts Bluff County attorney alerted Corrections that prisoner Christopher Lohman’s sentence had been miscalculated and that he was released 10 years early.

Officials agreed they had his parole date wrong and rounded him up.

“Nice work everybody,” wrote Larry Wayne, a deputy Corrections director. “Hopefully we won’t have to go through this too often.”

But that case, along with a handful of others, never triggered a broader review.

Later in 2013, a Corrections officer monitoring a phone call overheard an inmate bragging to his mother that he was getting out 18 months “earlier than I should.”

The officer advised a records manager: “I don’t know if he is right or not but you might want to look into it.”

At the time, records clerks did nothing to change his release date, saying it was calculated correctly. It was not. The department didn’t fix his release date until a few weeks ago.

Then came February 2013. The Nebraska Supreme Court ruled in the case of David Castillas, an Omaha gang member who had riddled two houses with bullets.

The high court reiterated the law: A prisoner must serve the mandatory term before the rest of his sentence is cut in half.

Longtime records manager Jeannene Douglass wrote Poppert and Green, asking if “we would ... go with what the Supreme Court says. ... I said we would do what is in the inmate’s best interest, that being, continue calculating the sentences the way we have always done it.”

Douglass, who has since retired, gave a few explanations why the prisons could continue to defy the law. “The inmate, obviously, would not complain since he will serve less time by our calculations,” she wrote.

“It would be a real mess to have to go back in and recalculate everyone who has mandatory minimum sentences,” she went on. “It would also serve (Houston’s) desires, as well, to not increase our population any more than we must.”

Prison officials have said there was always pressure to curb overcrowding, which has prompted lawsuits and raised the possibility of federal intervention. The latest count, this week, showed the prisons at 57 percent over capacity.

Nine days after the Feb. 8, 2013, ruling, Poppert — who signed his emails with the line “change is inevitable, growth is optional” — asked Douglass and another records clerk to lay out why they thought the Supreme Court was incorrect.

“I think the court is misinterpreting the previous cases,” Poppert said. “Anyway, we need to be able to explain this to George (Green).”

Poppert closed with this:

“I do want to caution folks, our current efforts to reduce our inmate population has nothing to do with how we apply ... laws,” he wrote. “The law is the law and we will act accordingly.”

Douglass forwarded Poppert’s email to a co-worker — highlighting the last line from their boss.

“Thought you might get a kick out of this email from KP,” Douglass wrote. “Specially the last sentence~!!!”

ALSO READ: Letting 2 disgraced Corrections Department lawyers retire rather than be fired may have saved state time, money

If the Nebraska Supreme Court ruled that locomotives must stop at every railroad crossing, you’d have to figure the president of a railroad quickly would be told.

It is almost unimaginable that the directors of Nebraska’s prison system weren’t told that the state’s high court had ruled — twice — about how to correctly calculate prison time for gun thugs, child rapists, drug dealers and habitual criminals.

Yet both the current and former heads of the Nebraska Department of Correctional Services said they were never informed about the Supreme Court decisions, even as corrections department employees exchanged emails about ignoring the rulings. Even as questions were raised by many outside the department, including crime victims, prosecutors and judges.

As officials try to repair the damage, one thing is clear: Every state agency director is the captain of his or her ship. They must have procedures in place to make certain they are told when something affects their department’s operations.

The perception that government bureaucracies fight to maintain the status quo is a stereotype. But it becomes more believable when one follows the email trail of bureaucratic inertia that led to setting too-early release dates for some 750 prison inmates.

Officials say civil service-protected underlings of former prison director Bob Houston and current director Mike Kenney ignored state high court rulings. Four employees have been disciplined. A criminal investigation is ongoing.

Under the official explanation, the lawyers and other corrections department bureaucrats didn’t tell their politically appointed bosses that the court had spoken clearly — or that the department for years calculated sentences incorrectly.

In internal emails obtained by The World-Herald, the employees shared their opinion that the court was wrong and that they knew better. They chose to do things the way they always had, apparently telling no one up the line.

One can argue that part of the corrections department director’s job is to make certain he was informed, because vital information that didn’t reach the director’s desk included:

Multiple high court rulings on calculating sentences; staff email discussing those rulings; meetings on the topic; complaints from prosecutors and crime victims about inmates getting out too early; a prison guard’s concerns about an inmate saying he was getting out 18 months early; and even questions from judges about early releases.

The prison mess should be a warning to other state government bosses. Are they told when the courts issue a ruling that impacts their agencies? Do they have procedures in place so employees can notify them — without retaliation — if they suspect wrongdoing? Do they have mechanisms to evaluate and respond to valid outside complaints?

Most state employees do valuable work. But some elements of the permanent bureaucracy seem to think that they will outlast any political appointee, that they are a fiefdom unto themselves. They are wrong.

As Kenney and hopefully other agency directors know by now, they need clear, common-sense measures for reporting up the chain of command.

Court opinions cannot be ignored. Legitimate questions cannot go unanswered. And bosses cannot remain uninformed.

LINCOLN — Five state prison employees embroiled in the scandal of miscalculated release dates for inmates were ordered Friday to testify before a state legislative committee investigating the mess.

Lancaster County District Judge Stephanie Stacy ordered the current and former Corrections Department employees to testify next week before the special legislative committee. The court order is backed by a law that allows state employees to testify without having their testimony used against them in a criminal prosecution.

The legislative committee asked the court to compel the subpoenaed witnesses to testify after the five asserted their constitutional right against self-incrimination and refused to testify before the committee.

“The committee isn’t accusing any of these witnesses of anything,” Sean Brennan, the counsel for the special legislative committee, said in court. “We want them to provide testimony without it being used against them.”

Among the subpoenaed witnesses ordered to testify are former Corrections attorneys George Green and Sharon Lindgren, who abruptly retired two weeks ago after being faced with termination amid the scandal; Corrections attorney Kathleen Blum and records administrator Kyle Poppert, who were temporary suspended; and retired records clerk Jeannene Douglass.

Stacy asked each of the witnesses to stand while she ordered them to testify. Green couldn’t make it to court Friday, so Stacy said she would read him the order over the phone.

A World-Herald investigation found that more than 750 sentences of state prison inmates had been improperly calculated by Corrections officials and that prison officials had ignored two State Supreme Court rulings pointing out their improper practices.

The miscalculations led to hundreds of inmates being released early. Several were returned to prison and hundreds still incarcerated will have to spend more time behind bars.

The revelations prompted the state to hire a private law firm to conduct a personnel investigation, which led to the disciplinary actions against the four Corrections employees.

The World-Herald also obtained emails showing that Corrections attorneys and records staff knew about the Supreme Court ruling and continued to miscalculate sentences.

After the personnel investigation and publication of the emails, Gov. Dave Heineman and Attorney General Jon Bruning launched a criminal investigation by the State Patrol.

Lawmakers, former prosecutors and lawyers have pointed to three misdemeanors that could be filed:

           » Obstructing government operations, which occurs when someone “intentionally obstructs, impairs, or perverts the administration of law or other governmental functions by force ... breach of official duty or any other unlawful act.”

           » Official misconduct, which is committed when someone “knowingly violates any statute or lawfully adopted rule or regulation relating to his official duties.”

           » Abuse of public records, which can be filed when an official “makes, presents or uses any record ... knowing it to be false, and with the intention that it be taken as a genuine part of the public record.”

The special legislative committee also subpoenaed three others to testify next week: Linda Willard, a retired assistant attorney general; former records administrator Ron Riethmuller; and John Freudenberg, a current assistant attorney general.

Willard, Riethmuller and Freudenberg are not under criminal investigation.

Contact the writers: 402-444-1066, alissa.skelton@owh.com; 402-473-9584, paul.hammel@owh.com

Click here to read tweets from Alissa Skelton.

* * *

LINCOLN — The longtime legal director for Nebraska’s prisons didn’t read a 2013 Nebraska Supreme Court ruling that essentially said officials had been improperly calculating release dates for hundreds of the state’s criminals.

George Green, who advised the Nebraska Department of Correctional Services for more than 25 years, testified Thursday he didn’t read any part of it — even after a records clerk alerted Green to concerns about the ruling.

Instead, he delegated it to a non-attorney: a records administrator.

“I wish I would have (read it),” Green said. “I’m like everyone else. I’ve got 15 million things to do.”

Some eight months later, Green and his staff of attorneys met with records administrators. Green still hadn’t read the ruling.

“I followed up with the (records) supervisor,” Green said. “Are we good? Are we following that? He assured me they were. He was quite emphatic.”

When did Green finally read the ruling?

“I read (it) after The World-Herald news story broke,” Green said.

At that, state senators who had spent all day Thursday railing on Green and prison officials fell silent.

Fifteen seconds passed.

“That’s hard to believe,” State Sen. Steve Lathrop said.

“You don’t need a lawyer; you need a baby sitter,” State Sen. Ernie Chambers said. “I don’t believe you told the truth at all.”

“Sir, you must have been one busy guy,” State Sen. Bob Krist said. “For 18 months you didn’t find it in your agenda to read a (Supreme Court) ruling directly affecting your department. Eighteen months? Wow. Hard to believe.”

The hard-to-imagine twists just kept coming Thursday in Nebraska’s prison breakdown.

The World-Herald investigation prompted state officials to round up early-released prisoners, add more than 2,000 years to the collective sentences of more than 750 prisoners and later to open a criminal investigation into whether officials’ conduct was criminal.

Krist said Thursday’s proceedings reminded him of a moment in “The Wizard of Oz” where the Scarecrow stops and points in several directions.

Prison officials — five of whom testified after receiving a judge’s assurance that their words could not be used against them in any possible prosecution — were pointing up the line as to who they thought was culpable.

“Almost everyone has been claiming plausible deniability,” Krist said. “I would describe this in a prior life as CYA.”

Indeed, Thursday’s unprecedented hearing had current and former prison officials and a retired assistant attorney general scrambling for explanations.

One retired prison worker broke down and cried. A former Corrections attorney mouthed an expletive at a former colleague’s testimony. Another prison records administrator sweated profusely.

Meanwhile, state senators fumed. Chambers bellowed at one Corrections official that he was a “fool” not to understand the importance of the Supreme Court ruling.

“Had The World-Herald not broken the story, nothing would have changed,” Chambers said. “Everybody now is trying to run for cover. Everybody is trying to shift blame and place responsibility somewhere else.

“I can see why things are in chaos and shambles over there. There’s no oversight by the governor. No management by the director of Corrections. We have a situation where no one is responsible for anything.”

Gov. Dave Heineman has disagreed that he hasn’t held officials accountable. The governor and the current director, Mike Kenney, launched a personnel investigation that led Corrections legal director Green and associate counsel Sharon Lindgren to retire rather than be fired.

Another Corrections attorney, Kathy Blum, was suspended for a day without pay. Records administrator Kyle Poppert was suspended for two weeks without pay. He revealed Thursday that he is serving that suspension by taking two days off a week without pay for the next five weeks.

The reason: Kenney wants him there as a national group studies his department’s process for setting release dates.

“I think that’s a mockery,” Chambers told Poppert. “I’m not going to wear kid gloves with you.”

Few senators did with any of the witnesses.

During the marathon hearing — it began at 9 a.m. and didn’t wrap until after 10 p.m. — senators focused on two issues.

  » The institutional inertia, and lack of leadership, that led Corrections to ignore the law for two decades.

  » The lack of follow-up by the Nebraska Attorney General’s Office to ensure that Corrections followed the law.

A 1996 attorney general’s opinion — written by Laurie Smith Camp, then an assistant attorney general, now a federal judge — spelled out what state senators intended with mandatory terms for crimes such as drug dealing, being a habitual criminal and eventually gun and sex crimes.

A prisoner must serve the full mandatory term before receiving a day off for every day served under the state’s good-time law.

“The legislative history ... makes clear the fact that the Nebraska Legislature expected inmates who were sentenced for offenses carrying mandatory minimum terms to serve the full mandatory term before being paroled or discharged.”

Based in part on that opinion, Corrections officials read some leeway into how they could calculate release dates.

Then-records administrator Ron Riethmuller said Corrections’ primary concern was that inmates serve the mandatory term. It wasn’t concerned with the rest of the prisoner’s sentence.

So Corrections adopted what a records clerk referred to as a “confusing and somewhat involved” way of calculating release dates: Cut the maximum term in half. Compare it with the mandatory minimum term. Impose the greater of the two.

“The policy I wrote complied with the (attorney general’s last paragraph),” Riethmuller testified.

But that method also often left off large chunks of a prisoner’s sentence.

That attorney general’s opinion was followed by Supreme Court rulings, one in 2002 and another in 2013.

Lindgren, the associate counsel, said the 2013 ruling was “very clear.”

Records administrator Poppert said Corrections attorneys suggested that prison administrators could ignore the 2013 ruling because the Nebraska prison system wasn’t a named defendant in the ruling.

Poppert testified Thursday that Green and Lindgren came to that conclusion. Green denied it. Lindgren did not.

“As far as I knew, we were waiting for some kind of directive from the Supreme Court,” Poppert said. “I was told ... the Supreme Court has not directed us to do anything.”

Lindgren said that position didn’t come out of left field. Lindgren said it was Corrections’ impression that the Attorney General’s Office had given the same advice — telling Corrections it could ignore a previous ruling on lifetime supervision for sex offenders.

Linda Willard, an assistant attorney general who worked with the Corrections Department for 18 of her 32 years, said she initially didn’t think the 2013 ruling “was a serious issue because I thought (Corrections was) doing it the way” the high court had ordered.

She wrote to Jeannene Douglass, a longtime prison records manager in charge of calculating release dates.

Douglass wrote that Corrections had several reasons not to follow the Supreme Court’s decision. “It would be a real mess” to recalculate the inmates’ release dates. She nodded to the state’s chronic prison overcrowding. “It would also serve the Director’s desires, as well, to not increase our population any more than we must.”

Douglass concluded the email exchanges by copying Green and Poppert:

“I said, and (Willard) supported me, that we would do what is in the inmate’s best interest, that being, continue calculating sentences the way we have always done it.”

Krist and State Sen. Les Seiler grilled Willard on why she didn’t follow up on Douglass’ pronouncement that she was going to defy the law.

Willard said she did follow up, in telephone conversations with Green and Lindgren.

However, in an interview with The World-Herald in July, Willard said she couldn’t recall whether she had any follow-up conversations.

Lindgren confirmed Thursday that Willard had called her. Green testified that he never talked with Willard.

“I thought that bringing it to the attention of (Corrections’) legal department — which was staffed with very competent attorneys, I had my full trust in them — that it would be handled,” Willard said. “I think that any competent lawyer would know that the Supreme Court decision controls.”

Lathrop questioned whether overcrowding factored into ignoring the ruling. Nebraska prisons are 57 percent overcapacity.

“Did you appreciate that you wouldn’t have to round up (mistakenly released prisoners)?” Lathrop asked. “Overcrowding had to come up.”

Poppert said it didn’t.

“That wasn’t my concern,” he said. “I just wanted to do the right thing.”

Douglass testified that overcrowding was always on prison officials’ minds.

The records manager said it came up in various decisions that gave her pause. Among them: Douglass said Poppert ordered records managers to give good-time days off a sentence to a parolee even though the man had violated parole. Parole violations are supposed to eliminate such good-time reductions in a sentence. The Nebraska Attorney General’s Office later condemned Corrections for not penalizing parole violators, state senators said.

“I think it was the overall atmosphere of the whole prison,” Douglass said. “Everybody was getting pressure, and it just comes on down.

“It’s kind of like when you’re showing a dog at a dog show — how you feel travels on down to that dog.”

Douglass’ voice broke — and she dabbed away tears. Lathrop apologized for upsetting her. She said she never received direction on what to do.

“It was quite well known that we had to reduce the population,” Douglass said, gathering herself. “I think it was coming from the governor on down. It’s just an opinion.”

Heineman has said overcrowding has nothing to do with how judges’ sentences should be carried out. Poppert said he was never told to usher people out because of prison overpopulation.

Prison officials want to do the right thing, Poppert said.

“There may be some culture that some people feel they can do the minimum to get by,” Poppert said. “I don’t see that.”

Sen. Seiler said he saw a clear problem in the department. No one went to leaders in the department — or felt comfortable doing so. Then-Corrections Director Bob Houston has said he wasn’t told of the ruling.

“There is one thing that struck me funny,” Seiler said. “The emails were going in the wrong direction. They were sent to people at the bottom instead of the (top).”

Lathrop said he began Thursday thinking the sentencing scandal was a systemic problem related to overcrowding.

By Thursday night, the Omaha senator concluded that it was “a comedy of errors.”

Former records administrator Riethmuller — who retired in 2008 — agreed.

Asked how the department could have ignored the Supreme Court ruling, Riethmuller said: “Government bureaucracy at its finest. The records department had no direction. There was no one to go to. There was no one running that division that had any knowledge of what was going on.”

Riethmuller painted a picture of a Corrections Department that was insulated and, at times, insisted on its isolation.

Riethmuller, who doesn’t have a law degree, wrote a memo in 2007 to Green suggesting that Corrections might want to calculate release dates in the same way it calculated parole dates. Had it done so, Corrections would have complied with state law.

Riethmuller said he had asked Green whether the department should go to the Attorney General’s Office for further advice on how to calculate sentences.

Green said he didn’t recall the memo — or any conversations about it.

“From an overall perspective, I was told (by Green) that we did not ask for attorney general’s opinions on anything,” Riethmuller testified.

Green denied that, noting that Corrections consulted with the Attorney General’s Office all the time.

Riethmuller said he cringed when he saw that the Nebraska Attorney General’s Office was communicating with a records clerk about the 2013 ruling.

“I was surprised that she was even involved in it. ... She had no authority. It should have went to the records administrator, not Jeannene Douglass,” Riethmuller said. “If I was the records administrator at that time, I would have complied.”

The inertia was never more evident than in October 2013. Eight months after the Supreme Court ruled, four attorneys and four records managers met to continue wrestling with whether the department should follow the ruling.

“Our current practice is different than that of the court’s assumption,” wrote Nikki Peterson, a Corrections records manager who summed up the meeting. “We have been performing calculations our current way for years. ... We will act when we are specifically told our current way is wrong.”

Green said he still hadn’t read the ruling at the time of the October meeting.

“I remember there was a meeting, but at no time was I told that we were not following the ruling in the (2013) case,” Green said.

Several senators — some of them lawyers — said they couldn’t believe that none of the four attorneys spoke up at the meeting.

Chambers asked one of the Corrections attorneys, Kathy Blum, if she’s embarrassed that a newspaper investigation “was given more consideration ... than a Supreme Court ruling.”

“I think embarrassed is a fair word,” Blum said.

After leaving the department, Riethmuller said he called Corrections to try to correct another embarrassment. Riethmuller said he read another World-Herald story on the plight of Johnnie Davis, who had been paroled in 2012 after serving decades for the attempted murder of a Lincoln police officer.

This summer, Davis was snatched from his job and his family as state officials tried to round up early-released prisoners.

Riethmuller said he immediately noticed that state officials wrongly rounded up Davis. Riethmuller said he made a phone call — and Davis was released after spending two months back in prison.

As for the “mess” of incorrect sentences, Riethmuller said it would have taken him just two days to recalculate all 750 release dates.

That led Chambers to ask Riethmuller if he would return to help right Corrections.

“You couldn’t pay me enough,” Riethmuller said.

Contact the writers: 402-444-1275, todd.cooper@owh.com; 402-473-9584, paul.hammel@owh.com; 402-444-1066, alissa.skelton@owh.com

Nebraska Attorney General Jon Bruning on Friday disputed a contention that his office had ordered prison officials to ignore a previous Nebraska Supreme Court ruling.

Former Department of Corrections attorney Sharon Lindgren, who retired last month rather than be fired, testified before a legislative committee Thursday that she was once told that the prisons didn’t have to follow a 2009 Supreme Court ruling on lifetime supervision of sex offenders.

Bruning said Lindgren didn’t know what she was talking about. Nuanced questions had arisen about how to handle sex offenders who had moved to Nebraska from other states, Bruning said. But his office didn’t tell anyone to ignore the Supreme Court.

“Her allegation is false,” Bruning said. “We would never give advice to ignore the Supreme Court. That is patently ridiculous and offensive.”

The special legislative committee that heard from Lindgren on Thursday has been exploring problems in the state prison system.

The Department of Correctional Services Special Investigative Committee was initially created to probe the state’s handling of Nikko Jenkins. The mentally troubled inmate was convicted of four murders shortly after his July 2013 release from a state prison.

But the committee expanded its probe after The World-Herald’s investigation, in June, which revealed that prison officials had been ignoring state law and court rulings for years by miscalculating the release date of hundreds of inmates.

On Thursday, the committee questioned eight current and former state officials about the miscalculations. Five of the witnesses testified after receiving a judge’s assurance that their words could not be used against them in any possible prosecution.

The World-Herald investigation prompted state officials to round up early-released prisoners, add more than 2,000 years to the collective sentences of more than 750 prisoners and later to open an investigation into whether officials’ conduct was criminal.

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

Nebraska Attorney General Jon Bruning has a simple solution that he says could have prevented the state’s sentencing debacle: Make the Corrections Department attorneys work for him.

Bruning said Nebraska’s next governor ought to have the Corrections attorneys work for the next attorney general.

That way, Bruning said, the attorneys have another legal mind to answer to if they fail to recognize something as profound as a Nebraska Supreme Court ruling that essentially said Nebraska prisons were releasing dozens of inmates early.

Bruning, who leaves office at the end of the year, wasted no words Friday for Corrections’ in-house staff attorneys, including longtime legal director George Green and associate counsel Sharon Lindgren. Green and Lindgren both told a special legislative committee Thursday that they didn’t read the 2013 ruling until The World-Herald notified Corrections of it, 16 months later.

Both attorneys retired three weeks ago, before they could be fired.

“They had this in-house group that was utterly incompetent,” Bruning said. “For them to start pointing fingers now is laughable. This is the gang that couldn’t shoot straight over there.”

Placing agency attorneys under the umbrella of the attorney general is not a new concept. Legal matters at various agencies — such as the Nebraska Department of Roads and the Game and Parks Commission — are handled primarily by assistant attorneys general.

The state has several attorneys scattered throughout government — so many that Bruning said he considered proposing consolidation when he took over the Attorney General’s Office in 2003.

He abandoned the idea, he said, because he was young and new and didn’t want to look like he was arrogantly doing a power grab. Bruning said the attorney general doesn’t have to employ every attorney in every agency. In some departments — such as Corrections — it makes sense in order to ensure that attorneys can’t coast. Agency attorneys typically have civil-service protection; assistant attorneys general do not.

“I think it should be done surgically,” Bruning said. “There are some very, very capable counsel at state agencies across the board. By no means is the ineptitude of the legal team at Corrections indicative of the quality of work in other agencies.

“But when you work for an elected official, I just think accountability goes up. Everybody’s ambition to do a good job goes up.”

State leaders speculated that previous attorneys general farmed out lawyers to agencies to keep the attorney general’s budget down — and to limit the political risk that an agency scandal like the current one would fall in the attorney general’s lap.

State Sen. Les Seiler of Hastings, a former assistant attorney general, is looking at legislation to make agency attorneys a part of the Attorney General’s Office, senators said.

While some weren’t convinced that would be foolproof, the idea had support from several members of the special legislative committee investigating the prison breakdown.

State Sen. Brad Ashford suggested the same idea two months ago — after a World-Herald investigation prompted state officials to have to round up prisoners and recalculate 750 sentences because Corrections failed to follow a Nebraska Supreme Court ruling. The ruling spelled out how to calculate parole and release dates for inmates with mandatory minimum terms.

Gov. Dave Heineman, whose term expires at the end of the year, has said the idea of shifting the attorneys to the Attorney General’s Office would be worth considering.

Sen. Steve Lathrop, chairman of the special committee, said he worries that in-house attorneys might be too afraid to speak up about a ruling that goes against an agency’s interest. Former Corrections Director Bob Houston and the current director, Mike Kenney, have said they were not informed of the February 2013 ruling until The World-Herald published its investigation June 15. Lathrop said an assistant attorney general would have no reluctance to notify an agency director.

“Lawyers that give advice to clients need to be able to do it without fear of reprisal,” Lathrop said.

“It’s my feeling that with an assistant attorney general (at Corrections meetings), there would have been more accountability, more willingness to stand up and say ‘Now, wait a minute, this doesn’t pass the smell test.’ ”

Others questioned whether the Attorney General’s Office really is a foolproof solution. Senators spent part of Thursday’s hearing railing on the Attorney General’s Office for not ensuring that Corrections followed through with 2002 and 2013 rulings that spelled out sentencing laws.

Assistant Attorney General Linda Willard, who handled Corrections litigation for 18 years of her 32-year career, alerted Corrections to the 2013 ruling in an email and a phone call the day of the ruling.

But even after a records clerk indicated the department was going to stick with its flawed formula, Willard didn’t follow up.

Asked why, Willard said: “I had a lot of work to do. I thought it was being handled.”

Asked why he didn’t even read the ruling, Green said: “I’m like everyone else. I’ve got 15 million things to do.”

Willard, who retired in May, also had to be reminded by senators that she had argued the 2002 case that spelled out how mandatory terms are handled — a case that Bruning called the “seminal” case.

Willard said she didn’t recall arguing that in part because she had so many cases.

Lathrop said he respected Willard because she was honest — and honestly seemed to have a substantial caseload.

State senators didn’t give the same deference to Green. Some, including State Sen. Ernie Chambers, accused Green of lying when he said he hadn’t read the 2013 ruling.

Chambers and Lathrop said it seemed Green was trying to set up a defense against prosecution: I didn’t read the ruling, so I didn’t know the prisons weren’t complying with the law. Green insisted he was telling the truth.

The State Patrol is conducting a criminal investigation.

Sen. Bob Krist said senators should discuss shifting in-house counsel to the Attorney General’s Office. However, he said, such a shift wouldn’t be foolproof.

“Put it this way,” Krist said. “If you had the same cast of characters — that circus that came before us (Thursday) — if those personalities were involved in it, they would have screwed it up no matter who they belonged to.”

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

Initiative, definition: 1. Readiness to undertake something on one’s own. 2. A trait sorely lacking in parts of the Nebraska Department of Correctional Services.

Responsibility, definition: 1. Answerable for one’s actions or decisions. 2. A trait sorely lacking in parts of the Nebraska Department of Correctional Services.

* * *

The litany of excuses offered by prison system employees for their failure to follow a Nebraska Supreme Court ruling on when to turn criminals loose was, in a word, dismal.

Hour after hour, they gave a legislative committee one sorry rationalization after another for how too-early release dates were established for more than 750 criminals, mistakes that required more than 2,000 years to be added back on to their sentences.

Some of the lowlights of the shoulder-shrugging, excuse-making, finger-pointing, behind-covering testimony:

Not my job.

Nobody told me what to do.

Didn’t read the court’s ruling.

Fifteen million things to do.

Waiting for some kind of directive.

Didn’t ask.

Don’t remember.

Just followed orders.

Relied on others to tell me.

Not my concern.

Thought it was being handled.

Didn’t talk to the boss.

Didn’t talk to the boss’s boss.

“Government bureaucracy at its finest,” a former prison official quipped.

Government bureaucracy at its worst. The video of that hearing should be mandatory viewing for all new state government employees so they’ll know how not to handle their jobs.

If the Roads Department operated that poorly, snowplows would be in the shop for overhauls in January — and the explanation would be: “No one told me it was going to snow.”

More importantly, this entire fiasco raises serious management issues that must be addressed from the Governor’s Office on down:

>> How did the prison system wind up with a chief lawyer who didn’t even read a 2013 Supreme Court order on sentencing procedures until The World-Herald published results of its investigation 15 months later?

>> How did the prison system choose whom to put in charge of calculating sentences, a job few apparently wanted?

>> Why didn’t the prison system culture encourage and reward employees for showing initiative, for taking responsibility, for pushing unresolved problems up the chain of command?

>> Why didn’t the Attorney General’s Office do more to follow up after the state’s highest court spelled out proper sentencing procedures?

>> Why wasn’t the prison system director, who taxpayers paid more than $120,000 a year, aware of what was happening beneath him?

>> Why did it take a newspaper report to prompt Gov. Dave Heineman to engage directly in oversight of the prison system?

Heineman, who made public safety a pillar of his election campaigns, has properly ordered prison employees to now take concerns to the prison department director — and to the Governor’s Office if need be — when they don’t get answers. He brought in outside personnel investigators and asked for a criminal investigation into the failings.

But the horse already had left the prison barn when those orders were given.

“We have a situation where nobody is responsible for anything,” State Sen. Ernie Chambers aptly summarized as the excuses droned on.

The Legislature has stepped up its involvement, creating the special prison investigative committee. Its intensive oversight needs to continue, the type of monitoring that helped resolve problems in the Department of Health and Human Services.

The “not my job” culture within the Department of Correctional Services needs to change. Public safety is at stake. This major state agency was dysfunctional, with key positions filled by people who weren’t up to the job.

That ultimately falls on the prison system director and the governor who makes that hire.

* * *

Leadership, definition: 1. Bringing a definitive result. 2. What Nebraskans expect and need from government officials at every level.

Another prisoner has filed a lawsuit challenging the state’s roundup of early-released prisoners.

And a Lincoln attorney said Tuesday that he expects at least a dozen more prisoners to file similar court actions over the next week or so.

Attorney Jerry Soucie said state officials rushed to return prisoners who, he contends, should not have been corralled. So far, three recaptured prisoners have sued the state.

Nebraska Attorney General Jon Bruning has defended the sweep, saying he expects the roundup will be upheld in court.

Gov. Dave Heineman ordered the roundup after The World-Herald revealed that corrections officials’ failure to figure sentences correctly had opened state prison doors years before they should have, letting dozens of prisoners out early. After the June 15 newspaper report, authorities added more than 2,000 years to inmates’ sentences.

And the governor called for the return of about 20 “prematurely released” prisoners.

One of those prisoners: David Amesbury.

In a filing last week, Soucie argued that Amesbury was given an illegal sentence because a judge gave him a separate term for a habitual criminal charge.

In 2002, Amesbury was convicted of possession of child pornography. Gosper County District Judge James Doyle sentenced Amesbury to 20 to 60 months on that charge. The judge tacked on 15 years in prison for being a habitual criminal — after finding that Amesbury had committed two prior offenses that had landed him in prison.

The problem with that, according to Soucie? That habitual criminal tag shouldn’t be a separate charge with a separate sentence. It only serves to increase the potential sentence on an existing charge, Soucie said.

In this case, it meant Amesbury should have faced one enhanced penalty for possession of child pornography. Instead he received two sentences.

Amesbury was released in 2012 after serving a little more than 10 years.

After The World-Herald report, the state sought to return Amesbury, arguing that he still owes the state five years.

Soucie said Amesbury doesn’t owe anything. In fact, he argues, the only valid sentence was the sentence of 20 to 60 months.

Amesbury served far longer than that, Soucie said.

Soucie wrote that “Gov. Heineman, (Corrections Director Mike) Kenney (and) the Nebraska Attorney General’s Office (should) have left well enough alone and ‘let sleeping dogs lie.’ ”

As he has in another lawsuit, Soucie blasted the state, saying it violated the prisoners’ “due process rights” by returning them to prison without a court hearing.

Soucie said Tuesday that each prisoner received a signed certificate of discharge upon release.

“At that point, you can’t break that case back open with dynamite,” Soucie said.

The Attorney General’s Office disagrees. It has pointed to a 2009 Nebraska Supreme Court ruling that says wrongly released inmates must “serve the punishment to which they’ve been sentenced” — even if the release wasn’t their fault.

Bruning’s office has pointed out that the warrants have been reviewed and signed by more than a handful of judges across the state.

This summer, in the first lawsuit filed by a prisoner against the state, a judge indicated that he would not be receptive to similar litigation, citing a ruling that says a “judge has no authority to alter a legally imposed sentence.”

Two lawsuits are currently pending.

Prisoners “can sue — but they aren’t going to win, ” Bruning has said. “The case law is clear. They owe us the time.”

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

In October 2013 — eight months after the Nebraska Supreme Court effectively said prison officials were releasing prisoners early — eight Corrections Department employees gathered in a conference room next to the director’s office in Lincoln.

Their title: the Sentence Review Committee.

Their task: discuss the impact of court rulings — including one from February 2013 that essentially called on the prisons to recalculate release dates.

Though the Supreme Court had unequivocally ruled, the committee decided the department would continue with its faulty formula and wait to “act when we are specifically told our current way is wrong and needs to be changed.”

The lawyers — led by general counsel George Green — sat on one side of the long conference table.

The people in charge of calculating release dates — led by records administrator Kyle Poppert — sat on the other.

Turns out, the split was fitting.

A personnel investigation released Thursday found that the two leaders on either side of the table — Green and Poppert — now blame each other for the failure to follow the Supreme Court’s order.

The investigation’s conclusion: They’re both to blame, though no one more so than Green.

“Green should have understood the impact of (the 2013 ruling),” the personnel report said. “Though attorneys may certainly make mistakes in interpreting cases from time to time, Green was placed in a position of public trust and has two decades of experience as general counsel. The impact of Green’s decisions and failure to act is unquestionably great.”

Indeed, the inaction had great consequences. A World-Herald investigation published June 15 prompted officials to round up already released prisoners and to add more than 2,000 years to the sentences of more than 750 inmates.

Now the State Patrol is investigating to determine whether prison employees’ inaction was criminal. Authorities say a decision on charges is most likely a couple of weeks away.

Gov. Dave Heineman released the report on the personnel investigation Thursday after none of the disciplined employees chose to appeal their punishment.

The 144-page report describes a Corrections Department that was devoid of midlevel leadership, plagued by inaction and saddled with its share of inter-office pettiness.

And it details the disappointment of Nebraska Corrections Director Mike Kenney. Kenney, who took over eight months before the scandal was exposed, told personnel investigators it might take years to regain the public’s confidence.

“The impact has been dramatic,” Kenney said. “Public confidence in (the Nebraska Department of Correctional Services) is significantly eroded. Employees are fearful and anxious about their positions and the future of NDCS in general. ... I believe that we may experience repercussions of the issue for months, if not years, to come.”

Repercussions have been felt by a handful of prison employees who were aware, or should have been aware, of the Supreme Court ruling.

On Feb. 8, 2013, the day the Supreme Court ruled in the case of David Castillas, longtime records clerk Jeannene Douglass emailed her bosses, saying it would be a “real mess” to recalculate prisoners’ sentences. She wrote to Green and Poppert to say that ignoring it would be in the “inmate’s best interest” and would “serve the Director’s desires, as well, to not increase our population any more than we must.”

The investigators said they found no link between the inaction and prison overcrowding.

“We found no evidence indicating NDCS disregarded the Castillas case in order to lower the prison population or for any other strategic reason,” the report said. Referring to former Corrections Director Bob Houston, it continued, “We found no evidence indicating anyone advised either Houston or Kenney of the circumstances surrounding the Castillas case until the Omaha World-Herald’s investigation and articles in June 2014.”

The investigators pinned the inaction on a lack of initiative by Green and Poppert — and, to a lesser extent, Douglass and associate counsels Sharon Lindgren and Kathy Blum.

All of those workers were at the Oct. 31, 2013, meeting to discuss Castillas and other court rulings.

“However, NDCS records managers made no changes to their method of calculating mandatory release dates until June (13), 2014,” the report says. “On that day, Director Kenney received a phone call from a reporter with the Omaha World-Herald indicating the newspaper intended to print a story indicating NDCS was calculating mandatory release dates in a manner inconsistent with the Castillas decision.”

Personnel investigators chronicled several concerns with how the Corrections employees responded.

On Feb. 8, Douglass alerted Green to the Supreme Court decision. Green acknowledges he didn’t respond to her. In fact, he now says, he never read the decision until The World- Herald’s report.

Rather than reading the ruling, Green said, he asked Poppert the next week to look into it. “I believe (Poppert) indicated that things were fine” — that the department was in compliance, Green told investigators.

“I do not believe that I made a mistake in handling the events surrounding the Castillas case,” Green said. “Based on the reassurance Kyle Poppert provided to me in person on Feb. 15, 2013, I assumed the records division and Attorney General’s Office would come to a resolution on this issue.”

Poppert, meanwhile, blamed Green. Poppert, who noted he is not an attorney, said he sought legal direction from Green but never received it. He even convened the October sentence review meeting but still didn’t receive direction.

“Poppert states that in this meeting, Green told him the Castillas case did not require NDCS to do anything different because NDCS was not a party to the (case),” the report says.

Green didn’t recall making that statement, the report said.

The personnel investigators noted, however, that Poppert’s boss, Larry Wayne, recounted how Green made a similar statement to Wayne after The World-Herald report in June.

“Wayne also recalls Green stating that, in retrospect, this was probably the wrong way to look at the case,” the report said.

Green did not provide a legal opinion on the case despite specific requests to do so. “At the very least, Green had an obligation to bring the issue to the attention of the Director immediately,” the report concluded.

The report said Green likely violated several personnel rules concerning inefficiency, failure to comply with statutes and “acts which adversely affect the employing agency’s performance.”

Green retired after Kenney told him he would be fired.

The personnel investigators said they believed Poppert had more credibility.

“In his interview, Poppert indicated that he felt alone in attempting to push for a resolution on the Castillas case and that seems to be accurate,” the report said. “Poppert’s culpability lies in allowing eight months to pass between the time he requested legal advice and the sentencing review committee meeting in October 2013.”

Poppert was suspended for 10 days without pay.

“Poppert should have elevated the decision to additional members of the executive team ... and insisted upon a clear, imminent resolution of the matter ... The impact of Poppert’s inaction was substantial.”

The report concluded that the following workers had a less substantial role:

       » Lindgren attended the October meeting but didn’t read the Supreme Court decision until The World-Herald story was published.

“I wish I had,” she told investigators. “I would have provided advice or followed up. ... When I read the decision, I thought to myself that NDCS should have been performing the calculations the way the court indicated all along.”

In a statement released Thursday, Kenney said he disagreed with the personnel investigators on Lindgren’s level of culpability.

“I determined that her inaction, while less severe than another, was sufficient to warrant termination,” Kenney said.

Lindgren retired before she could be fired.

       » Blum, another Corrections attorney, received a brief, one-line email from the Attorney General’s Office referencing the Castillas case. She took no action, did not read the decision and did not send the decision to anyone else — in part because, she said, sentencing issues were not her forte. Her level of responsibility was the lowest of the employees involved, the report concluded. She was suspended, without pay, for one day.

“It’s hard to attribute a mistake like this to any one person,” Blum said. “I wish I would have read the decision and realized the impact but this was not my area of expertise.”

       » Finally, the report singled out Douglass, the records clerk. The report says that Douglass, who worked for Corrections for 44 years, “should have known better” than to disregard a Supreme Court case, though Douglass was not an attorney.

Poppert had pointed fingers at Douglass, in addition to blaming Green.

“Douglass was the resident expert on sentence calculations, but she could be stubborn and became easily distracted,” Poppert said. “She also generally lacked a good ‘filter’ in her communications.”

Douglass, who did not cooperate with the investigation, retired in 2013.

State Sen. Steve Lathrop — who led last week’s legislative committee’s inquiry into the scandal — bristled at the criticism of Douglass by Poppert and the personnel investigators. He noted that Douglass was a records clerk who rightly alerted her bosses to the Supreme Court ruling.

“She said things that were ill-advised,” Lathrop said. “But Jeannene Douglass can’t make policy. The lawyers (can).”

Call it the release and catch and release program.

Nebraska prison officials on Wednesday released another of the prisoners they had rounded up in June.

Earlier this month, David Amesbury filed a lawsuit challenging his reimprisonment. His attorney, Jerry Soucie, argued that Amesbury had been given an illegal sentence originally because a judge improperly gave him a separate sentence on a habitual criminal charge.

That argument essentially won the day Wednesday. And it meant that the 54-year-old sex offender became the second recaptured man to be cast back into society, courtesy of the Department of Corrections.

Soucie said state officials reacted too quickly to a World-Herald report that hundreds of inmates had been released early because of a faulty formula Corrections used to calculate release dates. Gov. Dave Heineman called for their quick return — and the Nebraska Attorney General’s Office researched sentencing orders and advised Corrections on the roundup.

“It’s haste,” Soucie said. “I’ve never seen a situation where you can just pluck people up off the street without a hearing, without evidence, without a chance to confront your (captors). I just find that really offensive.”

In 2002, Amesbury was convicted of possession of child pornography. Gosper County District Judge James Doyle sentenced Amesbury to 20 to 60 months on that charge. The judge tacked on 15 years in prison for being a habitual criminal — after finding that Amesbury had committed two prior offenses that had landed him in prison.

The problem with that? The habitual criminal tag shouldn’t be a separate charge with a separate sentence. It only serves to increase the potential sentence on an existing charge such as child pornography, Soucie said.

Amesbury was released in 2012 after serving a little more than 10 years.

After The World-Herald investigation in June, Corrections officials said Amesbury should be in prison until February 2017. They sought to return him.

Hired by Amesbury, Soucie said the man didn’t owe any more time. In fact, he argued, the only valid sentence was the sentence of 20 to 60 months.

Amesbury served far longer than that, Soucie said.

In a court document Wednesday, the Nebraska Attorney General’s Office said Amesbury qualified for credit for time already served, under a 2008 Nebraska Supreme Court decision that awards inmates time served as long as they behave while outside prison walls.

As a result, Soucie said, the two sides came to an understanding Wednesday morning: Amesbury was to be let out of prison later that day.

Soucie said the whole mess could have been avoided had state officials allowed the rounded-up inmates to have an initial court hearing upon their return. Instead, after consulting with the Attorney General’s Office, Corrections sent most of the rounded-up prisoners straight back to prison. No hearing. No initial appearance.

In another case, Waverly resident Johnny Davis was released in August after being rounded up in June to finish his sentence.

The problem with Davis’ recapture: State officials tried to impose enhanced habitual-criminal penalties, even though those penalties weren’t in effect at the time of Davis’s crime. That also might have been caught at an initial hearing upon his return, Soucie said.

Soucie said Amesbury’s release doesn’t mean there will be a flood of others.

However, Soucie said, he anticipates that another case before the Nebraska Supreme Court will help decide a critical issue: whether the returned prisoners were denied due process because they didn’t receive an initial hearing.

“If (Amesbury) would have been granted a hearing when he was brought back in, any lawyer worth his salt would have seen there was a problem with his (original) sentencing,” Soucie said. “He wouldn’t have returned to prison.”

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

LINCOLN — The Nebraska Parole Board voted unanimously Thursday to release a Lincoln man who had been ordered by the governor in June to return to prison to serve four more years behind bars.

Bruce Caton, 57, received four years of parole Thursday, almost three months after he and about 15 other former inmates were returned to prison. The roundup occurred in response to a June 15 World-Herald investigation that revealed the State Corrections Department had been miscalculating release dates for two decades for inmates ordered to serve mandatory minimum sentences.

After being confronted with the newspaper’s findings, officials recalculated sentences for more than 750 prisoners, adding more than 2,000 years to their collective sentences.

Caton filed two lawsuits in Lancaster County District Court related to the roundup. The first, filed in June, was thrown out. The second lawsuit, filed in July, is pending.

Two other inmates also have filed lawsuits. One of those inmates, convicted sex offender David Amesbury, won his lawsuit because his attorney argued that he had been given an improper sentence to begin with. A judge agreed. Amesbury was released Wednesday.

In addition to Amesbury, officials have said they erroneously returned Johnnie Davis, convicted of attempting to murder a Lincoln police officer in 1995, to prison during the roundup. He was released in August.

Caton, designated a habitual criminal, has had convictions for burglary, kidnapping, theft, escape and rape. He went to prison in 2004 for burglary and was prematurely released in October 2013.

In a court filing this summer, Caton, 57, said he had changed his criminal ways. Before his re-­arrest, he worked a temporary job as a flagman on a Lincoln highway project. He told the parole board Thursday that he hopes to get his job back.

The board voted after almost no public discussion.

James Pearson, vice chairman, addressed Caton briefly.

“You’re on parole for four years now,” Pearson said. “Do it right, OK?”

Caton agreed.

After the hearing, he hugged a woman who was waiting for him. He walked out of the hearing room and high-fived other inmates who were awaiting parole hearings.

He will remain on parole until Oct. 23, 2018.

Caton, designated a habitual criminal, has had convictions for burglary, kidnapping, theft, escape and rape. He went to prison in 2004 for burglary and was prematurely released in October 2013.

In a court filing this summer, Caton, 57, said he had changed his criminal ways. Before his re-­arrest, he worked a temporary job as a flagman on a Lincoln highway project. He told the parole board Thursday that he hopes to get his job back.

The board voted after almost no public discussion.

James Pearson, vice chairman, addressed Caton briefly.

“You’re on parole for four years now,” Pearson said. “Do it right, OK?”

Caton agreed.

After the hearing, he hugged a woman who was waiting for him. He walked out of the hearing room and high-fived other inmates who were awaiting parole hearings.

He will remain on parole until Oct. 23, 2018.

Contact the writer: 402-444-1066, alissa.skelton@owh.com

Note: This article includes corrected information.

* * * * *

Fifty-one inmates who were let out of prison early spent their dumb-luck freedom committing more crimes.

They racked up 235 charges, resulting in 33 felony and 102 misdemeanor convictions, a World-Herald follow-up investigation shows.

All those crimes were committed — and all the costs of arrest, incarceration and prosecution were incurred — when the prisoners still should have been sitting in cells.

And there’s a kicker: The Nebraska Supreme Court says such prisoners should serve the skipped portion of their sentences if they squandered their freedom by continuing their criminal ways.

Yet the newspaper’s analysis of police, court and prison records shows that the state has ignored the high court ruling — and the criminal records of released prisoners — as it has sought to clean up the mess created by prison officials who miscalculated sentences for decades.

The records detail a bevy of crimes committed while the prisoners should have been behind bars. Five assaults, including three of police officers. Sixteen thefts. Seventeen drug possessions. Seven drug dealings. Five sex-offender violations. Four weapons counts. A litany of misdemeanors: DUIs, child abuse, trespassing, driving with a suspended license.

And one drunken crime that exacted the ultimate price.

***

Hermino Alamilla closes his deep-set eyes.

He races through a choppy, almost Zapruderlike memory of Aug. 19, 2013 — the day he drove drunk with his best friend, Jerry “JR” Ramirez, riding shotgun.

Alamilla’s memories are stitched together by his quiet, melodic use of the phrase “next thing I know.”

He finishes his overnight shift at Bosselman’s truck stop. Picks up JR. Makes plans to visit the grave of a friend killed in a car wreck years earlier.

Drinks several beers. Eats lunch. Drinks some more.

Weaves through traffic on Highway 281, a four-lane drag on the edge of Grand Island.

Next thing I know ...

His Cadillac spins 180 degrees, dives into the median, rolls and winds up on its roof in the opposite lanes.

Alamilla comes to but can’t find Ramirez. He belly crawls from the wreckage, searching for his best friend.

Next thing I know ...

He’s clutching his best friend. Ramirez’s face is “so messed up” it’s unrecognizable.

Alamilla’s voice trails.

Next thing I know ...

His eyes swim.

“My best friend is dead ... because of me.”

***

Here’s what Alamilla didn’t know: He shouldn’t have been out that day.

The Grand Island man, convicted on a cocaine dealing charge, was released in June 2012 — 18 months before he should have been.

Had he stayed until his correct release date, one thing is certain: Ramirez would not have been in a car with him on Aug. 19, 2013.

And Ramirez’s 7-year-old son, Eli, might still have his dad.

Add Ramirez’s death to the consequences of the Nebraska Department of Correctional Services’ massive miscalculations. A June 15 World-Herald investigation revealed that prison officials, in violation of Nebraska Supreme Court rulings in 2002 and 2013, had been releasing hundreds of prisoners years too soon.

In the aftermath, officials added more than 2,000 years to the sentences of 550 inmates who were residing in a Nebraska prison at the time of the newspaper’s revelation. They rearrested about 20 others whose corrected release dates should have kept them in prison well past June.

But what to do with the inmates — including Alamilla — whose actual release dates had already passed?

State officials had some guidance. In a 2008 ruling, the Nebraska Supreme Court laid out a critical condition for an inmate like Alamilla to receive sentence credit for time inadvertently spent on the streets: that he behave while out.

“It would offend notions of (justice) to credit a prisoner for time erroneously spent at liberty if the individual spent that time committing additional crimes,” the high court wrote.

Yet the state has not heeded that ruling, the newspaper’s analysis showed.

An examination of preliminary data provided by the state in July revealed:

» Many of the approximately 51 inmates returned to prison on sentences for new crimes. But they haven’t been required to serve any of the time they owed on the original sentences.

» The state has essentially vacated decades of prison sentences by not holding the inmates to the Supreme Court’s behavior standard. Net effect: a two-year sentence credit per prisoner.

» The new crimes affected more than three dozen victims. Even in so-called victimless crimes, there was a toll: a bed in a jail, the time of police officers and a prosecutor, the attention of a public defender and a judge.

“There’s a cost to all of this,” Douglas County Attorney Don Kleine said. “You start with the emotional toll. Everyone recognizes the impact of violent crime, but there’s a psychological impact whenever someone takes advantage of someone else. Then there’s just a tremendous amount of work involved, from all sides of the justice system.

“If you consider all of that, it’s just hard to imagine someone would get credit for a time period when they’re committing other crimes.”

Among those getting credit:

» Patricia Jacobsen, 28, was released in July 2013, one year early from her sentence for dealing methamphetamine. Within a month she was arrested on a new meth dealing charge — and was prosecuted in federal court. After The World-Herald report in June, the state put Jacobsen on furlough — a sort of pre-parole parole — though she still had time remaining on her original sentence. A federal judge then ordered her to begin a five-year sentence for her latest meth-dealing conviction.

» Lincoln resident Peirce Hubbard-Williams, originally convicted of theft and being a habitual criminal, was let out five years ahead of his July 2016 release date. While out, he was convicted of felony possession of oxycodone. After the state sought to round up Hubbard-Williams in June, State Sen. Ernie Chambers lobbied on his behalf. State Parole Board members released him in July — despite his new felony drug conviction. He is now a free man.

» Aaron Finney, a habitual criminal and thief, was released in April 2010 — five years early. Finney racked up 23 misdemeanors, including domestic assault and several counts of theft, during his state-sponsored prison break. Then, in 2013, he was convicted on a felony weapons charge. A judge sentenced him to three years in prison. Under that sentence, he’ll be released in 2015, just a few months after his original sentence should have ended.

Likewise, 48 other inmates have their own crimes they never should have been able to commit.

None quite like Alamilla.

***

After getting out in June 2012, Alamilla ran into problems you might expect from a man who refers to himself, despite his young age, as “institutionalized.”

Just 29 at the time of his release, Alamilla had spent most of his 20s serving three separate prison stints: for marijuana possession, being an accomplice to a first-degree assault and for cocaine possession.

Let out from his last prison term on June 29, 2012, he returned to Grand Island to live with his mother.

He met some predictable, perhaps understandable, obstacles. His daughter’s mother — who had alleged Alamilla had abused her — didn’t want him around their toddler daughter, Mariah.

Alamilla hired an attorney to help him through a child-custody proceeding — and, in time, reconnected with Mariah. At one point he spoiled the toddler by buying her some “ridiculously expensive” black-and-pink Air Jordans. “She loves those shoes,” he says.

Alamilla loved being able to buy them. Finally he had found some stability: landing a full-time job making $10 an hour as a maintenance man at Bosselman’s.

“I really liked the people I worked with,” he says. “I felt like I was going to be successful this time, like I was ready to put my past behind me.”

Meanwhile, he and Ramirez, who worked at a cold-storage facility, were fast friends. Had been since their teenage years. And they now lived a half-block away from each other — two childhood buds who hung out together.

“Every time anyone saw me without him, it was ‘Where’s (JR)?,’ ” Alamilla says. “That was my boy, you know? That was my bro right there.”

***

Faced with The World-Herald’s revelations last June, the state’s highest-ranking officials went into — their words — triage mode.

Prosecutors were fuming as they pushed for the return of all prisoners who were given a vacation, courtesy of Corrections.

Gov. Dave Heineman, saying he was angry, called for a swift response.

“Right now, we have criminals out on the streets that should be in the prison system and we want to get them back,” Heineman said on June 16. “We’re working with the Attorney General’s Office to determine what appropriate legal action is needed to do that.”

Heineman was adamant. The governor said the scope of the roundup would not be affected by concerns about chronic crowding at Nebraska’s prisons, which are 57 percent over capacity.

“These individuals committed a crime, they were found guilty and a judge issued a sentence,” Heineman said. “We are going to take all steps necessary to bring these individuals back into the Corrections system to serve out their complete term.”

Others were tapping the brakes.

In an interview June 16, Nebraska Attorney General Jon Bruning said he had a team of about five attorneys working overtime to chart the best course.

“I do this job to protect the citizens of Nebraska,” Bruning said. “We have to look at ‘What’s the crime? What’s the danger to society?’ ”

Bruning gave a handful of hypotheticals that he feared the state might face in trying to round up released prisoners. Most were extreme examples.

“There are practical considerations here,” he said. “What if the guy has two weeks left to serve and he’s now living in Key West, Florida? Do we send two state troopers down there for four days to try to track him down? I mean, some of these are going to be factually very difficult to justify.”

About the same time, Sen. Chambers was advocating for prisoners, urging the state to not needlessly disrupt families that had just been reunited.

He went to bat for two Lincoln men who had been rounded up. Both had begged not to go back to prison. Both had declared they had turned their lives around since their early release.

Each of their redemption stories, however, had a major hitch: They had been arrested and convicted on new felonies after their early release.

Nonetheless, Chambers bent the ear of Corrections Director Mike Kenney.

“They were out at no fault of their own — they did not escape,” Chambers told The World-Herald in June. “I am going to do everything I can to help resolve this and bring as few people back to prison as possible. The state made a mistake and prisoners should not be punished for it.”

Heineman didn’t share Chambers’ belief that all released prisoners should be left alone. He applauded Chambers, however, for helping to shape how Corrections should deal with individuals who might be eligible for parole, furlough or other release programs.

“We have really appreciated Sen. Chambers’ input as we look at part of the programs we are trying to put together for certain individuals who might qualify for (a) furlough program,” Heineman said through a spokeswoman. “Our discussions are all a part of the larger strategy we are working toward.”

On June 20 — five days after The World-Herald’s report — the governor had settled on a straightforward strategy.

In effect, his roundup would look like this:

» If the early-released prisoners still should have been in prison as of late June, they’re coming back. Many of them, anyway.

» If the early-released prisoners’ sentence would have expired as of late June, they’re done.

“The attorney general and I have had several conversations on the most judicious way to handle the early release(s),” Heineman said. “We believe we have a fair, quick and legal means for correcting the mistake.”

***

Alamilla makes a beeline for Ramirez’s house.

Just off his shift, he bangs on the door several times, hoping to hang with his best friend.

Finally, JR — known for his deep sleep — stirs, poking his head out the door.

“You down for a beer?” Alamilla asks.

The two have reason to drink. Their best friend, Johnny Garcia, then 17, died in a car wreck in December 2000. Another teen, suspected of drinking and driving, crashed and ran, leaving Garcia for dead.

Today — Aug. 19, 2013 — would have been Garcia’s 30th birthday.

“Yeah,” JR says. “Let’s go swig.”

They start with Four Loko, a high-alcohol concoction. Then they grab some lunch and wash it down with 32-ounce Bud Lights.

As they drink, they decide they should go visit Johnny’s grave.

But first they stop off to pick up another friend, Jose “Joe” Coronado. He carts out some beer left over from a kegger the night before. “It’s kinda stale,” Coronado says, “but it goes down smooth after a while.”

Alamilla decides he needs some cash. The three hop in his 1996 Cadillac, metallic blue with a white top. They zip to Bosselman’s, where Alamilla runs into one of his co-workers.

“I guess she saw how messed up I was,” Alamilla says. “She was, like, ‘What are you doing? You guys need to be careful.’ ”

***

As Heineman, Bruning and Kenney, the Corrections director, determined whom to round up, they had a pivotal Nebraska Supreme Court ruling as their guide.

In a no-nonsense decision, the high court ruled in 2008 that an Omaha man, David Anderson, could receive credit for the time he spent out of prison after officials mistakenly released him.

But the high court made one condition abundantly and redundantly clear.

Five times, Chief Justice Mike Heavican, who wrote the court’s unanimous opinion, railed against the notion that a prisoner should get credit if he “misbehaves while at liberty.”

The Supreme Court’s words:

» “Like a majority of courts, we agree that no equitable relief is required where a prisoner misbehaves while at liberty.”

» “Prisoners who commit crimes while at liberty do not deserve sentence credit.”

» “Sentence credit should not apply in cases where the prisoner ... committed crimes while at liberty.”

The governor himself cited the Anderson ruling several times. On July 2 and again on Aug. 15, Heineman said inmates who would have completed their sentence by late-June “qualified” for sentence credit under the Anderson ruling.

Heineman even quoted the ruling in a press release.

“According to Anderson ... any individual who was released early and who has not committed a crime since their release is entitled to be credited with the time served in the community toward their release date,” the governor’s statement began.

But he skipped over the good-behavior requirement as he continued: “Therefore, any inmate who has been back in his community longer than his recalculated release date will have completed his sentence requirement and will not be returned to incarceration.”

That had legal experts — a Creighton law professor, a University of Nebraska law professor and four longtime attorneys — scratching their heads.

Josephine Potuto, a UNL law professor, said the state’s strategy may have been reasonable, even efficient. But it’s not consistent with the law.

“It seems to me that that’s a kind of seat-of-the-pants, practical solution to it,” Potuto said. “It just doesn’t seem to jibe with what the court said.”

Longtime Omaha defense attorney Steve Lefler said he was taken aback that the governor and attorney general — “tough-on-crime guys” — weren’t using the Anderson ruling to pursue more prisoners.

“What’s the word? Chutzpah?” he said. “It’s surprising to me that they cited Anderson as the basis for leaving people out when even a cursory reading of Anderson indicates that a person’s (criminal) record is a hugely important factor.”

Lefler acknowledged the state would have run into challenges on what qualifies as a “crime.” Does one misdemeanor count? Two? Ten?

Then again, Lefler said, a felony is a no-brainer.

“My goodness, spend a little time here,” Lefler said. “Give it to a couple of law clerks to figure out what these inmates’ records were (after release). It’s not a monumental task to determine whether inmates behaved while they were out. It’s not a monumental task to determine whether your response actually is consistent with the Anderson opinion.”

***

A year later, this is what Alamilla remembers: Driving on Highway 281. JR in the front seat next to him. Relaxed. Too relaxed.

Coronado in the back seat — poking him.

“Joe wakes me up from the back seat,” Alamilla says. “I look back, then forward. I can’t concentrate. Next thing I know ...

“Everything happens so fast.”

The Cadillac peels away from a stoplight. Passes a car on the shoulder. Veers across lanes, plunges into the median, rolls and comes to a rest on its top in the opposite lanes.

Another motorist rushes to help and finds Ramirez outside the car, lifeless. Alamilla — who would later refuse a breath test — is despondent and defiant. And Coronado is screaming at Alamilla.

“You dumb (expletive), I told you to slow down, I told you to slow down!”

Wincing at the memory, Alamilla rolls up his sleeve to reveal a jagged burn on his left shoulder.

He isn’t sure how he got the burn. Maybe from the pavement. Maybe from his mangled car.

One thing is certain, he says: If you look closely, the scar roughly forms a J.

“I was laying on the pavement and I felt that burn,” Alamilla says. “And I was, like, ‘Man, is this what hell is going to be like?’ ”

***

Heineman and Bruning declined requests for interviews to explain the state’s strategy for the roundup.

Instead, the governor and attorney general — whose terms expire at the end of the year — issued a joint statement:

“Regarding the sentence calculation errors made by the Department of Corrections, the State of Nebraska continues to pursue a balanced and common sense legal strategy. For any criminal who was released early and then re-arrested, those convicted felons appeared in court, a judge conducted a pre-sentence investigation and then those individuals were sentenced for their additional crimes.”

What about the time the prisoners owed on the original sentences?

The governor and attorney general declined to comment, citing “matters currently in litigation.”

In reality, none of those inmates has sued.

Potuto, the UNL law professor, said that’s for good reason: The state hasn’t sought to hold them accountable for the time left on their original sentences.

The only lawsuits the state has faced are from a few of about 20 inmates who were rounded up — inmates whose corrected release dates were well after late June.

The state paroled one of the inmates who sued. A judge freed another of the rounded-up inmates after his attorney discovered he had received an illegal sentence.

Several legal observers said it appears the state — despite the Supreme Court’s strong wording — charted a straightforward course. Round up as few prisoners as possible. Stir up as little litigation as possible.

Lincoln attorney Jerry Soucie said state officials “clearly” weren’t interested in going to court over the roundup.

Soucie doesn’t criticize the state for leaving prisoners out, but for bringing them in. He noted that the returned prisoners were not given an initial court hearing when they were brought back into custody.

But whether they left inmates out or brought others back, Soucie sees one common denominator.

“It’s all haste,” Soucie said. “For some reason they wanted to short-circuit the process. I think that’s unfortunate.”

Clarence Mock, an Oakland, Nebraska-based defense attorney and former prosecutor, had another term for it.

“It’s ironic,” Mock said. “Especially when you consider that Corrections got into this mess by ignoring not one but two Supreme Court rulings. Now we have another Supreme Court ruling that is crystal clear and we’re not following that? This whole thing has just been baffling.”

***

Back in prison for the fourth time, Alamilla says he can’t escape his memories of JR.

How he held JR’s son, Eli, as a baby. How he told JR: “Dude, he has your eyes. You don’t need a DNA test.” How JR had asked him to look after Eli’s mother if anything happened.

He fiddles with his inmate bracelet.

His new “dream sheet” — the term inmates use for the document with their projected release date — has him free on Feb. 13, 2024.

That accounts for the sentence he received for motor vehicle homicide. But the dream sheet doesn’t tack on the 18 months he still owes on his original drug-dealing conviction.

Alamilla says he had no idea he shouldn’t have been out.

“That’s crazy,” he says. “I’ve thought about that a lot.”

He says his mind often races — the crash replaying, image by image, off each block of his cell walls in Lincoln.

The drunken stupidity. The recklessness. The car rolling. The belly crawl out of the vehicle. The scramble to find JR. The cold realization that his best friend was dead.

“I look at these walls every day and I think ‘If Jerry could be alive right now, I would have sat right here,’ ” Alamilla says quietly. “I’d take the year and a half.

“What’s a year and a half, you know?”

Contact the writers: 402-444-1275, todd.cooper@owh.com; 402-444-3144, matt.wynn@owh.com; 402-444-1066, alissa.skelton@owh.com

* * * * * 

Time owed clarified

The original article overstated the amount of prison time that 51 prisoners owed the state because they had been convicted of additional crimes after being accidentally released early. The number, 113 years, included time for two prisoners who had died. It also included time for five other prisoners who were convicted of crimes after a proper release, such as work release or parole. Despite their crimes, all were released erroneously at later dates.

The article should have made clear that the newspaper’s figures were estimates based on preliminary data provided by the state in July. Information provided from the state Nov. 20 indicates that 52 prisoners had been convicted of more crimes after being accidentally released early. The state is still compiling a final account of all of the miscalculated sentences.

The latest revelations in Nebraska’s prison fiasco brought more calls for a special prosecutor, a legislative investigation and a housecleaning at the Department of Correctional Services.

A World-Herald investigation on Sunday revealed that state officials did not fully address the prison sentences for about 51 prisoners who racked up hundreds of criminal charges while they should have been in prison. As a result, the state essentially vacated about 113 years of prison sentences.

The reaction: disbelief.

State Sen. Heath Mello of Omaha, who serves on a special investigative committee that’s looking into various prison matters, said he thinks the revelation calls for a hearing of its own. He said the problems are so numerous that the Legislature is considering appointing a full-time oversight committee for the Corrections Department.

For nearly two decades, Corrections incorrectly calculated release dates for hundreds of prisoners, releasing them from prison too soon. After The World-Herald first reported the story in June, Gov. Dave Heineman and Attorney General Jon Bruning rounded up and returned to prison about 20 inmates who still had time left to serve.

But a follow-up investigation Sunday found that officials ignored a 2008 ruling from the Nebraska Supreme Court detailing how the state should handle prisoners released early. That ruling allowed a mistakenly released Omaha man to receive credit for the time he spent out of prison. But the court also made it clear that if prisoners committed new crimes while they should have been behind bars, they should be held accountable for the time they owe.

Many of the 51 inmates were returned to prison on sentences for new crimes. But they haven’t been required to serve any of the time they owed on the original sentences.

There’s no indication that the state considered the inmates’ criminal actions after they were improperly released.

The attorney general and governor refused to answer questions last week and Monday. They issued a joint statement last week that “the State of Nebaska continues to pursue a balanced and common sense legal strategy. For any criminal who was released early and then re-arrested, those convicted felons appeared in court, a judge conducted a pre-sentence investigation and then those individuals were sentenced for their additional crimes.”

Sgt. John Wells, Omaha’s police union president, said checking to see whether the released prisoners were up to no good should have been the first step of the roundup. It doesn’t appear that officials did even rudimentary research on the convicts’ criminal histories, Wells said.

“I’m literally out of words to describe it,” he said. “Does the state at some point become liable for injuries to the officers, to the citizens, for the victims of these violent crimes? I’m sure there’s more than one attorney who would like to find out.”

He said the latest revelations underscore his desire to see a special prosecutor look into the prison mess.

“If there was ever a need for a special investigator, this screams it. Even trying to clean it up on the back end, they can’t do the right thing,” he said.

At the very least, Wells said, he hopes the Legislature’s investigative committee tasked with looking into problems at the Department of Corrections looks into the handling of the roundup by the attorney general and governor.

Omaha State Sen. Steve Lathrop, who is chairman of that committee, said there might not be enough time. The committee was formed to look into the department’s handling of Nikko Jenkins, who killed four Omahans within weeks of his release from prison last summer. It’s now grown to encompass the sentence miscalculations.

“I don’t know if we have enough time to investigate all the things that are a problem,” he said. “It’s just one thing after another.”

He said, though, that the most recent finding fuels his suspicion that department decisions are all based on overcrowding.

As of Aug. 31, the state’s prisons were at 156 percent of capacity, with about 1,700 inmates more than the facilities were designed to hold.

Letting prisoners walk out too early freed up space, Lathrop said, as does the way the roundup was conducted.

“Now we have what appears to be a pattern,” Lathrop said. “ ‘Don’t do anything to extend the time.’ This is about, in my judgment, overcrowding. We may not be able to find one person in Corrections who will stand up and admit it, but at some point we’re allowed to draw a fair inference from what their behavior tells us.

“We need to find out how were these decisions made, what (information) was available to them.”

Sen. Mello said the next governor will need to clean house within the department.

Heineman leaves office in January because of term limits. Voters will go to the polls Nov. 4 to pick his replacement.

“Whoever’s governor needs to strongly consider doing a complete remake of the Department of Corrections, its leadership and personnel,” he said. “It’s going to take years to get the public and the Legislature to believe this is an agency that knows what it’s doing. These mistakes have been so monumental, they leave a lasting scar.”

Contact the writer: 402-444-3144, matt.wynn@owh.com

The way Gov. Dave Heineman and Attorney General Jon Bruning handled the roundup and reimprisonment of felons released too early will join a list of other prison issues being investigated by the Legislature.

State Sen. Steve Lathrop of Omaha, who heads the special legislative committee investigating practices at the Corrections Department, said Tuesday that the issue could come up as soon as Oct. 10, the next scheduled hearing.

In the meantime, he said, the committee will subpoena memos and emails regarding how officials determined which inmates to return to prison.

A World-Herald investigation on Sunday revealed that state officials did not fully address the prison sentences for at least 51 prisoners who racked up 235 criminal charges while they should have been in prison.

Legal observers said state officials ignored a 2008 ruling from the Nebraska Supreme Court detailing how the state should handle prisoners released early. That ruling allowed a mistakenly released Omaha man to receive credit for the time he spent out of prison. But the court also made it clear that if prisoners committed new crimes while they should have been behind bars, they should be held accountable for the time they owe.

Many of the 51 inmates were returned to prison on sentences for new crimes. But they haven’t been required to serve any of the time they owed on the original sentences.

Heineman said Tuesday that the Corrections Department had corrected most of the errors that had occurred but that some of them will end up in litigation.

When asked if the state was defying another Supreme Court ruling, he said “you should ask the attorney general about that.”

Bruning did not return a call seeking comment.

Lathrop said he thinks many of the prison system’s recent failures center on one theme: overcrowding. As of Aug. 31, the state’s prisons were at 156 percent of capacity, with about 1,700 more inmates than the facilities were designed to hold.

He said his thoughts on the issue keep evolving. Before a Sept. 4 hearing into the miscalculations, he said he thought the miscalculations were a systemic problem related to prison crowding. After the hearing, however, he backed off, instead calling the problems a “comedy of errors.”

Now, he said, there appears to be a pattern of not doing anything to extend prison time.

“At some point, the Department of Corrections became the innkeeper with no more rooms, and a bunch of people knocking at the door with reservations,” he said. “They’re doing everything they can to figure out what to do now that they’ve overbooked the hotel.”

An independent personnel investigation conducted last summer found no evidence that the miscalculations were linked to lowering the prison population.

Lathrop said he expects that the special investigative committee will evolve to take on a full-time oversight role, much like the one the Legislature created to keep tabs on the Beatrice State Developmental Center. The center had long-standing problems with resident abuse and failures to meet care standards.

Other senators have also suggested this week that such a committee might be needed to rein in the troubled Nebraska Corrections Department.

Lathrop said such a role might be important for a long time, “until our Legislature is convinced we have a governor that would actually run the place and make the changes that need to be made,” he said.

Heineman, when asked at a press conference Tuesday whether an independent oversight committee was needed, said such oversight was already provided by the Legislature’s Judiciary Committee.

But the chairman of that committee, State Sen. Brad Ashford of Omaha, said that the panel’s primary job is to analyze and propose legislation and that lawmakers have little power to order how Corrections is run. That responsibility, he said, lies with the governor.

“If the governor doesn’t have oversight responsibility over his own departments, then what is his job?” Ashford asked. “It’s not ribbon cutting. It’s to run the executive departments.”

Ashford does support a broader, independent oversight entity for Corrections. This spring, Ashford proposed a more focused oversight board. His earlier proposal would have created a “Reentry Programming Board,” consisting of a group of mental health providers, a retired judge, a prosecutor, and others involved in Corrections. It was designed to assess the state’s prison rehabilitation programs, develop new programs if necessary and improve inmate re-entry into society by lining up jobs and reducing repeat crimes.

The proposed board, however, was stripped out of Legislative Bill 999, which was amended considerably and became a bill aimed at creating a new state prison in Hastings for mentally ill inmates.

Several state agencies already have oversight commissions, such as Game and Parks, the State Historical Society and the Liquor Control Commission. Commissioners for such “non-code” agencies are appointed by the governor and confirmed by the Legislature.

But there are also several state “code” agencies that report directly to the governor, such as the State Patrol, Health and Human Services and Corrections.

Iowa has a seven-member Board of Corrections, appointed by the governor and confirmed by the State Senate, that sets department policy, approves budgets and construction projects, and reports biennially to the governor.

Contact the writers: 402-444-3144, matt.wynn@owh.com, 402-473-9584, paul.hammel@owh.com

LINCOLN — A prison memo called them the “lost boys”:

The prisoners who, as revealed by a June 15 World-­Herald investigation, were released — in many cases years early — after the State Corrections Department defied two Nebraska Supreme Court rulings.

The man tasked with rounding up the “lost boys,” Corrections Director Mike Kenney, admitted Friday that he “took a very lenient” view of state law when he “invented” a program to allow at least eight inmates to stay home rather than return to prison.

State senators and even two Corrections attorneys who have since resigned had another term for it: illegal.

Kenney defended his decision Friday, even as he took fire from a committee investigating the prison scandal.

State senators spent much of the eight-hour hearing — the third such hearing probing prison problems — building up to Kenney’s testimony.

One senator told a reporter to stick around for an “epic” revelation involving Kenney and Gov. Dave Heineman. Another senator said it would “blow the roof off of the Capitol.”

It didn’t. But it did have the committee — including its chairman, State Sen. Steve Lathrop — mulling whether to call Heineman and Attorney General Jon Bruning to testify as to what they knew about Kenney’s illegal “at-home program.”

Lathrop grilled Kenney on whether Heineman supported his new program. The senator pointed to a July 31 note in which then-Corrections general counsel George Green listed Heineman, Bruning and members of both men’s staffs as being in the room when Kenney decided to create the at-home program.

Kenney was adamant that the governor and attorney general had no role in creating the program. Kenney said he “manufactured” the at-home program on his own — and ultimately didn’t care whether it complied with state law.

“I don’t have the luxury of insis­ting on statutory compliance,” he told Green.

Though the inmates still owed time, they had successfully returned to society and weren’t causing trouble, Kenney said. His plan called for the inmates to be placed on electronic monitoring and to have contact with a parole officer twice a week.

“I decided to be the kind of director that would enforce the agency’s mission to reintegrate people in a successful manner that still upheld the qualities of justice but didn’t disrupt (prisoners’) lives.”

Lathrop laid into Kenney.

“No, no. Sir, it’s the law. The Supreme Court told you exactly — exactly — how to handle these inmates. And you chose to ignore it.

“You may think that’s the quality of a strong director. I say you broke the law.”

So it went Friday as the seven-­member committee delved into several prison pitfalls.

Fighting off tears

Moments after the exchange with Lathrop, Kenney’s voice broke as State Sen. Heath Mello pressed him on why it has taken so long to receive prison budget documents he requested 50 days ago.

Kenney apologized as he fought off tears. He said his department has been overwhelmed by the early release scandal.

“To say it’s been totally consuming is an understatement,” Kenney said, his voice cracking. “I watched the men and women of this agency come in on weekends and evenings. I’ve seen them so stressed out.”

Kenney gathered himself after about a minute. But the stress didn’t stop state senators from pressing him on several prison scandals, including:

» The latest World-Herald disclosure that Heineman and Kenney didn’t follow a 2008 Supreme Court ruling requiring prematurely released inmates to behave in society in order to receive credit for time spent “at liberty.” Kenney said the department rounded up about 20 inmates who still owed time.

» Corrections’ chronic crowding, in which prisons are 58 percent overcapacity. A deputy prison director testified that a few years ago the governor’s chief of staff, Larry Bare, was looking at changing the definition of “overcrowding” so the state prisons would appear to be less crowded. It doesn’t appear the state adopted the change. State Sen. Bob Krist told Kenney to start formulating a plan — or the state will no longer control its prisons. The U.S. Department of Justice can step in when prison overcrowding reaches certain thresholds.

» Corrections’ inability to properly calculate release dates, despite Nebraska Supreme Court rulings in 2002 and 2013. Using a flawed formula, the department released about 200 inmates early and set release dates that were early for more than 550 others. Then on June 15, The World-Herald published its investigation. That led state officials to add more than 2,000 years to the sentences of about 550 yet-to-be-­released inmates.

» The July 30, 2013, release of Nikko Jenkins. After making threats for years and spending 60 percent of his prison sentence in solitary confinement, Jenkins made good on his promises. He killed four Omahans within three weeks of his release. State senators questioned why he wasn’t treated or committed to a hospital, despite his numerous requests.

State Sen. Ernie Chambers repeatedly contended that Jenkins’ spree was much worse because he killed four people — and “no one died” as a result of the early releases.

The World-Herald, however, has uncovered two deaths that can be attributed to prisoners who were released early. In one case, an Omaha man who should have been in prison — Jermaine Lucas — was shot by Omaha police after lunging for a gun. In another, a should-be prisoner drove drunk and killed a friend.

'An atmosphere problem'

Lathrop blasted Kenney for the department’s failure to investigate the prisoners’ criminal records since their mistaken release. He noted that a 2008 Nebraska Supreme Court ruling said prisoners who had committed crimes while free should not receive sentence credit. A follow-up World-Herald investigation revealed that at least 51 early-released inmates were convicted of a total of 33 felonies and 102 misdemeanors.

Lathrop said it was clear Corrections didn’t check into those inmates’ criminal records.

“I’m just going to stop and observe the irony,” Lathrop said. “We got into this mess by ignoring a (Supreme Court) decision. And we’re going to try to get out of this mess by ignoring (another).”

State Sen. Les Seiler of Hastings, an attorney for 46 years, said he was appalled that Kenney chose not to follow the 2008 ruling — even after his department was skewered for failing to follow two other rulings.

“I think you’ve got an atmosphere problem,” Seiler said. “You don’t get to say, ‘To hell with the law, I’m doing it my way.’

“That’s for songs and country music.”

Kenney defended his decision — and the governor. He said that the at-home program was humane and that Heineman had nothing to do with its creation.

Lathrop suggested Kenney was falling on his sword for Heineman.

“Senator, that’s not the case,” Kenney shot back. “I don’t lie.”

Nikko Jenkins case 

State senators spent much of the morning trying to sort out the truth of the Jenkins case.

In the few months before Jenkins was released from prison, members of the Nebraska Ombudsman’s Office asked a prison deputy director to transfer Jenkins from solitary confinement to general population and get him treatment.

Jerall Moreland, an assistant ombudsman, said they had been extremely concerned about the amount of time Jenkins spent in solitary confinement. Jenkins spent about 60 percent of his overall time in solitary, including much of his last three years.

Moreland had warned that if they didn’t transition him, Jenkins likely would make good on his promise to kill people.

“What are you going to say to Sen. Chambers if (Jenkins) gets out and murders one of his constituents?” Moreland asked a deputy director.

The prison deputy director — Larry Wayne — responded with a question of his own.

“What am I going to tell the families of staff and families of inmates if we release him into general population and he kills somebody?” Wayne said, according to Deputy Ombudsman James Davis III.

In other words, Moreland and Davis said, prison officials had been more concerned about potential victims in prison than in society.

Chambers said he had expressed concerns, long before Jenkins was released, that prison officials weren’t acting on Jenkins’ homicidal threats because the people most at risk were black residents in north Omaha.

As it turns out, Jenkins killed indiscriminately. Within three weeks of his release, he had shot Juan Uribe-Pena and Jorge Cajiga-Ruiz on Aug. 11, Curtis Bradford on Aug. 19 and Andrea Kruger on Aug. 21.

Jenkins is awaiting a death-penalty hearing after being convicted of four counts of first-degree murder.

One key question

One key question has been whether Jenkins was mentally ill and in need of a commitment, as some psychiatrists have said, or faking it and simply exhibiting behavioral problems that can’t be helped with psychiatric treatment, as other doctors have contended.

In March 2013, members of the Ombudsman’s Office and prison officials were gathered in a conference room next to then-Director Bob Houston’s office to talk about transitioning Jenkins into society.

But a Corrections associate counsel, Sharon Lindgren, said one subject would be off-limits: Jenkins’ mental-health condition. The reason: State officials believed he was feigning mental illness.

“They were tired of talking about it,” said Davis.

Davis, the deputy ombudsman, said he was so dismayed that he and Moreland talked about ditching the meeting but decided they needed to try to help prison officials transition Jenkins. They said they were not told of a recent psychiatric evaluation that said Jenkins possibly suffered from a major mental illness.

“Had we known, we would have insisted on a civil commitment,” Davis said.

Instead of getting therapy for Jenkins, prison officials began to try to transition Jenkins. The Ombudsman’s Office wanted him to return to the general prison population before he returned to society.

A few months before his release, Jenkins was transferred from the Tecumseh prison to the Nebraska State Penitentiary in Lincoln.

A social worker was tasked with dealing with Jenkins. About 50 days before his release, he was allowed to participate in group classes, such as “cognitive restructuring,” “behavior modification” and “thinking for success.”

However, outside the classes, he remained in his segregated cell until his release July 30, 2013.

“We have four people moldering in the grave who should not be there,” Chambers said. “There did not have to be four murders. Those people did not have to die. But they didn’t die because of Sen. (Brad) Ashford or Sen. Lathrop, but because of the governor’s administration.”

Chambers predicted the next governor will clean house at Corrections. He told Kenney to dust off his résumé. And he turned his attention to Wayne.

“When the housecleaning comes, when the wagon comes, you will have to go, too,” Chambers told Wayne. “Mr. Kenney will be fired — he will be swept out. I believe all of the wardens should be swept out.

“There has to be a ... new beginning.”

Contact the writers: 402-444-1275, todd.cooper@owh.com;402-473-9584, paul.hammel@owh.com; 402-444-3144, matt.wynn@owh.com

On July 30, the then-lead attorney for Nebraska prisons told his boss, Corrections Director Mike Kenney, that Kenney’s proposed stay-at-home program for certain prisoners was against the law.

Kenney’s response?

“I don’t have the luxury of insisting on statutory compliance,” he said, according to George Green, who was the Corrections Department’s general counsel at the time.

Now state senators are asking whether Kenney will be prosecuted for a lack of “statutory compliance” in cleaning up Nebraska’s prison mess.

The prison director’s disclosure had five members of the Legislature’s prison investigative committee considering whether to subpoena Gov. Dave Heineman and Attorney General Jon Bruning to testify as to what they knew about Kenney’s at-home program. State Sens. Ernie Chambers, an independent, and Bob Krist, a Republican, called on Heineman to seek Kenney’s resignation.

Lancaster County Attorney Joe Kelly declined to comment Tuesday. Chambers said he has asked that a transcript of Kenney’s testimony be fast-tracked so he can deliver it to Kelly to consider possible prosecution.

Kelly, in partnership with Bruning’s office, is reviewing a State Patrol investigation into Corrections’ inability to follow state law when it came to mandatory minimum sentences.

For nearly two decades, Nebraska prison officials miscalculated sentences of the state’s most serious offenders, releasing 200 inmates early and setting early release dates for 550 others.

The criminal investigation centered on a handful of prison officials — all working for Kenney’s predecessor — who ignored two Nebraska Supreme Court rulings expressly stating how release dates should be calculated.

The investigation did not explore whether state officials complied with the law in cleaning up the mess, according to a law enforcement official familiar with the probe. The World-Herald has found that state officials didn’t follow a 2008 Nebraska Supreme Court ruling requiring mistakenly released inmates to behave while at liberty or serve the time they owe.

Then came Friday — and what one senator referred to as a “bombshell” admission. In sworn testimony, Kenney said he “invented” a program involving about eight prisoners, even after being warned by his legal staff that it was illegal.

The committee obtained Green’s notes of a meeting he had with Kenney. Green listed Heineman, Bruning and members of their staffs as being “in office when decisions (were) made regarding lost boys,” apparently referring to mistakenly released prisoners.

“This looks like an admission to me,” said State Sen. Steve Lathrop, chairman of the investigative committee. “I don’t know what else this committee is going to do but to try to bring these folks in and ask them what decisions were made when they were in the room.”

The director’s disclosure was a jaw-dropper, especially against this backdrop:

» Kenney did not seek a court order to protect his testimony Friday. Before a previous legislative hearing, a judge granted protection to five current or former Corrections employees under a law that allows them to testify in a legislative hearing without having their words used against them.

» The lawyers who advised Kenney that his program was against the law included Green and Sharon Lindgren. Both later retired. Kenney has said he would have fired them for failing to advise the department to follow two Nebraska Supreme Court rulings that dictated how to calculate release dates.

» A week after the new program was discussed, Heineman sent all Corrections employees an email insisting on statutory compliance. “I want every Corrections Department employee to understand that no one is above the law,” Heineman wrote Aug. 7. “When the Nebraska Supreme Court issues a ruling, I expect every state employee and every state agency to comply with the law. If you are asked or told by someone in your chain of command to ignore or to not follow a court order, I want you to contact your Director, Mike Kenney, and me immediately.”

On Tuesday, a Corrections spokesman said Kenney would have no further comment.

Kenney’s at-home program — which he dubbed “Temporary Alternative Placement,” or TAP — applied to about eight inmates. Though the inmates still owed time, Kenney said, they had successfully returned to society and weren’t causing trouble. His plan called for the inmates to be placed on electronic monitoring and to have contact with a parole officer twice a week.

TAP runs contrary to state law governing prisoner furloughs.

In 1991, then-Nebraska Attorney General Robert Spire wrote that, under state law, inmates can be allowed to return home on furloughs or work release. But such placement requires the approval of both the Parole Board and the Corrections Director.

“This opinion stands for the proposition that the Director of the Department of Correctional Services may upon appropriate recommendation by the Board of Parole place an eligible committed offender (on furlough),” Spire wrote.

In this case, Kenney acknowledged he couldn’t get the recommendation of the Parole Board for these inmates to remain out. The county attorneys in Lancaster and Sarpy Counties also objected.

During his give-and-take Friday with Lathrop, Kenney mentioned that he relied on a state law that gives the Corrections director power to “designate the place of confinement of persons committed to the department.”

“I took a very lenient view of the statute that says that I can place — the director of Corrections can place — people in a residence facility at his discretion,” Kenney said.

Lathrop: “There’s a 1991 AG opinion that says you can’t do this (without Parole Board approval). And you did it anyway. ... George Green said if you’re going to create this separate class and let these guys stay home on the couch — instead of come back to the penitentiary — you’re breaking the law.”

Kenney: “Yeah, he told me that.”

Lathrop: “Do you remember telling George Green you don’t have the 'luxury of statutory compliance?' ”

Kenney: “I don’t remember saying that, but I won’t dispute it.”

Kenney said he would dispute one point senators made: that the 2008 Nebraska Supreme Court ruling required Corrections to round up inmates who had not behaved during their time out of prison. In a ruling known as the Anderson opinion, Chief Justice Mike Heavican repeatedly railed against the idea that a mistakenly released prisoner gets sentence credit if he committed “crimes while at liberty.”

A follow-up World-Herald investigation found that 51 inmates committed 33 felonies and 102 misdemeanors after their mistaken release. State officials apparently have not sought to make them serve the time they still owe the state.

Kenney said Friday that the department still is considering what to do with the prisoners who owe “Anderson time.”

Kenney suggested that there was some nuance in the Anderson ruling.

“I’m not trying to be defensive,” he said. “I’m not trying to be argumentative. I’m saying this is a complicated issue and my understanding — our understanding — of Anderson, if it’s flawed, if it’s erred, then I own that, too. ... The holding was that they don’t get credit for their time served. (But) there’s no language in there that says ... they should come back. ... ”

Lathrop: “It’s in the holding.”

Kenney: “Does it say that they need to be returned to prison? It says such prisoner has acquiesced in (giving up his) right to a continuous sentence.”

Lathrop: “It (says) they don’t get credit for time spent at liberty if they broke a law. And if they don’t get credit for the time they spent at liberty, then they come back. Right? Unless they get into the TAP program?”

Kenney: “That’s right.”

As he decided whom to round up, Kenney said, he was challenged to have compassion and not disrupt prisoners who were moving on with their lives. Kenney did not disclose who issued that challenge.

Chambers said Tuesday that it wasn’t him. Chambers has acknowledged that he advocated on behalf of a prisoner who had been told he would have to return to prison. The prisoner committed a new felony after his mistaken release.

Chambers said he and Kenney never discussed the TAP program.

Kenney created it “out of thin air,” Chambers said.

He said Kenney’s actions are the “basis for termination at minimum, and prosecution at most.”

“The governor has either got to insist on the resignation of Kenney or he has to terminate him,” Chambers said. “Otherwise, he is showing not only what a hypocrite he is, but that he is part of an overall cover-up and an attempt to shift blame away from a role that he played in some of this by not exercising proper oversight.”

Spokeswomen for the governor and the attorney general said they would not have any comment Tuesday. Heineman was traveling across the state, while Bruning was in Washington, D.C., for U.S. Supreme Court arguments in a water rights case pitting Nebraska against Kansas.

When asked in late September about whether they were following the Anderson rule, Heineman and Bruning issued a joint statement:

“Regarding the sentence calculation errors made by the Department of Corrections, the State of Nebraska continues to pursue a balanced and common sense legal strategy. For any criminal who was released early and then re-arrested, those convicted felons appeared in court, a judge conducted a pre-sentence investigation and then those individuals were sentenced for their additional crimes.”

Asked about the old sentences that were still owed, the governor and attorney general have declined to comment.

Kenney said during Friday’s hearing that his department now is considering what to do with those prisoners. He said the department now refers to owed sentences as “Anderson time.”

Lathrop was incredulous. He said the department had no plans to do anything with them before Sept. 28, when The World-Herald raised the issue.

At Friday’s hearing, a deputy director first acknowledged that Kenney invented the TAP program to deal with the “lost boys.”

State senators credited Deputy Director Larry Wayne for his candor — saying it took guts to throw his boss “under the bus.”

After testifying, Wayne and Kenney crossed paths. They spoke briefly.

Before he turned to the senators, Kenney told Wayne: “You didn’t throw me under the bus.”

World-Herald staff writers Paul Hammel and Alissa Skelton contributed to this report.

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

LINCOLN — Gov. Dave Heineman said Thursday he welcomes a chance to testify before a special legislative committee probing the miscalculated release dates of hundreds of state prison inmates.

Appearing before the committee, he said, will be an opportunity to “clear up any miscommunications” about the state’s reaction to the scandal.

“This was a huge mess. The (Corrections) Department made a series of huge mistakes,” Heineman said. “Now the question is, how do you fix it after the fact?”

He commented after a special legislative committee took what State Sen. Steve Lathrop called the “extraordinary” step of issuing a subpoena for Heineman to testify Oct. 29.

It might be the first time a governor has been subject to such a legal order from the Legislature. Heineman and Attorney General Jon Bruning charged that the move was inspired by politics.

The two Republicans said they would be willing to testify before the committee without a subpoena. Heineman alleged that Lathrop, who is chairman of the committee, was seeking a “headline that he subpoenaed the governor.”

Lathrop, a Democrat, rejected that, pointing out that the 7-0 vote to subpoena the governor came from a bipartisan committee.

“This committee’s search for the truth has brought us to the doorstep of the Governor’s Office,” Lathrop said. “This is not a political undertaking. I think we have serious questions to ask.”

The special committee was launched to probe how prison officials had dealt with Nikko Jenkins, who killed four Omahans shortly after being released from prison in July 2013. The case spawned lawsuits and questions about whether State Corrections officials did enough to prepare Jenkins for release and whether they should have sought to commit Jenkins to a mental health facility, as Jenkins requested.

The committee’s inquiries broadened in June, after The World-Herald revealed that for nearly two decades, Nebraska prison officials had miscalculated sentences of some of the state’s most serious offenders. As a result, Corrections officials recalculated the release dates for about 550 inmates who are still behind bars and about 200 more who had been released prematurely.

Lathrop said questioning the governor was the logical next step for the committee after State Corrections Director Mike Kenney testified Friday that he had “invented” a new program to deal with some of the mistakenly released inmates. He acknowledged that he took the step despite being advised by staff attorneys that it was illegal.

The “Temporary Alternative Placement” program, or TAP, called for letting some prisoners remain free if they wore an ankle-monitoring device and reported to a parole officer twice a week.

Kenney created the program after county attorneys and the State Parole Board would not agree to his request to place the inmates on parole or in a re-entry furlough program for inmates closing in on the end of their sentences.

Kenney testified that the TAP program was his idea alone. Lathrop said Thursday “it defies logic” that Kenney would have proceeded alone.

“I think we have a responsibility to find out what decisions were made when they were in the room and what input they had,” the senator said.

At least two state senators have urged the governor to fire Kenney after he testified that he ignored legal advice.

Heineman said Thursday he would not take that step, although he said he had told Kenney that launching the program without conferring with the attorney general was a mistake.

“(Kenney) should have immediately gone to the attorney general and said, ‘What do we do?’ ” Heineman said. “He didn’t do that. That was a mistake. I told him that.”

The governor and Bruning held a 90-minute question-and-answer session with a group of reporters Thursday to “set the record straight” on whether officials are following state law in fixing the sentencing mess.

Heineman said he was unaware of the TAP program until it was brought up at Friday’s hearing.

He disputed a note provided to the committee by former Corrections legal counsel George Green indicating that Bruning and Heineman were at a meeting when the TAP program was discussed.

Green was among the staff attorneys who advised Kenney that the program was illegal. Heineman and Bruning said Green was not credible. They noted that two weeks later, he chose to retire rather than be fired. Kenney faulted him for failing to read a key Supreme Court ruling on sentencing calculations.

Bruning said he could not say whether the TAP program followed state law.

“Is it legal? I don’t know. Maybe,” Bruning said. “Until it’s tested by a court, I can’t tell you. If he (Kenney) asked me for an opinion I’d say, meh, I don’t know. Could be. Maybe. Maybe not.”

Bruning said detractors are focusing too much on Kenney.

“Kenney’s the wrong guy to throw under the bus,” Bruning said. “George Green’s the guy. If anybody’s got to have the bus backed up over him (it’s Green).”

Heineman and Bruning contended that Lathrop was politicizing the legislative probe to benefit fellow Sen. Brad Ashford of Omaha, a Democratic candidate in Omaha’s super-heated, 2nd Congressional District race.

Bruning said Lathrop, a trial attorney, had badgered Kenney during his testimony Friday and failed to let him fully explain his actions.

Heineman suggested that the timing of the committee’s next meeting — Oct. 29 — was political since it comes days before the Nov. 4 general election.

Lathrop rejected the criticism, saying the hearing date had been set before last week’s hearing. He said he hadn’t contemplated calling Heineman as a witness before Kenney’s testimony.

“I don’t think the fact that there’s been a subpoena issued needs to be interpreted,” Lathrop said. “I look forward to taking testimony from the governor on the 29th.”

Heineman and Lathrop have clashed several times over the years, and both are in the final months of their terms in office.

The committee members who voted 7-0 vote to subpoena the governor were three Republicans, Omaha Sen. Bob Krist, Columbus Sen. Paul Schumacher and Hastings Sen. Les Seiler; an independent, Omaha Sen. Ernie Chambers; and Democrats Lathrop, Lincoln Sen. Kate Bolz and Omaha Sen. Heath Mello.

The special committee voted Thursday to issue two other subpoenas: one for records associated with capital improvement plans devised by Corrections contractors in 2006 and this year; and for a memo Heineman sent to state employees, asking them to report any unlawful activity in connection with the sentencing scandal and any responses the governor received.

Compelling the testimony of the governor happens rarely.

Heineman was subpoenaed by the Nebraska Supreme Court in 2006 during the impeachment trial of David Hergert, a member of the University of Nebraska Board of Regents.

In 1993, then-Gov. Ben Nelson was subpoenaed to testify in federal court in a case over the proposed low-level radioactive waste disposal site in Boyd County.

Both Nelson and then-Attorney General Don Stenberg were compelled to testify in a federal lawsuit over the death penalty in 1994.

Contact the writer: 402-473-9584, paul.hammel@owh.com

Nebraska’s prison director said Tuesday his at-home program for a handful of early-released inmates complied with state law and was successful.

In a letter to the special legislative committee examining Nebraska’s prison problems, Mike Kenney defended his decision to create the program for inmates with less than six months remaining on their original sentence. He wrote that he felt he had statutory authority to create the program and that it served its purpose by protecting public safety while keeping the inmates at home, in jobs and integrating back into the community.

Five inmates successfully completed the program — which required them to wear a monitoring device and check in with a parole officer, Kenney said.

“As an experienced correctional practitioner, it would have been an error in judgment to disrupt their successful reintegration by returning them to prison for such a minimal amount of time,” Kenney wrote.

Kenney again pointed to a state law that says a prison director “may designate as a place of confinement of a person ... any available, suitable and appropriate residence facility or institution, whether or not operated by the state.”

Kenney’s letter Tuesday was markedly more adamant than his testimony Oct. 10.

Twelve days ago, he was confronted about whether he told an attorney he didn’t “have the luxury of insisting on statutory compliance” when he created the at-home program.

“I don’t remember saying that,” Kenney told the committee. “But I won’t dispute it.”

State Sen. Steve Lathrop grilled Kenney on a memo in which Corrections legal director George Green had advised that Kenney’s at-home placement program ran contrary to state law and to a 1991 attorney general’s opinion.

In 1991, then-Attorney General Robert Spire wrote that, under state law, inmates can be allowed to return home on furloughs or work release. But such placement requires the approval of both the Parole Board and the Corrections director.

“This opinion stands for the proposition that the Director of the Department of Correctional Services may upon appropriate recommendation by the Board of Parole place an eligible committed offender (on furlough),” Spire wrote.

Current Attorney General Jon Bruning later said he hadn’t concluded whether Kenney’s program was clearly illegal or legal. He complained that Lathrop was cross-examining Kenney — and wasn’t allowing the director to fully explain himself.

Lathrop criticized the program as allowing inmates to stay “on the couch” rather than return to prison.

Lathrop: “Well, the judge gets to sentence them. And you’re supposed to incarcerate them until their sentence is complete. And you have no legal basis to let them out without the Board of Parole’s permission. Isn’t that the case?”

Kenney: “I agree.”

Kenney acknowledged that he couldn’t get the recommendation of the Parole Board for these inmates to remain out. The county attorneys in Lancaster and Sarpy Counties also objected.

Kenney said at the hearing that he took a very lenient view of the state law that delegates authority to the Corrections director to “designate the place of confinement of persons committed to the department.”

Lathrop: “There’s a 1991 AG opinion that says you can’t do this (without Parole Board approval). And you did it anyway. ... George Green said if you’re going to create this separate class and let these guys stay home on the couch — instead of come back to the penitentiary — you’re breaking the law.”

Kenney: “Yeah, he told me that.”

Lathrop: “Do you remember telling George Green you ‘don’t have the luxury of insisting on statutory compliance?’ ”

Kenney: “I don’t remember saying that, but I won’t dispute it. ... I took a very lenient view of the statute that says that I can place — the director of Corrections can place — people in a residence facility at his discretion.”

Kenney asked that his letter be added to his testimony from Oct. 10.

Lathrop said he doesn’t know how the committee will handle the letter.

“It’s outside our process,” he said. “I’m not sure what we do with it. We’ll talk about it when we get together next.”

He said he thought Kenney’s letter mostly reiterated points from his testimony.

Kenney rejected Green’s assertion that Kenney’s program was discussed at a meeting with Heineman and Bruning. Those two officials, in a meeting with reporters last week, made similar denials.

Heineman also sent a letter to the committee Tuesday, reiterating that he never met with Kenney about the Temporary Alternative Placement, or TAP, program. When he learned about it through Kenney’s Oct. 10 testimony, Heineman said, he advised Kenney that he should have consulted with the attorney general first.

Kenney, in his letter, said it was his decision alone to create the program, which will end today, when the last TAP inmate completes his sentence after 84 days in the program.

He said that he wrote the letter to the special legislative committee because he wasn’t allowed to fully explain the program during the Oct. 10 hearing.

The TAP program was among the responses by Corrections officials to a World-Herald investigation published in June that revealed that the release dates of hundreds of inmates had been miscalculated by prison officials over two decades.

The newspaper revealed that prison officials had ignored state law and State Supreme Court rulings that outlined how to calculate sentences for inmates who received mandatory minimum sentences.

The newspaper’s revelations led to an unprecedented roundup of prisoners who had been released too soon, the addition of more than 2,000 years to the sentences of at least 750 prisoners, a personnel probe and a criminal investigation into who was responsible for ignoring the law.

Of inmates affected, the state sought warrants to return to prison about 20 with more than six months left on their sentences. An additional 20 with less than six months to serve were either placed on parole, in a re-entry furlough program, in the TAP program or could not be located.

Kenney’s testimony Oct. 10 prompted the committee to take the rare step of issuing a subpoena to the governor so he can explain the state’s response to the sentencing scandal. Heineman agreed to testify Oct. 29 but has criticized the issuing of a subpoena as a political move.

In a follow-up investigation Sept. 28, the newspaper reported that the state was not following another Nebraska Supreme Court ruling. That 2008 ruling — known as the Anderson decision — requires prematurely released inmates to remain crime-free in order to receive credit for “time spent at liberty.”

Bruning said last week that the state will soon file a test case to try to make a should-be prisoner serve the time owed on an original sentence — what’s now known as “Anderson time.”

That test case could move forward as soon as this week, he said.

“Once we can get a ruling, that will help us identify what to do with the rest,” he said.

But in late September, when The World-Herald asked the governor and attorney general how the state was dealing with inmates who went on to commit crimes after being mistakenly released, they offered a joint statement that did not mention any pursuit of Anderson time.

World-Herald staff writer Paul Hammel contributed to this report.

Contact the writers: 402-444-1275, todd.cooper@owh.com, 402-444-3144, matt.wynn@owh.com

LINCOLN — The job status of a records administrator at the center of scandal at the State Corrections Department is under further review following a highly critical federal review of Kyle Poppert’s job performance.

A report by the U.S. Department of Justice, obtained Friday, said Poppert admitted that he didn’t understand how to calculate prison sentences — a major function of the records department — and that he didn’t attend department training sessions and failed to ensure that the department was following a 2013 ruling by the Nebraska Supreme Court.

The failures, the report said, were “partially to blame” for Corrections’ miscalculations of the release dates of more than 700 inmates, leading to the premature release of nearly 200 prisoners.

“He has to be the strongest advocate for all matters related to computations,” stated the review. “He was not an advocate nor did he fully understand the magnitude of the highest court decision.”

Gov. Dave Heineman, after being contacted about the report, said Poppert’s job status was again under review by State Corrections Director Mike Kenney.

Kenney, in a press release later, said the report had prompted him to temporarily reassign Poppert last month so he could become “fully immersed in records management training.”

The director said he’s conducting a formal review of Poppert’s job performance to determine whether additional action is needed.

Poppert was suspended for two weeks without pay in August for his role in the miscalculations. He was among four Corrections employees implicated in the sentencing mess following a personnel probe by an Omaha law firm.

The Justice Department’s review came Sept. 8-10 and was part of an effort by Kenney to review the sentence calculation process and avoid more problems in the future.

The governor said in his press release that the federal report and Kenney’s review were part of “a complicated, ongoing process to find and resolve problems at the Department of Correctional Services.”

“As previously stated, those who are responsible for the problems should and will be held accountable and face appropriate consequences — to be determined by the director,” Heineman said.

The Justice Department’s report used adjectives such as “disturbing,” “failed” and “tragic mistake” to describe the job performance of Poppert, who is “the gatekeeper” over the state’s 5,151 prison inmates.

It said records office staff had no confidence in seeking direction from Poppert, their boss, because he didn’t know the answers. It added that it was a “tragic mistake” that Poppert was more focused on the classification of inmates — whether they needed to be in a maximum or minimum security facility — than determining how long an inmate must serve behind bars.

Poppert did not immediately return phone messages left at his office Friday afternoon. A Corrections spokesman said Poppert had not seen the report before The World-Herald posted an article about it and declined to comment.

One specific criticism by the federal agency was that although the records department held training sessions, Poppert rarely attended them. Over the past three years, he attended only two, the report said. Both were in August, in response to The World-Herald’s revelations.

“The absence of the person in charge reflects poor leadership, oversight and lack of involvement in an area under his supervision that is crucial to the overall creditability of the agency,” the report said.

Poppert, the report said, told a federal reviewer that since Corrections attorneys had not advised him the 2013 Supreme Court ruling affected the agency, he concluded it had no impact on the sentence calculations.

“An experienced record office person,” the report said, would have grasped the magnitude of the court’s ruling and “made every effort” to seek clarification from agency lawyers.

State lawmakers who questioned Poppert in September as part of a legislative probe into what’s gone wrong at Corrections expressed dismay at that time that front-line clerks seemed to run the agency, not administrators such as Poppert. But the report obtained Friday appeared to more harshly criticize the performance of his duties.

The World-Herald revealed in June that the Corrections Department had miscalculated the prison sentences.

In August, in addition to Poppert’s suspension, associate legal counsel Kathy Blum was suspended for one day without pay. Two other lawyers for the department, George Green and Sharon Lindgren, opted to retire instead of being fired.

The Justice Department reviewer, Glenn Jackson of the National Institute of Corrections, said in his report that he thought Poppert was capable of “learning the job” but needed to be trained in how to calculate sentences.

The report made several other suggestions for improving the records department, including replacing an inadequate computer system for calculating sentences that required “numerous manual functions” and had no ability to warn staff of possible errors. It said the computer system was so poor that records clerks had to manually subtract some good-time credits because the computer didn’t.

Better staff training, the report stated, might have led staff to question the decision to ignore the court ruling in 2013. It also suggested that the state reassign some qualified employees to the records department, create a uniform method of submitting sentencing orders for all 93 Nebraska counties and centralize the sentence calculation function instead of doing it at every state prison.

One other recommendation: Create a log sheet to document and track all mandates issued by the Supreme Court.

Contact the writer: 402-473-9584, paul.hammel@owh.com

Contact the writer: 402-473-9584, paul.hammel@owh.com

Early-release inmate that state couldn't find popped up on Google for Chicago arrest

* * *

At least 500 more Nebraska felons were set to be released from state custody too soon, in addition to hundreds released early due to previously discovered sentence miscalculations, prison officials disclosed Saturday afternoon.

And that may be the tip of the iceberg; an additional 800 sentences will be reviewed in the coming weeks to see if they, too, have to be adjusted.

It’s too soon to say if any additional former prisoners will have to be returned to state custody, prison spokesman James Foster said Saturday. But because the amount of time being added for the latest group is relatively small — a day to six months, so far — chances are slim.

“I don’t want to say that they couldn’t come back, but since we’re dealing with a lesser amount of time, it’s less likely,” Foster said Saturday.

The new type of miscalculation was discovered during a state review of all sentences and release dates conducted in the wake of a scandal disclosed in June by The World-Herald.

The problem came about because of the way good time was awarded to parolees who had parole revoked, and were returned to prison.

Under state guidelines, well-­behaved parolees’ sentences are reduced by 10 days for every month they successfully serve on parole. But parole violators should forfeit the 10 days extra credit, Nebraska Attorney General Jon Bruning concluded after questions were raised by Corrections staff.

That had not been the practice in the Department of Corrections.

In the wake of Bruning’s ruling, though, Corrections officials have adjusted the sentences of about 425 incarcerated inmates and 80 more inmates who were on parole.

The department issued a press release Saturday explaining the discovery after The World-Herald had inquired earlier last week about parole miscalculations.

Two prisoners who had time added as a result of Bruning’s ruling had been placed in Corrections Director Mike Kenney’s Temporary Alternative Placement program in September.

The program, which some lawmakers have said was illegal, allowed prisoners to stay at home, rather than return to prison.

Kenney admitted to a legislative committee this month that he went ahead with the program after three attorneys told him it was illegal.

Bruning has since said he’s not sure whether the program is legal or illegal.

The new type of miscalculation comes on top of 750 miscalculated sentences disclosed earlier. Those sentences all included mandatory minimum terms, which are applied to the worst crimes. Gun criminals, repeat offenders, sex offenders and drug dealers are all unable to earn good time on the mandatory minimum portion of their sentences.

As a result of those recalculations, about 15 felons were returned to prison. Several more had their parole extended or were placed in the re-entry furlough program.

The furlough program is a kind of pre-parole parole that lets prisoners remain officially in prison custody while living outside prison walls.

But Kenney could not get approval from the Parole Board or county attorneys to place a handful of the felons on furlough. These were inmates who had six months or less to serve, under the state’s interpretation of the law.

Rather than seek to round up those prisoners, Kenney created TAP. The program required prisoners to wear an ankle monitoring bracelet and report to a parole officer twice a week, he said.

Three prisoners, whose release dates were incorrectly calculated because of mandatory minimum issues, were placed in TAP on July 31 and Aug. 1.

On Sept. 23, Kenney turned to the program again for two prisoners affected by the parole miscalculations. The state considered their sentences complete as of Oct. 5 and Oct. 22.

Kenney has said TAP was a one-time program.

“As of October 22, 2014, there are no inmates remaining on TAP nor will there be in the future,” he wrote in a letter to the Legislature’s prison investigative committee.

Foster could not say Saturday why only two of the hundreds of inmates affected by the new problem were placed in TAP.

Contact the writer: 402-444-3144, matt.wynn@owh.com

Five prisoners wound up being part of the makeshift program that Corrections Department Director Mike Kenney created in late July to allow should-be inmates to remain at home.

But two more were considered. They were not placed in the Temporary Alternative Placement — or TAP — program because state officials couldn’t find them, Gov. Dave Heineman said earlier this month.

“No one could ever figure out where they’re at,” Heineman said as he explained Kenney’s program.

Turns out, finding one of the should-be inmates was as simple as doing an Internet search.

Martese Roland should be serving his Nebraska sentence until late November for being a felon in possession of a firearm. Instead, he was released in November 2013 after the state — using a faulty sentencing formula — miscalculated his release date.

A Google search for Roland’s name leads to a page outlining a July arrest in Chicago. He was booked on suspicion of unlawful use of a weapon, possession of a weapon by a felon and unlawful use of a weapon in a vehicle. The charging documents reference his Nebraska weapon conviction.

Roland is out on bail for six felony weapons charges. He’s scheduled to appear at a courthouse in Chicago on Monday.

Nebraska officials acknowledged their inability to find Roland as they tried to explain the various steps taken to track down inmates who had been released early. A June 15 World-Herald investigation revealed that the state had miscalculated release dates for nearly 750 inmates, ignoring a Nebraska Supreme Court ruling in 2013. As a result, the state recalculated release dates and decided how to deal with about 200 inmates who had been released early.

In late September, a follow-up analysis by The World-Herald revealed that, at that time, the state was not following a Nebraska Supreme Court ruling that required inmates to stay out of legal trouble in order to receive credit for the time they should have been behind bars.

Fifty-one inmates — including two who later died — had committed crimes in Nebraska since their release. Such inmates were prosecuted and sentenced for their new crimes but have not been required to serve any of the time owed on their original sentences.

Attorney General Jon Bruning said Oct. 16 that he will soon pursue a test case to try to make prisoners serve the time they skipped if they committed crimes while at liberty.

Roland would be the 52nd inmate known to have reoffended after his early release if he is convicted on any of the Illinois charges.

Corrections officials gave the State Patrol the names of at least two inmates who the state decided owed time. It was unclear what steps the State Patrol took to try to track them down. The State Patrol spokeswoman, Deb Collins, referred questions to the Nebraska Department of Correctional Services.

James Foster, a Corrections spokesman, said he did not know when the names were provided to the State Patrol’s Fusion Center.

According to its website, the Fusion Center is “a collaborative effort of state and federal agencies ... to better identify, detect, prevent, apprehend and respond to criminal and terrorist activity utilizing an all crimes/all hazards approach.”

Foster explained, “This center works with other states and the law enforcement here on information sharing. We supplied them with the names so that they could, if it came up, let us know. They haven’t come up on the radar.”

Omaha Police Union President John Wells said it’s baffling that the state could not find a person readily available via the Internet.

“It’s police work 101,” he said. “You use every investigative tool you have. The Internet happens to be one of those. How hard did they really try to round these people up, to really fix this problem?”

State Sen. Steve Lathrop, who is leading a legislative committee investigating numerous Corrections problems, questioned whether Roland really could not be found.

“Can they really not find them?” Lathrop asked. “Or are they saying, ‘We don’t need to go after him because he’s in Illinois?’ ”

Contact the writer: 402-444-3144, matt.wynn@owh.com

The Nebraska State Patrol was never in a position to track down at least one felon who was released from prison too soon.

The reason? Prison records administrator Kyle Poppert never handed over the inmate’s name.

As a result, the State of Nebraska had no knowledge that a felon being sought here was then arrested on suspicion of six felonies in Illinois, bailed out and was scheduled for a court hearing.

Martese Roland should be serving his Nebraska sentence until late November for being a felon in possession of a firearm. Instead, he was released in November 2013 after the state — using a faulty sentencing formula — miscalculated his release date.

The World-Herald reported Sunday that Roland’s name was given to the State Patrol’s Fusion Center, as was the case with other prisoners who could not be found.

Turns out that was incorrect, a prison official said Monday. Roland’s name never got that far.

“Nobody else needs to be taking any blame for anything,” said Dawn Renee Smith, a legislative liaison for the Department of Corrections. “We don’t want there to be information looking like some other agency dropped the ball. That is absolutely not the case.”

Roland was investigated by a corrections employee July 2 and again July 8, Smith said. The investigator found that Roland had obtained a state identification card and listed an Omaha address. The information didn’t help locate Roland, she said.

At that point, the records administration department should have handed the information it had to the State Patrol, she said.

“Records administration didn’t follow up,” she said.

Specifically, she said, that duty fell to records administrator Poppert.

Poppert had been given the task of managing that hand-off of information, she said.

Poppert was suspended for 10 days without pay in August for his role in the miscalculation of hundreds of prison sentences. He was among four corrections employees implicated in the sentencing mess following a personnel probe by an Omaha law firm.

A follow-up report by the U.S. Department of Justice said Poppert admitted that he didn’t understand how to calculate prison sentences — a major function of the records department — and that he didn’t attend department training sessions and failed to ensure that the department was following a 2013 ruling by the Nebraska Supreme Court.

As a result of that report, Poppert’s job status was again under review by State Corrections Director Mike Kenney.

Roland, meanwhile, was scheduled to appear in court Monday in Chicago on six felony weapons counts. Reached Monday afternoon, a Chicago court employee said the docket had not been updated to reflect the outcome of his case.

Contact the writer: 402-444-3144, matt.wynn@owh.com

LINCOLN — State Sen. Steve Lathrop used the governor’s unprecedented appearance before a legislative committee to press his case that overcrowding is the overriding issue behind the state’s prison scandal.

Lathrop revealed a shocking new element Wednesday: State prison officials, he said, released at least 162 violent inmates during the past few years through a re-entry furlough program that was originally intended for only nonviolent offenders.

That tally included child abusers, robbers, gunmen and about 10 prisoners who had been convicted of second-degree murder or manslaughter, he said.

Lathrop said he was “appalled and astonished” to discover the furloughs as part of a subpoena of state records. Inmates are being furloughed well before they are eligible for parole. He said it appeared that a “law of overcrowding” had pressured state prison officials to take this and other steps.

Gov. Dave Heineman, who seemed caught off guard when he was informed that violent offenders had been placed in the furlough program, said it appeared to be another example of the “huge mess” at Corrections. The governor said he was surprised that the Nebraska Parole Board would have approved of furloughing violent criminals.

But he rejected the assertion that prison employees cut corners because of pressure from the administration to reduce overcrowding.

“Prison capacity issues are a separate issue from some of the other things that occurred. I don’t believe my office was applying pressure on anybody to go outside the law. And if they did, they shouldn’t have done it,” Heineman said.

“This is just one more revelation that makes you wonder what is going on down there,” the governor said.

Jenkins case was catalyst

Wednesday was the fifth hearing over prison scandals — a hearing that involved a first: a subpoena of a sitting governor. A gallery of video and still photographers documented the governor’s daylong testimony, while staff in State Capitol offices were glued to video screens broadcasting the event.

Led by Lathrop, the Legislature’s special investigative committee originally was called to probe how prison officials had dealt with Nikko Jenkins, who killed four Omahans shortly after being released from prison in July 2013.

The committee’s inquiries broadened in June, after The World-Herald revealed that for nearly two decades, Nebraska prison officials had miscalculated the sentences of some of the state’s most serious offenders. As a result, Corrections officials recalculated the release dates of about 550 inmates who are still behind bars and about 200 more who had been released prematurely.

Lathrop and other committee members pressed Heineman on Wednesday about whether the swirl of prison controversies is the product of one overriding problem: the chronic overcrowding of Nebraska’s prisons.

State prisons hold about 1,900 more inmates than their design capacity, overcrowding of 57 percent. A consultant’s report released Tuesday recommended spending nearly $200 million to add 1,100 prison beds.

Lathrop highlighted several points:

» Corrections officials ignored two Nebraska Supreme Court rulings — one in 2002 and one in 2013 — that specified how release dates should be calculated for chronic offenders. After the newspaper’s investigation, prison officials added more than 2,000 years to the sentences of 750 inmates.

» The number of inmates penalized for misbehavior hasn’t changed, despite the governor’s push to do away with automatic good time for violent inmates and despite a rule change, adopted last year, that allows twice as much good time to be forfeited for misbehavior behind bars. Omaha Sen. Heath Mello said a recent Corrections report that showed that fewer than 5 percent of disciplinary cases resulted in lost good time from September 2013 to September 2014 — the same rate found by The World-Herald in an earlier investigation.

» The department’s penalties for prisoners’ bad behavior have decreased over time. In 2007, misbehaving prisoners had an average of 42 days added back to their sentences as penalty for misbehaving. In 2012, that figure was an average of six days in penalties.

» The department pushed to send more people out the prison doors through a combination of parole and the furlough program: nearly 1,000 in 2009, nearly 2,000 in 2012 and nearly 2,000 inmates in 2013. The furlough program ballooned from eight inmates in 2008 to 435 in 2011.

Furloughs in the spotlight

The furlough program took center stage Wednesday.

At one point, Lathrop said he has been amazed at how many twists the prison scandal has taken.

“Every day I get up and say, ‘What’s The World-Herald got on Corrections today?’” Lathrop told the governor.

Lathrop said his staff found that in the past few years, the Nebraska prison system allowed at least 162 violent offenders to go on furlough, a pre-parole program created by a former Corrections director.

Lathrop said that his staff might not have discovered all the cases and that it had been conservative in what it classified as violent criminals. But the inmates shared one common denominator: They were let out before they were eligible for parole under a judge’s sentence.

Prison officials released the inmates after Bob Houston, then director of the Corrections Department, created the furlough program in 2008.

State law allows Corrections officials some latitude in the placement of prisoners. Lathrop said, however, that administrative programs such as furlough require the signature of the governor and the attorney general and, ultimately, registration with the secretary of state.

None of those things happened, Lathrop said. Judges and many victims, he said, expect defendants to be in prison until they are eligible for parole.

“This is like good time on steroids,” Lathrop said. “We have a (furlough) program developed off the grid. I can only think that the pressure from overcrowding was making people do things they shouldn’t have been doing. And it’s a theme. ... It’s driven good people to do things outside the law.”

Attorney General Jon Bruning disagrees that furlough is outside the law, contending that state law governing administrative procedures does not apply to the policies of an agency.

“The Administrative Procedure Act does not apply to ‘rules and regulations concerning the internal management of the agency,’ which includes the Department of Corrections,” he said in a press release issued during the testimony.

The release truncated that exemption, however. The full clause states that the law exempts “rules and regulations concerning the internal management of the agency not affecting private rights, private interests, or procedures available to the public.”

Sen. Heath Mello, who sits on the committee, suggested that the release of prisoners could be interpreted as affecting private rights and interests.

After the hearing, Corrections administrator Dawn-Renee Smith defended the use of furlough, saying that it helps transition prisoners into society and that participants are carefully screened.

Smith acknowledged that the department originally granted furloughs only to nonviolent offenders without lengthy arrest records but that in 2010, the program was changed so violent offenders were not automatically excluded.

The policy allowing violent offenders to be considered remains in effect but participants are screened carefully, Smith said.

Lathrop said after the hearing that he still believes the furlough program was improperly set up and that, even if it wasn’t, public input should have been sought before creating it.

“Judges and the crime victims think this guy is incarcerated right now, and he’s sitting on his couch with an ankle bracelet. That’s not right,” he said. “And I do think the Legislature needs to intervene when it comes to setting policy for any program that’s going to release people back into the community before their parole eligibility date.”

Houston, the former Corrections director, has said the re-entry furlough program was part of the department’s effort to alleviate overcrowding and to avoid the need for a new prison. A prisoner can typically be placed on re-entry furlough up to 18 months before parole eligibility.

Heineman joined in the concerns that violent offenders were being released on furlough. He said he had no knowledge that the program was taking chances on potentially violent prisoners.

Heineman noted that the Nebraska Parole Board has to sign off on anyone placed on the furlough program.

“I need to go take a look at this and find out what occurred,” Heineman said. “I’m a little surprised (that) the Board of Parole would agree to it.”

State Sen. Kate Bolz of Lincoln said she was extremely surprised. She pressed the governor on whether he would question the Parole Board as to how it approved these violent criminals for what essentially amounts to pre-parole parole.

“I’ll talk to (the Parole Board) about how that occurred,” Heineman said.

‘We’ve got a huge mess’

The hearing started out cordially between Lathrop and Heineman.

The good will didn’t last long.

Lathrop, a Democrat, repeatedly cut off Heineman, a Republican, as he asked whether the governor had ever recommended building a new prison.

Heineman noted several times that virtually no one in state government wanted to build another prison, estimated to cost $150 million to $200 million.

“You seem defensive about this,” Lathrop said.

“Well, senator, you’re trying to put it all on us, when there are three branches of government,” Heineman said.

Lathrop stopped the governor as he continued to press the point that state senators have not called for a new prison.

“You seem to be having trouble answering questions that call for a yes or no,” Lathrop said. “I’m just going to say this will go a little quicker if you answer yes or no.”

“We knew what the big cost option was,” Heineman said of building a new prison. “I didn’t have anybody recommending that we do that.”

Lathrop, a seasoned trial attorney, questioned the governor on other issues that have spun out of the prison debacle.

Current Corrections Director Mike Kenney has acknowledged that he created a stay-at-home program for a handful of inmates with little time left on their sentences — despite being advised by former Corrections attorneys that the program was illegal. Attorney General Jon Bruning has since said he’s not sure whether it was legal or illegal.

On Sept. 28, The World-Herald reported that the state was not following a Nebraska Supreme Court ruling that requires inmates to behave “while at liberty” in order to receive credit for time that they inadvertently spend on the streets.

Under the ruling — known as the Anderson decision — the Supreme Court repeatedly said inmates should not receive credit for time at liberty if they spent that time committing crimes.

The World-Herald found 51 inmates who committed 33 felonies and 102 misdemeanors while mistakenly released. Two of those inmates have since died. However, the state has not sought to make the 49 surviving inmates make up lost time on their original sentences.

Bruning said two weeks ago that his office will soon pursue a test case to try to make misbehaving prisoners serve the time they owe on their original sentences.

Bruning and his chief deputy attorney general, David Cookson, issued a letter this week to the committee. In it, they said the Anderson decision is not as clear as it has been made out to be. The letter said the state might face numerous legal challenges under three legal theories.

Lathrop called that “spin” and said the attorney general could have filed a test case months ago. He pointed to a comment Bruning made shortly after The World-Herald’s June 15 investigation.

“The case law is clear,” Bruning said June 27. “They owe us the time.”

Now, Lathrop said, the attorney general wants to muddy the issue by pointing out legal theories that the Nebraska Supreme Court didn’t adopt in Anderson.

Lathrop mocked the idea that state officials want a test case. He said the state had more than four months since the newspaper’s initial investigation to come up with a test case.

“You don’t need a test case — Anderson was a test case,” Lathrop said. “Anderson would have these guys that are breaking the law start back where they left off. That opinion hasn’t changed since 2008.”

Heineman deferred to Bruning, saying repeatedly, “I’m not a lawyer.”

“He is the state’s lawyer — he is the governor’s lawyer,” Heineman said. “I have great respect and trust in what they’ve done. It’s the implementation of (Anderson) — I think is what the attorney general is concerned about.”

State Sen. Ernie Chambers pressed Heineman on why he hasn’t called for Kenney to resign. Heineman said Corrections’ legal department and records staff has been depleted.

Heineman said Kenney has been working diligently to repair the problems at Corrections.

“We’ve got a huge mess,” Heineman said, “and I don’t think he ought to walk out in the middle of correcting it.”

Contact the writer: 402-473-9584, paul.hammel@owh.com; 402-444-1275, todd.cooper@owh.com; 402-444-3144, matt.wynn@owh.com

Nebraska’s prison doors have opened so many times and in so many ways that even the state’s judges are mystified.

Before June 15 — when The World-Herald first broke news of early release dates for hundreds of inmates — Douglas County District Judge Peter Bataillon said he gave his truth-in-sentencing spiel with confidence. In no uncertain terms, he informed defendants and their victims of the exact day the defendant would go free.

Now he has no idea what to say.

“I guess I’ll say you’re eligible for parole on this date, but you could be released at any time,” Bataillon said.

Indeed, several World-Herald reports over the past 4½ months — and the resulting follow-up inquiries by a legislative investigative committee — have revealed that Nebraska prisons have opened prison doors in dizzying and, at times, law-defying ways.

Gov. Dave Heineman acknowledged last week during his unprecedented appearance before the committee that he was at a loss.

“This is just one more revelation that makes you wonder what is going on down there?” Heineman said upon learning of the furlough of 162 violent inmates.

A couple of key questions have dogged the Corrections department:

1. Were the releases designed to curb the chronic prison crowding? A recent consultant’s report suggested the system is so overcrowded — the prison census is 57 percent over capacity — that officials should spend $200 million to expand prisons.

2. Were the releases legal?

Here’s a rundown of six Corrections get-out-of-jail-early practices, the legality of the releases and whether they have been linked to overcrowding.

* * *

MANDATORY MINIMUM MISCALCULATIONS

A June 15 World-Herald investigation revealed that Nebraska prisons had ignored two Nebraska Supreme Court rulings — one in 2002 and one in 2013 — that called for an inmate to serve his mandatory term in full before receiving the state’s customary good time credit: a day off for every day served.

For two decades, the department had used a faulty formula, releasing about 200 inmates prematurely. In the wake of the newspaper’s investigation, the department tacked on more than 2,000 collective years to the release dates of 550 inmates, an average of about three years per prisoner.

Linked to overcrowding?

A longtime records clerk charged with calculating inmates’ release dates suggested in an email that ignoring the Supreme Court’s ruling would “serve the Director’s desires ... to not increase our population any more than we must.” The Corrections director and department attorneys said overcrowding wasn’t the cause; they simply weren’t aware of the rulings.

Was it legal? No.

FISHING FOR MORE PAROLEES

A few years ago, Heineman met with then-Corrections Director Bob Houston and Parole Board Chairwoman Esther Casmer.

In testimony before a legislative subcommittee last week, Heineman acknowledged that they discussed whether the Parole Board could find more candidates that “might be eligible for parole” in order to reduce the prison population.

“They both seemed to think they could,” Heineman said.

Out of that meeting came a goal to parole 191 to 200 inmates per month. Heineman said he didn’t come up with the number.

“I think that was Director Houston’s goal,” he said.

That goal wasn’t quite met. But the push resulted in more parolees than ever.

In 2009, fewer than 1,000 inmates were paroled. By 2013, the Nebraska Parole Board — whose members are appointed by Heineman — paroled about 1,700 inmates.

One Parole Board member described the push as looking for “the best fishing in the pool.” As they fished for more parolees, records show, Corrections and Parole Board officials knew they were bound to cast riskier prisoners into society.

So the parole push came with a warning:

“The department is likely to see an increase in activity found in the news,” read the minutes of a July 26, 2011, meeting of Corrections deputy directors.

Linked to overcrowding? Yes.

Was it legal? No one has questioned the legality.

LONG-TERM FURLOUGHS

It’s been called pre-parole parole. Administrative parole. Pseudo parole.

Created by Houston in 2008, furlough — formally known in prison circles as the Re-entry Furlough Program, or RFP — allows prisoners a previously unthinkable opportunity:

To be released into society before they are even eligible for parole under a judge’s sentence.

Since 2008, prison officials have furloughed more than 1,000 inmates. In 2008, just eight prisoners were placed on long-term furlough. The furlough numbers from then on: 22 in 2009; 58 in 2010; 436 in 2011; 484 in 2012; 338 in 2013; and 83 so far in 2014.

Not only that, but 162 of the furloughed inmates had been convicted of violent crimes, according to the legislative committee.

Heineman was taken aback by the revelation.

“I’m a little surprised the Board of Parole would agree to it,” Heineman said.

Officials say furlough can be more stringent than parole, requiring the released inmate to stay at an approved location, go few places besides work or home, call in to prison staff, and submit to checks by prison staff.

And it helps with a critical goal: reintegrating prisoners into society.

State Sen. Steve Lathrop, who leads the Legislature’s special investigative committee, said he was “appalled and astonished” that the program included violent offenders.

“This is like good time on steroids,” he said.

Linked to overcrowding?

A deputy Corrections director acknowledged to the legislative committee that the department identified low-risk inmates who “could be managed effectively in the community.” Committee members note that furloughs have increased as overcrowding has.

Was it legal?

1. Judges have questioned how prisoners can be released before they are legally eligible for parole.

2. Lathrop said the long-term furlough program followed none of the statutory steps for the approval of administrative programs.

3. Attorney General Jon Bruning said Corrections didn’t have to follow those steps because furlough involved “rules and regulations concerning the internal management of the agency.”

INMATE 'ON-THE-COUCH' PROGRAM

As State Corrections Director Mike Kenney tried to clean up the early releases, he said he struggled over what to do with a handful of prematurely released inmates. The five had less than six months left and had reintegrated into society, Kenney said.

He invented a program and an acronym for it: TAP — Temporary Alternative Placement.

These inmates did not qualify for furlough. Neither the Parole Board nor prosecutors in their home counties would sign off on leaving them in society.

Lathrop, the investigative committee chairman, called TAP an illegal, at-home, “on-the-couch” program for should-be prisoners.

Under Kenney’s plan, inmates were placed on electronic monitoring and had contact with a parole officer twice a week.

“I decided to be the kind of director that would enforce the agency’s mission to reintegrate people in a successful manner that still upheld the qualities of justice but didn’t disrupt (prisoners’) lives,” Kenney said.

The program expired last month, and Heineman said last week it won’t be revived.

Linked to overcrowding?

Kenney said it wasn’t, noting that only five inmates ultimately participated.

Was it legal?

1. Former Corrections chief counsel George Green advised Kenney it was not, pointing to a 1991 attorney general’s opinion.

2. Kenney said he took a “very lenient” view of state law allowing him to determine the placement of inmates. He said he didn’t recall, but didn’t dispute, telling Green: “I don’t have the luxury of insisting on statutory compliance.” He sent the committee a letter Oct. 21, however, saying he believed he had legal authority to create the program.

3. Bruning said Oct. 16 that he didn’t know whether it was legal. “If he (Kenney) asked me for an opinion, ‘I’d say, meh, I don’t know. Could be. Maybe. Maybe not.’”

GOOD TIME, DESPITE BAD BEHAVIOR ON PAROLE

In 2011, Corrections started allowing parolees to keep good time credits they earned while on parole, even if they misbehaved.

Over the next 3½ years, at least 1,300 felons benefited when Corrections shaved anywhere from one day to six months off their release dates.

Corrections has now stopped the practice, and officials are adding back time for the felons who violated parole.

Linked to overcrowding?

“Did it have something to do with not increasing our population? Of course it did,” Houston said.

Was it legal?

Green said yes in 2011. He asked for a second opinion, from Bruning, in August. Bruning determined parole violators didn’t have a right to good time.

GOOD TIME, DESPITE BAD BEHAVIOR IN PRISON

Corrections gutted penalties for inmates’ bad behavior over the past few years.

In 2007, the state’s 5,000-plus prisoners had an average of 42 days added to their sentences as a penalty for misbehaving, the special legislative committee said.

In 2012, inmates received an average of six days in penalties.

Linked to overcrowding?

Houston acknowledged in his Aug. 8 legislative testimony that the lack of good time revocations was linked to overcrowding.

Was it legal?

Yes. Prison administrators have the authority to determine penalties for poor behavior.

6 ways to get out of jail early: A recap of six ways that prisoners are being let out too soon — or not being returned when they should.

* * *

The early release of hundreds of Nebraska prisoners revealed a week ago wasn’t a mistake.

The releases were the result of a deliberate policy change that was motivated, in part, by overcrowding.

Former Corrections Director Bob Houston acknowledged in an interview with The World-Herald last week that overcrowding was one reason the department decided to start letting inmates keep their parole good time credit even after violating parole — a practice that led to 1,300 early release dates.

At the time he made the policy change, Houston believed the practice was legal.

The issue of whether overcrowding has been a factor in questionable decisions by the Department of Correctional Services has been a point of discussion as a special legislative committee continues its investigation. During a hearing Wednesday, when State Sen. Steve Lathrop suggested a link between overcrowding and another early-release prison program, Gov. Dave Heineman replied, “Prison capacity issues are a separate issue from some of the other things that occurred.”

Corrections officials say the governor wouldn’t have been informed about decisions such as the one involving parole violators. Dawn-Renee Smith, a Corrections administrator, said Friday that the governor does not micromanage his agencies and that Houston has made it clear he made his own policy decisions.

Houston signed off on the new policy on Jan. 6, 2011, according to a memo obtained by The World-Herald. The change was made after a legal review by George Green, the department’s chief counsel.

Before that memo, parole violators lost any good time credit they had accumulated during parole.

In June, The World-Herald revealed that 750 prison sentences had been cut short, some by years, because Corrections had been misapplying mandatory minimum sentences for decades.

In July, as the department was cleaning up that mess, Green asked Attorney General Jon Bruning for a second opinion on parole good time.

“In our opinion, good time credits earned ... do not apply to an inmate’s tentative release date if the inmate’s parole is revoked,” Bruning concluded in an Aug. 7 letter.

As a result of Bruning’s opinion, Corrections officials identified 1,300 inmates whose release dates had been cut short inappropriately. So far they have extended release dates for about 500 inmates currently in state custody.

They are now reviewing the records of about 800 others whose parole has expired. Some of those felons might have to serve more time, Smith said.

Officials also are checking to see whether any of them committed crimes while erroneously at liberty.

When the good time policy change was adopted in 2011, it was also applied retroactively to shorten the sentences of hundreds of inmates.

At the time, it had minimal effect: Parolees earned two days of good time credit every month.

But less than a month after approving the policy, Houston went before the Legislature’s Judiciary Committee to argue in favor of a bill that had been introduced on the behalf of Corrections. Legislative Bill 191 would increase the good time earned by parolees from two to 10 days a month — which could cut parole oversight by up to four months a year.

“The provision incentivizes compliance with the parole plan by offering offenders the opportunity to decrease the amount of time they spend on parole by exhibiting good citizenship,” Houston told the Judiciary Committee. “I believe this bill is a positive step in managing both the behavior and the size of the inmate population.”

Houston’s testimony made no mention of his new policy allowing parole violators to keep such good time.

LB 191 passed unanimously and was signed by the governor.

State Sen. Scott Lautenbaugh, who sat on the Judiciary Committee at the time, said last week that he doesn’t think the bill would have been so well received if senators had been told about the good time policy for revoked parolees.

He said he would like to know how Houston’s comments about “exhibiting good citizenship” aligned with the policy that allowed parolees to keep that good time regardless of behavior.

“The two statements side by side don’t seem to jibe with one another,” Lautenbaugh said. “I’d like to know how they’re reconciled.”

Houston, who was appointed by Heineman in 2005 and retired in September 2013, said in an interview that he didn’t believe the issues were related.

Now a senior community research associate at the University of Nebraska at Omaha, Houston said both the parole policy change and LB 191 were intended to address two issues: overcrowding and fairness.

He noted that Green reviewed statutes pertaining to parole good time and concluded that the policy change was legal.

The policy rewarded prisoners for behaving while in the community, Houston said. Some are on parole for years, he said, and they previously could lose all that good time for committing a minor crime or a technical parole violation, even toward the end of their sentence.

“We just thought it was unfair to take away all that good time from somebody that behaved for all those years in the community,” he said. “Did it have something to do with not increasing our population? Of course it did.”

Nebraska’s prison population is currently at about 57 percent over capacity. When he was director, Houston used to tell legislators he had overcrowding under control.

Houston pointed out that LB 191 allows the Parole Board to revoke good time earned while on parole. It’s unclear how often the Parole Board revokes such good time. Members of the Parole Board didn’t return calls seeking comment.

Corrections officials also can take away good time when inmates misbehave. A World-Herald analysis in 2013 found, however, that it was taken away in less than 5 percent of cases.

At the time, Smith said the lack of good time revocations had nothing to do with overcrowding. And Heineman said during his testimony last week that he didn’t have enough information to make that determination.

But Houston, asked about the matter during his legislative testimony Aug. 8, acknowledged that the two were connected.

The low volume of good time revocations hasn’t changed, according to recent information provided at the request of State Sen. Heath Mello of Omaha — despite the push for a crackdown on good time in the wake of Nikko Jenkins’ murderous rampage and criticism that he should have been imprisoned longer.

Although the attorney general’s conclusion about parole good time differed from Green’s, Houston said he had no reason to question it at the time.

“George Green did the legal research on this. I prepared the memo that I signed Jan. 6, and we put it into effect,” he said. “We felt that was a fair way to approach this. We felt it enhanced public safety, because the parolees were abiding the law.

“We felt it was fair to public safety and to the parolee.”

Green retired in August rather than face termination as a result of prison scandals.

Contact the writer: 402-444-3144, matt.wynn@owh.com

The Nebraska attorney general filed motions this week to enforce sentences against three felons who were released early by prison officials and were subsequently sentenced to prison for crimes they committed while they should have still been behind bars.

Attorney General Jon Bruning said the motions, filed Monday, ask the Lancaster County District Court to determine how much remaining time the three individuals must serve on the early-released sentences.

Robin Banks, Peirce Hubbard-Williams and Jordan Lybarger committed felonies during the time they were released early. The Corrections Department inmate website shows that the three shouldn’t have been released until 2015 or 2016.

Hubbard-Williams and Lybarger were among the parolees who were ordered to return to prison in June after a World-Herald investigation revealed that Corrections miscalculated release dates for at least 750 inmates. Hubbard-Williams, however, was never actually sent back.

The state is now seeking to enforce the sentences for these individuals “based on the length of time remaining on their earlier sentences and the seriousness of the crimes committed,” Bruning said.

Hearing dates on Bruning’s motions have not been set.

“We will continue to implement the appropriate response for each individual based on the rulings we receive from the courts,” Bruning said.

Hubbard-Williams was convicted of theft as a habitual criminal in 2003. He was released in 2011, and prison records show he shouldn’t have been released until July 2016. In April 2013, he was convicted of possessing oxycodone. He served time in prison for that offense and has since been released.

In June, Hubbard-Williams asked State Sen. Ernie Chambers to stop the state from returning him to prison. Chambers encouraged Corrections Director Mike Kenney not to send Hubbard-Williams back to prison since he was doing well and had a job. Kenney decided to allow Hubbard-Williams to remain on parole instead of serving more time in prison.

Prison officials released Jordan Lybarger, 25, of Lincoln on Sept. 17, 2013, 18 months early. He had been serving time for possessing cocaine and a firearm. Prison records show Lybarger wasn’t supposed to be released until March 17, 2015.

In January 2014, Lybarger was convicted of possessing a forgery device. He served time in prison for that and was paroled in May. In June, state officials ordered him to go back to prison. Days later, he was returned home and placed back on parole.

Banks, 57, landed in prison in 1999 for committing second-degree forgery as a habitual criminal and for burglary. Officials released Banks in 2009, five years before her projected 2014 release date. In 2013, Banks was convicted of second-degree forgery and sent back to prison. Officials released Banks on parole in September.

Contact the writer: 402-444-1066, alissa.skelton@owh.com

LINCOLN — A special prosecutor has been appointed to determine whether a state prison psychologist should be criminally charged for failing to disclose a diagnosis that Nikko Jenkins was mentally ill.

Deputy Gage County Attorney Rick Schreiner was appointed Friday to handle the case.

State Sen. Ernie Chambers of Omaha asked the Johnson County Attorney’s Office to look into filing criminal charges. Deputy County Attorney Rick Smith then asked that a special prosecutor be appointed.

Chambers contends that a state prison psychologist, Mark Weilage, should face charges for failing to reveal a diagnosis from a prison psychiatrist that Jenkins was mentally ill and dangerous. The senator says that if Smith had been told of the diagnosis, it might have led to Jenkins’ commitment to a mental institution and prevented the four murders committed by Jenkins after his release from prison in July 2013.

Weilage has said he did not tell Smith about the diagnosis because he did not agree with it. Weilage has said that his medical opinion was that Jenkins’ problems were behavioral, and not a result of a mental illness.

Schreiner said Monday that it will take him several days to review the reports forwarded to him. 

Fifty-two prisoners who were improperly released from prison early might end up having to serve more time.

All of the prisoners committed crimes during the time they should have been in prison, the Nebraska Department of Correctional Services said Thursday. The finding comes after a review of inmate records — part of the fallout from a June 15 World-Herald investigation.

That investigation revealed that, for nearly two decades, prison officials had miscalculated the release dates of some of the state’s most serious offenders. As a result of the newspaper’s findings, corrections officials recalculated the release dates of about 750 current or former inmates.

The World-Herald reported on some of the reoffenders Sept. 29, highlighting a ruling by the Nebraska Supreme Court, known as Anderson v. Houston.

That ruling concluded that prisoners released early should serve the skipped portion of their sentences if they squandered their freedom by continuing their criminal ways.

State officials said Thursday they have now reviewed the criminal histories of more than 200 offenders who had been released early. They wanted to determine whether the former inmates had committed additional crimes during the time they should have been in prison and whether they owed the state more time because of that.

So far, prison officials said they have identified 17 cases in which prisoners owe more time — a total of nearly 40 more years. Those prisoners were already being held by a state or federal law enforcement agency.

The Nebraska Attorney General’s Office is pursuing three other cases to see whether a judge will allow prisoners who were already discharged to be returned to state prisons. Based on the outcomes of those cases, an additional 32 felons might be returned to prison.

The review concluded that eight other inmates didn’t commit criminal offenses during their mistaken release. Two inmates who had been listed as being released early had accurate sentences, the state has concluded.

Two other cases reviewed involved inmates who have since died.

“The miscalculations and record keeping errors that have occurred over the last two decades are unacceptable and as the director of the department, I remain committed to identifying and resolving any outstanding issues until the mistakes are corrected,” Corrections Director Mike Kenney said in a statement.

The press release indicates that the review of criminal histories took place during the summer and fall. During Oct. 10 testimony before a legislative committee, Kenney testified under oath that no inmates who had been released early would be brought back, despite having committed new crimes.

Then, a week later, Attorney General Jon Bruning said he had contemplated going after what he called “Anderson time” for “months, not weeks.”

“We’re positioning tanks on the battlefield,” Bruning said. “We’re working on this very large problem in tranches, in waves.”

The three test cases, which Bruning’s office filed to see whether the courts will allow the state to reimprison repeat offenders, involve:

» Peirce Hubbard, who was released five years early while serving a sentence for receiving stolen property. After his release he was reimprisoned for possession of a controlled substance.

» Jordan Lybarger, who was released 18 months early while serving time for cocaine possession. After his release he was convicted on forgery and drug charges.

» Robin Banks, who was released five years early from a sentence for forgery. She was convicted of another forgery charge after her release.

Contact the writer: 402-444-3144, matt.wynn@owh.com

LINCOLN — No prison official will face criminal charges in a prison scandal that led to the early release of hundreds of prisoners, effectively resulted in two deaths and sent Corrections officials spiraling into a crisis of their own creation, two of the state’s top prosecutors decided Monday.

The lack of an indictment was, in effect, an indictment of Corrections Department leadership.

No one knew who was in charge. And no one took charge.

Nebraska Attorney General Jon Bruning and Lancaster County Attorney Joe Kelly said they separately reviewed a State Patrol investigation and came to the same conclusion:

Ineptitude doesn’t equal intent.

“The level of incompetence we’ve seen from the legal department at Corrections is beyond the pale,” Bruning said. “However, mere inaction, incompetence, lack of action or negligence is not sufficient for a criminal violation.”

State senators and Democratic Party leaders wasted no time criticizing Bruning for his involvement in the decision. They wondered whether Bruning had a conflict of interest, noting that attorneys in Bruning’s office had advised former Corrections Director Bob Houston as he testified before a legislative committee investigating the scandal.

Bruning was unperturbed by calls for a special prosecutor. He said he would have had no hesitancy prosecuting the “lazy” lawyers at Corrections if he felt he could make a case.

“I went into this with an open mind — certainly not opposed to filing charges,” Bruning said. “It wouldn’t bother me from a moral standpoint if we were able to.

“Because you are angry at somebody for screwing up a department and making a mess, as a prosecutor, that’s not enough to file charges. You have to be able to meet the statutory requirements. ... In this case, it has to be knowingly or intentionally in violation of the law. Incompetence is not an option.”

Kelly said he made his decision independent of Bruning’s.

The Lancaster County attorney said he and two attorneys in his office reviewed a 6-inch stack of investigative documents, including several emails exchanged after the Nebraska Supreme Court laid out in February 2013 exactly how release dates should be calculated.

Corrections failed to properly calculate release dates despite the February 2013 ruling, known as the Castillas decision. In addition, a 1995 state law and a 2002 Supreme Court ruling spelled out that a prisoner must serve his mandatory term before he gets the state’s customary good-time credit of a day off for every day served.

The state didn’t properly calculate those release dates until a June 15 World-Herald investigation exposed Corrections’ flawed formula.

As a result, the state released about 200 prisoners early and set early release dates for more than 500 prisoners.

That eventually led to the State Patrol investigation, which involved one trooper working part time over about three weeks, Bruning said.

As they reviewed the State Patrol’s investigation, Kelly said, he and his attorneys had a hard time discerning who was the boss of the clerks who calculated release dates.

“It was very difficult then, perhaps even today, to tell exactly who was in charge of what,” Kelly said. “The evidence wasn’t there to disprove anyone saying, ‘I just didn’t do anything.’ ”

Bruning and Kelly said they looked at two possible charges:

» Official misconduct, which is committed when someone “knowingly or intentionally violates any statute or lawfully adopted rule or regulation relating to his official duties.”

» Obstruction of government operations, which occurs when someone “intentionally obstructs, impairs, or perverts the administration of law or other governmental functions by force ... breach of official duty or any other unlawful act.”

Both are misdemeanors. They would have been punishable by up to six months or a year in jail.

While Kelly declined to single out individuals, Bruning talked about a few key employees in the mess:

» George Green, who was Corrections’ longtime legal director. A records clerk had emailed Green the day of the Castillas decision with some details on how the Supreme Court said the Corrections Department was miscalculating sentences. Despite that alert and despite a meeting eight months later to discuss the Castillas decision, Green told the legislative investigative committee that he never read the decision. He said he relied on records administrator Kyle Poppert to ensure that laws were complied with. Green retired in August. Corrections Director Mike Kenney said he would have fired him.

» Kyle Poppert. He pointed back at Green. The administrator in charge of the clerks who calculated release dates, Poppert said he consulted with Green about the Castillas ruling. However, he said, he never received clear direction about what to do with it. He was suspended for two weeks without pay.

» Jeannene Douglass. Douglass, who retired in the fall of 2013, raised eyebrows when she vociferously balked at the Supreme Court ruling calling on Corrections to recalculate release dates. On the day of the Castillas decision, she wrote in an email that it would be a “real mess” to recalculate all the release dates. She also wrote that ignoring the Supreme Court would be in the “inmate’s best interest” and would “serve the Director’s desires, as well, to not increase our population any more than we must.”

Several employees, including former Director Bob Houston, have acknowledged that there was constant pressure to stem crowding at Nebraska prisons, which are currently 57 percent over capacity.

A legislative committee investigating the prisons has found that Corrections officials have pushed people out on parole.

Houston and current Director Mike Kenney have said, however, the failure to follow the Castillas ruling was rooted in ignorance.

They told investigators they were not aware of the Castillas ruling until The World-Herald report in June, according to Lt. Robert Frank, a State Patrol investigator.

“At no time during this investigation was it related to Lt. Frank that any of this failure to follow the Supreme Court ruling had anything to do with the overcrowding of the prison system,” Frank said.

Bruning said the failure to follow Castillas was the fault of Green and his legal team. Green had two attorneys who also were alerted to Castillas, though in less detail than Green was given. Associate attorney Sharon Lindgren retired before she could be fired. Attorney Kathy Blum, who was given only passing comments about Castillas, was suspended without pay for one day.

Bruning spared no words when it came to Green. The attorney general did note that it was a “brilliant defense” for Green to testify to the committee that he had never read Castillas.

“Crawling in his mind, there’s a lot of room in there,” Bruning said of Green. “But it is a brilliant defense. It’s a very smart defense. It’s hard to prove intent if he hasn’t read the case.”

Bruning took exception to suggestions that his own staff attorney, since-retired Assistant Attorney General Linda Willard, failed in her duty to follow up on Corrections’ suggestions in email that they might not follow the Castillas ruling.

“Linda Willard did her job,” Bruning said. “She said very clearly you need to do it right. ... What’s the old saying, you can lead a horse to water but you can’t make him drink. The legal department needed to take our advice. How many times do we need to hit them over the head to get their attention?”

Bruning said he also found no criminal wrongdoing on Kenney’s part when he created a questionable program in which a handful of early-released inmates were allowed to stay home instead of being returned to prison.

While Kenney didn’t seek legal approval for the program, he had the discretion to create it, Bruning said.

Inmate records employees such as Poppert and Douglass might have been trying to sort out Castillas but didn’t have the legal acumen, Bruning said.

“But what about somebody that’s trying hard and just makes a mistake? You can criminalize that?” Bruning asked.

“People are going to make mistakes. This is a horrible mistake. And it’s compounded by the reality that these guys were just lazy. George Green in particular was just lazy, disinterested in doing his job.”

Neither Green nor his attorney, Andrew Strotman, could be reached Monday for comment. Green has disputed that he is lazy. He told a legislative committee that he didn’t read Castillas because he had “15 million things” to do. Corrections counsel advised the director and governed over a multitude of inmate grievances.

Bruning said he reviewed the patrol’s investigation with an open mind. His chief deputy, David Cookson, told The World-Herald in July that he didn’t think there was “any malice” on the part of Corrections’ employees.

State Sen. Steve Lathrop said he doesn’t think the Attorney General’s Office should have been involved in the investigation.

“I think Joe Kelly should have led the investigation and should have done it independently of the attorney general,” Lathrop said. “Joe Kelly wasn’t giving advice to the Department of Corrections, and the attorney general was.”

Lathrop, who heads a special legislative committee that is investigating Corrections, said his committee will continue looking into problems at the state prisons. The committee, which is meeting today, plans to release a report with its findings and recommendations by Dec. 15.

“The decision by the attorney general to not prosecute anybody will not influence the course our committee will take in our search for what happened at the Department of Corrections in these various scandals,” he said. “We will continue as a committee to pursue testimony and evidence so that we can provide a report to the people of the State of Nebraska.”

State Sen. Bob Krist, another member of the special legislative committee, agreed that Kelly should have tackled the investigation on his own.

Krist said executive branch officials from the governor on down should have been criminally charged. He also said Bruning could have done more to make sure Corrections followed Supreme Court decisions that directly affect the department.

“Ignorance is no excuse for breaking the law,” Krist said. “I can’t believe he couldn’t find enough intent involved to charge people. If Bruning thinks we can (excuse) people for not doing their job because there wasn’t enough intent, I would suggest to him that he is not the lawyer he thinks he is.”

An Omaha gang member, Jermaine Lucas, was fatally shot by Omaha police during a weekend furlough made possible by an early release date. A Grand Island man, Jerry Ramirez, died after his best friend, an early-release prisoner, drove drunk and crashed. Ramirez was his passenger.

Contact the writers: 402-444-1275, todd.cooper@owh.com, 402-444-1066, alissa.skelton@owh.com

LINCOLN — Constant pressure to release more inmates.

A threat of being fired.

A furlough program that switched from releasing nonviolent inmates to including those convicted of assaults, and even murder.

Esther Casmer, chairwoman of the Nebraska Parole Board, said she experienced it all during 2009 and 2010 as state prisons became more and more overcrowded.

During surprise testimony before a legislative committee Tuesday, Casmer said she and her fellow board members were constantly pressured to approve ever greater numbers of prisoners and more dangerous prisoners for release via parole and a “re-entry furlough program” launched by then-Corrections Director Bob Houston.

She said intense pressure came from Houston, as well as Larry Bare, the chief of staff for Gov. Dave Heineman.

Casmer described a meeting in Bare’s office in which she said she and fellow board member James Pearson were threatened with losing their jobs.

“The chief of staff told us, ‘Don’t be concerned about losing your jobs for paroling people,’ ” she said. “ ‘Be concerned about losing your job for not paroling.’ ”

Bare, when asked to respond, said Casmer took his comment out of context.

He said he was only trying to tell Casmer that she would not lose her job if a parolee committed another crime, that he understood she had tough decisions to make in deciding whom to release on parole and whom to refuse.

“What I was saying to her was she wasn’t going to get fired if she made an error. You can’t be right all the time,” Bare said.

He said he did agree with Houston, however, that the Corrections Department and the Parole Board could work together to increase the number of “appropriate” inmates to place on parole.

Houston did not return calls seeking comment.

State Corrections spokesman James Foster said that it would not be appropriate for him to speak for Houston but that the department only recommends who should be paroled, while Casmer’s board makes the final decision.

Casmer’s stunning allegations came as a special legislative committee, formed to investigate problems in the state correctional system, took its final public testimony Tuesday.

Casmer, who has sat on the Parole Board since 1997, sighed often and seemed to have a difficult time describing a parole system that has become increasingly porous and compromised over the years.

The Parole Board is separate from the Corrections Department and is designed to be an “independent gatekeeper” in deciding who should be released from prison early under the supervision of parole officers, she said.

Yet Casmer said that two or three times a week, Houston, who retired a year ago, would drop into the parole offices to talk about how to get more prisoners out the door. He also provided a “quota,” she said, on how many inmates should be paroled — 168 a month, some 60 percent higher than usual — and mentioned that he had the support of the Heineman administration.

“It was almost always a morning thing,” Casmer recalled. “On his way to work, he’d think of these ideas and want to meet with me first thing in the morning.”

The ideas ran the gamut, from allowing prisoners to receive rehabilitative programming outside prison walls to releasing prisoners from prison before they were eligible for parole.

The safeguards around parole crumbled over time, she said. When she first started on the board, prisoners would have their parole date pushed back as much as a year if they broke prison rules.

“Then we reduced it down to six months, to try and move individuals,” she said. “Then we reduced it down to three months. Then we reduced it down to no sanctions.”

And once a prisoner had been paroled, it became harder and harder to return them to prison, she testified.

Prisoners were allowed to have more violations outside prison walls than had been the case before 2008, when pressure to parole prisoners increased, she confirmed.

But even with the relaxed oversight of parolees, she said, the board was revoking parole more than before, likely because the prisoners were less prepared.

Some prisoners were recommended for parole even if they had not yet completed programming related to their crime. For example, Casmer said, drug abusers were recommended for parole before they completed substance abuse programming. Instead, they were told to get such help once they were outside prison.

“Why are you going to send them back out to the streets without the program? They’re broken, just like they were when they came to us,” she said.

Violent prisoners, too, made their way to the Parole Board hearings with the full-throated support of Corrections, putting board members in a bind.

“We should not be put in a position of having to weigh the degree of a domestic violence situation, whether or not this person should get paroled,” she said.

Eventually, she said, the Parole Board played along, reducing penalties for parolees who used alcohol or drugs in violation of their parole, paroling inmates who had not finished rehabilitation programs in prison and paroling inmates who were higher risks.

“I felt we had compromised ourselves,” she said. “None of us felt good about it. But we felt that was expected of us.”

At one point during the hearing, Casmer apologized to judges in Douglas County. Before the re-entry furlough program was official, she said, she and Houston briefed the judges on how the program would work. Houston told the judges they would have input into the program, she said. And they told the judges it wouldn’t be offered to violent offenders.

Only later, Casmer said, did she learn that the program was including some violent inmates without the judges’ knowledge.

“I offer my deepest apologies,” she said. “It was not me.”

Casmer signed off on the re-entry furlough program; her signature is on the cover sheet authorizing the practice.

But she said she signed only after pressure from yet another source.

“I did not want to sign. I did not want the board involved in it. I was told by George Green that was the only way the program could go into effect,” she said.

Green has since retired rather than be fired for his role in miscalculating hundreds of release dates for prisoners.

Casmer said she felt pressure to put more prisoners on parole to reduce prison overcrowding. The prisons hit 140 percent of capacity in 2006, at which point an emergency can be declared. The population now hovers around 158 percent of capacity.

Gov. Heineman has never declared an emergency. When Houston was Corrections director, he told stakeholders he had the crowding situation under control.

Casmer said she was expected to help.

“I was expected to be a team player. I was expected to work very closely with the DOC, in order to reduce the population,” Casmer said.

State Sen. Steve Lathrop, chairman of the investigative committee, assured Casmer that she wasn’t alone.

“All this pressure that was applied, it made a lot of good people do things that they wouldn’t normally do,” he said.

Lathrop characterized the pressure on Casmer as the last-ditch effort to fix a system that had been starved of funding over the years.

“We say, ‘We don’t care. We didn’t spend the money on programming. We didn’t spend the money on more beds. Esther Casmer, start moving people out on parole,’ ” he said.

In April 2013, Casmer said, she told Houston that she would no longer allow him to pressure her into taking part in his plans to reduce the prison population.

Her announcement came in Bare’s office.

“I told him, ‘You’re not my boss. You need to respect agency lines. We are doing the best we can with what we have,’ ” she said.

Contact the writers: 402-444-3144, matt.wynn@owh.com; 402-473-9584, paul.hammel@owh.com

LINCOLN — Jails and prisons have become the largest mental health treatment centers in the nation as treatment centers have been closed and services have degraded, a panel of state legislators was told Tuesday.

In Nebraska, the Douglas County Jail holds the most mentally ill people, and the nation’s three largest facilities for holding the mentally ill are county jails in Los Angeles, Chicago and New York City.

Since upward of 95 percent of inmates return to society, it’s incumbent on corrections officials to beef up mental health treatment so that public safety isn’t threatened and inmates are successful after prison, the legislators were told.

“We are using the corrections system as a reaction to the degradation of the mental health system,” said Dr. William Spaulding, a psychology professor at the University of Nebraska-Lincoln.

“If the goal is really to protect public safety, they need treatment,” said Rebecca Wallace of the American Civil Liberties Union of Colorado.

Spaulding and Wallace were among those testifying Tuesday at the final hearing called by a special legislative committee that is investigating the case of Nikko Jenkins, a mentally troubled inmate who killed four people in Omaha last year within days after being released from a state prison. The committee is also probing how Nebraska Corrections officials could have miscalculated the release dates of hundreds of inmates, a scandal The World-Herald uncovered in June.

A report by the committee is due by Dec. 15.

The availability of mental health treatment in prison has been a key issue in the Jenkins case, as has solitary confinement, in which inmates spend up to 23 hours of day in a cell where they eat, sleep and defecate. Jenkins spent most of his last two years in prison in solitary, where advocates say there is little rehabilitation or mental health programming.

Among those testifying Tuesday was a former psychologist at the Tecumseh State Prison, the home of the state’s largest solitary confinement unit. Dr. Stacey Miller said mentally ill inmates were sometimes taunted and bullied and were unnecessarily sent to isolation for very subjective reasons.

Miller said she quit her job in part because of frustration. She said inmates were punished for not returning their lunch tray or for sticking their arms through a cell door.

Overall, Miller said, the facility lacked enough highly trained staff to provide adequate mental health treatment.

“I feel like there’s a lot of good intentions out at Tecumseh, but given the confines, it was very, very hard to do,” she said.

Wallace, who has worked with Colorado corrections officials, said “meaningful” mental health treatment is impossible in solitary, where inmates are shuttered away from human contact and shackled at the wrists, ankles and waist during their brief outings.

“It’s really not possible,” Wallace said.

Colorado has its own experience with bloodshed connected with solitary confinement: In 2013, a prison inmate released after a long stay in isolation murdered the state corrections director on his doorstep in a Denver suburb.

Wallace said the inmate left a recording suggesting that the murder was in revenge for his treatment in prison, even though Director Tom Clements was pushing for a reduction in the use of solitary confinement and reforms in how it was used.

Experts agree, Wallace said, that inmates need socialization and some transition programs after spending long stints in isolation — programming that neither Nikko Jenkins nor the Colorado inmate received.

Colorado responded by passing a law that prohibits sending seriously mentally ill inmates to solitary, which she described as “the most serious punishment short of death.”

The state also now limits stays in isolation to no longer than a year, allows more out-of-cell time, has established some re-entry programs and has set a specific timeframe for isolation stays, which gives inmates an incentive to behave.

As a result, the number of inmates in solitary cells has dropped from 1,500 to 191 in the past three years, and the average length of stay has been reduced to 10 months from two years.

Wallace said the most important step Nebraska could take is hiring a “reform-minded” corrections director to guide changes. She added that Nebraska seemed to have a “wildly high” use of solitary confinement, much higher than the national average of 1.5 percent to 2.5 percent of all inmates.

As of mid-September, Nebraska’s prisons held 719 prisoners in restrictive housing, about 14 percent of all inmates. That is twice the rate of Colorado’s before reforms kicked in.

James Foster, a spokesman for the Nebraska Department of Correctional Services, said about half of Nebraska’s inmates in solitary are there for protective custody. It was unclear whether Wallace’s figures included such inmates.

But Nebraska is concerned about the use of solitary confinement, Foster said, and State Corrections officials are willing to try new approaches and have already launched some changes.

“We’re at the lower steps, trying to work our way up,” he said.

Among the changes: plans for a separate mental health wing at the restrictive housing unit at Tecumseh. The state is also providing group therapy sessions at Tecumseh and two other state prisons for inmates sent to isolation.

Wallace and others said that such isolation makes mentally ill people worse and can turn sane people paranoid, reclusive and delusional.

While in solitary, Jenkins issued threats that he would go on a murderous rampage if he wasn’t committed to a mental health institution. He also cut himself, played with his bodily fluids and wrote messages in his own blood.

Prison officials have said they concluded that Jenkins’ mental problems were behavioral in nature and not suited to such a commitment.

Spaulding, the UNL professor, said Tuesday that he didn’t know enough about mental health treatment within the Nebraska prison system to render an opinion about it. But he did say changes in the state’s system of mental health treatment have pushed more mentally ill people into the state prisons and have put more pressure on the prisons to deal with people who had traditionally been housed in state regional centers.

The professor placed most of the blame on a 2004 law, Legislative Bill 1083, that had good intentions — to reduce the number of mentally ill in state institutions — but failed to fulfill its goal of shifting care to community settings.

Money that was supposed to be shifted to community programs never materialized, Spaulding said, leaving “flaws” and “holes” in the treatment system. A rehabilitation unit was closed at the Lincoln Regional Center, the only state regional center not shut down, which further degraded the level of care for the seriously mentally ill.

He said the Lincoln Police Department has graphically illustrated the deterioration through statistics that show a 60 percent increase in calls involving the mentally ill from 2004 to 2008.

“It’s the parakeet in the mine,” Spaulding said.

About one in three inmates in the Nebraska prison system has a diagnosed mental illness. Spaulding said the figure at the Douglas County Jail is about 21 percent.

There have been changes in the state prison system, though many say more needs to be done.

In recent years, the state established a ward at the Lincoln Correctional Center for the seriously mentally ill, a ward that was expanded from 60 to 80 beds about a year ago. A 10-bed mental health ward was also established about a year ago at the women’s prison in York.

This spring, state lawmakers passed a law allowing for a $200,000 study of turning a now-vacant building at the old Hastings Regional Center into a 200-bed specialized prison for mentally ill inmates.

Lawmakers also created 18 new behavioral health positions in the state prison system, mostly mental health professionals. About 12 of the positions have been filled. The plan is to expand clinical services, Foster said.

Contact the writers: 402-473-9584, paul.hammel@owh.com, 402-444-3144, matt.wynn@owh.com

The head of the Nebraska Democratic Party called Wednesday for a special prosecutor to investigate the state’s prison scandals.

Vince Powers, party chairman, said testimony from Parole Board Chairwoman Esther Casmer conflicted with accounts given by Gov. Dave Heineman last month. Both testified before a special legislative committee that has been investigating prison issues.

“The only way the truth will be found is with a nonpartisan outside special prosecutor,” Powers said in a press release. “Nebraskans deserve the truth.”

Casmer testified that she felt pressure to release inmates from prison and that Heineman’s chief of staff, Larry Bare, threatened her job.

“The chief of staff told us, ‘Don’t be concerned about losing your jobs for paroling people,’ ” she said. “ ‘Be concerned about losing your job for not paroling.’ ”

The governor’s office was closed and could not be reached immediately for comment. But Bare said Tuesday that Casmer took his comment out of context. He said he was only trying to tell Casmer that she would not lose her job if a parolee committed another crime, that he understood she had tough decisions to make in deciding whom to release on parole and whom to refuse.

“What I was saying to her was she wasn’t going to get fired if she made an error. You can’t be right all the time,” Bare said.

Heineman testified last month that he did not pressure the Parole Board into releasing more inmates. 

LINCOLN — A Nebraska group that advocates for the disabled has joined the call for reforms in the use of solitary confinement in state prisons and for better mental health care behind bars.

Disability Rights Nebraska, which works to protect the rights of the mentally ill and others with disabilities, released a report Wednesday calling on the state to “step up to the plate” to improve discharge planning and care for the mentally ill.

The group, citing several studies on the subject, said that since almost all inmates return to society, it is essential to provide adequate “re-entry” and transition programs to better prepare mentally ill prisoners for their eventual release.

“Releasing an inmate without adequate discharge planning is like saying, ‘Good luck — we will see you again,’ ” said Brad Meurrens, a public policy specialist for Disability Rights Nebraska and co-author of the report.

The report comes on the heels of a legislative hearing Tuesday at which lawmakers were told the use of solitary confinement can be drastically reduced without endangering prison security or public safety. Lawmakers were also told that jails and prisons have become the nation’s largest facilities for mental health care, with the closing of treatment centers amid a push for “de-institutionalization” of the mentally ill.

Currently, about one in three inmates in Nebraska prisons have a diagnosed mental disorder. Rebecca Wallace of the American Civil Liberties Union in Colorado said Tuesday that the rate of mentally ill in solitary confinement units in the United States runs as high as 50 percent.

Wallace testified about reforms adopted in Colorado, which included a ban on sending the mentally ill to solitary and creation of a separate prison unit to treat inmates with psychiatric issues.

Nebraska prison officials have expressed concerns about the use of so-called “restrictive housing” and have launched some changes, including group therapy sessions at three prisons and a separate wing for the mentally ill at the special management unit at a state prison in Tecumseh. But officials acknowledge more needs to be done.

Solitary confinement generally involves staying in a cell for 23 hours a day, with short releases only for visits, showers and solo recreation in a caged enclosure.

Long stays in solitary can worsen mental illnesses and even harm those who have no disabilities. Higher rates of self-harm and suicide are associated with solitary confinement.

The Disability Rights report cited one study that gave a name to the “irrational anger and rage, loss of impulse control, paranoia, and perceptual distortions/illusions/hallucinations” associated with stays in solitary: “SHU Syndrome” or “Special Housing Unit Syndrome.”

The report said that Nebraska hasn’t invested enough in re-entry programming for mentally ill inmates and that because such inmates typically lack insurance, they face obstacles in getting care once released. That can lead to visits to emergency rooms, repeat crimes and return trips to prison.

Improved re-entry and discharge plans are needed, along with stronger support systems, to better ensure a successful return to society for inmates who suffer from mental illness, the report concluded.

Reforms adopted in Mississippi, Virginia, Colorado and Washington state, the report said, have led to reductions in “serious incidents” in segregation units, the use of segregation, inmate grievances and the use of force in prison.

Contact the writer: 402-473-9584, paul.hammel@owh.com

Lawmakers who have probed Nebraska’s prison mess say it’s time to restore the rule of law in the state prison system.

No more freelancing when it comes to prisoners’ freedom. No more ignoring judges’ sentences and sacrificing public safety in order to reduce prison crowding.

No more secret releases like those allowed in the state’s long-term furlough program.

“They need to scrap the (furlough) program,” said State Sen. Steve Lathrop, who has led a legislative investigation. “Or, if it’s a worthy idea, it ought to be introduced legislatively and openly debated.”

Even the woman who invented the program has acknowledged that it went astray.

“Lines got completely blurred,” Nebraska Parole Board Chairwoman Esther Casmer said.

Lines got blurred. Laws got blurred. Justice, too.

The Nebraska Department of Corrections’ extensive and extended use of furlough came to light as lawmakers followed up on a June 15 World-Herald investigation that found that the state had released hundreds of prisoners early. Those early re-leases — which occurred over two decades — were rooted in institutional ineptitude and incompetence.

Furlough, on the other hand, was a deliberate plan, hammered out by prison officials behind closed doors, to reduce overcrowding on the cheap.

Lathrop’s investigative committee scrutinized the program — known in prison circles as the Reentry Furlough Program, or RFP — at an October hearing. The committee revealed that gunmen, robbers, child abusers and even a dozen killers were furloughed.

“This is just one more revelation that makes you wonder what is going on down there, ” Gov. Dave Heineman said of Corrections during his Oct. 29 testimony.

At a follow-up hearing last week, Casmer acknowledged she came up with the concept in 2008, proposing it for low-risk offenders.

Then-Corrections Director Bob Houston took the idea and “ran with it,” eventually expanding it to violent criminals and repeat offenders.

Now a follow-up World-Herald examination reveals that:

» The program started out small and selective but soon exploded. In six years, more than 1,000 inmates were furloughed. About 170 of them had committed violent crimes, including shootings, child abuse, domestic assault, 10 manslaughter convictions and three murders.

» Once furloughed, some prisoners stayed on a parole path even if they committed additional crimes.

» Some victims didn’t even know their assailants had been released.

» Prosecutors objected to furlough. In a letter to Houston two years ago, Lancaster County Attorney Joe Kelly suggested Corrections was sacrificing public safety as it tried to reduce the state’s chronic prison overcrowding.

» Judges didn’t know that Corrections had undercut their sentences, freeing prisoners months or even years before the judges ordered they should be eligible for parole.

A half-dozen longtime judges said they had no recollection of Casmer or Houston explaining the furlough program to them in a Douglas County judges’ meeting in 2008.

“Never heard of it,” Douglas County District Judge Greg Schatz said.

“I was never aware of it,” Douglas County District Judge Mark Ashford said. “Not before you guys reported it.”

Buffalo County District Judge John Icenogle said he had heard of furlough through his work on a council overseeing community-based programs for prisoners, but he had no idea the state was furloughing so many prisoners, including violent criminals, or for so long.

At most, Icenogle said, he thought furlough would be used four to six months before parole.

“Nobody put (Corrections) there to review or alter sentences,” Icenogle said. “When the bottom is being taken out of a sentence, it certainly is a usurpation of our authority. In effect, it’s saying ‘We think the judge has given you too long a sentence.’

“It’s a blurring of the lines between the branches — and that’s never healthy.”

NO-COST OPTIONS

Indeed, the use of long-term furlough became a blur.

In 2006, the state’s prison population hit 140 percent of capacity, the point at which the governor can declare an emergency. That declaration never came, and prison capacity was never increased.

Instead, prison officials turned to what one internal memo dubbed “no-cost options.”

Houston, who didn’t return calls seeking comment, pushed to parole more prisoners. He eventually succeeded in persuading the Legislature to increase good time credits, essentially shortening sentences.

And in 2008 he built on Casmer’s furlough idea as a way to expand the department’s short-term furlough programs, such as weekend releases and day passes.

“The Reentry Furlough Program is (designed) to place that person in the community on an intense caseload with a parole officer,” Houston told a legislative committee this summer. “ ‘House arrest’ would probably not be the right term, but that could be loosely used to describe it. ... It’s to help (prisoners) get adjusted in the residence they’re going to go to, get them established in a job.”

All told, about 1,040 inmates have been put on long-term furlough since 2008, based on an analysis of legislative committee documents. For perspective, about 1,400 of the state’s 5,000-plus prisoners were on parole during 2014.

While parole is highly visible — it’s set up in state law, its hearings are public and its schedule is published online — long-term furlough is murky.

Corrections instituted the program without public discussion. Houston apparently relied on a catchall state law that gave him wide latitude to place inmates. Although it involved releasing inmates, he considered furlough an internal inmate classification.

The first set of administrative regulations said “inmates with violent criminal records, lengthy arrest records, or multiple incarcerations may not be considered.”

The inaugural group included eight inmates. Their convictions: driving under the influence, theft, drug possession and driving without a license.

The next year, about 20 more inmates were released. Again, none was considered violent.

Around 50 additional prisoners were placed on furlough the following year. Two had been convicted of violent offenses; four had violent histories.

Then came the fall of 2010. Houston — unbeknown to Casmer — issued a directive that dramatically altered the program. That directive effectively made violent criminals eligible for furlough.

That year, more than 400 prisoners were furloughed.

About 120 had been convicted of violent offenses: first-degree assault, domestic assault, false imprisonment, robbery, assault of an officer, manslaughter and even three convicted of murder. More than a dozen had committed violent crimes in the past.

Some of the furloughed succeeded, thriving on the strict structure of furlough. Others went right back to their old ways.

BRIDGE TO PAROLE

In 2006, Frederick McSwine, then 19, pulled a gun on a neighbor in Lincoln, forcing his way into her apartment. He dumped out her purse and took $10.

He ordered her into a bedroom and tied electrical cords around her wrists and neck. She broke free and ran.

Officers found the gun and the clothes he wore in his apartment. He admitted to the crime.

“Did I scare her?” McSwine asked the officers, according to a police report. “I hope so.”

McSwine was convicted of robbery and sentenced to six to 10 years in prison.

On June 3, 2011, he was placed on long-term furlough — and apparently stayed out of trouble.

The Parole Board often uses furlough as a bridge to parole, in part because it is more structured and stricter than parole. Parole officers must approve an hour-by-hour schedule for furloughed inmates, with phone numbers for those locations.

While parole officers typically meet with parolees once a month, they meet with furloughed prisoners once a week.

If a prisoner is not where he says he will be, or if a parole officer feels he’s a risk to reoffend for any reason, the inmate can be reimprisoned.

“We’ve had it where the mom will say, ‘Yeah, he can (furlough) to me,’ ” Corrections spokesman James Foster said. “Then they’ll call a few months later and say it’s not working out. We can put them in a (prison) bed.”

Because furlough is considered a change in status, not an official release, the bar for reimprisonment is far lower, Foster said. Furloughed prisoners can be brought back for losing a job, contacting the wrong person and other incidental transgressions, he said.

McSwine had no such problems on furlough. However, that didn’t translate to success on parole.

Six months after being furloughed, McSwine was placed on parole.

Ten months later, McSwine showed up at another young woman’s door. He rang her doorbell and asked to use the bathroom.

He came out of the bathroom with a knife and forced the woman into his car. For hours, he drove her to cornfields around Lincoln and raped her.

Then he dropped her off in Waverly and apologized.

She recognized him as a former employee at a convenience store. Police followed up on the lead and arrested McSwine.

When Parole Board members met to review his parole, even they had a tough time keeping McSwine’s status correct — misstating when he was on parole and when he was on furlough.

Lines were indeed blurred.

But one thing was clear: The Parole Board was ticked that McSwine had squandered his freedom.

The board revoked his parole and took away a year of good-time credit.

Casmer, the board chairwoman, was incensed. “Can we take more?” she asked.

Turns out, it didn’t matter.

After a jury convicted McSwine of the kidnapping and rape, a judge sentenced him to 56 to 85 more years in prison.

'NOT FREE AS A BREEZE'

Anne Carroll admits she would have hated furlough in another life.

Long ago, Carroll was a subscriber to the “lock ’em up and throw away the key” philosophy. She even resented that prisoners got to watch TV.

Then she began working with prisoners — some of them on long-term furlough — at Community Corrections Center-Omaha.

Over the past eight years, Carroll said, she has forged friendships with some of the furloughed inmates she and her husband, Jim, have helped through the Crossroads Connections prison ministry.

Furlough is a “tough, tough program,” Carroll said. “They’re not free as a breeze. You don’t get to drive around the city and go to dinner or go bowling. You go to work and then home. And then you occasionally get passes to go elsewhere.

“A staff member regularly goes to their house to make sure they are there. To me, it’s as tough as being in prison. It’s certainly a tougher version of parole.”

For every story of a furloughed prisoner gone awry, Carroll said she can cite a success. She now counts some of those successes as her friends.

“I’ve seen (furloughed prisoners) screw up and get sent back,” she said. “But, hey, the same thing happens on parole. The same thing happens when prisoners are released.

“This program has value. I’ve met some really wonderful people who have made the most of this second chance.”

ALARMS IGNORED

Kelly, the Lancaster County attorney, sounded concerns about furlough long before the recent scrutiny.

In a March 7, 2012, letter to Houston, Kelly called it a “well-intentioned effort to reduce the prison population and to prepare inmates for reintegration back into the community.”

“In practice, however, it is creating new problems,” he wrote.

The biggest problem: Dangerous prisoners were being let out on the streets.

Kelly highlighted several cases. Among them: a furloughed drug dealer arrested for domestic assault in February 2011, six months before he was eligible for parole. A thief arrested for domestic assault in February 2012, a year before her parole eligibility.

Kelly said he didn’t recall hearing back from Corrections.

So on Oct. 9, 2012, he wrote to State Sen. Brad Ashford, chairman of the Judiciary Committee, listing his concerns. Kelly highlighted another case that had shocked his office.

An Omaha teen, Cleophus Collier, had been sentenced to six to 12 years in prison after he and others stole 82 firearms from a Scheels sporting goods store in Lincoln in 2007. Some of the guns were used in crimes across the country.

Collier was furloughed Nov. 17, 2011, Kelly said.

Ten days later, Collier was arrested in Lincoln after leading police on a chase in a stolen van.

Even after he was charged with two felonies for that chase, the Parole Board saw fit to parole Collier on Jan. 31, 2012, on his original burglary sentence.

Six weeks later he was arrested in a Lincoln bank robbery. Now he is serving a 13-year sentence in federal prison.

In freeing inmates like Collier, Kelly wrote, the state effectively shifted the “financial burden (to) local governments and law enforcement.”

And, he wrote, furlough disturbs the public’s faith that a prisoner will serve the time a judge says he should.

Sen. Brad Ashford acknowledged those concerns in a Judiciary Committee hearing in February 2013, saying violent and repeat criminals “should not be out on furlough years before the end of their terms.” No laws were enacted; however, Corrections did reinstate its prohibition on furloughing violent criminals.

“I am strongly opposed to the components of this ... program that put the issue of prison overcrowding ahead of public safety,” Kelly wrote in October 2012. “Additionally this is a terrible way to treat crime victims, who are entitled to have some concrete idea about when the criminal will be released to the streets. Indeterminate sentencing and good-time laws already make the issue of estimating the release difficult. RFP makes it impossible.”

IN THE DARK

Sharon Tottleben knows that frustration.

In 2000, Richard Bivens forced his way into the 60-year-old woman’s Omaha home and beat her with a baseball bat.

In November 2011, Tottleben went to a Parole Board hearing to ensure her attacker wouldn’t be released.

He had four years left to serve. Tottleben thought he should serve every minute.

Little did she know he was already out.

Casmer opened Bivens’ parole hearing with this news:

“Richard has been in the community (on furlough) since April, without incident. And we’re not speaking of just being housed at this facility. He’s been living, in Omaha, at a private residence all this time.”

The revelation rocked Tottleben, thrusting her right back to that fateful day. How she answered the door because she thought it could be her partner, Jack Ernest.

How a stranger barged in, threatened her and struck her several times in the head with a baseball bat. How he threatened to tie her up, cut her throat with a box cutter and rape her.

How, she says, she was saved by noises outside. Spooked, Bivens dumped Tottleben’s purse and ran out with $300.

Tottleben suffered a broken bone in her face, black eyes and internal injuries, she said. She still suffers from depression and anxiety. Any noises at the front door make her jump.

Tottleben and Ernest said they worry that officials are not doing enough to protect, or inform, victims.

Corrections does not even publish a list of who is being considered for furlough. Officials say they have a process for notifying victims, but that it’s not foolproof.

Tottleben said she never heard a peep about Bivens’ release.

Then came his parole hearing. She listened as Parole Board members justified paroling him by pointing to the uneventful months he had spent on furlough. That led Tottleben to question whether Bivens’ furlough was simply a tryout, where he could be on his best behavior so he could get parole.

For Tottleben and Ernest, the process has been mysterious and mystifying.

“I’d like to see the Parole Board care about society and the victims that were violated,” Ernest said. “We need to protect our victims, because they testified against someone in court. I feel the Parole Board doesn’t want to give us any information or do anything for Sharon’s protection.”

ALTERED SENTENCE

At sentencing, a judge is given a virtual bible of a defendant: criminal record, family history and any test results conducted by probation officers. The judge hears from prosecutors, defense attorneys, victims’ families and the defendant himself.

Then he pronounces sentence.

“I was told that (long-term furlough) is geared toward reducing recidivism,” Kelly said. “Everyone agrees that is a good and positive goal.

“But the reality is, the release of an inmate months before he is eligible for parole alters the sentence given by the judge.”

Corrections routinely informs prosecutors when it is considering a prisoner for furlough and asks if they have objections.

Kelly, Douglas County Attorney Don Kleine and Sarpy County Attorney Lee Polikov said they refuse to sanction any furloughs for several reasons.

The biggest?

“Those people owed society a certain amount of time,” Polikov said. “A judge determined that, not the Department of Corrections. They should serve it. I would think the bench would be really upset.”

Douglas County District Judge Leigh Ann Retelsdorf said she understands a need for reintegration — something she factors into parole eligibility. However, she also factors in a need for punishment.

“There has to be some punishment value,” Retelsdorf said. “That can’t be undermined.”

Douglas County District Judge James Gleason said judges have no control over Corrections’ programs, including the treatment or education that inmates receive. The one thing judges thought they could control was the release date.

“We’re really disappointed in the executive branch — and perhaps a little offended — that the work we did in fashioning a sentence hasn’t been followed through on,” Gleason said. “But there’s nothing a judge can do about that, other than be incensed.”

Now some judges wonder whether they should be included in furlough decisions, if the program continues.

Judges Icenogle and Ashford said Corrections should be required to consult with judges before furloughing an inmate. Other judges expressed reservations, saying they would have no knowledge of an inmate’s progress or programming in the Corrections system.

Other states, including Iowa, involve judges in release decisions, Judge Ashford noted.

“It’s disconcerting,” Ashford said of the furloughs. “Sentencing is the most important thing I do. I take it exceedingly seriously.

“If I’m not giving the public accurate information on when a prisoner will be back in society, then I’m not doing my job.”

FUTURE FOR FURLOUGH?

Like judges and his fellow prosecutors, Kelly has watched with incredulity as Nebraska’s sentencing scandal has unfolded.

The issues are no doubt complex — a vortex of overcrowding and tax dollars and public safety.

However, the Lancaster County attorney has a simple solution, one that he proposed in 2012: A judge must dictate the earliest possible release for an inmate.

Any exceptions must be spelled out in a state law — not by an internal prison regulation.

“I would urge (Corrections) and the Nebraska Parole Board to seek specific legislative authority” for furlough, Kelly wrote in 2012.

That way, he said: “Our elected representatives can determine if this is the best and most transparent way to handle the early release of offenders back into the communities.”

State Sen. Les Seiler of Hastings said furlough has become such a large program that state lawmakers should set parameters for it, if it continues.

“I have no problem with a properly run furlough program — especially for nonviolent offenders,” Seiler said. “(But) I do not think furlough should operate outside of state law. That’s how we got into this big mess.”

Contact the writers: 402-444-1275, todd.cooper@owh.com; 402-444-3144, matt.wynn@owh.com; 402-444-1066, alissa.skelton@owh.com

LINCOLN — Gov. Dave Heineman said Monday that he didn’t pressure Nebraska’s Parole Board into releasing violent inmates early to lessen prison overcrowding.

Board Chairwoman Esther Casmer told a legislative committee last week that Heineman’s chief of staff threatened her job if she refused to approve greater numbers of prisoners for parole and for a furlough program. Asked about the statements Monday at a press conference on an unrelated topic, the governor said no one in his administration pressured Casmer or other board members.

“I’m just surprised, given how strong Esther is, if she felt that way, she didn’t come and see me,” he said.

Casmer didn’t return calls seeking comment.

Heineman has acknowledged there was a meeting between Casmer, himself and others to increase the use of parole. Casmer and other Parole Board members must sign off on which inmates receive parole and furlough.

The governor, however, said he wasn’t involved in developing the long-term furlough program, which was started by prison officials in 2008, behind closed doors, to reduce overcrowding.

Re-entry furlough was provided initially to low-risk offenders, but as overcrowding worsened, prison officials expanded the program. In six years, they furloughed 1,000 inmates, 170 of whom had committed offenses such as murder, manslaughter, domestic assault and child abuse.

Judges have said they didn’t know that the Nebraska Department of Correctional Services had undercut their sentences, freeing prisoners months or years before the judges ordered that they should be eligible for parole.

The governor said his opposition to building new prisons is unrelated to Corrections problems that have been revealed in recent months. He repeated his contention that not a single legislative bill has been introduced to construct new prison facilities, because lawmakers must have agreed there are higher priorities, such as education and creating jobs.

“We were all working to try to find ways to avoid building a new prison,” he said.

Former Corrections Director Bob Houston has told a legislative committee that furlough was a way to help inmates readjust to life outside prison. He also acknowledged that the program was related to overcrowding.

Heineman repeated that he doesn’t think overcrowding played into a sentence miscalculation scandal in which about 200 inmates were released prematurely and 550 more had their release dates set too early, until the state made adjustments, adding more than 2,000 years to their collective sentences.

Sentence miscalculations stemmed largely from a failure to follow a Nebraska Supreme Court opinion, which Heineman said was the fault of former Corrections legal director George Green.

Green has said he never read the 2013 opinion — despite being alerted to it by a records clerk — because he had “15 million” things to do. According to a state personnel investigation, Green said he was told by another prison official that the department was in compliance with the law.

Green retired after learning he would be fired.

Ultimately, however, Heineman said he and Attorney General Jon Bruning accept responsibility for the mismanagement at Corrections.

“We accept full responsibility for what occurred, and we’re trying to correct the mistakes that were made,” he said.

The Parole Board is separate from Corrections and is designed to decide independently which inmates deserve early, supervised release. Parole eligibility dates are set by judges at sentencing.

Casmer testified last week that in 2009 and 2010, Houston frequently pressured her to increase the number of paroled inmates. She said he set a quota of 168 per month — a number 60 percent higher than had been paroled in the past.

Casmer also recounted a meeting attended by fellow board member James Pearson along with Houston and Larry Bare, the governor’s chief of staff.

“The chief of staff told us ‘Don’t be concerned about losing your jobs for paroling people,’ ” she said. “ ‘Be concerned about losing your job for not paroling.’ ”

In response to her testimony, Bare said Casmer took the comment out of context. He said he was trying to convey that she wouldn’t be held responsible if, in an effort to increase the number of inmates placed on parole, a parolee committed another crime.

On Monday, the governor stood behind Bare’s response. And he once again suggested that Casmer’s silence, until now, is telling.

“If she felt that strongly, she had ample opportunity to talk to me about it and chose not to,” Heineman said.

Contact the writer: 402-473-9587, joe.duggan@owh.com

LINCOLN — Nebraska officials identified 40 million reasons to justify increasing the number of prison inmates released on parole and long-term furlough.

Bob Houston, former director of the Nebraska Department of Correctional Services, said this week that he supported greater use of the programs to help address chronic prison overcrowding. He and others were motivated to delay the substantial cost of operating and maintaining a new prison.

“We were trying everything we could to push off as far into the future building an institution,” he said. “Every year we don’t build an institution, we save at least $40 million a year in operating costs.”

But Houston said saving state tax dollars was just one reason he pushed for the early supervised release of inmates, including those with violent histories. Houston argued that furlough and parole can improve public safety because the programs help inmates avoid crime once they’ve regained their freedom.

Others have sharply questioned the use of furloughs.

A number of judges have said they were unaware that furloughs were being used or that they were being offered to inmates who committed violent crimes. Prosecutors in Douglas, Sarpy and Lancaster Counties also have criticized furloughs for essentially cutting sentences ordered by the courts. They argued that judges should decide the length of a prison term, not the Corrections Department.

State Sen. Steve Lathrop, chairman of the committee investigating the state prison scandal, has said furloughs should be discontinued or reinvented by the Legislature.

The long-term furlough program, launched in 2008 as a way to transition nonviolent inmates back into their communities, was later expanded and made available to those with violent convictions. About 140 of the 1,000 inmates placed on furlough over the past six years were convicted of violent offenses ranging from domestic assault to second-degree murder.

The furlough program was created behind closed doors and run without the public agendas and open hearings that accompany Parole Board actions. Houston, who led Corrections for eight years before his 2013 retirement, said he relied on the department’s legal counsel, who determined that he had the authority to furlough inmates.

He pointed out that the furlough program involves more intensive supervision than parole.

Houston said staff members conducted risk assessments to determine which inmates qualified for furloughs. Those classified as low-risk, even if they were serving time for violent offenses, could qualify for furlough, he said. Some inmates serving prison terms for nonviolent offenses graded out as high-risk and were not placed in the program, he said.

Although Corrections recommended certain inmates for furlough, the Parole Board also provided oversight.

“The Parole Board signed off on every furlough,” Houston said. “The Parole Board can’t distance themselves from furlough because they signed off on every one.”

Houston said research shows that inmates who eventually will be released do better under community supervision programs that help them hold employment, obtain support services and reconnect with family members.

As a nearly 40-year veteran of Corrections, Houston recalled how the department was criticized for not doing enough to maximize existing prison capacity before the $74 million Tecumseh prison was built in 2001. A recent consultant’s report said the state can start fixing the overcrowding problem by adding 1,100 beds spread out over three facilities at a cost of $199.2 million.

The efforts made by Corrections over the final years of Houston’s tenure show that officials were using every program available to extend the system’s capacity and protect public safety, he said.

“That’s a whole different mindset than scrambling around trying to push inmates out of cells,” he said. “That’s not what we were doing.”

Contact the writer: 402-473-9587, joe.duggan@owh.com

LINCOLN — Gov. Dave Heineman said Monday that a legislative probe into scandals at the state corrections system was more about scoring political points than finding solutions.

Heineman, in a press release, gave his first response to an investigative report issued Monday that blamed a lack of leadership from the Governor’s Office and a culture in the state prison system for a litany of problems. The report said the Corrections Department encouraged reducing overcrowding over following state laws.

The Republican governor, who leaves office in January, said that he has taken responsibility for the problems and that the probe, led by State Sen. Steve Lathrop of Omaha, was only interested in “scoring political points.”

“In contrast to the negative Lathrop report, I have been working with the Council of State Governments to develop positive solutions to address our prison capacity issues,” Heineman said in his press release.

He referred to a prison reform study undertaken in collaboration with the Justice Center of the CSG that was first suggested by some state senators.

Even before Heineman issued his statement, Lathrop dismissed the idea that the report from his seven-member committee was politically motivated.

“The report was approved on a 7-0 vote, and the committee was evenly split between Republicans and Democrats, with one independent,” Lathrop said. “And two of the Republicans he appointed (to the Legislature).”

“They all supported that report,” said Lathrop, a leading Democrat who had considered running for governor this year.

The report said chronic overcrowding in the state prison system caused officials to cut corners and ignore laws to reduce the crowding. It recommended several changes, including firing three current prison employees, increased legislative oversight of the prison system and automatic declaration of a prison emergency when crowding hits 140 percent of capacity.

State prisons are now at 159 percent of capacity and have been over 140 percent for a couple of years.

The special investigative committee originally was called to investigate how prison officials had dealt with Nikko Jenkins, who killed four Omahans shortly after being released from prison in July 2013.

The committee’s inquiries broadened in June, after The World-Herald revealed that for nearly two decades, Nebraska prison officials had miscalculated the sentences of hundreds of the state’s most serious offenders. As a result, state prison officials recalculated the release dates of hundreds of inmates, including 200 prisoners who had been released prematurely and 550 others who were still in prison.

Heineman, in his press release, said he had taken responsibility for the sentence calculations errors. But he said state lawmakers needed to take equal blame for not seeking to build new prisons to alleviate the crowding. He took aim at two Democrats on the investigative committee.

“If Senator Lathrop believed a new prison was warranted, he has had eight years to work with his colleagues in the Legislature, including Appropriations Committee Chair State Senator Mello, to introduce a bill to spend hundreds of millions of dollars on a new prison,” Heineman said. “To say there is a lack of leadership on my part on that issue is a diversion tactic and hypocritical.”

Lathrop said the Legislature was consistently told that Corrections could manage the overcrowding and that no new prison beds were needed.

The governor, he said, has the ultimate job to make sure state agencies are operating efficiently and to lobby for funding for new construction.

Monday’s report also stated that prolonged detention in solitary confinement worsened the mental state of inmate Nikko Jenkins, contributing to his murderous rampage when he was released in July 2013. Jenkins killed four people in Omaha within days of his release, after begging for mental health treatment while behind bars.

State prison officials told Lathrop’s committee that Jenkins was faking it and suffered from behavioral disorders that could not be treated by a mental hospital.

Said Heineman: “A judge has already found Nikko Jenkins legally responsible for four murders. This report is trying to make a claim that the correctional agency caused those murders.”

Lathrop, at a morning news conference, said the purpose of the committee’s report was not to “embarrass” the governor as he leaves office but to point out the glaring “dysfunction” within Corrections.

Contact the writer: 402-473-9584, paul.hammel@owh.com

LINCOLN — Operating “in the shadows,” Nebraska prison officials employed a two-pronged approach to try to quell the state’s chronic prison crowding, a legislative committee concluded Monday.

1. Get prisoners out — in many cases, earlier than a judge said they could be freed.

2. Leave ’em out.

Those “simple principles” resulted in convoluted practices and hush-hush policies that perverted state law, judges’ sentences and Supreme Court rulings, the committee wrote in a scathing 62-page final report.

“The absence of leadership and the culture at the Department of Corrections compromised public safety,” said State Sen. Steve Lathrop, who led the Legislature’s prison investigative committee.

The committee — three Democrats, three Republicans and one independent — blamed Gov. Dave Heineman for that lack of leadership, saying his failure to declare an overcrowding “emergency” led to most of the administrative foul-ups at the Department of Correctional Services and prompted the agency and administration to deal with crowded conditions “in the shadows,” and at times outside the law.

The governor fired back, saying he took responsibility for the prisons’ “sentence calculation errors.”

Heineman said in a statement that the Legislature also was aware of a 2006 consultant’s report raising the idea that the state needs a new prison.

“If Senator Lathrop believed a new prison was warranted, he has had eight years to work with his colleagues in the Legislature ... to introduce a bill to spend hundreds of millions of dollars on a new prison,” Heineman said. “To say there is a lack of leadership on my part on that issue is a diversion tactic and hypocritical.”

Lathrop said the governor has the chief responsibility to “run government well” and said Heineman and former Corrections Director Bob Houston assured lawmakers that they could manage the overcrowding.

The committee’s report recommended the firing of three Corrections employees, on top of the two Corrections attorneys who retired last summer rather than be fired. It also recommended that Gov.-elect Pete Ricketts make good on his promise of a nationwide search to find new leadership, rather than retaining current Corrections Director Mike Kenney.

An executive search firm hired with donated private funds has begun that process. Ricketts has said he wants to begin interviewing finalists in the first week of January. “I look forward to working with the new director and the Unicameral to chart a course for the Department of Corrections that meets our goals of public safety and fiscal responsibility,” he said Monday in a prepared statement.

Mostly, the report faulted Corrections for cutting corners and ignoring court rulings and state laws in order to alleviate overcrowding. The state prison system, as of Nov. 30, was at 159 percent of capacity.

Had the governor declared an emergency when the capacity hit 140 percent, the State Board of Parole would have been required to release inmates eligible for parole. Lathrop said that would have been more transparent than the process used by Corrections, which included creating programs “in the back room” to get inmates out of prison quicker.

At a Monday press conference, Lathrop said the report’s purpose was not to “embarrass the governor on the way out the door” but to “lay bare the dysfunction” at Corrections.

Omaha Sen. Bob Krist, a committee member, said the Legislature bears some responsibility for the problems at Corrections, though he said this isn’t the only problem in Heineman’s administration requiring a special probe.

“I believe we’ve been cleaning up a lot of the executive branch’s issues,” Krist said.

The committee was formed with a seemingly straightforward task: to investigate the release of mentally troubled inmate Nikko Jenkins, killed four Omahans shortly after leaving prison in July 2013.

The scope of the probe broadened substantially after a June 15 World-Herald investigation revealed that Nebraska prisons had been miscalculating release dates for two decades, releasing about 200 of the most serious offenders early and setting early release dates for another 550.

Emails subsequently obtained by the newspaper revealed that prison officials had ignored a key Nebraska Supreme Court ruling, known as the Castillas case, on how to calculate release dates. And a September investigation found that the state, at that time, was not following another key Supreme Court ruling, known as the Anderson decision, that requires inmates to be returned to prison if they commit crimes while at “mistaken liberty.”

Several employees, even a former director, said that overcrowding was the overriding issue at Corrections and that the state was determined to develop “no cost” options to deal with it.

Among the problems the committee dissected:

Sentence miscalculations

The legislative probe found that Corrections’ chief legal counsel, George Green, failed to read the Castillas decision, which effectively said the state had been miscalculating release dates for 20 years.

That decision was released in February 2013. Despite several emails and a meeting to discuss it, Green said he hadn’t read the decision. He told the committee that he relied on records administrator Kyle Poppert, who isn’t an attorney, to deal with it.

“It is hard to imagine how an opinion of such importance could be passed around various players at NDCS without its holding ultimately changing policy unless overcrowding played a role,” the committee wrote. “Perhaps most troubling, Green admitted that he only decided to take the time to review Castillas after the June 2014 Omaha World-Herald story. Clearly, Green failed in his duties.”

Prisoner roundup

While the report said the failure to apply the Castillas opinion might have been standard bureaucratic incompetence, “the same cannot be said for the manner in which the administration dealt with the (200) mistakenly released inmates.”

The report said Attorney General Jon Bruning, the governor and the Corrections Department failed to move to return inmates to prison until after a World-Herald follow-up investigation revealed the lack of action.

The investigation, published Sept. 28, reported that state officials, at the time, were not following the second Supreme Court ruling — the Anderson decision — that said any early-released inmates must obey the law in order to receive credit for time “mistakenly spent at liberty.”

The newspaper’s report showed that about 50 inmates had committed felonies since their early release, yet the state had not sought to make them serve the time they owed on their original sentence.

Bruning has since said that his office didn’t ignore Anderson but was trying to solve numerous sentencing problems in “tranches.” He has since announced that the state would pursue three test cases to see whether a judge would make an inmate serve the rest of his original sentence.

Heineman and Bruning said the issue was more complicated than what was being described. Bruning said any one of three legal theories could apply.

The committee blasted that idea Monday.

“The holding in Anderson is not as complex as the Attorney General would have us believe,” the committee wrote. “To suggest that a test case was necessary was, in the Committee’s opinion, the ‘spin’ that followed the embarrassing revelation that both the administration and the Attorney General were not compelling those who committed serious criminal offenses to return ... to resume their sentences.”

Furlough

The committee also called for the end of long-term furlough, which allows inmates to be released before a judge declared them eligible for parole. Since 2006, prison officials have released about 1,200 inmates, including nearly 160 violent criminals, before a judge said they could re-enter society.

“Not only was the (long-term furlough) program developed outside of the law,” the committee wrote, “but its implementation reflects the pressures of overcrowding.

“The Committee recommends that the Reentry Furlough Program should be abolished. In the event there is to be a furlough program ... it should be created legislatively.”

Documents released by the committee Monday indicated that Corrections planned to change the program at the end of the year to again allow inmates with violent crimes to be considered for release.

Corrections spokesman James Foster said late Monday that the change is being reconsidered.

Pressure to parole

The committee lambasted the pressure put on Esther Casmer, the Parole Board chairwoman, to parole more prisoners. Casmer testified at a hearing last month that she was under pressure by then-Director Bob Houston and the governor’s chief of staff, Larry Bare, to put more people on parole.

Bare and Houston have denied pressuring Casmer.

While the board typically paroled 100 inmates per month, Casmer said, she was pushed to increase that to 168. In turn, the board started paroling inmates with questionable records.

Of the demarcation between the Parole Board and Corrections, Casmer said: “Lines were blurred.”

“The Parole Board must be re-established as a truly independent gatekeeper,” the committee wrote. “Public safety (should be) its only consideration.”

Good-time credit

Houston signed a memo letting inmates keep good time they had earned on parole, even if they had violated parole and had been returned to prison. Houston created the policy in January 2011, in part to reduce overcrowding.

Before that, offenders whose parole was revoked lost the good time they had earned on parole. After the memo, parolees earned two extra days off their sentences each month. Changes to state law shortly afterward expanded that to 10 days per month.

Attorney General Jon Bruning reviewed the parole good time policy in August and found that it violated state law. By then, more than 1,000 prisoners had had their sentences improperly reduced by an average of 20 days.

The State Patrol, in its investigation, found that prison employees were uncomfortable with the change.

“That was something all of us disagreed with because we did not think that that was what the law intended,” said Angela Folts-Oberle, a prison records manager. “But when your legal team reviews it, your Director OKs it, you know, you move.”

The committee also found that prison officials became less likely to punish prisoners for misbehaving behind bars. In 2005, misbehaving inmates had an average of 42 days tacked onto their sentence. By 2012, they had just six days.

Jenkins

The committee was formed to investigate the circumstances of the incarceration of Nikko Jenkins, a mentally troubled inmate who killed four people in Omaha shortly after his release from prison in July 2013.

The committee said that there was no defense for Jenkins’ murderous rampage but that his mental health treatment behind bars was “wholly inadequate” and that prolonged confinement in solitary had worsened his mental state.

The report called his incarceration “a total failure of leadership and a textbook example of the administration of state government at its worst.”

Lathrop said it was “disturbing” that a “turf battle” between a contract psychiatrist and department mental health staff contributed to a failure to seek a commitment for Jenkins to a treatment facility, despite his repeated pleas to be committed and his promises to wage “the war of revelations” if released.

Heineman said in his statement that the committee was trying to shift blame for Jenkins’ crimes to state prison officials.

Use of solitary confinement

Jenkins spent most of his last two years in prison in segregation: 23 hours a day in a locked-down cell, with one hour of “recreation” in a caged enclosure.

The report cited widespread findings that the overuse of solitary confinement can exacerbate mental illnesses and make even mentally stable inmates paranoid and anti-social.

The report called it “a colossal failure” to release Jenkins from prison with no meaningful mental health treatment or transition program.

“In some ways, Jenkins might serve as a case study on the evils of segregation,” it stated.

It recommended adopting policies used by states such as Colorado and Mississippi to cut the number of inmates sent to “the hole.”

Corrections reported 629 inmates in such restrictive housing as of Nov. 17, a decrease from 719 in solitary in mid-September.

Mental health

The committee recommended improving mental health treatment inside and outside prisons because of the rising numbers of inmates with mental illnesses.

In Nebraska, about one-third of state inmates suffer from some kind of mental illness, and 10 times as many mentally ill people are in state prisons as in state hospitals, the report said.

Mentally ill inmates struggle with the regime of prison life.

The report said the state needs a facility to handle the dangerously mentally ill because the Lincoln Regional Center lacks that.

The report suggested increasing mental health staff and programs such as violence reduction, which have waiting lists.

“The public needs to recognize that 97 percent of the people who are going in prison are going to get out,” Lathrop said. If they get rehabilitation and mental health treatment, “we’re all going to be better off.”

Additional firings

Finally, the committee recommended firing Mark Weilage, a prison psychologist; Poppert, who was supposed to be in charge of calculating release dates; and Larry Wayne, a deputy director and Poppert’s immediate boss.

Green and Corrections attorney Sharon Lindgren were allowed to retire rather than be fired in August after an investigation by the Heineman administration. Poppert was suspended for two weeks without pay. Another Corrections attorney with limited involvement was suspended for a day.

No one was charged criminally. Bruning and Lancaster County Attorney Joe Kelly reviewed a State Patrol investigation and said they couldn’t tell who was responsible for ensuring that the department properly calculated dates.

The lack of criminal consequence still bothers at least some committee members. Their report began with a quote from a 17th century English judge that, the committee said, should guide state officials in reforming the prison system.

“Ignorance of the law excuses no man.”

World-Herald staff writer Matt Wynn contributed to this report.

Contact the writers: 402-444-1275, todd.cooper@owh.com, 402-473-9584, paul.hammel@owh.com

LINCOLN — Esther Casmer, who been chairwoman of the State Parole Board for nearly a decade, is retiring at the end of January, and questions have arisen about her early demotion from leading the agency.

Casmer, at the direction of Gov. Dave Heineman, will be replaced as board chairwoman effective today by fellow board member Rosalyn Cotton.

While the early demotion won’t come with a reduction in pay, State Sen. Ernie Chambers of Omaha said the move is suspicious, given Casmer’s Nov. 25 testimony before a special legislative committee. She told the committee that Heineman’s chief of staff threatened her and another Parole Board member with losing their jobs if they didn’t release more inmates on parole.

Larry Bare, the chief of staff, has said she misunderstood his comments.

Chambers called her demotion political retribution by the governor.

“As you go out the door, you just had to take the opportunity to stick a vindictive finger into the eye of Ms. Casmer,” the senator wrote in a letter Tuesday to Heineman.

A spokeswoman for the governor rejected the charge and said the change was being made now to provide transition time for a new Parole Board chief before Casmer retires. Spokeswoman Jen Rae Wang also said the timing was influenced by the Jan. 8 changeover in the governor’s office from Heineman to Gov.-elect Pete Ricketts.

“This administration worked with the incoming administration to allow for as much transition as possible once Ms. Casmer indicated that she would

be retiring from the board,” Wang said.

In December, Ricketts asked all state agency heads under the governor’s control to submit resignation letters and, if they wished, to reapply for their jobs. That request included Casmer, who heads the state’s parole operations.

Rather than seek reappointment, Casmer said she was planning to retire at the end of February, according to Wang and Ricketts spokesman Taylor Gage. Later, they said, she changed her retirement date to Jan. 30 and stated that she would be taking vacation from Jan. 26 through Jan. 30.

Wang said the Governor’s Office worked with Ricketts’ transition team in appointing Cotton, who was named to the Parole Board by Heineman in 2005. Cotton interviewed with Ricketts in December to lead the agency, and the new governor will retain her as chairwoman of the Parole Board, Gage said.

Casmer did not return phone messages seeking comment about her retirement and the early demotion.

After her testimony before the special legislative committee, she has declined additional comment other than to say she stands by her testimony. Another member of the Parole Board, James Pearson, backed up Casmer’s account.

Casmer’s term wasn’t set to expire until 2019, but she is at retirement age. She was appointed to the board in 1995 by then-Gov. Ben Nelson and was elevated to chairwoman in April 2005, at age 56, by Heineman.

Wang, when asked why the change was being made before Ricketts takes office Jan. 8, said it was to allow as much transition time as possible since Casmer will be on vacation the last week of January. Wang said Casmer has told administration officials she will assist Cotton in the transition.

By law, the governor appoints Parole Board members and the board chair. But the governor has limited power to fire Parole Board members once they’ve been appointed.

In the past, displeasure over Parole Board actions have prompted a change in its leadership.

In 1994, Nelson demoted and replaced a board chairman after his disagreement with the parole of a convicted killer and a convicted rapist.

Two years earlier, Nelson had asked three Parole Board members to resign after they paroled Ronald Ford, a murderer who committed another slaying a month after his release. Nelson also tried to fire the trio but eventually dropped the effort.

Contact the writer: 402-473-9584, paul.hammel@owh.com

A special prosecutor has decided not to file charges against a Nebraska Department of Corrections psychologist whom State Sen. Ernie Chambers had accused of withholding mental health information about murderer Nikko Jenkins.

Mark Weilage's actions were consistent with the law, Deputy Gage County Attorney Rick Schreiner, the special prosecutor, wrote in a document filed this week in Johnson County Court.

The matter stems from events that took place early in 2013, while Jenkins was incarcerated at the Tecumseh State Correctional Institution, which is in Johnson County.

Jenkins' mother. Lori Jenkins, had asked Deputy Johnson County Attorney Rick Smith to hold a mental health board hearing to consider committing her son to a mental institution instead of releasing him from prison.

Weilage did not tell Smith that a prison psychiatrist, Dr. Natalie Baker, had diagnosed Jenkins as mentally ill and dangerous.

Jenkins had been threatening to kill people if released from prison and had been cutting himself and smearing feces in his isolation cell.

A few months later, in July 2013, Jenkins was released from prison and killed four people.

This fall, Weilage told a state legislative committee probing the Jenkins case that he didn't believe Baker's diagnosis and that he would have been breaking the law if he recommended a mental health commitment he didn't believe was warranted.

Chambers, of Omaha, had asked the Johnson County Attorney¹s Office to look into filing criminal charges. Smith then asked that a special prosecutor be appointed.

Chambers contended that Weilage should face charges for failing to reveal Baker's diagnosis. The senator said that if Smith had been told of the diagnosis, it might have led to Jenkins' commitment to a mental institution and prevented the four murders committed by Jenkins after his release.

In deciding not to file charges, Schreiner, the special prosecutor, noted that Jenkins still had about five months to serve on a prison term and was committed to the Nebraska Department of Corrections for that term.

Schreiner wrote that Weilage and Baker both had testified that under Nebraska law, the proper time for a mental health board commitment process is at the end of a prison term.

Schreiner concluded that their opinion on that point is consistent with state law.

The special prosecutor¹s filing said that had Weilage shared Baker's diagnosis in early 2013, that could have resulted in a mental health commitment hearing that could have led to Jenkins¹ being put into the

custody of the Nebraska Department of Health and Human Services for treatment.

"However, if that had occurred at that time, jurisdiction and custody issues would have arisen because Nikko Jenkins was still subject to a commitment to the jurisdiction and custody of the Nebraska Department of Correctional Services," Schreiner¹s filing says.

Schreiner wrote that Baker also could have made a referral to the Johnson County Attorney's Office for a mental health commitment hearing on Jenkins, but she did not do so.

"No criminal charges will be pursued in this matter in Johnson County, Nebraska, because the actions of Dr. Weilage in that jurisdiction are consistent with the law as it applies to the mental health commitment of individuals committed to the Nebraska Department of Correctional Services," says Schreiner's filing, dated Tuesday.

LINCOLN — Three would-be prisoners had their legal options tested Monday.

Their patience, too. Not to mention their faith in the justice system.

Robin Banks, Jordan Lybarger and Peirce Hubbard-Williams — all prisoners who were released early — gathered in a Lancaster County district courtroom for an unheard-of hearing.

They were the “test cases” that state attorneys filed to see if a judge will return them and dozens of other would-be inmates to prison. The state filed lawsuits against them under a Nebraska Supreme Court ruling that says early-released prisoners should not get sentence credit if they committed additional crimes during their dumb-luck freedom.

Turns out, the test cases have faces. And families. And futures that, they hope, don’t include another prison stint.

Monday, the three walked into court and shook hands with each other, visibly anxious.

They walked out with a little bit of hope.

Judge Jodi Nelson directed sharp questions at Assistant Attorney General James Smith, who was arguing the case for the state.

“I’ll just tell you ... you have a skeptical audience right here,” Nelson told Smith.

The judge indicated her concerns didn’t center on the merits of whether the state had a right to try to return the prisoners. It centered on the way the state has chosen to pursue the test cases — with a virtually unprecedented “motion to enforce order of sentence.”

Nelson essentially questioned what state law gave her the authority to delve back into cases of defendants who have been sentenced and their cases closed.

Smith pointed to one Nebraska Supreme Court ruling that seemed to give courts broad power. He also pointed to a Supreme Court ruling known as the Anderson decision that was the basis for the test cases. That requires inmates to resume their sentences if they “game the system” by misbehaving while mistakenly free.

Ultimately, the judge didn’t issue a decision. She instead ordered the state and each would-be prisoner to file briefs on whether she had jurisdiction to rule on the state’s motion.

Her stern questioning of the state’s attorney provided a sliver of hope for Banks, Lybarger and Hubbard-Williams.

“I’m overwhelmed,” Banks said outside court. “When I first heard I was on their list to bring back, I was devastated. I said, ‘Are you kidding me? I would lose everything if I was to have to go back to prison.’

“But after I listened to the judge, I’m hopeful. I’m very hopeful.”

Lybarger told the judge he had no idea he was released early. He said he relied on the certificate of discharge given to him by Nebraska’s prisons.

“When I went home,” he said, “I thought I was done.”

Hubbard-Williams did, too.

Outside court, he told Smith, the state’s attorney who stopped to talk to the families, “You know, some of us have changed for the better.”

That is one of several questions swirling in the wake of Nebraska’s prison scandal. In June, The World-Herald reported that the state had ignored two Nebraska Supreme Court rulings on mandatory minimum sentences and set early release dates for about 750 prisoners, 200 of whom left prison early.

A follow-up World-Herald investigation found that at least 50 should-be prisoners had committed additional crimes while they were free.

After that report, Nebraska Attorney General Jon Bruning filed the test cases to see if a judge would order them to resume their original sentences.

Pointing to the Anderson ruling, state officials noted that Banks, Hubbard-Williams and Lybarger committed crimes since their early release.

» Banks, 58, originally landed in prison in 1999 for burglary and committing second-degree forgery as a habitual criminal. Officials released Banks in 2009, seven years before her projected 2016 release date. In 2013, Banks was convicted of second-degree forgery and sent back to prison. She was put on parole in September.

» Hubbard-Williams, 41, was convicted of theft as a habitual criminal in 2003. He was released in 2011, though his actual release date should have been July 2016. While out, he was convicted of felony possession of oxycodone in April 2013. He served time in prison for that offense and has since been released.

» Lybarger, 25, was released in September 2013, 18 months early. He had been serving time for possessing cocaine and a firearm. Prison records show that Lybarger wasn’t supposed to be released until March 2015. While he was free, Lybarger was convicted of possessing a forgery device. He served time in prison for that and was paroled in May. In June, state officials ordered him back to prison on his original cocaine and firearm sentence. A day later, he was returned home and placed back on parole.

The three left court Monday free for now but facing the prospect of years behind bars. Only one, Hubbard-Williams, had an attorney, a fact that prompted concern by some legal observers.

Outside court, Banks and Lybarger indicated they couldn’t afford attorneys. Judge Nelson didn’t inquire about appointing attorneys for them.

On her way out, Banks hugged about 10 family members and friends who had come to support her. As she descended the courthouse steps, she called out to Hubbard-Williams.

“God’s gonna work it out,” she said. “At the end, it’s going to be victory.”

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

LINCOLN — New State Auditor Charlie Janssen is wasting no time in wading into a controversial subject.

Janssen, who took office on Jan. 8, said he has launched a fast-track financial audit of the troubled Nebraska Department of Correctional Services, which has been plagued by overcrowded prisons and a scandal involving the mistaken early release of dozens of inmates.

The Corrections Department has already been the subject of two investigative reports by the State Legislature and a study of potential prison reforms by a blue-ribbon panel of state leaders and experts from the Council of State Governments. But the auditor said the agency hasn’t been the subject of a financial audit since 2008.

Janssen, a Republican who represented the Fremont area for six years in the Legislature, said he feels it’s important that state lawmakers, as well as a new corrections director being hired by Gov. Pete Ricketts, get the “full picture” of what’s been occurring at the department.

“With everything that’s going on right now, it was time to have an audit,” he said.

Janssen had been urged to undertake the audit by a former colleague, Omaha Sen. Heath Mello, who has been at the forefront in delving into the problems with the state prison system.

“Getting more information involving the financial management of the agency can only stand to benefit the Legislature, the new corrections director and the governor,” Mello said. “I’m grateful that the auditor has taken up my request.”

Both Mello and Janssen said they didn’t have any specific financial concerns about the Corrections Department, though Janssen said if the agency had trouble calculating release dates for inmates, it gives him pause.

An audit of such a large state agency can take more than a year. But Janssen said he has doubled the typical staffing, from five to 10 auditors, in hopes of getting at least preliminary results to state lawmakers before the end of the 2015 session on June 5.

Janssen succeeded Mike Foley, a Lincoln Republican who bypassed almost certain re-election to a third term as state auditor to run for governor last year. Foley lost the GOP primary but was ultimately chosen by Ricketts as his lieutenant governor.

Foley, who is also a former state senator, was known for his hard-hitting and well-publicized audits of the Department of Health and Human Services and the University of Nebraska.

His office produced a scathing financial audit of the state’s child welfare system in 2011 as the Legislature investigated the state’s failed attempt to fully privatize it. Mello said his request for the financial audit of the Corrections Department was similar to the audit done of the child welfare system.

Janssen said his goal as auditor is not necessarily to “get headlines,” but to find “waste, abuse and fraud.” He said he plans to “listen to the people,” and urged those with concerns about state spending to call the auditor’s hotline, 1-800-842-8348.

“It’s very helpful that Lt. Gov. Foley is right around the corner,” Janssen said. “But the staff here is top-notch.”

Contact the writer: 402-473-9584, paul.hammel@owh.com

LINCOLN — The Nebraska Supreme Court weighed in for the first time Thursday on the state’s massive prison-release scandal — lobbing pointed questions to both sides about the early releases and how the prisoners were rounded up.

In essence, the judges’ questions boiled down to:

» What right did the state have to round up prisoners who had been released early?

» What rights should the prisoners have had to contest the roundup?

Those questions took center stage Thursday as the Nebraska Supreme Court heard oral arguments at the University of Nebraska-Lincoln College of Law. Three convicts — all of whom had been rounded up, then put back on the streets on parole — joined about 100 University of Nebraska law students to watch the Supreme Court in action.

Lincoln attorney Jerry Soucie brought the case on behalf of Kena Jackson, a 40-year-old prisoner who was convicted of cocaine possession and sentenced under the state’s habitual criminal law.

Jackson was among 750 prisoners who had their prison stays extended after The World-Herald found in June that state officials had been setting early release dates for nearly two decades. Of those 750 prisoners, 200 already had been released early.

The state went after about 40 of the early-released prisoners, including Jackson.

This summer, officials rounded up Jackson and sent him to a prison in McCook, Nebraska. No hearing. No chance to plead his case to a judge. No attorney.

Soucie noted that Jackson had been given an official “certificate of discharge” from Nebraska’s prisons. That certificate noted that many of his civil rights had been restored.

“If their discharge certificate isn’t worth the piece of paper it’s printed on, then (Corrections) can go back and rearrest anyone released since the beginning of time,” Soucie told the judges. “How in the world ...(could) that not mean what it says?”

Because of a simple reason, James Smith, Nebraska’s solicitor general, told the judges: The men had not completed their sentences. They had been released only because the state was using a faulty formula that didn’t fully factor in mandatory terms for certain prisoners such as habitual criminals, child rapists and gun thugs.

In Jackson’s case, he was mandatorily released in October 2013, after serving 10 years. His actual release date should have been 2½ years later, in 2016.

“He had no right to be free,” Smith said. “He was only free because of a negligent error.”

Supreme Court judges had questions about the way in which the state conducted the roundup. Judges issued warrants seeking the return of many inmates, including Jackson. Others were told to report back.

“How does Mr. Jackson get his day in court?,” Justice William Connolly asked.

Smith said giving prisoners notice of a hearing to determine the roundup would have given them “a chance to abscond.” He suggested that Jackson could have filed a petition for habeas corpus, in which people contend they are being held illegally, at the time he was rounded up.

But the bottom line, said Smith, is no one can dispute that Jackson owed the time.

“The government’s interests are substantial,” Smith said. “Habitual criminals are threats to society. The erroneous release undermines the credibility of the law and the judge’s sentence.”

But Soucie said other factors are at play. Jackson, for example, had no motivation to take part in prison programming to become parole-eligible because prison officials had wrongly set his mandatory release date at the same time as his parole eligibility date.

Further, Soucie said, state officials had other ways to seek a roundup that would have guaranteed that prisoners were given a hearing and due process.

Once the Nebraska’s Attorney General’s Office found out that Corrections was miscalculating dates, Soucie said, the office should have sued then-Corrections Director Mike Kenney to get a judge to declare that the prisons weren’t following state law.

That way, Soucie said, all inmates would have been put on notice of the state’s intent.

Instead, the state rounded up some and asked others to return to prison. In a separate move, the state has filed test cases against three prisoners, seeking to have a judge determine whether they should have to serve time owed on their original sentences because they committed crimes while they were out.

In those cases, the Nebraska Attorney General’s Office filed an unheard-of “motion to enforce sentence.”

Those motions were met with skepticism Thursday from a Supreme Court judge.

Judge William Cassell asked whether there was a “statute that creates authority for any such motion.”

Smith, of the Attorney General’s Office, pointed to case law that says a judge has the authority to enforce his or her own judgments, including sentencing orders.

At that, one of the convicts in the back grumbled. “He’s talking out of his ...,” said Bruce Caton, who was rounded up last summer only to be paroled last fall.

In all, about nine court actions are pending over the roundup and prison-release issues.

Later Thursday morning, Soucie and state attorneys were in Lancaster County District Judge John Colburn’s courtroom concerning the release and roundup of Abdul Alameen and Thomas Evans. Colburn took those cases under advisement and is expected to rule in a few months.

The state’s high court also took Jackson’s case under advisement.

Outside, Kena Jackson said the roundup had been a shock. He was at work when the State Patrol arrived and arrested him, mentioning something about an “escape.”

“I jammed my time,” Jackson said he protested, to no avail.

Jackson said he had no idea he had been released early. Before he knew it, he said, he was in prison in McCook, unable to see family and friends for the four months before he was paroled. Thankfully, he said, his boss rehired him after he was paroled.

Even so, Jackson said, he should have had a hearing upon his return to prison.

“I would have had a chance to plead my case,” he said. “To just do a roundup? That isn’t right.”

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

The Nebraska Department of Correctional Services is overhauling its software to reduce the odds of improper sentence calculations, Gov. Pete Ricketts said Monday.

The announcement comes nearly 10 months after The World-Herald discovered that prison officials had incorrectly shortened hundreds of sentences.

“As I have reviewed the department’s operations, modernizing the calculation of sentences was at the top of the list,” said Scott Frakes, who was confirmed as the new director of the corrections department in February. “While there will always be some manual processes involved, using this new software will help minimize the possibility of human error in the calculation process.”

The software upgrade will cost about a half-million dollars, Frakes said.

In October, the U.S. Department of Justice lambasted the department’s computer system. Glenn Jackson of the National Institute of Corrections conducted the Justice review, finding an inadequate computer system that required “numerous manual functions” and had no ability to warn staff of possible errors.

The software changes aren’t a direct response to the Justice review, Frakes said, though they are in line with those recommendations.

The software upgrade will attempt to cut out some of the manual functions identified in that report, said Beth Boal, a business analyst for the state’s information technology agency.

Now, records staff use pen and paper to calculate maximum and minimum sentences for inmates with multiple convictions, Boal said. The new system will do the calculations automatically, and the findings then will be reviewed by records staff.

Good time adjustments, which had been made manually every month, will be handled automatically, she said. Good time cuts most sentences in half, but it can be withheld if inmates break prison rules.

The new system also will retain a record of when changes are made to an inmate’s sentence. Such tracking does not currently exist.

The project is just beginning, Boal said. She said the department hopes to have the changes in place by October.

“My administration has looked for new ways to integrate technology to streamline government services,” Ricketts said. “This initiative will help ensure that the Nebraska Department of Correctional Services accurately calculates sentences.”

Frakes will oversee the software upgrade along with Ricketts’ chief operating officer, Felix Davidson.

Contact the writer: 402-444-3144, matt.wynn@owh.com