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Life After Prison: Nebraska’s ‘Growing Pains” With Probation Reform

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In 2018, the justice system in Nebraska’s Dodge County found itself navigating a new responsibility: rehabilitating individuals returning from the state prison system.

Hundreds of ex-offenders completing prison sentences were returning home. But for many, prison was the easy part. The real challenge was just starting. Now, many were embarking on the second part of their sentence, which would be served within their communities.

Beginning in 2015, prison sentences on class III, IIIA and IV felonies started to include a mandatory sentence of “post-release supervision,” an intensive rehabilitative probation program that requires offenders to pursue services after prison in hopes of keeping them out for good.

But county officials say the sentencing change has had consequences on offenders and local justice systems alike.

It shifted a new class of higher-risk felony offenders onto new and demanding regimens of supervision. And it shifted the burden of supervising them from the state to the counties.

“The rehabilitative process falls back on the probation office and the county attorney’s office and the courts, because when people come back in the community from their prison sentence, they have to report to probation and they begin their term of PRS,” said Dodge County Attorney Oliver Glass.

Post-release supervision was created as part of a package of reforms passed in the 2015 criminal justice reform law known as LB605. The law also created a “presumption of probation” directing judges to put offenders on probation on most class IV felony cases, which led to an increase in community-based probation sentences in lieu of prison.

The law took aim at the state’s overcrowded prison system, then at 159 percent capacity and now under mandate to make significant reductions by 2020.

High Volumes, Limited Resources

But it also put more individuals into community services that are already dealing with high volumes and limited resources. And it put local justice systems in charge of an increasing number of individuals who face legal repercussions for violating the terms of their probation or post-release supervision.

That brings more cases before an already-crowded court docket, and potentially more inmates into a rapidly growing jail population housed in Saunders County.

“Probation now has all these people they have to deal with, either through presumption or post-release supervision,” said District Court Judge Geoffrey Hall.

“I know that the court system has been efforting to ramp up, but it takes time, effort and dollars, so it’s a burden on the system.”

Last year was Dodge County District Court’s busiest caseload on record. In 2018, the court saw 891 filings, the most since at least 2007 and up from 766 in 2015, according to the Nebraska Judicial Branch.

Felony probation and post-release supervision contributed to that growth. In 2018, there were 50 motions to revoke probation or post-release supervision filed in Dodge County District Court, according to the district court clerk’s office. In 2017, there were only 13, and in 2015, there were only three.

Hall has previously expressed frustration with the large number of motions to revoke post-release supervision being filed in court.

“These people get in trouble, I have to issue an arrest warrant, they get court-appointed attorneys and they spend time in jail and many of them don’t seem to be inclined to change their ways,” Hall told the Tribune in an October interview.

An individual may violate their probation or supervision by committing a new crime, but may also receive sanctions for things like missing classes, testing positive for drugs or alcohol, or missing scheduled drug tests. Punishments can include administrative sanctions, like additional classes, or custodial sanctions — short bursts of county jail time that rarely last more than a few weeks.

A motion to revoke felony probation or post-release supervision can be filed in court if a probationer has amassed 90 days’ worth of custodial sanctions, committed a new crime, or absconded. Once a motion is filed, that will bring the individual back before the court and could place them in jail as their case progresses.

If revoked, a probationer could be incarcerated in either prison or jail to serve out the remainder of their time. But data released by the state’s Office of Probation Administration in November shows that burden is increasingly falling on county jails.

In the 2015-2016 fiscal year, 57 percent of all individuals revoked from felony probation and post-release supervision in the state were sent back to prison, compared to 43 percent to the county jails. This past fiscal year, those numbers reversed: prisons housed 37 percent of revoked probationers, while jails housed 63 percent.

Seventy percent of traditional probationers successfully complete probation, according to statewide data. Only 35 percent of discharges from post-release supervision last year were successful. Another 32 percent were classified as “unsuccessful completion,” where they were not revoked but failed to fulfill all the requirements. And another 32 percent were revoked.

Even those who were discharged successfully may have faced custodial sanctions at some point in their term. — there were 1,795 custodial sanctions issued statewide last year, up from 1,056 the year before.

Many, Hall and Glass included, see the value of LB605, and understand the state’s need to find solutions to its prison conundrum.

‘Change is Hard’

“It’s very expensive to house prisoners, and I think history would show it’s probably not always the best way to deal with, especially, non-violent crime,” Hall said. “Change is hard, and with change comes issues, and I think we’re in that process right now.”

Patty Lyon, chief probation officer for District 6 office, the local arm of the state probation agency, is hopeful that the system will help offenders in the long run by giving them the tools to keep them from re-offending — ultimately improving community safety. Additionally, the state probation office notes that keeping people on probation has a significantly lower price tag than keeping them in prisons.

But the new law has created some “growing pains” for counties, she acknowledged.

Previously, the only system of post-incarceral supervision in Nebraska was parole. But parole violators were sent back to prison — not jail — and the supervision was less intense or rehabilitative than probation or post-release supervision.

And because parole is only granted to prisoners who are released before they’d served their maximum prison time, many prisoners avoided it entirely by choosing to stay in prison for their entire sentence, a practice known as “jamming out,” meaning that they’d be released without any supervision.

By design, the probation system is dealing with a higher-risk population that traditionally received prison time and often avoided community supervision. But even in cases where they aren’t successful, those individuals are getting services that they’ve never had before. The state probation office says that research shows such supports can help reduce recidivism in the long run.

“These are participants that never had [PRS] before and in many cases don’t want it,” Lyon said. “But those are also the individuals that once they accept the program, or accept what’s being offered to them, they can make huge changes, too.”

Among the biggest challenges in compliance with post-release supervision is getting offenders to buy into it once they leave prison. Often, they see it as a second punishment.

“A lot of guys and gals that’s on that post-release supervision, they really resent it,” said Jim Jones of the Lincoln-based Community Justice Center, which works with ex-offenders returning to the community.

Chelsea Burk understands the feeling. The Lincoln native and mother of two is currently serving yearlong post-release supervision out of Lancaster County, after completing a prison sentence on a 2016 charge of possessing methamphetamine. She left prison in July — serving only nine months of her 18-month sentence after receiving good time — with a new lease on life: sober and with money saved up from a work-release program.

Her post-release supervision sentence was more daunting than her prison sentence, she says. She was required to maintain employment while also attending early morning classes and drug tests three times a week that wouldn’t allow her to be even a minute late. She couldn’t associate with people who had criminal records, ruling out just about everybody she knew. She felt lonely and anxious.

Since September, Burk has made significant strides, remaining sober and employed, making new friends and reconnecting with her family in North Platte. But early on, overcome with loneliness and anxiety, Burk relapsed. She felt overwhelmed and started to miss classes and drug tests. She served two custodial sanctions of five and 15 days, and the fear of losing all the gains she’d made in prison drove her to do better.

But while she believes that the strict regimen is necessary to get through to offenders, she also notes that probationers may face a slew of challenges that require more flexibility from the system: a lack of reliable transportation to get to mandatory appointments on time, unexpected changes in probation officers, mental health issues and substance abuse relapses.

Some probationers, she says, “can’t fathom” maintaining the demanding schedule that probation requires, and often leave prison without the supports necessary to help them.

“People that go to prison, there’s an underlying factor to what happened, and a lot of times it’s mental health, and sometimes it’s the substance abuse that’s deteriorated mental health,” she said.

“This is an uncomfortable, icky feeling to be out here doing things by myself. If you don’t know that that’s coming, it’s going to cause some problems — it’s going to cause you to end up right back in court.”

Dodge County, with an average daily jail population that has grown from 61 to 81 since 2012, is not alone in seeing new strains on its justice system. Nationally, pretrial incarceration rates in rural county jails have increased 436 percent between 1970 and 2013, according to the New York-based Vera Institute of Justice.

The consequences of mass incarceration are often felt more acutely at the local level, where there are fewer resources and less space to accommodate growing volume, says Jasmine Heiss, the director of outreach and public affairs for Vera’s “In Our Backyards” project, which studies incarceration trends.

Sentencing reforms have played a role in driving jail growth nationwide, Heiss said.

That’s because probation, seen by lawmakers as an enticing alternative to incarceration in states with overcrowded facilities, often simply becomes a nebulous extension of the incarceral system.

Officials should use discretion when deciding which violations trigger an incarceral response, she said. Glass noted that his office is working to do that, and communication with Lyon’s district 6 office on finding other solutions is ongoing.

“These systems just create a tripwire for people to go back into [incarceral] systems,” Heiss said.

James Farrell, a staff writer for the Fremont Tribune, is a 2018 John Jay Rural Justice Reporting Fellow. This article was written as part of his fellowship project. The complete version can be accessed here.

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