Jail or Probation

Recently, there has been a lot of talk in Nebraska amongst politicians regarding the large number of people we have sitting in jail or prison across the state.

According to the Nebraska Department of Corrections, in 2005, the average number of people incarcerated in Nebraska Prisons was 4,086.In 2014, the average number of people incarcerated in Nebraska prisons was 4,871.The increase constitutes a 19 percent increase in less than 10 years.

The number of people currently sitting in jail serving out sentences on misdemeanor charges is substantially higher.

My experience in the criminal justice system would make me believe that a majority of the people in jail or prison currently face some sort of drug or alcohol related addiction, and the crime for which they stand convicted somehow relate to that drug or alcohol problem.

I am not suggesting that drugs or alcohol is the only reason, but I believe that a majority of crimes are related to drug or alcohol abuse.

Recent statistics from the Nebraska Department of Corrections support the conclusion. In 2014, almost 20 percent of the population was in prison for a drug crime.

In 2014, the Council of State Governments issued a report as to the reasons incarceration rates in Nebraska were so high. The following are some of the findings outlined in the report:

• In 2012, Nebraska had the 12th lowest probation rate in the nation, with 1,019 probationers per 100,000 residents, compared to the U.S. probation rate of 1,633 probationers per 100,000 residents.

• Nebraska judges as a whole utilized probation 22 percent of the time, but it was utilized just 16 percent of the time in Douglas County and 17 percent of the time in Lancaster County. By contrast, the national average for probation sentences was 27 percent, and judges in Idaho and Kansas utilized probation sentences at more than double that rate, 58 percent and 69 percent of the time, respectively.

• If judges in the state’s most populous counties sentenced felons to probation at the same rate as judges nationwide, admissions to state prisons could be cut significantly, by 500 inmates per year, the CSG officials reported.

People who have studied the issue frequently point to rehabilitation and other types of treatment designed to fix the problem as opposed to warehousing people in jail or prison. As an example, many people believe that drug treatment for drug addicts is a better use of resources than simply putting that person in jail or prison.

From a societal standpoint, the option of treatment over incarceration makes sense. From a legal standpoint it, the option also makes sense. The issue seems to be “why” aren’t judge’s giving those people convicted of a crime the option for treatment.

For those of us who practice criminal law, we understand that there must be a mechanism or rule of some sort in place for drug addicts or alcoholics to get treatment instead of a sentence of jail or prison.

Under many state statutes governing the types of sentences to be imposed, a judge only has the option of incarcerating somebody for a long period of time or giving them a sentence of probation.

Many people outside the legal community mistakenly believe that a judge could impose whatever sentence he or she believes appropriate regardless of what the law will allow. That is simply not true. A judge is required to impose a sentence within the limits outlined by the law.

With that notion in mind, many times a judge can only choose between a sentence of incarceration or a sentence of probation.

For those that believe in rehabilitation, the best sentence for chronic drug addict or alcoholic is probation, and as part of the conditions of probation, the judge orders that a person obtain a drug and alcohol evaluation and then follow through with the recommendations contained within the evaluation.

The bigger issues seems to be “why” judges in Lancaster and Douglas Counties impose a sentence of probation at a rate approximately five percent lower than the judges in other counties in Nebraska.

One of the reasons that the numbers are higher in Lancaster County could be related to the “informal rule” that in many cases, a person convicted of a felony in Lancaster County District Court will not be considered for probation unless they receive a drug and alcohol evaluation.

Although seemingly simple, sometimes there are barriers for people just to obtain a drug and alcohol evaluation. In Lincoln, Nebraska, the average cost for a drug and alcohol evaluation is about $200. There are situations in which the probation office may help pay for the cost of the evaluation, but that isn’t the case for all people convicted of a crime awaiting sentencing.

It seems that an easy solution would be to simply provide resources and options for everyone who is convicted of a crime to obtain a drug and alcohol evaluation. The cost to the tax payers would be substantially lower to have more people on probation than incarcerated in Nebraska prisons.


Id. At 38.




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