* The inmate population could reach 140 percent of the prison system's capacity by next year instead of 2010 even without LB117 because sentencing guidelines central to drug-crime reforms are not yet in place. LB117, however, would make staying below the mark more difficult.And the mark has political importance: State statute says once the prison population reaches 140 percent, the governor can declare an emergency and may begin putting inmates on parole until the population is pared to 125 percent of capacity.Corrections officials won't go as far as saying they will have to ask for money to build a prison within the next year or two, but they say the possible consequences of LB117 demand attention — and soon."We're sitting at 134 percent of capacity right now," King said, "and certainly we are aware we are overcrowded and that if we continue to expand growth, and growth is not abated — and passage of 117 only adds to that growth — with all of that ... the department is going to have to seriously look at issues of capacity."But a state senator who chairs a council that has worked for 1½ years to build a system for diverting nonviolent drug offenders from prison into treatment programs said it's too early to sound an alarm. Sen. Kermit Brashear of Omaha said the bill does not rob prosecutors of the discretion to determine whether meth arrestees should be charged as users instead of dealers and manufacturers. The latter two are the target of LB117."Only if you take everything in the worst-case scenario — no prosecutorial discretion, etcetera, etcetera," will LB117 severely spike the prison population, he said."We'll have to wait and see how the prosecutorial process and convictions go."For some state officials, the current prison population and approach to drug crimes represented by LB117 recalls the days preceding the 1997 legislative session.It was a landmark year for state corrections. Legislators authorized construction of a $70 million prison in Tecumseh, and, not coincidentally, also began to embrace the idea of seeking alternatives to sending nonviolent offenders to prison to avoid a multimillion-dollar repeat.Planted was a seed that would grow into the Community Corrections Council, which is chaired by Brashear. He has said continuing to fill prisons with nonviolent drug offenders could "break the bank," by forcing construction of another prison. A growing recognition that treatment, not hard time, was a better rehabilitation tool for drug offenders complemented the desire to avoid more prison building and provided the Community Corrections Council with a foundation for its reforms.Some on the council say ideas embodied in LB117 represent a reversal of sorts.
"The philosophy of incarceration being a significant solution to the problem is obviously contrary to community corrections being a solution," said John Icenogle, district court judge for Buffalo and Hall counties. "But the Legislature has said this problem is so severe they don't trust it to community corrections, and we have to accept that."
Lancaster County District Court Judge Karen Flowers, also on the council, said LB117 appears to be the antithesis of the movement toward community corrections but, like Brashear, said law enforcement will have discretion when making charges and it's too early to gauge the bill's impact.
One reason the bill could boost prison populations is its effect of weakening a centerpiece of the reforms endorsed by the council: proposed new sentencing guidelines that would urge judges to place nonviolent drug offenders without extensive criminal histories into treatment programs and probation.
The Corrections Department estimated the guidelines could divert 400 people from prison annually, equal to about 10 percent of the total prison population. The guidelines have not yet been approved by the Nebraska Supreme Court, which is awaiting estimates from the State Probation Administration.
Pushing to have stiffer penalties in the bill was Attorney General Bruning. New penalties in LB117 include mandatory-minimum prison sentences for crimes that previously could have landed offenders on parole — or, under the proposed sentencing guidelines, in treatment programs. Where possession of 10 grams of meth with the intent to sell previously carried no mandatory prison sentence, it now prompts a mandatory sentence of at least three year, one year more than the current, average prison stay of a meth offender.
In the mid-range, getting caught with between 28 grams and 99 grams carried a possible sentence of up to 20 years, but no mandatory minimum. Now, meth dealers convicted of selling amounts in that range must be locked away for at least five years.
Bruning, who was on vacation and unavailable for comment, according to his staff, released a written statement: "LB117 brings the penalties for possession of methamphetamine equal to the penalties for possession of heroin and cocaine. Prior to this bill's passage, an individual who possessed more than a pound of meth would be eligible for the same penalty as someone who possessed only 28 grams of cocaine ..."
"By equalizing the penalties for possession, we are better equipped to go after the manufacturers and traffickers ..."
That's an antiquated approach to the drug problem, said Sen. Dwite Pedersen of Elkhorn, a substance abuse counselor who speculated that prison populations didn't arise as an issue during debate on LB117 because there was a desire to get tough, quick, on meth.
"People just didn't take long enough to look at it," he said. "And the people that wanted it pushed very hard without looking at the consequences.
"The whole thing with the meth bill was this ‘get tough on crime' message coming down from the governor's office and State Patrol."
Heineman said through spokesman Aaron Sanderford that LB117's effect on the prison population was considered long before its passage. If the bill has the desired effect of decreasing the manufacture of meth in the state, Heineman said, it could cut the number of meth-related arrests, reducing the number of people who land in jail on meth charges.
The bill should not, he added, extend more punishment to small-time meth users.
Like state legislators who approved the bill, the governor says it's time to play hardball with meth offenders to keep the public safe.
"I'm not going to lose a moment's sleep because violent drug dealers and manufacturers will spend a little longer behind bars."
Reach Nate Jenkins at 473-7223 or njenkins@journalstar.com.
Meth lab numbers
A new bill that stiffens penalties on methamphetamine dealers and manufacturers is kicking in at a time when the number of meth labs in the state appears to be declining.
Number of labs:
2001: 222
2002: 361
2003: 245
2004: 225
2005 (so far): 106
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