Ashford calls for special session after internal documents show prison officials snubbed law

By Deena Winter | Nebraska Watchdog

LINCOLN, Neb. – Omaha Sen. Brad Ashford is calling for a special session about oversight of the state’s beleaguered prison system after internal documents showed prison employees ignored warnings they were miscalculating prison sentences and letting inmates out too early.

Ashford told Nebraska Watchdog he’ll send a letter to the governor asking him to call a special session, which he believes is “a must” to get to the bottom of recent revelations that prison officials knew they were incorrectly calculating prison sentences, shortening them, for some of the state’s most dangerous inmates.

Gov. Dave Heineman is unlikely to acquiesce to such a demand from a Democratic senator running for the U.S. Senate, so the other option is for Ashford to try to round up 33 lawmakers who agree with him.

Ashford’s call for a special session came after documents released by the attorney general’s office show prison officials ignored warnings they were violating the law in response to an open records request by the Omaha World-Herald and Nebraska Watchdog. Attorney General Jon Bruning’s office first released the documents to the World-Herald, and then Nebraska Watchdog.

The documents make it clear prison officials were repeatedly told they were calculating sentences incorrectly – by the attorney general’s office, by a prosecutor who was surprised to see a prisoner back on the streets assaulting people even though he should have been locked up for another 10 years, and in two Nebraska Supreme Court rulings.

The Supreme Court twice made it clear in rulings that state law did not allow good time credit to be applied to the maximum portion of a sentence before the mandatory minimum sentence had been served.

But still, corrections staffers continued to err by allowing inmates to get credit for “good time” against mandatory minimum sentences, even though the current prisons director himself, Mike Kenney, was named in a 2002 lawsuit where a habitual criminal argued he should earn good time on his mandatory minimum sentence. Kenney’s side (the state) argued the opposite, and prevailed.

Fourteen years later, the prison system over which Kenney now presides was still incorrectly calculate sentences until the Omaha World-Herald discovered the error last month. Now suddenly the state officials have gone to great lengths to correct the mistakes – admitting 306 inmates were released early, rounding up 15 ex-prisoners to complete their actual sentences and launching an independent review.

According to internal government documents, in January 2013, the attorney general’s office was contacted by the Scotts Bluff county attorney about a habitual criminal named Christopher Lohman who had been paroled 10 years too early and then arrested again for another assault.

Assistant Attorney General David Cookson informed corrections attorney Kathy Blum that corrections had erroneously granted good time against his mandatory sentence and made his sentence concurrent rather than consecutive.

Lohman was subsequently hauled back to prison, and died while in custody in November – with his release date was still in error on the corrections’ website.

Cookson wrote in a memo about the Lohman case that the corrections department has been aware since at least 2002 that mandatory minimum sentences aren’t allowed to be reduced by good time, noting that Kenney was involved in a court case where the state Supreme Court ruled that good time cannot be applied to mandatory minimum sentences.

The Supreme Court reaffirmed that in February 2013, after Omaha gang member David Castillas, convicted in two drive-by shootings, appealed his convictions and sentences. The department had erroneously set his release date 12.5 years early.

Shortly after the Supreme Court decision in the Castillas case was released, Assistant Attorney General Linda Willard, who primarily handled corrections’ legal matters, sent the opinion to corrections records manager Jeannene Douglass and her boss, records administrator Kyle Poppert.

Willard said she figured they were already calculating sentences correctly, but said “others in the office thought you might be doing it differently” so she sent the opinion to make sure they were abiding by the court’s direction.

Douglass responded by basically arguing against the Supreme Court, saying Castillas would be released after serving half his mandatory sentence.

“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?” Willard responded.

Douglass replied: “Would 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 go back in and recalculate everyone who has mandatory minimum sentences. What do you think?”

There is no record of an email response by Willard, but a half-hour later Douglass sent an email to Willard, her boss, Poppert, and corrections’ general counsel, George Green, acknowledging the prison system was calculating discharge dates differently than the Supreme Court said the law required.

“Linda 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 the sentences the way we have always done it.”

She noted that doing it the right way would add 12.5 years onto Castillas’ sentence and said Willard agreed with her.

“The inmate obviously would not complain since he will serve less time,” Douglass wrote. “It would also serve the Director’s desires, as well, to not increase our population any more than we must.”

The Nebraska prisons system has been chronically overcrowded for years.

Willard retired from her job in May; Douglass retired last year.

The confusion about whether mandatory minimum sentences can be cut by good time dates back to a 1995 “get tough on crime” law pushed by former Gov. Ben Nelson, who testified in support of the bill. Subsequent lawsuits and court rulings have repeatedly affirmed that the law does not allow inmates to get good time (a reduction in their sentence) if their crimes carried mandatory minimum sentences.

Lincoln Sen. Colby Coash said on KLIN Monday there will be a lot of questions from lawmakers about how this happened and to ensure it never happens again.

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