Criminal Justice


Nebraska Corrections Department selected for solitary confinement initiative

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FOR IMMEDIATE RELEASE
March 24, 2015

Contact: Tyler Richard, This e-mail address is being protected from spambots. You need JavaScript enabled to view it , 402.476.8091 x104

Lincoln, Neb - Today it was announced that the Nebraska Department of Corrections was selected by the Vera Institute of Justice as one of five corrections departments to participate in the Safe Alternatives to Segregation (SAS) initiative aimed at reducing the use of solitary confinement and other forms of segregated prisoner housing. The state corrections departments in Nebraska, Oregon, and North Carolina, and local departments in New York City and Middlesex County, New Jersey were chosen after a competitive bidding process. For more information, including a quote from Scott Frakes, director, Nebraska Department of Corrections, please visit:

http://www.vera.org/news/vera-selects-five-corrections-departments-initiative-aimed-reducing-use-solitary-confinement

Statement from ACLU of Nebraska Executive Director Danielle Conrad

We commend the State of Nebraska for securing this important grant. The Vera Institute has an impressive track record for fostering meaningful reform efforts. Nebraska remains an outlier in the country with nearly 15% of prisoners in some type of restricted housing or solitary confinement. Nebraska needs all hands on deck to end these practices and make smart, effective investments in our criminal justice system rather than using litigation as our only option to cure constitutional violations, restore dignity, and ensure access to mental health treatment to improve public safety.

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ABOUT: The ACLU of Nebraska and its diverse membership works in courts, the legislature and our communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States and Nebraska guarantee everyone in this state.

 

ACLU warns York County officials to respect attorney -client communications

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FOR IMMEDIATE RELEASE
March 19, 2014

Contact:               Tyler Richard, This e-mail address is being protected from spambots. You need JavaScript enabled to view it , 402.476.8091 x104,

Lincoln, Neb - The ACLU of Nebraska today warned the York County Sheriff’s office that monitoring calls between an attorney and a client is a violation of constitutional rights and the county could be facing legal action by both attorneys and clients. The letter sent by ACLU of Nebraska Legal Director Amy Miller was in response to complaints the ACLU has received from attorneys and detainees. The letter says that if the Sheriff’s office does not review these constitutional rights with staff, they could face a civil rights lawsuit.

Ensuring access to attorneys for those facing criminal charges has been a recent priority of the ACLU. The ACLU opened up investigations into county funding for public defenders two years ago. Multiple counties have since increased their funding based on the ACLU’s recommendations.

Statement from Danielle Conrad, Executive Director

The attorney client relationship is fundamental to protecting everyone's due process and a fair trial rights. The confidential nature of attorney client communications is sacrosanct. This holds true in any context including county jails. Courts have clearly and specifically addressed these very issues and found that government officials should not monitor or record attorney client communications. The ACLU of Nebraska will continue to work at the federal, state, and local levels to protect the Constitutional rights of all persons. Should we receive additional complaints from York County or other facilities in Nebraska we will explore  legal action.

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ABOUT: The ACLU of Nebraska and its diverse membership works in courts, the legislature and our communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States and Nebraska guarantee everyone in this state.

 

ACLU of Nebraska Announces Prison Litigation Advisory Panel

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Several trial attorneys join ACLU in efforts to reform crisis-ridden prison system

FOR IMMEDIATE RELEASE
February 12, 2015

CONTACT:  Tyler Richard, (402) 476-8091 x104, This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Lincoln, NE - Today the ACLU of Nebraska announced the formation of a trial lawyer’s panel to provide advice and oversight for potential prison litigation in Nebraska. According to the ACLU, the panel will advise on legal remedies for unconstitutional prison conditions including both individual cases and class actions. The unconstitutional prison conditions have been caused by overcrowding with the system currently at 159% of capacity. The ACLU says the Eighth Amendment’s prohibition of cruel and unusual punishment, the Americans with Disabilities Act, the Rehabilitation Act, and other federal laws could be violated by continued failure to meet minimum custodial standards, mistreatment and inadequate care for mentally ill and vulnerable inmates, abusive overuse of solitary confinement, and overall, a major reduction in the rehabilitation function of “corrections” in our state.

“Decades of misguided ‘throw away the key’ policies have led to a criminal justice system that is at a crisis point. Our current system comes with a high price tag for taxpayers and while experiencing a crisis of capacity the Department’s resources are stretched so thin it cannot meet public safety goals for the vast majority of those incarcerated who will be released back into our communities. The time for action is now,” said ACLU of Nebraska Executive Director Danielle Conrad. “We urge the Nebraska Legislature to enact significant front end sentencing reforms that will reduce overcrowding and provide judges with more discretion to make sure the punishment fits the crime. We urge the Nebraska Legislature to enact alternatives to prison for non-violent offenders to reduce mass incarceration and ensure our criminal justice system investments are smart. We urge the Nebraska Legislature to enact immediate reforms to the use of solitary confinement and in particular its impact on those with serious mental illness. If meaningful reforms are not enacted we may use litigation to resolve the Eighth Amendment violations present in Nebraska’s prison system. The ACLU of Nebraska is grateful to have the support and expertise of these highly successful lawyers to guide our prison litigation efforts if and when the need arises.”

“The distinguished lawyers on this panel will help to accelerate reform efforts to pull Nebraska’s corrections system back from the brink. Nebraska law provides that ‘the Governor may declare a correctional system overcrowding emergency whenever the director certifies that the population is over one hundred forty percent of design capacity,’ Existing overload is at a level of about 159%. Many individual institutions have reached 200-300% of their design capacity. That is exactly what ‘the brink’ looks like.” said Alan Peterson of Lincoln, ACLU of Nebraska Senior Counsel.

In 2014, the ACLU of Nebraska authored three groundbreaking reports on prison conditions and risk of litigation. These reports documented conditions of confinement and identified legal issues ripe for litigation. The first of many potential lawsuits have already been placed on file against the state of Nebraska challenging conditions of confinement and alleging deliberate indifference to the serious deprivations of those incarcerated.

Initial members of the ACLU Nebraska Prison Litigation Advisory Panel include:

  • Robert F. Bartle- Bartle & Geier Law Firm, Lincoln NE. Former President of Nebraska State Bar Association, experienced litigator, including general trial practice, civil rights, wrongful imprisonment;
  • Marsha Fangmeyer- Knapp, Fangmeyer, Aschwege, Besse & Marsh, P.C.   Kearney, NE.  Former President of the Nebraska State Bar Association, general practice with emphasis on family law and a wide range of litigation.
  • Sean Brennan-Brennan and Nielsen law offices, Lincoln NE. Former President of the Nebraska Criminal Defense Attorney’s Association, former president of the Lincoln Bar Association and frequently appointed to serve as special prosecutor to conduct grand jury investigations of “in custody” death cases. Counsel to the Special Investigative Committee of the Nebraska State Legislature concerning Nikko Jenkins case and wrongful inmate release issues;
  • David Fathi- Director of the Prison Project of the national ACLU, Washington D.C. Highly experienced litigation counsel in areas of prison overcrowding, abuse of prison "segregation," failure to treat mentally ill inmates and related issues. Conducted successful class action prison litigation strategies in numerous states;
  • Maren Chaloupka- Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, LLO Scottsbluff NE. Experienced litigator with expertise in civil rights and criminal law. State leader on issues of abuse of inmates, deliberate indifference/ cruel and unusual punishment issues, neglect leading to self-harm by inmates, federal and state litigation practice and procedure;
  • Denise Frost- Johnson and Mock, Omaha NE. Former President of the Nebraska Criminal Defense Attorney’s Association, experienced litigator with expertise in the fields of criminal defense and civil rights practice;
  • Michael D. Gooch- Omaha NE. Former correctional officer, longtime public defender in Lancaster County, experienced litigator in the fields of criminal defense and civil rights;
  • Robert W. Mullin- Houghton Vandenack Williams, Omaha NE. Former President of the Nebraska State Bar Association, experienced trial attorney, Fellow of the American College of Trial Attorneys, civil rights and general litigation;
  • Gerald "Jerry" Soucie- Lincoln, NE. 35 years of criminal defense - both trials and appellees. Lead counsel on several Nebraska cases involving sentencing and prison issues.
  • Amy Miller, Lincoln, NE, Legal Director of ACLU of Nebraska, experienced civil rights and civil liberties attorney;
  • Alan Peterson, Lincoln, NE, Senior Counsel to ACLU of Nebraska, general trial attorney, civil rights and liberties, death penalty defense litigation.

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ABOUT: The ACLU of Nebraska and its diverse membership works in courts, the legislature and our communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States and Nebraska guarantee everyone in this state.

 

ACLU files suit on constitutional violations in Nebraska prison system

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Lawsuit says state officials knowingly allowed an inmate to be assaulted on leading to multiple hospitalizations

FOR IMMEDIATE RELEASE

December 16, 2014

Contact: Tyler Richard, This e-mail address is being protected from spambots. You need JavaScript enabled to view it , 402.476.8091 x104, 402.202.6211

LINCOLN - Today the ACLU of Nebraska filed a lawsuit in federal court on behalf of Mr. Joshua Franklin against the Department of Corrections Director Mr. Michael Kenney, three wardens and an assistant warden. The lawsuit alleges state officials repeatedly and knowingly allowed Mr. Franklin to be assaulted by other inmates leading to multiple emergency room trips and at least three hospitalizations. This lawsuit follows months of investigation by the ACLU into constitutional violations present in Nebraska's prison system.

Mr. Franklin, a biracial man serving time for non-violent offenses, was awaiting sentencing in the Sarpy County Jail when first assaulted by another inmate who is a member of a white supremacist group. Mr. Franklin reported the situation to Department of Corrections officials when he was moved to state custody. State officials repeatedly failed to follow their own procedures which would have prevented additional contact between Mr. Franklin and his assailant. This failure to act and to follow procedures led to three additional assaults at the Nebraska State Penitentiary. These assaults lead to a series of injuries: an orbital fracture, a detached retina, a head injury, memory loss and vision problems. Mr. Franklin still suffers from the vision and memory problems along with anxiety and nightmares. The lawsuit cites repeated written pleas for help by Mr. Franklin to state officials that were met with only empty promises to keep him safe.

“Our prison system isn’t working,” said ACLU of Nebraska Legal Director Amy Miller. “There are smarter ways to use tax-payer dollars in Nebraska that also keep our communities safe and treat people fairly. The ACLU has interviewed dozens of individuals in Nebraska correctional facilities. All of the state prisons were over capacity when officials failed to maintain order. Mr. Franklin's assaults occurred in the penitentiary, which was over 175 percent of capacity at the time of the attacks. Our investigations have shown consistently that with such overcrowding, even competent personnel and reasonable procedures will become ineffective.”

“Mr. Franklin filed multiple complaints to inform prison officials of the danger he faced,” said Eric W. Kruger, who filed the case as a trial attorney working with the ACLU of Nebraska. “Like many of the individuals we’ve interviewed, Mr. Franklin has suffered because Nebraska’s correctional facilities were unable to follow their own guidelines for maintaining order.”

In addition to this case, the ACLU of Nebraska is investigating additional individual complaints about constitutional violations in Nebraska prisons and exploring systemic litigation strategies. The ACLU of Nebraska is working in a cooperative posture with Nebraska policymakers to address these issues in the legislative arena. Additional areas of concern include the overcrowding crisis, overuse of solitary confinement, and inadequate access to mental health treatment. Reports from the Nebraska Ombudsman’s Office, the Nebraska Legislature, and the Council on State Governments have raised similar concerns about Nebraska’s prison system.

 

A Guide to Prison Litigation in the Eighth Circuit

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While the conditions in our prison system have captured headlines and the attention of the legislature, the law that governs prisons is relatively unknown. At the ACLU of Nebraska we have compiled a list of the most commonly raised prison issues and the specific legal standards applicable to each.

The prison system in Nebraska is currently at 157% of its design capacity. These numbers are even worse when one considers that over one hundred and fifty state inmates are now being housed by county jails and are not represented in the official overcrowding total. This overcrowded system is also home to jarring racial disparities. These numbers cannot be blamed on the prison system alone, but they do show that prison conditions have an outsized impact on minority populations.

We hope that A Guide to Prison Litigation in the Eighth Circuit will be of use to those who hear from inmates but do not have the time to learn a new area of the law from scratch. While hardly comprehensive, this document should allow an attorney to quickly evaluate the basics of a potential case. Of course, anyone who does not want to wait for a client is welcome to contact the ACLU of Nebraska, where we are always looking for cooperating attorneys.

This text is an excerpt from the November, 2014 edition of the Nebraska Lawyer Magazine.

A Guide to Prison Litigation in the Eighth Circuit by ACLUofNE

 
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