Media Contact

Sam Petto, ACLU of Nebraska Communications Director

May 1, 2020

Today’s decision comes two days after NDCS disclosed a fourth corrections worker has tested positive for COVID-19, a staff member at the Nebraska State Penitentiary.

LINCOLN, Neb. – Today, a judge declined to order the Nebraska Department of Correctional Services (NDCS) to share undisclosed elements of its pandemic plan, saying the ACLU of Nebraska and partners’ emergency request falls outside the scope of their ongoing federal lawsuit.

The ruling says the lawsuit, filed in 2017, could not have encompassed “a claim regarding a virus that did not exist.” As such, the judge determined the request falls outside of the ACLU’s case that systemwide policies and practices deprive Nebraskans who are incarcerated of critical medical, mental health, and dental care.

Public health experts have warned jails and prisons are especially vulnerable to COVID-19.

Today’s decision comes two days after NDCS disclosed a fourth corrections worker has tested positive for COVID-19. Media reporting this week has indicated not a single Nebraskan who is incarcerated has been tested for COVID-19. ACLU requests for information on testing have gone unanswered.

ACLU of Nebraska Legal Director Adam Sipple said the plaintiffs accomplished most of what they hoped by forcing NDCS to provide a more thorough accounting of plans to mitigate the spread of COVID-19. He added that the court said nothing about the sufficiency of NDCS’ plan, and that new confirmed cases in the prisons system raise new questions about the response – particularly, the lack of testing.

“Nebraskans deserve answers about why corrections officials have apparently chosen not to test a single incarcerated person to date. Look at the numbers of people who have tested positive in other prisons. Look at how many have tested positive in other congregate environments like nursing homes and meatpacking plants, and then tell me not one Nebraskan who is incarcerated has been symptomatic. Their plan is lip service, nothing more.”

The federal lawsuit remains awaiting a determination on overall class certification and two subclass certifications. Oral arguments took place in January. A grant of class certification to either subclass or the case as a whole would expand the possible impact of the case’s eventual resolution.

Partners include the ACLU of Nebraska, the ACLU National Prison Project, Nebraska Appleseed, the National Association of the Deaf, and the law firms DLA Piper and Rosen Bien Galvan & Grunfeld LLP.

Nebraska has one of the most overcrowded prison systems in the nation. As of NDCS’ latest quarterly report, facilities were at nearly 160% of design capacity, with one facility at 325% of design capacity. On July 1, a 2015 law passed unanimously by the Nebraska Legislature will require Gov. Pete Ricketts to declare an overcrowding emergency, a move that is meant to begin the process of reducing the prison population to 140% of design capacity.