Lincoln--Attorney General Doug Peterson held a press conference this morning in response to upcoming legislation addressing criminal penalties and sentencing. LB173 and LB605, as amended, contain some provisions that were not recommendations given by the Council of State Governments. LB173 and LB605 are bills that reduce criminal sentences and negatively impact Nebraska communities.

LB173 targets Nebraska’s habitual criminal statutes, which have been effective and instrumental in keeping the public safe from career criminals who will not conform to the laws of a civilized society. Nebraska’s habitual criminal statutes are similar to so-called “three-strike” laws in other states. The current statutes enhance penalties for offenders who have two separate prior felony convictions, and who have served two separate prison sentences of one year or more. Under the law now, when those offenders are convicted of their third felony, the possible penalty is enhanced to a 10-year mandatory minimum prison sentence up to 60 years. For certain more heinous offenses, the mandatory minimum prison sentence is 25 years.

Under the provisions of LB173, the mandatory minimums will be removed. LB173 also severely restricts the applicability of the habitual criminal statutes. The current habitual criminal statutes apply to any type of felony conviction. However, under LB173, only career criminals who commit a very selective subset of crimes could be deemed to be habitual criminals. LB173 ignores the seriousness of several existing sex and violent crimes. Under LB173, these crimes could never result in a habitual criminal enhancement, no matter how many times an offender commits them: second or third degree sexual assault of a child; second or third degree sexual assault; first, second, or third degree domestic assault; manufacturing or distributing a controlled substance; burglary; child enticement; child abuse; and possessing, distributing, or producing child pornography. Of the 182 inmates currently incarcerated as habitual criminals, only 7 would still qualify under the proposed standards.

LB605 as amended significantly reduces the punishment levels for most criminal offenses and places a cap on the minimum sentence a judge is able to set on any felony offender. This bill would prohibit a judge from giving a minimum sentence that is greater than 1/3 of the maximum sentence. As it stands now, Nebraska’s judges have discretion to sentence offenders to any minimum and maximum term of imprisonment they deem necessary for most felony offenses. This discretion allows judges to determine a sentence on a case-by-case basis that addresses the specific facts of a case, as well as the needs and concerns associated with the particular offender. LB605 as amended removes discretion from Nebraska’s judges when they are the ones in the best position to determine the type of sentence an offender should receive. The Council on State Government has stated that this new language is inconsistent with its recommendations as they cannot model its effect on reducing overcrowding.

Both the committee amendments to LB605 and LB173 pose significant and unnecessary risks to public safety without appreciable or verifiable impact on overcrowding. These attempts to reduce sentences for particularly violent criminals are incongruent with the meaningful attempts at reform posited by the Council of State Governments. It is my hope that legislators will carefully consider these bills and ensure that solving overcrowding does not come at the expense of jeopardizing public safety.