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Update on Nebraska Prison Overcrowding Lawsuit

Today we are sharing an important update from Table Members at the ACLU of Nebraska regarding their class action lawsuit against the Nebraska Department of Correctional Services. 

The lawsuit asserts that the constitutional rights of incarcerated individuals in Nebraska have been violated on numerous counts, mostly due to extreme overcrowding. The lawsuit Sabato v Nebraska Department of Correctional Services was originally filed on August 16, 2017.  By seeking class certification, plaintiffs will automatically be expanded to include thousands of Nebraska prisoners whose rights are violated by the conditions outlined.  Please read on for more information from a recent press release about the lawsuit.
On February 19, 2019, 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 filed a motion for class certification in Sabato v Nebraska Department of Correctional Services.  The case asserts that extreme overcrowding in Nebraska prisons has led to violations of the constitutional rights of the people who are incarcerated within them, including: lack of adequate medical, mental health, and dental care; overuse of solitary confinement; and failure to provide appropriate accommodations for prisoners who are blind, deaf, hard of hearing or have other disabilities.

Nebraska’s prison system is one of the most overcrowded in the nation. The entire system is at approximately 160 percent of its design capacity, with individual prisons approaching 200 or even 300 percent of capacity. The intake facility currently maintains a population which is more than 330 percent of its design capacity.

New data from the fourth quarter of 2018 also point to significant racial disparities. Almost 28 percent of people in Nebraska prisons are Black, though just four percent of the state population identifies that way. Similarly, 14 percent are Latinx, though just 9 percent of Nebraskans are.

“Nebraska remains an extreme outlier in terms of overcrowding, staff shortages and dangerously inadequate systems of medical and mental health care,” said David Fathi, director of the ACLU National Prison Project. “The level of overcrowding in Nebraska prisons today is comparable to that in California in 2011, when the U.S. Supreme Court found that overcrowding had made adequate medical and mental health care impossible and created unsanitary and unsafe conditions. The court ordered California to reduce this overcrowding, as it made constitutional violations unavoidable.”

The Nebraska prison system cannot provide even minimally humane conditions for incarcerated people. These violations disproportionately impact the system’s most vulnerable prisoners, particularly those with mental and medical health needs as well as those with disabilities.

“Prison systems are too often completely inaccessible to deaf and hard of hearing people, as well as people with other disabilities,” said Howard A. Rosenblum, Esq., CEO of the National Association of the Deaf. “Nebraska's prisons, given their numerous systemic problems and failures to provide any semblance of access, are even more oppressive for this population. Deaf and hard of hearing people are often singled out by prison staff for not following orders that they never heard at all or clearly. Yet, these people are punished for such 'violations' that arise from the lack of accessibility. Nebraska needs to overhaul how it imprisons persons who are deaf or hard of hearing, as well as all people with disabilities.”

“The conditions in Nebraska’s prisons aren’t just unconstitutional, they actually obstruct the stated goal of rehabilitating the people they incarcerate,” said Michael Bien, co-founding partner at Rosen Bien Galvan & Grunfeld. “When people are not provided access to basic treatment, programs, and activities necessary for their rehabilitation, it actually perpetuates a cycle of mass incarceration that corrections are intended to deter.”

“This case is about racial justice, disability rights, mass incarceration and identifying solutions to effectively address our shared public safety goals that won’t bankrupt Nebraska taxpayers,” said Danielle Conrad, executive director of the ACLU of Nebraska. “The vast majority of incarcerated Nebraskans will return home to our communities and we need to work together to ensure they have access to treatment, programming and basic services so they can be productive members of society and ease taxpayer burdens.”

“People with mental health needs are experiencing undue trauma because of woefully deficient care, including delayed and denied treatment,” said Robert McEwen, legal director for Nebraska Appleseed. “People’s pleas for help managing their serious mental health conditions have gone unanswered, while others have been improperly medicated or moved to solitary confinement, where the isolation exacerbated their suffering. This is an urgent crisis that’s already had grave consequences for human beings struggling with mental illness."

While the case is moving slowly through the court, the ACLU of Nebraska is advocating for several bills in the state Legislature this session that would address problems detailed in their expert reports.  These include bills related to prison staffing, reducing sentences, improving parole and reducing solitary confinement.  
The following are filed ACLU lawsuit expert opinions and observations on the condition of Nebraska prisons:

  • Dentist Jay D. Shulman reported allegations of inadequate policies, procedures and staffing in the dental department that result in consistently inadequate care.  there is a one-year quarantine during which prisoners are not eligible to receive treatment for dental disease until the conditions cause pain.  There is a two-year restriction from receiving dentures, even for those who have pain and discomfort in chewing.  An available waiver process is "highly problematic," he said, because the basis for approving such a waiver is not stated.
  • Eldon Vail, formerly with the Washington State Department of Corrections, described the "two-headed monster" of overcrowding and understaffing that leads to over-resilience on solitary confinement.  In spite of a stated reform of restricted housing policies, the practice has increased rather than decreased, he said.
  • Dr. Pablo Stewart, a psychiatrist, declared in his filing the systems for prescribing and adjusting medication, and for detecting and treating dangerous side affects of powerful psychotropic medication, are not functioning at the level needed to prevent serious harm and death.  Prisoners taking powerful psychotropic drugs are not properly monitored for side effects, he said.
  • Margo Schlanger, an expert in law, policies and procedures affecting prisoners with disabilities, reported the department has no written policies governing the provision of assistive devices beyond a cursory reference they will be provided subject to "medical necessity, safety, and security."  The department does not inform prisoners of their rights under the American with Disabilities Act or about how to access services, she said.

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