Supreme Court ruling raises concern about ‘hauling’ people back to county jails

The symbol of justice adorns one of the doors to the Nebraska Supreme Court. (Aaron Sanderford/Nebraska Examiner)

LINCOLN — A ruling Friday by the Nebraska Supreme Court is raising concerns that some criminal offenders might have to return to a county jail to serve out more days behind bars.

That, some officials said, would be an expensive endeavor for counties and one that could exacerbate overcrowding in local jails, though one prosecutor said the impact will be limited.

The state's highest court, in a rare, 4-3 split decision, ruled Friday that county jail inmates must serve 15 days on every separate conviction before any "good-time" reductions can be applied to their confinement.

Several counties, including at least Lancaster and Hall Counties, now calculate good time (a reduction in a sentence for good behavior) contrary to Friday's ruling. They read the state law to mean that inmates must serve 15 days on their entire jail sentence, which possibly covers several separate convictions.

That results in a shorter stay in jail than if the 15 days of so-called "hard time" must be served on each conviction.

Lancaster County Public Defender Kristi Egger called the ruling "shortsighted" because it did not explain how county jails should respond to the decision. If it means some defendants have to return to jail for a few more days, Egger said that could lead to increased overcrowding in county jails, such as Lancaster County.

Egger cited a pointed dissenting opinion written by retiring Chief Justice Mike Heavican, who wrote that it took a "Sisyphean attempt" by the majority to conclude that state law required the 15 days behind bars for every separate offense before getting good time.

"If significant work must be done to discover whether a statute is unambiguous, that statute is probably ambiguous," Heavican wrote.

If a statute is ambiguous, the "rule of lenity" dictates that an issue be decided in favor of a defendant, he said.

'Apples and oranges'

The attorney who argued the case before the Supreme Court said Monday he doubts whether Friday's ruling will require anyone to be "hauled back to jail," as happened a decade ago,when the state corrections department miscalculated the release date of dozens of inmates, requiring several to return to prison.

Travis Rodak, who argued the case for Box Butte County, said Friday's case and what happened in the state prison system in 2014 were like comparing "apples and oranges."

"I don't see this impacting a lot of current cases," Rodak said.

For one thing, he said, there aren't many offenders who are serving consecutive sentences for two totally different crimes. It's more common for offenders to serve sentences concurrently — and such concurrent sentences are unaffected by Friday's ruling.

In an email, Kearney County Attorney Melanie Bellamy, president of the state county attorneys association, said she was glad the Supreme Court had clarified the good time issue, adding that it would be up to each individual county, "working with local courts and law enforcement," to comply with the Mullins v. Box Butte decision.

Longtime Hall County Public Defender Gerald Piccolo said he expects his county to explore returning some people back to jail to finish out the extra days they didn't serve, based on the Supreme Court's ruling. He added, however, he wouldn't do that if he was running the jail because of the expense involved in tracking down those people and housing them.

The case argued before the Supreme Court involved Samuel Mullins, now 35, who pleaded no contest to resisting arrest in December 2022 and then to domestic assault in January 2023. Those were two separate misdemeanor offenses.

In Box Butte County, the state law was interpreted to mean that the two separate offenses required two separate stints of 15 days in jail before good time reductions could be applied.

County's interpretation appealed

Bell Island, a defense attorney who represented Mullins, appealed the county's interpretation as being wrong. The Nebraska Defense Attorneys Association, represented by Lincoln lawyer Spike Eickholt, joined the case, arguing that the 15-day wait should be applied to the "sum of all sentences" to be served.

The unsigned majority opinion on Friday agreed with the arguments raised by Rodak, who argued that "common sense, legislative intent, and public policy would seem to dictate that convictions for separate offenses, unless ordered to be served concurrently by the Court, must have separate and independent sentencing calculations."

The court majority concluded that it was unnecessary to "depend upon legislative materials such as committee reports or floor debates" and to "scour such legislative materials" to determine if state law concerning county jail good time calculation was ambiguous or not because the statutory language appeared clear.

That prompted disagreement from Heavican — who retired as of Oct. 31 — as well as a separate dissent written by Justice Jonathan Papik and signed by Justice Stephanie Stacy.

Egger, the Lancaster County public defender, said the ruling did a "disservice" by not looking at legislative discussion and lawmakers' attempt to standardize criminal sentences across the state.

"At a time when the jails are full and the cost of housing people in custody is higher and higher, and when it is obvious that Legislature was trying to do something to give appropriate credit where credit was due by changing the good time statute, the majority opinion in Mullins misses the mark," Egger said.