Governor, AG announce criminal probe of Corrections

Nebraska Gov. Dave Heineman and Attorney General Jon Bruning announced Thursday a criminal investigation into the Department of Corrections over sentencing miscalculations that let hundreds of inmates out of prison early.

The announcement was the latest development since the Omaha World-Herald revealed last month that the Nebraska Department of Correctional Services released hundreds of inmates early because someone miscalculated how long they needed to stay in jail. Those releases were in spite of two Nebraska Supreme Court decisions that spelled out how the Department should calculate minimum sentences. Emails published by the newspaper suggest Corrections officials ignored the court’s instructions. With Attorney General Bruning standing at his side, Gov. Heineman declared “Today, Attorney General Bruning and I are announcing that we have directed the Nebraska State Patrol to begin a criminal investigation of the sentencing miscalculations.”

Heineman said disciplinary actions have begun against an unspecified number of Corrections employees. He said details would be made public and a report by an outside law firm hired by the state would be released when those disciplinary actions are completed in about 7 to 10 days. And the governor read from an email he said he’s sent to all Corrections employees. “If you are asked or told by someone in your chain of command to ignore or not follow a court order, I want you to contact your director Mike Kenney and me immediately,” he said.

Most of the inmates released early have been given credit for time spent outside prison without getting into more trouble, and have been released. Hundreds more who would have been released early have had their sentence calculations increased. Of the 20 to 25 officials were trying to bring back in, Heineman said only one remains at large, and may be outside of Nebraska.

Heineman said the results of the State Patrol’s investigation would be forwarded to the attorney general’s office. Bruning said another office would also review the results. “On completion of the investigation I’ve asked Lancaster County Attorney Joe Kelly to also review the findings. The public has the right to know every detail uncovered in this investigation and through the process,” Bruning said.

Heineman declined to discuss what disciplinary actions are being taken. But he said the outside review had concluded the Department of Correctional Services staff had not kept either Department of Corrections Director Mike Kenney or his predecessor, Bob Houston in the loop.

“No agency staff informed the former director of the Department of Corrections or the current director of the Department of Corrections about the Nebraska Supreme Court ruling. And I think Director – former Director of Corrections Houston has said that more than once, publically,” Heineman said.

Omaha Sen. Steve Lathrop, head of a legislative investigation into Nebraska’s prisons, said Heineman is ultimately responsible. “There is a committee of the Legislature that is investigating the problems going on at the prison. They are longstanding. And the prison is run by the governor, ultimately. It is a branch of the government he is to be running, and it is our job as legislators to provide oversight.”

Heineman had this to say when asked if he accepts any responsibility for the situation. “As governor I accept full responsibility (for) what occurs in state government. That’s what a governor has to do, he said. The governor added “Director Kenney, even though he wasn’t director at the time, is accepting full responsibility to get these corrected. I’ve tried to make sure the director understands from me there are three issues right now: accountability, correct the mistakes, and regain the public trust.”

Bruning added his thoughts on the subject of responsibility. “I take responsibility as well. I mean, this is my state. This is our government. I’m a significant part of the government as is the governor, and we need to make sure that it performs admirably in the eyes of the citizens.”

“One of the things we’ve instructed our attorneys to do in the Department of Justice is not just to tell our clients what we believe the law is and what we believe the Supreme Court decisions mean,” Bruning continued. “We need to be more aggressive in ensuring that they follow those decisions. And certainly we will be. We’ve had those conversations within our office to ensure that we are more aggressive with our clients to ensure that they follow Supreme Court decisions.”

The Nebraska Democratic Party weighed in with a statement saying an independent investigation could only be conducted by a special prosecutor appointed by the chief justice of the Nebraska Supreme Court. Dan Marvin, the party’s executive director, said

“(T)he governor cannot meet his own standards of ‘accountability’ by excluding departments or using other state agencies, under his control, to investigate wrongdoing. The victims, their families, and the people of Nebraska deserve a clean and independent investigation which isnot controlled by Dave Heineman, and holds accountable all offices involved not just those handpicked by Heineman.”

The legislative committee is also charged with investigating the separate issue of why the Department released Nikko Jenkins, who threatened to kill people when he got out last year. Jenkins was found guilty subsequently of killing four people in Omaha.

Heineman said he hopes the committee will be open, and open-minded. “I hope they’re as transparent with all their internal documents and emails as we are in the executive branch. Secondly I hope they don’t make any prejudgements. And you’re beginning to hear that already. Maybe they ought to ask themselves what did their own Judiciary Committee do?”

Heineman was referring to so-called “good time” laws passed by the Legislature that let prisoners out early if they behave while they’re in prison. But Lathrop rejected any suggestion that the Legislature is responsible for the misinterpretation of those laws.

“There are three branches of government,” Lathrop said. “The Legislature creates policy, and it is the governor’s sworn duty to carry out the policy of the Legislature.”

“This particular issue was interpreted twice by the Nebraska Supreme Court, and it is incumbent upon those who run Corrections, and the governor who runs the government, to understand what the laws are and to carry them out, which is his sworn duty,” Lathrop said.

Lathrop’s committee holds a public hearing Friday at which it will question former Corrections Director Houston.

You can watch live televised live coverage of the Legislature’s special committee investigating the Department of Correctional Services Friday starting at 9 a.m. Central on NET2, or streaming live on our website, netnebraska.org. Our thanks to television station KMTV for production help on this story.