Inmates at the Nebraska State Penitentiary (NSP) have filed an action in the District Court of Lancaster County challenging policies that have been implemented by new administrators; Shawn Erpelding vs. NDCS, Case No. CI 25-696. Hundreds of NSP inmates signed a Petition for a Declaratory Order asking for changes to these new practices because they are contrary to provisions of NDCS' own promulgated regulations and constitutional rulings.

NDCS declined to issue a declaratory order stating that a declaratory order could only be requested on the applicability of statutes and rules and regulations. But the Petition had specifically listed Chapter 6 of Title 68 of the Nebraska Administrative Code (68 NAC Chap. 6), NDCS' promulgated regulations regarding disciplinary proceedings.

Since the U.S. Supreme Court decision in Wolff v. McDonnell (418 U.S. 539) in 1974, NDCS has slowly whittled away at the procedural requirements for disciplining inmates. The U.S. Supreme Court had dealt with one Institutional Disciplinary Committee (IDC) following a proper (due) process of law. NDCS has now split this process into the IDC process, with all its constitutional protections, and a Unit Disciplinary Committee (UDC); one in each Housing Unit. In UDC hearings no good time can be forfeited and no segregation time can be imposed. But in a UDC process the inmate gets no witnesses or evidence, no right to have the reporting officer appear and no right to appeal.

When the UDC's were first implemented the inmate got to choose to preserve his rights to a defense by taking their misconduct reports (called "write-ups") to the IDC. Write-ups that were permitted to be heard in the UDC were basically guilty pleas for lower level (Class III) write-ups.

Now, however, inmates do not get that choice anymore. Staff decides which write-ups go through the IDC and which go to the UDC. Staff decides when inmates get the process of law constitutionally required. This has led to problems because the new administration has also imposed other consequences from these low level write-ups; beyond what their own regulations allow.

For example, one inmate was found to have some pornographic pictures; a Class III write-up for "Unauthorized Articles." The write-up went to UDC, he was found guilty and was given 7 days canteen restriction as punishment. With no right of appeal he could not complain that this punishment was not authorized under 68 NAC Chap. 6 §011.02 which limits the restriction on privileges (like canteen) to only be applied when the write-up was for abusing those privileges. His write-up had nothing to do with the canteen. Then this inmate lost his shop job because of this write-up, even though 68 NAC Chap. 6 §008.10 says a change in work assignment shall not be used for disciplinary purposes.

Another inmate was written up for Class II, Disobeying a Direct Order. The Officer wrote that the inmate refused to remove his hat in the chow hall when ordered to do so. (Correctional Officers wear their hats in the chow halls.) Only the inmate HAD removed his hat when asked to do so, as the video, from the multitude of cameras in the chow hall, would prove. But that write-up was sent to the UDC; no evidence, no video, no proof, no officer appearing, and no appeal. When staff gets to choose UDC inmates don’t get to confront officers who are less than honest.

Recently Officers have been writing up inmates for petty offenses; like leaving a cup on a window sill and other unnecessary constraints. The common belief is that the administration is trying to get the inmates to riot.

The new administration has created a flurry of conflicting policies to torment inmates. For example: A long standing rule is that inmates can receive a write-up if they fail to maintain sanitation in their cell or bunk area. New policies now limit each inmate to submitting only one laundry bag per day and that bag can only be half full. Another new policy requires the inmate’s dirty laundry to be kept in their locker; along with their clean laundry. The public and the new administration may not remember the scabies outbreak in the external housing units a few years ago; inmates do. These conflicting rules create the sanitation problem that results in a write-up.

Why is this happening?

With the State now being hundreds of millions of dollars behind in their budget NDCS administration is afraid the money for the new prison (currently $300 million) will be delayed or stopped. If a riot were to occur they could say to the Legislators: "See, we really need that new prison." Under these circumstances the inmates' action in the District Court is the reasonable response to the administration’s violations of their own regulations.