The correctional industry goes through fads, and Nebraska's correctional industry is not immune from it. In the 80's and 90's the fad was to use solitary confinement to take "troublemakers" out of the inmate population to keep the peace in prisons. This fad did not work because of the mental health issues it created. Now the fad is to reduce, if not eliminate, solitary confinement. A recent episode of PBS' "Frontline" highlighted this phenomenon.

Nebraska's correctional system bought into the solitary confinement fad back in the 80's. But they could not get the Legislature to fund a state of the art solitary confinement Special Management Unit (SMU) like California's Pelican Bay. So the Corrections Department purposely overcrowded the prison system enough to require the building of the Tecumseh prison, with its SMU. Nebraska's prison system still suffers from that overcrowding.

Today Nebraska's fad is aimed at using the public fear of crime to continue their expansion. Recent events, such as Nikko Jenkins' crimes, have raised the public's attention, awareness, and anxiety. The Legislature, in contrast, has bought into the fad of reducing the use of solitary confinement because of Jenkins having spent the majority of his prison time there. Jenkins also "jammed" out his sentence and had no supervision once he was in the community. He is held out to be the bogeyman we need to be, and will be, saved from.

The combination of these fads and forces have led to the policy of having all inmates spend some time in a supervised release: work release and/or parole. Corrections and the Parole system now publicly make it their goal to reduce recidivism. According to their public statements, their (already low, nationally) recidivism of just over 30% will be reduced to increase public safety. New reentry programming and treatment programs are supposed to accomplish this reduction of recidivism.

The public may end up being confused by the Department of Corrections "success." What we have here is the failure to communicate the definition of "recidivism." "Recidivism" is defined by the U.S. Dept. of Justice's Bureau of Justice Statistics (see PDF). Recidivism is when a crime is committed by a convicted felon within three years after having been released from custody. The catch is the "released from custody" part of that definition. Technically, an offender on work release or parole is still in the custody of the State. So offenses committed by felons while on parole or work release will not count toward "recidivism." But they should still end up in the "crime" statistics.

The new Corrections policy favors putting those most likely to reoffend out on work release and parole rather than make them "jam" their sentences. When you see on the news that offenders at work release are robbing convenience stores or parolees taking a woman hostage in a motel room, those are crimes that will not show up in the "recidivism" statistic. An honest accounting will have them show up in the crime statistics as well as the news. But Corrections can blame the Legislature for pushing this policy of community suprevision rather than solitary confinement, while at the same time meeting their goal of reducing recidivism. Only the public suffers with the increase in crime.

The result is precisely the opposite of what the public sentiment supports. This is not the first time that public sentiment is manipulated by policy makers to achieve an entirely different goal. It is quite common in the modern world. Read Vilfredo Pareto's book, "The Mind of Society," one of the four books that inspired George Orwell's "1984." Pareto describes how public sentiment is used by those in power to create responses to have different, sometimes the opposite, effects called "derivations." Here the public sentiment to reduce recidivism results in a derivation that will reduce public safety.

Another derivation is the habitual criminal law. The public sentiment behind the habitual criminal law is that people who keep reoffending; i.e., recidivists; should be given greater sentences and spend more time in prison when they reoffend. "Three strikes and you're out." Unfortunately the habitual criminal law doesn't work the way the public believes. Ask State Senator Schoemacher of the Nebraska Legislature, a former county attorney. On the floor of the Legislature he spoke about the real purpose of the habitual criminal law. It doesn't put people away for longer periods, its main function is to save the judicial system money by coercing guilty pleas (often to reduced charges). Repeat offenders who know how the system works agree to plead guilty for promises of reduced sentences or fewer charges. This saves the State the cost of holding jury trials for these offenders.

Worse, the habitual criminal law makes these offenders even more dangerous. The definition of a "strike" in Nebraska makes it more likely such offenders will reoffend while they are on work release or parole. A strike is when an offender commits a crime, goes to prison, and then is released from custody. (There it is again, "released from custody.") Only then will another crime become a second "strike." So a crime committed while still in custody; i.e., while at work release or on parole; is NOT another of the three strikes. What this definition means is that the worst offenders who are smart enough to understand this definition are MORE likely to commit crimes while on work release or parole because they know those crimes can't be used as another "strike" towards being found an habitual criminal.

Did you read in the newspaper about the guys, one on parole and one at work release here in Lincoln, "allegedly" went to Beatrice together and robbed a bank. The news reported the guy on parole had only about a month to complete parole and be released. The obvious public reaction of, "How stupid, only a month to complete parole," shows a lack of understanding the consequences of the derivation. Assuming that offender was not already eligible for the habitual offender, waiting until after he completed his parole would have made him eligible for the 10 year to 60 year enhanced sentence. But by committing the crime while still on parole the bank robbery is not another "strike" toward being found an habitual criminal. I can't say that the definition of Nebraska's habitual criminal law encourage crime but they certainly rationalize and don't deter it.

What the inmates are seeing is that the worst offenders, those most likely to reoffend, are more likely to be paroled or sent to work release. Some of the Parole Board's choices look like disasters waiting to happen. "They let HIM out?" Sure enough, HE ends up in the newspaper having robbed a convenience store and portrayed as just another bad guy. Who is going to blame the Dept. of Corrections or the Parole Board when everybody has been programmed to praise them for reducing the "recidivism" statistics? What is the Legislature to do? Blame the reentry programming they bought into and paid for? George Orwell would be shaking his head and saying "I told you so but you wouldn't listen."