By Deena Winter | Nebraska Watchdog
LINCOLN, Neb. — A legislative committee investigating several corrections scandals called the release of murderer Nikko Jenkins a “colossal failure” of the state corrections system that appeared to be the result of a “turf war” in which corrections psychologists were trying to discredit the opinions of contract psychiatrists.
REPORT: A special investigatory prisons committee released its report and recommendations Monday.
The committee recommended that Corrections Director Mike Kenney not be retained by Gov.-elect Pete Ricketts (who is conducting a national search for a new director) and that three corrections employees be terminated: records manager Kyle Poppert, Dr. Mark Weilage, a psychologist and assistant Behavioral Health administrator for corrections, and deputy corrections director Larry Wayne.
The special investigative committee recommended Ricketts look for a reform-minded director willing to implement its recommendations, as well as those of the Council of State Governments, and overhaul the state’s prison segregation system. It also recommended a top-down review of all corrections employees to determine whether they’re qualified for their jobs.
The committee delved into the Jenkins case and several other prison scandals and released its findings and recommendations in a report Monday.
Jenkins spent 60 percent of his 10 years in prison in solitary confinement (23 hours per day), where he exhibited bizarre behavior like drinking his own urine, snorting his semen, writing in his blood on walls and threatening to mutilate and kill people if released. He begged to be civilly committed to the state psychiatric center, but was released with little programming or mental health treatment, and killed four Omahans within 10 days.
The committee said while ultimately Jenkins is responsible for killing four people, the corrections department “set the stage” for his murderous rampage by locking him in solitary confinement for so long — exacerbating his mental problems — and withholding a report that likely would have led to his civil commitment.
The committee concluded the Jenkins case documents “a total failure of leadership and a textbook example of the administration of state government at its worst.”
Chairman Sen. Steve Lathrop, D-Omaha, said his committee was tasked with finding out how and why Jenkins was released, and the answer was troubling: “some kind of bureaucratic turf war between contract psychiatrists and psychologists.” Also, the fact that the Lincoln Regional Center wasn’t equipped to handle Jenkins may have played a role in the decision not to seek his commitment, he said.
“That’s the best conclusion we can reach at this point in time,” Lathrop said.
Jenkins weaved in and out of the criminal justice system from age 7, when he was placed in foster care. In 2003, he was sentenced to 18 to 21 years in prison. But the state’s automatic “good time” law cut that sentence by 10.5 years. Jenkins lost 525 days of good time due to rioting, tattooing and assaults.
The committee concluded Dr. Weilage breached his professional duty and prevented Jenkins’ commitment by withholding a report calling him dangerous and recommending his commitment to protect public safety, even though he was aware of Jenkins’ bizarre behavior and threats to kill people. The report said Weilage’s actions “directly resulted in the tragic death of four individuals in Omaha.”
“The finger points directly at Dr. Weilage, in our opinion,” Lathrop said.
THE BUCK STOPS: The committee said many problems were the result of Gov. Dave Heineman’s refusal to build more prison beds, and corrections’ employees attempts to reduce numbers in other, sometimes illegal, ways.
An attempt to manage the burgeoning prison population without building more beds was at the core of many problems, Lathrop said, and drove corrections employees to skirt the law in developing other ways to release more prisoners sooner. The committee said two programs — one furlough and the other a sort of serve-your-sentence-at-home program — were created illegally, and the corrections department ignored a Nebraska Supreme Court opinion detailing how they should have been calculating some prison sentences.
“What happened to that opinion would be comical if it wasn’t so serious,” Lathrop said. “There was absolutely no accountability.”
The committee suspects the corrections employees knew they should have heeded the February 2013 State vs. Castillas Supreme Court decision, but were driven not to by overcrowding. That was evidenced by how the state responded to the news breaking in June that they were miscalculating sentences, Lathrop said.
Gov. Dave Heineman and Attorney General Jon Bruning had vowed to follow a Supreme Court ruling on how to handle inmates released too early, but didn’t, allowing them credit for time free even if they committed crimes, Lathrop said. Bruning didn’t file a test case to figure out how to handle those cases until after the Omaha World-Herald revealed the practice, he said.
When the corrections director, Kenney, told the committee he didn’t have the “luxury” of following state law in deciding how to deal with the problem, Lathrop said that epitomized the corrections culture.
Committee member and Sen. Les Seiler, R-Hastings, said the corrections department showed total disregard for the law.
“The irony is these are the people that are in charge of keeping people who have broken the law,” he said.
The committee said programming and mental health treatment for inmates are “wholly inadequate” and recommended more examination of the availability of mental health care and development of a secure, state-of-the-art facility for the dangerously mentally ill.
Lathrop and other committee members said mental health treatment is inadequate both in Nebraska communities and in the prison system.
The committee concluded that the corrections department created a furlough program to ease prison overcrowding, and it was created illegally because officials didn’t follow the process set out in law. They recommended the program be abandoned and recreated through the Legislature.
And they said the pressure put on the state parole board to parole more people was potentially dangerous.
“The pressure to alleviate overcrowding through ‘no cost options’ began in the governor’s office and was felt throughout the administration down to the level of a records manager,” the report said. “In many ways, the decision to employ no cost options was a failure of leadership.”
The governor can declare an emergency when the prison population surpasses 140 percent of capacity, allowing the parole board to parole more prisoners. But that would be a very public process, and instead, the Heineman administration chose “working in the shadows” and pressuring corrections and parole officials, the report said.
“All while maintaining that overcrowding was not influencing decisions,” the report said. “The findings of this committee suggest otherwise.”
The governor released a statement Monday afternoon saying he’s taken responsibility for the sentence miscalculations, and accused Lathrop of “trying to score political points.”
The committee has been critical of Heineman for not following the recommendations of a 2006 report advising more beds be built, but Heineman said lawmakers were given the same report and Lathrop had eight years to introduce a bill to spends “hundreds of millions of dollars” on a new prison.
“To say there is a lack of leadership on my part on that issue is a diversion tactic and hypocritical,” Heineman said.
Sen. Ernie Chambers, I-Omaha, said the attorney general should have sought a special prosecutor to investigate whether crimes were committed, since he had a conflict of interest because of his office’s involvement in the Castillas situation. Bruning found ineptitude, but no crimes.
Chambers believes some state employees committed crimes, and although Lancaster County Attorney Joe Kelly came to the same conclusion as Bruning, Chambers called him “unduly timid.”
Among the committee’s recommendations:
• Abolish the furlough program it believes was illegally created and perhaps recreate it through the Legislature. Then have the Legislative Research Office determine which administrative regulations were promulgated in violation of state law.
• Establish an Office of Inspector General for corrections to conduct audits, inspections and reviews.
• Amend the law to require the governor to declare an emergency when the population exceeds 140 percent of capacity. The system is now at about 159 percent.
• Take steps to ensure the parole board’s independence, including removing the board’s offices from the corrections department building and giving the board its own attorney.
• Allow the parole board to develop criteria for furlough programs.
• Consider privatizing mental health care inside the corrections system.
• Consider developing a computer program to calculate inmate sentences, their parole-eligibility date, and their tentative release date. By one estimate, this could cost $12 million.
• Lawmakers set standards for which inmates can be placed in segregation and, perhaps the length of time they can held there.
• Require that the prison system to provide meaningful mental
health services and adequate programming to inmates in segregation.
• Establish a separate facility or portion of a facility for inmates in long-term protective custody who are not being separated from others in protective custody.
• Stop releasing inmates directly from segregation (not including protective custody) to the general public under nearly any circumstance, with the possible exception of an inmate that has been exonerated.
• Examine whether the definition of “mentally ill” warrants an amendment to comport with current diagnostic practices.
• Establish a discharge review team to develop a process to review inmates who are mentally ill, sex offenders, violent offenders, and other risky inmates to ensure they received adequate programming and considered the opinions of multiple mental health practitioners.
The committee said its job was to do a “candid and blunt report” about the dysfunction in corrections and “the governor’s role in the specific problems examined.”
Chambers said never in his wildest imaginations did he think the committee would uncover so much scandalous, illegal conduct in the Department of Corrections.
The state constitution requires lawmakers to write laws, and the governor to enforce them, he said.
“There’s a difference between not micromanaging and abandoning one’s responsibilities,” Chambers said of the governor.
Lathrop said the committee’s role isn’t to embarrass the governor on his way out the door, but to lay bare the dysfunction in corrections and begin to fix it.
“I’d say I’m getting mixed messages in terms of the governor accepting responsibility for what’s going on at the Department of Corrections,” he said.
Heineman said a court has found Jenkins guilty of committing four murders, but the prisons report attempts to blame the corrections department.
“In contrast to the negative Lathrop report, I have been working with the Council of State Governments to develop positive solutions to address our prison capacity issues,” the governor said.
Updated 4:07 p.m. Monday
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