System

How much does sentencing juveniles to life without the possibility of parole cost Nebraskan taxpayers?

It costs nearly $1.8 million to incarcerate a juvenile for life in Nebraska prisons. Incarceration costs for the 26 inmates currently serving sentences of life without the possibility of parole for crimes commited while they were under 18 are projected to reach over $46.7 million, with over $15.1 million already spent.

If an inmate is paroled after 30 years (by which time a person sentenced as a 16 year-old would be over 45), the incarceration and parole costs to the state would be a little over $1 million. This means that allowing for the possibility of growth and change in our youngest offenders could result in savings of nearly $0.8 million per inmate found worthy parole. If 12 former youth, approximately half of those currently serving sentences of life without the possibility of parole, were paroled after serving thirty years the state would save over $9.3 million.

1. All figures are in today’s dollars.
2. Cost calculated by multiplying 54 years by the annual cost per inmate ($33,329) at Tecumseh State Correctional Institution (TSCI). 54 years reflects the remaining life expectancy of a 17 year-old male living in Nebraska. Life expectancy data from Nebraska Department of Health and Human Services, “Death Summary,” Nebraska Deaths 2007. Annual cost data from Nebraska Department of Correctional Services, “Budget and Expenses, FY 2006.” TSCI cost used because over half of those who were sentenced as juveniles to life without parole in Nebraska are currently serving their sentences at TSCI. Projected amounts are based on today’s dollars and not adjusted for inflation. Cost estimate does not take into account the added cost of caring for elderly prisoners. Estimates for housing an aging prisoner have ranged from $69,000 a year to three times the cost of a typical adult prisoner. For more information on caring for elderly prisoners see Mar Mauer et al., “The Meaning of Life: Long Prison Sentences in Context,” The Sentencing Project, 25, May 2004 and B.J. Anno, “Correctional Health Care: Addressing the Needs of Elderly, Chronically Ill, and Terminally Ill Inmates,” National Institute of Corrections, 2004.
3. Projected total cost based on the life expectancy for each of the 24 serving less their age at sentencing multiplied by the annual cost per inmate at the institution they are currently serving in. Nebraska Department of Health and Human Services, Nebraska Deaths 2007. Nebraska Department of Correctional Services, “Budget and Expenses, FY 2006.”
4. Cost calculated by multiplying 30 by the annual cost per inmate serving in TSCI and adding $5,682 for the cost of 2 years of parole. Nebraska Department of Health and Human Services, Nebraska Deaths 2007. Nebraska Department of Correctional Services, “Budget and Expenses, FY 2006.”

African-American youth in Nebraska are disproportionately affected by the sentence of life without the possibility of parole. While they make up only 7.5% of the teen population in Nebraska,¹ black youth represent nearly half of those sentenced to life without the possibility of parole.² Black youth are serving life without the possibility of parole sentences in Nebraska at a per capita rate that is more than 11 times that of white youth.³ According to a report by Human Rights Watch, Nebraska ranks 7th among the states in the ratio of black to white youth serving sentences of life without the possibility of parole.⁴

The disproportionate amount of African-American youth sentenced to life without the possibility of parole reflects the racial disparities that exist throughout Nebraska’s juvenile justice system. These disparities become particularly pronounced in the deep end of the system. While black youth represent 18% of juvenile arrests in Nebraska, they make up 51% of the population of youth incarcerated in adult prisons.⁵ White youth, who account for 79% of juvenile arrests (and 90% of the youth population), represent only 28% of the youth incarcerated in adult prisons.⁶

1. Percentage calculated using data from Puzzanchera, C., Sladky, A. and Kang, W. (2009). “Easy Access to Juvenile Populations: 1990-2008.” The percentage was calculated using 2008 estimates of youth population age 12-17 disaggregated by race.
2. Data on race of those serving from Nebraska Department of Correctional Services.
3. The rate of black youth serving life without the possibility of parole sentences per 10,000 population of black youth in Nebraska is 10.7. The rate of white youth serving per 10,000 population white youth is 0.9. Rates and ratio calculated using data from “Easy Access to Juvenile Populations” 2008 estimates of youth population age 12-17 by race.
4. Human Rights Watch, “The Rest of Their Lives: Life Without Parole for Youth Offenders in 2008: Executive Summary,” May 2008. Certain states are not included in the rankings because of insufficient data.
5. Voices for Children in Nebraska, Kids Count in Nebraska 2009 Report, “Table 7.3: Juvenile Interaction with the Justice System by Race (2008).”
6. Ibid.

Under the felony murder rule an individual can be charged with first degree murder for a killing that occurs during his or her participation in a robbery or other felony.¹ Generally, the charge of first degree murder is distinguished from second degree murder by the element of premeditation. In felony murder cases, the premeditation requirement is satisfied if it is proven that the defendant intended to commit a robbery – an intent or plan to kill is not required. This means that an individual who commits an unpremeditated homicide – an offense which would usually be charged as second degree murder or manslaughter – is charged with first degree murder when the death occurs in the process of commiting a felony.

The felony murder rule can even result in a first degree murder conviction for an individual who did not commit a homicide but did participate in a felony in which a co-defendant caused a death. In at least five out of the 26 Nebraska cases where a youth was sentenced to life without the possibility of parole, the youth did not commit the fatal act.²

The Nebraska Supreme Court has consistently upheld that because the intent to commit the felony substitutes for the intent to kill, second degree murder and manslaughter are not lesser-included charges in felony murder cases.³ This means that for a jury trying a felony murder case, first degree murder is the only provided option. Due to the felony murder rule the most serious charge is applied in cases where a youth’s impulsivity and susceptibility to outside influences play a particularly large role.

The most serious charges carries with it the most serious sentence we can give a youth. A sentence of life without the possibility of parole is mandatory for a youth convicted of first degree murder. Like the juries, the judges in youth felony murder cases do not have the power to balance the need for accountability with the special considerations we give to youth. We know that as individuals grow out of adolescence, their vulnerability to outside influences and their tendency to act impulsively decreases. We also know that because of their incomplete development youth have a tremendous capacity for growth and change. When we sentence a youth to life without the possibility of parole, particularly in cases where the neurological immaturity of the youth was a prominent factor, we negate everything we know about the adolescent brain and the fundamental differences between youth and adults.

1. Nebraska Revised Statute 28-303
2. In three of the cases court records show that both the prosecution and the defense agreed that the youth had not committed the fatal act. The prosecution in the fourth case argued that the youth had fired shots, but the jury found the youth not guilty of assault with a deadly weapon (but guilty of first degree murder under the felony murder rule), citing their doubts that he was the shooter. There are several other cases in which the youth’s role as primary actor in the homicide is contested. All information presented on cases is drawn from court records and articles from the Omaha World-Herald and the Lincoln Journal-Star.
3. State v. Hubbard, 211 Neb. 531, 319 N.W.2d 116 (1982). Cited in NRS 28-303

This board used to commute people. Tough guys like Charley Thone and Jim Exon would commute people. We commute none. Why do we even have a Pardons Board?“¹

– Nebraska Attorney General Jon Bruning, the lone dissenting vote in the Board’s 2005 decision not to commute the sentence of Jeremy Herman.

The Pardons Board – made up of the Governor, Attorney General, and Secretary of State – is an institution provided for in the Nebraska Constitution (CIV-13). The Board is granted the power to commute life without parole sentences to indeterminate life sentences, allowing the grantee the possibility of parole after a specified number of years. A commutation does not mean immediate release.

Since 1990, the Board has broken with tradition and become extremely reluctant to exercise the power granted it. From the period of 1973 to 1990, 32 life sentences were commuted by the Board. In the 20 years since 1990, they have commuted only one.²

Many of those currently serving life without parole sentences for offenses committed in their youth were sentenced in the period before the Board took a hard-line stance on issuing commutations. As these youth began their sentences they were told by their lawyers that commutation and parole were likely in their cases. It was a reasonable assumption at the time, but times have changed.

Many people have attributed the precipitous drop in commutations to the increased politicization of the process and the need for politicians to appear tough on crime. After the Board voted to deny Jeremy Herman, a former youth serving a sentence of life without the possibility of parole, Board Member and Attorney General Jon Bruning asked “We say we need to be tough on crime – I’ve been so tough on crime, it makes me want to throw up sometimes. How tough on crime can we be?”³

According to the Omaha World-Herald, Secretary of State John Gale explained his vote not to commute Herman’s sentence by “[stating] in an interview that if there’s a problem with the system, it’s up to the legislature to re-examine sentencing laws.”⁴ (Herman was sentenced according to a law that requires a sentence of life without the possibility of parole for individuals convicted of kidnapping in cases where victim is not returned alive. This sentence is mandatory even if – as in Herman’s case – the individual convicted did not plan or participate in the victim’s death. It operates similarly to the felony murder rule.)

We urge the board to return to the pre-1990 practice of exercising the power granted them in the state constitution. We also recognize that, as Secretary Gale suggests, there are systemic issues at play here, and that those issues will require systemic reform. If Nebraska wants to follow through on the belief that youth are different, and that their neurological immaturity and capacity to change should be taken into account during sentencing, then we must act, through the legislature, to end the practice of sentencing youth to life without the possibility of parole in our state.

1. Cordes, Henry J., Leslie Reed, “No Mercy for Lifers,” Omaha World-Herald, Oct. 9th, 2005.
2. Hicks, Nancy, “Pardons Board Commutes Man’s Life Sentence,” Lincoln Journal-Star, Nov. 10th, 2009.
3. Cordes, Henry J., Leslie Reed, “No Mercy for Lifers,” Omaha World-Herald, Oct. 9th, 2005.
4. Ibid.