Supreme Court upholds Legislature’s authority to expand parole eligibility

LINCOLN — The Nebraska Supreme Court sided with the Legislature on Friday, upholding its constitutional authority to pass new parole eligibility standards as part of a major criminal justice reform law in 2023 meant to help address prison crowding.

In an unsigned 37-page ruling, the high court unanimously overturned a Lancaster County District Court ruling that parts of Legislative Bill 50 from 2023 were unconstitutional. The sections deal with parole eligibility and legislative intent that the expanded provisions apply to all committed offenders. 

Those laws took effect Sept. 2, 2023, but on the advice of Nebraska Attorney General Mike Hilgers, the Nebraska Department of Correctional Services refused to implement the parole provisions. The lower court sided with Hilgers in March 2024, leading to the appeal.

“Whether applied prospectively or retroactively, LB 50’s new parole eligibility provisions do not result in substituting a milder punishment for the sentence originally imposed,” the Supreme Court wrote.

Secretary of State Bob Evnen had the duty to defend LB 50 against Hilgers. In a statement to the Examiner, he said: “The court has ruled, and I respect the ruling of the court.”

The AG’s office declined to comment on the ruling. The Corrections Department did not respond to a request for comment.

‘Tomorrow’s safer communities’

The justices reasoned that parole is not the same as commutation, or imposing a “milder” sentence, which is a power reserved exclusively to the Nebraska Board of Pardons and the executive branch.

The court said parole “merely changes the circumstances under which the sentence is being served.”

While some offenders might get earlier parole, the justices said, it can’t be assumed that everyone who will become eligible will then be granted parole sooner than they would have if not for LB 50’s passage. It passed the Legislature in a 34-15 vote in June 2023.

“Because leaving an erroneous declaration of unconstitutionality uncorrected would result in damage to the integrity, reputation or fairness of the judicial process, we must reverse the judgment for plain error,” the justices said.

Former State Sen. Justin Wayne of Omaha, the lead architect of LB 50, celebrated Friday’s opinion as “an affirmation that smart reform and public safety go hand in hand.” He noted the ruling also generally confirms the Legislature’s authority to set parole eligibility, protecting future reforms from “political attacks.” He vowed to “turn today’s legal triumph into tomorrow’s safer communities.”

“LB 50 was built on data, compassion and fiscal discipline,” he said in a statement to the Nebraska Examiner. “The Court has now declared — without reservation — that Nebraska’s Legislature got it right.”

Justice Jason Bergevin had not yet joined the Supreme Court when oral arguments came up in January, so Chief Judge Francie Riedmann of the Nebraska Court of Appeals filled in.

Expanded parole eligibility

Hilgers and his office specifically targeted Sections 47 and 48 of LB 50, which the Legislature in Section 57 explicitly said it intended to apply retroactively.

The new law extended parole eligibility in the following ways:

• For someone serving a maximum term of 20 years or less, two years prior to a person’s mandatory discharge date.
• For someone serving a maximum term of more than 20 years, when the person has served 80% of the time until the sentence’s mandatory discharge date.

LB 50 also created the possibility of “geriatric parole” for someone who is at least 75 years old and who has served at least 15 years of the sentence. Persons serving a Class I, IA or IB felony or for a sex-related offense are ineligible, as are those serving life imprisonment.

As a condition of geriatric parole, the person would need to wear an electronic monitoring device for at least 18 months.

In late 2023 court filings, the Corrections Department said the “retroactive effect” of LB 50 would impact 1,794 current offenders:

• 529 committed offenders who were already parole eligible would have had a new, earlier parole eligibility date.
• 345 committed offenders who were not yet parole eligible under the previous law would now be parole eligible.
• 920 committed offenders who had not yet reached parole eligibility would have a new, earlier parole eligibility date.

‘Holding out hope’

At least five serving on the Supreme Court would have needed to agree to declare part or all of LB 50 unconstitutional. Statutes are presumed to be constitutional and “all reasonable doubts are resolved in favor of its constitutionality.”

“The burden of establishing the unconstitutionality of a statute is on the one attacking its validity,” the court wrote. “It is not the province of a court to annul a legislative act unless it clearly contravenes the constitution and no other resort remains.”

State Sen. Terrell McKinney of North Omaha, a longtime member of the Legislature’s Judiciary Committee, joined Wayne, the then-committee chair, to get LB 50 over the finish line.

McKinney said he was a little surprised by Friday’s decision but felt good. He said he had received numerous calls and questions from individuals and families who will be impacted by LB 50.

“I feel happy, but I feel relief for those individuals who were holding out hope that the court would uphold what we passed,” McKinney told the Nebraska Examiner.

The Judiciary Committee in 2023 was split 4-4 between Republicans and Democrats, and LB 50 advanced 4-2 after a temporary vacancy caused by the resignation of former State Sen. Suzanne Geist of Lincoln, a Republican, making four members a majority. Geist is now chief of staff and chief policy adviser to Hilgers. Geist’s legislative successor, State Sen. Carolyn Bosn of Lincoln, now chairs the Judiciary Committee. Bosn was unavailable for comment Friday.

AG’s opinions are not law

When Hilgers’ office filed the case in late 2023, he did so under a previous law since repealed by the Legislature. It required his office to challenge the constitutionality of a law if, on the AG’s written advice, an agency refused to implement a state law. However, justices during January arguments said this was the first time the lawsuit had followed “informal” advice rather than an archived AG’s opinion. Evnen had the duty to defend such laws in this case.

Friday’s ruling almost did not happen on technical grounds after the attorney for Evnen contained no “assignment of error section” in a brief to the high court, only headings alluding to alleged errors, the opinion states. However, the case was allowed to move forward to determine whether there was a “plain error” in the lower court ruling, leading to Friday’s ruling.

Wayne called for the Corrections Department and Parole Board to recalculate parole eligibility dates within the next 30 days and to shift every freed dollar into mental health treatments, victim services and job-training programs that cut recidivism. He said he would work with lawmakers to champion sentence-credit modernization and expanded re-entry housing.

“Nebraska just proved that courage and common sense can beat fear‑mongering,” Wayne said. “Let’s lock up those who are dangerous, lift up those who’ve paid their debt and make every tax dollar count.”

This isn’t the first time Hilgers has questioned the constitutionality of state laws at the request of state agency heads, He did so notably in August 2023 after the Corrections Department and the Department of Health and Human Services questioned legislative oversight of child welfare and corrections and in July 2024, when Evnen questioned restoring voting rights to formerly convicted felons after the completion of their sentences, rather than a two-year waiting period that Evnen also questioned.

Wayne, with McKinney’s support, led the voting rights law. The Supreme Court ruled against Hilgers in October. No lawsuit was ever launched in the oversight case. Legislation is pending to get around a legal fight.

Jasmine Harris, director of public policy and advocacy for the nonprofit RISE, which is focused on improving skills programming in prisons and reentry support, said Friday’s decision had been “a long time coming.” She thanked the justices for their work, both for LB 50 and in upholding voting rights last fall.

“Working on criminal justice reform has many challenges when it comes to opinions convoluting the policy,” Harris said in a statement. “As advocates, we work towards smart justice solutions, and I’m glad the courts see LB 50 as one of those solutions.”

McKinney said he and others often have to remind colleagues that AG’s opinions lack the force of law and that Friday’s decision upheld that state lawmakers were “working to do the right thing” and “crossing our t’s and dotting our i’s.”

“Just because another agency or individual wants to try to say, ‘No, y’all can’t do that,’ I think it shows that there’s power in the Legislature to do good things,” McKinney said. “When you do good things for the right reasons, things will be upheld.”