NE Code § 83-1,107 (2021)
2021 Nebraska Revised Statutes|Chapter 83 - State Institutions|83-1,107 - Reductions of sentence; personalized program plan; how credited; forfeiture; withholding; restoration; release or reentry plan; treatment programming; individualized post-release supervision plan.

83-1,107.  Reductions of sentence; personalized program plan; how credited; forfeiture; withholding; restoration; release or reentry plan; treatment programming; individualized post-release supervision plan.(1)(a) Within sixty days after initial classification and assignment of any offender committed to the department, all available information regarding such committed offender shall be reviewed and a committed offender department-approved personalized program plan document shall be drawn up. The document shall specifically describe the department-approved personalized program plan and the specific goals the department expects the committed offender to achieve. The document shall also contain a realistic schedule for completion of the department-approved personalized program plan. The department-approved personalized program plan shall be developed with the active participation of the committed offender. The department shall provide programs to allow compliance by the committed offender with the department-approved personalized program plan.Programming may include, but is not limited to:(i) Academic and vocational education, including teaching such classes by qualified offenders;(ii) Substance abuse treatment;(iii) Mental health and psychiatric treatment, including criminal personality programming;(iv) Constructive, meaningful work programs; and(v) Any other program deemed necessary and appropriate by the department.(b) A modification in the department-approved personalized program plan may be made to account for the increased or decreased abilities of the committed offender or the availability of any program. Any modification shall be made only after notice is given to the committed offender. The department may not impose disciplinary action upon any committed offender solely because of the committed offender's failure to comply with the department-approved personalized program plan, but such failure may be considered by the board in its deliberations on whether or not to grant parole to a committed offender.(2)(a) The department shall reduce the term of a committed offender by six months for each year of the offender's term and pro rata for any part thereof which is less than a year.(b) In addition to reductions granted in subdivision (2)(a) of this section, the department shall reduce the term of a committed offender by three days on the first day of each month following a twelve-month period of incarceration within the department during which the offender has not been found guilty of (i) a Class I or Class II offense or (ii) more than three Class III offenses under the department's disciplinary code. Reductions earned under this subdivision shall not be subject to forfeit or withholding by the department.(c) The total reductions under this subsection shall be credited from the date of sentence, which shall include any term of confinement prior to sentence and commitment as provided pursuant to section 83-1,106, and shall be deducted from the maximum term, to determine the date when discharge from the custody of the state becomes mandatory.(3) While the offender is in the custody of the department, reductions of terms granted pursuant to subdivision (2)(a) of this section may be forfeited, withheld, and restored by the chief executive officer of the facility with the approval of the director after the offender has been notified regarding the charges of misconduct.(4) The department shall ensure that a release or reentry plan is complete or near completion when the offender has served at least eighty percent of his or her sentence. For purposes of this subsection, release or reentry plan means a comprehensive and individualized strategic plan to ensure an individual's safe and effective transition or reentry into the community to which he or she resides with the primary goal of reducing recidivism. At a minimum, the release or reentry plan shall include, but not be limited to, consideration of the individual's housing needs, medical or mental health care needs, and transportation and job needs and shall address an individual's barriers to successful release or reentry in order to prevent recidivism. The release or reentry plan does not include an individual's programming needs included in the individual's personalized program plan for use inside the prison.(5)(a) The department shall make treatment programming available to committed offenders as provided in section 83-1,110.01 and shall include continuing participation in such programming as part of each offender's parolee personalized program plan.(b) Any committed offender with a mental illness shall be provided with the community standard of mental health care. The mental health care shall utilize evidence-based therapy models that include an evaluation component to track the effectiveness of interventions.(c) Any committed offender with a mental illness shall be evaluated before release to ensure that adequate monitoring and treatment of the committed offender will take place or, if appropriate, that a commitment proceeding under the Nebraska Mental Health Commitment Act or the Sex Offender Commitment Act will take place.(6)(a) Within thirty days after any committed offender has been paroled, all available information regarding such parolee shall be reviewed and a case plan document shall be drawn up and approved by the Division of Parole Supervision. The document shall specifically describe the approved case plan and the specific goals the division expects the parolee to achieve. The document shall also contain a realistic schedule for completion of the approved case plan. The approved case plan shall be developed with the active participation of the parolee. During the term of parole, the parolee shall comply with the approved case plan and the division shall provide programs to allow compliance by the parolee with the approved case plan.Programming may include, but is not limited to:(i) Academic and vocational education;(ii) Substance abuse treatment;(iii) Mental health and psychiatric treatment, including criminal personality programming;(iv) Constructive, meaningful work programs;(v) Community service programs; and(vi) Any other program deemed necessary and appropriate by the division.(b) A modification in the approved case plan may be made to account for the increased or decreased abilities of the parolee or the availability of any program. Any modification shall be made only after notice is given to the parolee. Intentional failure to comply with the approved case plan by any parolee as scheduled for any year, or pro rata part thereof, shall cause disciplinary action to be taken by the division resulting in the forfeiture of up to a maximum of three months' good time for the scheduled year.(7) While the offender is in the custody of the board, reductions of terms granted pursuant to subdivision (2)(a) of this section may be forfeited, withheld, and restored by the director upon the recommendation of the board after the offender has been notified regarding the charges of misconduct or breach of the conditions of parole.(8) Good time or other reductions of sentence granted under the provisions of any law prior to July 1, 1996, may be forfeited, withheld, or restored in accordance with the terms of the Nebraska Treatment and Corrections Act.(9) Pursuant to rules and regulations adopted by the probation administrator and the director, an individualized post-release supervision plan shall be collaboratively prepared by the Office of Probation Administration and the department and provided to the court to prepare individuals under custody of the department for post-release supervision. All records created during the period of incarceration shall be shared with the Office of Probation Administration and considered in preparation of the post-release supervision plan.Source   Laws 1969, c. 817, § 38, p. 3092;   Laws 1972, LB 1499, § 7;   Laws 1975, LB 567, § 2;   Laws 1992, LB 816, § 2;   Laws 1995, LB 371, § 20;   Laws 1997, LB 364, § 19;  Laws 2003, LB 46, § 20;  Laws 2011, LB191, § 1;  Laws 2014, LB907, § 17;  Laws 2015, LB598, § 29;  Laws 2015, LB605, § 101;  Laws 2018, LB841, § 35.  Cross References   Nebraska Mental Health Commitment Act, see section 71-901.  Sex Offender Commitment Act, see section 71-1201. Annotations  1. Reduction of term 2. Good-time credit forfeited 3. Applicability of section 4. Miscellaneous 1. Reduction of term Under former law, the director and chief executive officer of a correctional facility have the authority to delegate to subordinate officials the duty to approve the forfeiture of reductions of terms granted pursuant to subsection (2) of this section. Martin v. Dept. of Corr. Servs., 267 Neb. 33, 671 N.W.2d 613 (2003). When an indeterminate sentence is imposed, a prisoner's earliest parole eligibility date is determined by crediting good behavior time on the basis of his minimum, not his maximum, term. Ebert v. Black, 216 Neb. 814, 346 N.W.2d 254 (1984). The good time reductions provided in this section are used to determine eligibility for release on parole or supervision and are subject to forfeiture. Wycoff v. Vitek, 201 Neb. 62, 266 N.W.2d 211 (1978); Brown v. Sigler, 186 Neb. 800, 186 N.W.2d 735 (1971). 2. Good-time credit forfeited Pursuant to the Nebraska Treatment and Corrections Act, there may be a forfeiture of credit for meritorious behavior earned before release on mandatory parole. Nichols v. Gunter, 225 Neb. 638, 407 N.W.2d 203 (1987); Anderson v. Gunter, 225 Neb. 637, 407 N.W.2d 202 (1987); Wounded Shield v. Gunter, 225 Neb. 327, 405 N.W.2d 9 (1987). Neither mandatory good time earned pursuant to this section nor meritorious good time earned pursuant to section 83-1,107.01 is automatically forfeited upon revocation of parole. Such forfeiture must occur upon recommendation of the chief executive officer of the facility to which the offender is entrusted or the parole administrator, depending upon who has custody at the time of revocation, subject to approval of the director of the Department of Correctional Services. Once forfeited or withheld, good time credits may be restored to the offender in like manner. Malone v. Benson, 219 Neb. 28, 361 N.W.2d 184 (1985). Pursuant to this section and section 83-1,107.01, the Board of Parole merely has the right to make recommendation of forfeitures of good time when the offender is in the custody of the Board of Parole. The discretion referred to by statute vests solely in the chief executive officer of the facility when the offender is in the custody of the Department of Correctional Services and in the parole administrator when the offender is in the custody of the Board of Parole, in each instance subject to the approval of the director of the Department of Correctional Services. Malone v. Benson, 219 Neb. 28, 361 N.W.2d 184 (1985). Fighting and threatening an officer's life would amount to flagrant or serious misconduct for which statutory good time may be withheld. Certain activities which would not, or which are best left to judgment of adjustment committee, are outlined. McDonnell v. Wolff, 342 F.Supp. 616 (D. Neb. 1972). 3. Applicability of section "New good time law" inapplicable to those offenders who started serving sentences before the effective date of July 15, 1992, absent approval of the Board of Pardons, even if the offender is resentenced pursuant to the new Convicted Sex Offender Act, also effective July 15, 1992. Duff v. Clarke, 247 Neb. 345, 526 N.W.2d 664 (1995). This section governs an offender's good time computation even though offender was sentenced before this section changed, effective July 15, 1992, because the offender's judgment was not final until after appeal. State v. Schrein, 247 Neb. 256, 526 N.W.2d 420 (1995). The good time provisions of LB 567 are not to be retroactively applied to those who were initially incarcerated prior to its effective date, regardless of whether the incarceration is on a consolidated sentence made up of crimes committed both before and after LB 567's effective date, without Board of Pardons approval. Boston v. Black, 215 Neb. 701, 340 N.W.2d 401 (1983). This section through section 83-1,111 applies retroactively to prisoners only with approval of the Board of Pardons. Johnson & Cunningham v. Exon, 199 Neb. 154, 256 N.W.2d 869 (1977). This section governs eligibility for parole or release under supervision rather than for absolute discharge as under previous statutes. Von Bokelman v. Sigler, 186 Neb. 378, 183 N.W.2d 267 (1971). The reduction of sentence for good behavior and faithful performance of duties is a statutory right and cannot be eliminated or withheld for failure to perform work which a prisoner is unable to do because of physical infirmity not caused by his misconduct, nor as punishment except for flagrant or serious misconduct. Sawyer v. Sigler, 320 F.Supp. 690 (D. Neb. 1970). 4. Mandatory minimum A defendant must serve the mandatory minimum sentence before earning good time credit toward either the maximum or minimum sentence. State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013). Good time reductions do not apply to mandatory minimum sentences. State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013). Multiple mandatory minimum sentences must be served consecutively. State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013). When a mandatory minimum sentence is involved, the mandatory discharge date is computed by subtracting the mandatory minimum sentence from the maximum sentence, halving the difference, and adding that difference to the mandatory minimum. State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013). Good time credit under subsection (1) of this section does not apply to mandatory minimum sentences imposed on habitual criminals pursuant to subsection (1) of section 29-2221. Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191 (2002). 5. Miscellaneous Pursuant to subsection (1)(b) of this section, an inmate who has been given proper notice that certain conduct could result in disciplinary segregation and that disciplinary segregation could prevent the inmate from participation in the program plan can be found to have intentionally violated the program plan. Ponce v. Nebraska Dept. of Corr. Servs., 263 Neb. 609, 641 N.W.2d 375 (2002). Good time is figured under the statutory scheme in existence at the time the offender's sentence becomes final; therefore, if this section is amended while the offender's sentence is suspended pending direct appeal, the amended version of this section applies. Jones v. Clarke, 253 Neb. 161, 568 N.W.2d 897 (1997). Sentencing judge's announcement he considered possible effect of statutes permitting prison authorities to ameliorate sentences did not violate constitutional due process, and sentences were not excessive. State v. Houston, 196 Neb. 724, 246 N.W.2d 63 (1976). Prisoner's statutory right to good time may not be taken away from him without following minimum appropriate due process procedures. Wolff v. McDonnell, 418 U.S. 539 (1974). The decision to impose discipline is discretionary with the chief executive officer of a penal facility and imposition of a greater penalty for infraction of a prison rule than would have been sustained by a citizen prosecuted in a court of law for a similar offense is neither an abuse of that discretion nor a violation of the U.S. Constitution. Glouser v. Parratt, 605 F.2d 419 (8th Cir. 1979).