By Deena Winter | Nebraska Watchdog
LINCOLN, Neb. — Contrary to what former Nebraska Attorney General Jon Bruning said in September, his office did advise the state corrections department to effectively disregard Nebraska Supreme Court rulings on supervising sex offenders, according to internal documents obtained by Nebraska Watchdog.
Bruning publicly denied that in a September press conference, after two former corrections attorneys said otherwise during their testimony before a legislative committee investigating several corrections scandals.
The department’s failure to heed a 2013 Supreme Court ruling on calculating sentences got it embroiled in scandal last summer when it was discovered sentences were miscalculated for hundreds of prisoners over nearly two decades. Consequently, 750 prisoners’ sentences were lengthened and other ex-cons were rounded up and put back in prison.
The screwed-up sentences were the subject of a special legislative inquiry last fall, with a bevy of corrections officials subpoenaed to testify under oath. During one of those hearings, former corrections attorney Sharon Lindgren said the attorney general’s office previously told two corrections attorneys — her boss, George Green, and attorney Kathy Blum — they didn’t need to heed the Supreme Court’s ruling in a 2009 case called State vs. Payan.
Green backed up her allegation during his testimony, but both of their reputations had been tarnished by the sentencing scandal — they both resigned rather than be fired — and few people paid much attention to what normally would have been a bombshell allegation against the state’s top law enforcement officer.
AP file photo
WAR OF WORDS: In September, former Attorney General Jon Bruning blasted corrections lawyers for saying, under oath, that his office advised them not to heed a Supreme Court ruling on supervising sex offenders. But internal documents indicate otherwise.
At the time, Bruning blasted the attorneys and said it was “utterly laughable” for them to start pointing fingers.
“The gang who couldn’t shoot straight can throw any stones they want,” he said in September. “We would never give advice to ignore the Supreme Court. That’s patently ridiculous and offensive.”
He said their testimony was “embarrassing to watch” and when he heard their allegations about his office, he responded with “hardy laughter.”
“They had an in-house group that was utterly incompetent,” Bruning said at the time. “They made the mess. We’re just trying to clean it up. … I certainly hope nobody lied under oath.”
But internal documents obtained by Nebraska Watchdog under the state open records act buttress Green’s and Lindgren’s allegations.
Tracking sex offenders
In 2006, lawmakers passed a law requiring people convicted of more than one sex crime to be supervised by the state for the rest of their lives.
The law said “a sentencing court” should make that supervision part of their sentence, but after the law went into effect, it soon became clear the courts weren’t always including such orders.
So the corrections department began reviewing cases and deciding whether sex offenders should be supervised for life, the documents show.
Soon came court challenges, and in May 2009, the state Supreme Court ruled in State vs. Payan that ordering sex offenders to lifetime community supervision is a form of punishment, and should not be done unless a jury determined the offender fit the bill.
The day the ruling came out, Blum sent an email to corrections officials, including former corrections Director Bob Houston, saying as a result of the court ruling, “it appears that we will need to remove a number of individuals from lifetime supervision.”
A couple of weeks later, the corrections department’s legislative coordinator, Connie Nemec, asked Houston via email whether the department would request a written opinion from the attorney general on their recommendation, in light of the ruling. She noted corrections lawyers felt sex offenders should be released from lifetime supervision unless they’d been ordered supervised by a court. She noted the department expected to have numerous, costly court battles if it did not.
A couple of weeks after the ruling came out, a meeting of “key stakeholders” was held in Houston’s conference room. Former Solicitor General J. Kirk Brown, Assistant Attorney General Tom Stine, Blum, Green and Houston were at the meeting, documents show.
They had two options on the table: stay the course and continue to decide whether sex offenders should be supervised for life, or change course. The corrections department’s main interest was its ability to defend itself from lawsuits, the agenda indicated.
The top corrections attorney, Green, summarized what happened in the meeting in a follow-up letter to David Cookson, former chief deputy attorney general. Green’s letter made it clear the decision had been made in the meeting that the corrections department was not going to change course, despite the Supreme Court ruling.
“I agree with the points made that the department is not placing offenders on lifetime supervision, that the statute automatically does that,” he wrote. “I also realize that the court did not strike down SORA (theSex Offender Registry Act) as unconstitutional.”
It didn’t take long for sex offenders to react to the Supreme Court ruling: Within a month, a sex offender began sending letters referring to the Payan ruling and complaining his civil rights were being violated.
“Could it be that politics is preventing the proper application of Nebraska law?” Paul Kavan wrote to corrections officials.
Lindgren, the corrections attorney, responded to Kavan’s allegation with a snarky emailto Blum indicating friction between the lawyers, saying, “I think we need to share this stunningly clear legal opinion with the AGs (just kidding) – except I’m not sure they would understand.”
Then came the lawsuits. By September, a district judge had ruled that despite the Payan ruling, the state “apparently takes the position that an agency of the state can make unilateral determinations regarding (lifetime supervision) that the Nebraska Supreme Court has determined even a court cannot make.”
Within a year of the State vs. Payan ruling, the state had lost nine court cases, where judges ruled sex offenders were improperly being put on lifetime supervision and ordered them removed.
And by 2010, another lawsuit had made its way to the Supreme Court. The Supreme Court ruled in State vs. Simnick that a jury should have decided whether the offender committed an aggravated offense and subject to lifetime supervision.
Corrections attorneys were ready to revisit the issue again, with Blum questioning whether the department should continue to assign sex offenders to supervision in light of the two court rulings, according to emails.
Green alerted Houston to the “subject that just won’t go away” in an April 2010 emaildetailing the increasing number of court orders to release inmates, even as more inmates were being placed under supervision as time went on.
“Implementing the two decisions, Payan and Simnick, would mean removing most of the supervisees for now,” Green wrote to Houston.
But apparently, nothing changed.
Three Supreme Court decisions later…
Then came another Supreme Court decision in 2011, State vs. Alfredson, saying a jury, not a judge, must decide whether an offense was “aggravated” and subject to the lifetime supervision law. The corrections department, of course, was making those decisions.
So now the department had three Supreme Court rulings spelling out who decides whether sex offenders should be supervised until they died or sued the state. The high court had decided that putting offenders on lifetime supervision is an additional form of punishment and only a jury can decide whether a crime merits such punishment.
You might think the department would change course. You would be wrong.
In 2014, a district judge warned that it was “contrary to law” for the department to mete out such punishment.
An unsigned document laying out the chronology of lawsuits and rulings noted, “There is a concern that if we don’t relent in this practice, specifically after the court has warned us it is contrary to law, there is potential for liability for the state and its employees.”
The document recommended the department stop putting people on supervision and release the 38 offenders who had been placed there by corrections. The author of the document wanted another meeting with the attorney general’s office to get guidance.
In July, corrections director Michael Kenney wrote a letter to Assistant Attorney General Stephanie Caldwell, saying the department wanted to stop putting people on supervision without a court order.
But around this time, the corrections department got diverted from the supervision situation when the Omaha World-Herald broke the June story they were miscalculating sentences for some prisoners. That led to suspensions, resignations, investigations and hearings.
Green and Lindgren’s allegations about the attorney general’s office became a mere footnote to a summer of prison scandals. But internally, a logjam finally loosened.
A parole administrator wrote to Kenney, asking what she should do, given Bruning’s comments the state should be following the Payan decision. The parole division stopped putting new people on supervision, while awaiting word on what to do.
Finally, a dozen days after Green and Lindgren made the allegations, Solicitor General James Smith wrote a letter to Kenney saying two dozen people under lifetime supervision should be released, because they weren’t court-ordered, and another eight people should be released from supervision because they committed their crimes prior to the enactment of the law.
Blowing off the Supreme Court
Six days after the solicitor general wrote that letter, the No. 2 guy in the corrections department was sitting in the “Double Y Building” on the corrections campus, being interviewed by a lieutenant from the Nebraska State Patrol, which was still investigating to see if any crimes were committed in the sentencing snafu.
Larry Wayne, deputy director of the corrections department, said he thought corrections attorneys didn’t respond to the sentencing supreme court ruling with urgency due to the precedent set with the sex offender rulings, according to investigative documents.
“This is where it gets a little dicey, but we talked with the attorney general’s office in 2009 and they said if they meet the criteria, leave ’em on and keep putting on the people that are committed afterwards, from this point forward keep putting them on until you hear it differently and that just got rectified last week,” Wayne told the investigator.
In other words, it took five-and-a-half years for the attorney general’s office to tell the corrections department to follow a Supreme Court ruling.
“Someone could say there was a culture in the Department of Correctional Services where you just blew off the Supreme Court,” Wayne told the patrol officer. “I could see where this situation that didn’t get resolved until last week might lead people to think, well, there’s some wiggle room.”
Bruning, who left office in early January and started a private law firm, did not respond to a request for comment.
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