State Codes and Statutes

Statutes > Nebraska > Chapter83 > 83-1_107

83-1,107. Reductions of sentence; personalized program plan; how credited; forfeiture; withholding; restoration.(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 fully explained to 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) 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.The total reductions 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 subsection (2) 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 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.(5)(a) Within thirty days after any committed offender has been paroled, all available information regarding such parolee shall be reviewed and a parolee personalized program plan document shall be drawn up and approved by the Office of Parole Administration. The document shall specifically describe the approved personalized program plan and the specific goals the office expects the parolee to achieve. The document shall also contain a realistic schedule for completion of the approved personalized program plan. The approved personalized program plan shall be fully explained to the parolee. During the term of parole, the parolee shall comply with the approved personalized program plan and the office shall provide programs to allow compliance by the parolee with the approved personalized program 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 office.(b) A modification in the approved personalized program 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 personalized program plan by any parolee as scheduled for any year, or pro rata part thereof, shall cause disciplinary action to be taken by the office resulting in the forfeiture of up to a maximum of three months' good time for the scheduled year.(6) While the offender is in the custody of the board, reductions of terms granted pursuant to subsection (2) of this section may be forfeited, withheld, and restored by the administrator with the approval of the director after the offender has been notified regarding the charges of misconduct or breach of the conditions of parole. In addition, the board may recommend such forfeitures of good time to the director.(7) 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. SourceLaws 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.Annotations1. Reduction of term2. Good-time credit forfeited3. Applicability of section4. Miscellaneous1. Reduction of termUnder 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 forfeitedPursuant 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. MiscellaneousGood 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).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).