ACLU of Nebraska says judges inconsistent on following law when setting bail

Mindy Rush Chipman, legal director and interim executive director at ACLU Nebraska, spoke at a press conference Wednesday about the results of their court-watching project focusing on whether judges in Douglas and Lancaster counties are complying with state laws when setting bail and ordering people to fines and fees.

The ACLU of Nebraska on Wednesday said a court-watching project focusing on whether Lincoln and Omaha judges are following the law when it comes to setting bail and assessing fines turned up concerning trends.

At a news conference releasing its report "Broken Rules: Laws Meant to Prevent Debtors' Prisons are Failing Nebraskans," Rose Godinez, senior legal and policy counsel for ACLU of Nebraska, said the two-year study showed Nebraska judges were assigning cash bail more than any other option.

"This is problematic because it errs toward incarceration rather than freedom," she said.

Godinez said state law is clear: With limited exceptions, the presumption should be in favor of release.

Under state law, courts "shall consider all methods of bond and conditions of release to avoid pretrial incarceration."

If a judge doesn't release a defendant on his or her promise to return, the judge must consider their ability to pay bond and impose the least onerous to reasonably assure their appearance and that will eliminate or minimize risk of harm to others.

Godinez said every day in Nebraska courtrooms dozens if not hundreds of Nebraskans go before a judge and face imprisonment because they lack the ability to pay bail or fines and fees.

"Right now, that may mean some Nebraskans are held pretrial, presumed innocent, spending the holiday season behind bars while other Nebraskans are able to go home and celebrate the holiday with loved ones," Godinez said.

The difference? Money, resources and knowledge of their rights, she said.

Godinez said too many Nebraskans with limited resources and Nebraskans of color are caught in the maze of rules and statutes and regulations with dead ends at every turn because the stakeholders — judges, prosecutors and public defenders — are failing to advise defendants of their rights and options as required by law.

From January 2021 to April 2022, 24 court-watching clerks observed 639 bail hearings and 1,700 sentencing hearings before 20 county court judges in Lancaster and Douglas counties.

ACLU press conference

A team led by Richard Wiener, a professor at the University of Nebraska-Lincoln's Legal Decision Making Lab, analyzed the data they provided about their observations.

Among the findings:

* Of 501 cases where a judge didn't find a defendant to be a danger to the community or a flight risk, only 90 (18%) were released on their own recognizance.

* In 38% of the cases observed, judges didn't ask about a defendant's ability to pay bail. And in most of those hearings, the public defender didn't bring it up.

* Out of 1,700 observed sentencing hearings, judges advised 59% of defendants that they could present information on their ability to pay fines and fees. In fewer than half of all cases, judges advised on the right to request payment plans, community service or a waiver of fines and fees.

* A person in Lancaster County is 6.4 times more likely to be denied release on their own recognizance than a person in Douglas County.

* And while roughly 20% of Lancaster County residents are people of color, they made up 53% of the county jail's pretrial population.

Mindy Rush Chipman, the legal director and interim director of the ALCU of Nebraska, said it will now focus on implementing solutions.

She said the ACLU would share the report with leaders of the state's judicial branch and ask for their support in adopting solutions. Some of the recommendations would require action by the Legislature, but others could be put into place right away.

For instance, it created a model bench card to help judges in conducting bail assessments, encouraging release on recognizance and guaranteeing that cash bail, if set, is affordable. And it will advocate for continued judicial training.

It has also developed pro se legal forms for those without legal representation and translated them into the five languages most used in Nebraska.

Mindy Rush-Chipman

Rush Chipman said the ACLU plans to keep working to end cash bail, which may take years.

"But in the meantime, the changes that we've outlined ... can be implemented quickly to better protect Nebraskans' rights," Rush Chipman said. "These changes are needed now. We're not going to rest until freedom does not rely on how much money we currently have or have access to."

A portion of Lincoln's new South Beltway intersection with U.S. 77 is photographed by a drone, just outside on Lincoln city limits on Saturday, Dec. 3, 2022, in Roca. The South Beltway is set to open Dec. 14, which is six months earlier than expected. The 11-mile freeway is one of the city's largest construction projects to date.

Nebraska's Ally Batenhorst celebrates after making a kill against Kansas during a second-round NCAA Tournament match Friday at the Devaney Sports Center.

Nebraska's Ally Batenhorst reacts after scoring against Kansas during a second-round NCAA Tournament match Friday at the Devaney Sports Center.

Waverly Middle School teacher Caitlin Bell talks with seventh grade students Hayden Ryan (from left), Logan Haas and Bailey Hitz during a language arts class, Friday, Dec. 2, 2022, in Waverly.

Millard West's Grace Kelly (20) drives in for a layup against Lincoln East on Thursday at East High School.

Nebraska's Maggie Mendelson (44) celebrates with her team after a scoring against Delaware State in the first round of the NCAA Tournament on Thursday at the Devaney Sports Center.

Miami's Abby Cassiano (15) scores over Kansas' Rachel Langs (2) during a first-round NCAA Tournament match Thursday at the Devaney Sports Center.

Nebraska assistant coach Mickey Joseph walks out of Lancaster County Department of Corrections, Thursday, Dec. 1, 2022, in Lincoln.

Travis Mannschreck stocks records on the opening day of his business, First Day Vinyl , Thursday, Dec. 1, 2022, First Day Vinyl Lincoln.

Firefighters from Lincoln Fire & Rescue inspect the damage after a fire Thursday at a Ruskin Place apartment building at 910 Rutland Drive. There were concerns about HVAC units on top of the building causing the roof to sag.

A nearly 40-foot blue spruce is hoisted onto a trailer Monday morning before it was transported to the state Capitol, where it will be on display in the rotunda throughout the holiday season.

Nebraska's Juwan Gary (4) quiets the crowd after the Huskers defeated Creighton on Sunday at CHI Health Center Omaha.

Sam Volkmer (left), Matthew Bittinger (center), and Alma Cerretta play a board game at Mana Games Cafe in Lincoln.

Lincoln Southeast's Mari Shumaker has his hair fly as he drives to the basket past Millard North's Jacob Martin in overtime on Friday at Lincoln Southeast High School.

Nebraska's C.J. Wilcher (left) and Emmanuel Bandoumel react after a foul call against the Huskers with nine seconds left in overtime in a loss to Purdue on Saturday at Pinnacle Bank Arena.

Purdue's Braden Smith tries to steal the ball away from Nebraska's Sam Griesel on Saturday at Pinnacle Bank Arena.

Samford's Emily Bowman (left) tries to guard Nebraska's Allison Weidner as she dribbles the ball down court in the third quarter on Saturday at Pinnacle Bank Arena.

Estelle Sodji, a fifth grade student at Roper Elementary, jumps up in the air for a Russian toe touch dancing move as part of Lincoln Midwest Ballet Company's Backstage at the Ballet, Thursday, Dec. 8, 2022, in Lincoln.

From left to right, Nebraska's Sam Haiby, Kendall Moriarty, Allison Weidner and Callin Hake celebrate a three-pointer made by Jaz Shelley (not pictured) against Wisconsin on Wednesday at Pinnacle Bank Arena.

Simon and Rachel Rezac smile upon seeing their donated Christmas tree light up during the annual Nebraska State Christmas tree lighting Sunday.

Construction workers prepare to take out a section of the east stairwell during the demolition of Piper Hall on Monday at the University of Nebraska-Lincoln.

Bobby Purviance (center) strapped into a Eksoskeleton by physical therapist Taylor Z during a presentation to showcase the new technology on Tuesday, Dec. 13, 2022, at Bryan West Campus in Lincoln. The Eksoskeleton is a computerized walking frame that supports a patient's body weight as he or she learns to walk and regain mobility. It seeks to benefit patients learning to walk again after a stroke or traumatic injury to the brain or spine. With donations from the Fraternal Order of Eagles in 2021. Over 40 patients at Bryan have used the new piece of technology in their recovery.

The former Grandmother's building at 6940 A St. is being torn down to make way for extra parking for the nearby Nebraska Orthopaedic Center.

Capitol Administrator Bob Ripley is leading the renovation of the building's heating, ventilation and air conditioning system, which is slated for completion in 2026.

Josh Atanasu takes a moment to himself as he visits the grave of his friend, Jacob Kraatz during a wreath laying ceremony on Saturday at Wyuka Cemetery.

As soon as the South Beltway opened to traffic on Wednesday, truck traffic was shifted away from the former Nebraska 2 route through Lincoln.

Bryce Walker, a pharmacist at Kohll's Pharmacy in Lincoln, works Thursday to fill prescriptions. A consultant's report found that Americans pay the highest prescription drug costs in the world — more than twice what people pay in Canada and the United Kingdom.

Sister Janelle Buettner speaks with Kolby Tran about his science homework Friday at North American Martyrs Catholic School.

Austin Hurt scoops fresh snow off a sidewalk at 12th and O streets Monday

University of Nebraska-Lincoln Chancellor Ronnie Green poses for a portrait, Monday at Canfield Administration Building in Lincoln.

A band of light hits GY Sgt. Timothy Olsen as he tries to stay warm beneath a canvas tent during a wreath laying ceremony on Saturday at Wyuka Cemetery.

'TIS THE SEASON

Santa (aka Chris Boyer) gives a jaunty laugh as kids ask for gifts during a holiday event Friday at Tower Square in downtown Lincoln.

Lincoln High's Andrew Gaines (right) and Lincoln East's Connor Hamilton react after Hamilton was called for a shooting foul on Thursday at Lincoln High School.

Lincoln East's Madison Adams tries to reel in a pass while defended by Lincoln High's Nyawarga Jock on Thursday at Lincoln High School.

Reach the writer at 402-473-7237 or [email protected].

On Twitter @LJSpilger

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Public safety reporter

Lori Pilger is a Norfolk native and University of Nebraska-Lincoln graduate who has been a public safety reporter for the Journal Star since 2005.

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