Nebraska Supreme Court affirms Legislature’s power to expand parole eligibility

LINCOLN, Neb. (KOLN) – The Nebraska Supreme Court released a ruling on Friday, upholding the Legislature’s constitutional authority to adjust parole eligibility provisions as part as a criminal justice reform law passed in 2023.

LB 50 took effect on Sept. 2, 2023, with the intent to increase parole eligibility to address prison overcrowding. According to the Nebraska Examiner, the law extended parole eligibility for people who meet the following criteria:

• 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.

It also allows someone who is at least 75 years old and who has served at least 15 years of their sentence to apply for “geriatric parole”.

Anyone serving a Class I, IA or IB felony or for a sex-related offense is ineligible, as are those serving life imprisonment, the Nebraska Examiner said. As a condition of geriatric parole, the person would need to wear an electronic monitoring device for at least 17 months.

However despite it becoming law, the Nebraska Department of Correctional Services refused to implement the parole provisions on the advice of Attorney General Mike Hilgers. He argued that applying the changes retroactively was unconstitutional and that it was the same as changing someone’s sentence, which only the Board of Pardons can do.

Hilgers filed a lawsuit to block the law, and a lower court sided with him in March 2024. This led to the appeal.

In an unsigned 37-page ruling, the Nebraska Supreme Court overturned the lower court ruling, saying the law is constitutional and the Legislature has the power to adjust parole eligibility. They stated that parole is not the same as a sentence reduction or commutation.

“The retroactive application of L.B. 50’s new parole eligibility provisions does not result in an unconstitutional sentence commutation, and it was plain error to declare otherwise. We therefore reverse the judgment of the district court,” the ruling stated.

ACLU of Nebraska Staff Attorney Jane Seu issued a statement in response to the Nebraska Supreme Court ruling.

“Today, the Nebraska Supreme Court affirmed state senators’ authority to enact long overdue smart justice reforms,” Seu said. “The Court rejected Attorney General Hilgers’ argument that key provisions of LB 50 could not apply to people already serving a sentence. As a result, people in our prisons will be able to benefit from earlier parole eligibility as our lawmakers intended. Considering Nebraska’s ongoing prison overcrowding crisis and the value of meaningful rehabilitation, this is a win for all Nebraskans.”

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