OTHER VOICES: Nebraska habitual criminal law needs overhaul | Opinion

Irina Baranova

The numbers unearthed by the Journal Star’s Andrew Wegley in his investigation of Nebraska’s habitual criminal convictions are shocking but hardly surprising.

A total of 146 people are now incarcerated under the enhanced sentencing measure that requires a 10-year minimum sentence for those convicted of three felonies. Of those, 75 (or 51%) are people of color – specifically, 46 Black, 18 Latino, 10 Native and one other.

That is a higher rate then even the general prison population, which is 22% people of color. But it is even more disproportionate when compared to the state’s population, which is 78% white, 5% Black, 11% Latino and 1% Native.

That conviction rate is further evidence that the habitual criminal charge has been often used by prosecutors as a cudgel to push individuals with previous convictions again charged with a crime into accepting a plea deal rather than risking the 10 years in prison if they take their cases to trial.

The racial discrepancy in the sentences and cultural approach to criminal law, coupled with unequal application of the mandatory minimum sentence, must be rooted out of the system, via legislation and strictly adhered-to policies.

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And so should the disproportional use of mandatory minimum sentences, predominantly in rural counties.

In the last 11 years, Lancaster County has had 39 mandatory minimum sentences, 26 of them people of color — 22 Black — in a city where only 4% of the population is Black.

Over the same period in Scotts Bluff County, there have been 19 mandatory minimum sentences — 14 of them since 2016, and involving 78% people of color — in the county that is 87% white and about one-tenth the size of Lancaster County.

In fact, Scotts Bluff County and Buffalo County have combined for 10 of the 15 habitual criminal sentences this year. Lancaster and Douglas counties together have had just four such sentences.

Addressing the disparities presents a challenge for the Legislature. A first step, as proposed by Omaha Sen. John Cavanaugh, would be to eliminate some nonviolent Class IV felonies, such as possession of a controlled substance and failure to appear in court, as predicate convictions.

If that had been law this year, seven of the 15 defendants who were given the mandatory minimum sentence would have been ineligible based on their prior convictions. Other felonies, especially nonviolent offenses disproportionately charged against people of color, should also be considered for removal as predicate convictions.

And, to prevent the prosecutorial abuse and the overuse in rural counties, the mandatory minimum sentencing provisions should be recodified to eliminate discretionary charging and establish strict guidelines for its application.


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