Report

Providing equal justice for poor and rich, weak and powerful alike is an age-old problem. People have never ceased to hope and strive to move closer to that goal. — Griffin v. Illinois, 351 US 12, 16 (1956)

Table of Contents

Executive Summary | Criminalization of the Poor | Bail Reform | Modern-Day Debtors' Prisons |Conclusion | Table of Offenses | Methodology | Bond Schedules

Executive Summary

Over 30 years ago in Bearden v. Georgia, the United States Supreme Court issued a seminal ruling that to imprison someone because of their poverty and inability to pay a fine or restitution would be fundamentally unfair and violate the Equal Protection Clause of the Fourteenth Amendment. Yet today, courts across the United States and Nebraska routinely imprison people because of their inability to pay. This practice has been termed a “modern-day debtors’ prison.” This practice happens at various points in the criminal justice system. First, it can happen to people who are awaiting trial. Individuals are forced to sit in jail while their case proceeds because a bail amount has been set beyond their ability to pay while those with financial resources regain their freedom to go to work, school and be with their families while awaiting trial. Second, some people who have been adjudicated and found guilty end up in jail even though they were not sentenced to jail time because they are unable to pay a fine and are imprisoned instead to “sit it out.”

The end result of these systems: a maze with dead-ends at every turn for low-income people.

In this report, the ACLU of Nebraska presents the results of its investigation into Nebraska’s modern-day “debtors’ prisons” and bail practices. The report shows how, day after day, low-income Nebraskans are imprisoned because they lack the ability to pay bail or pay fines and fees. These practices are illegal, create hardships for those who already struggle, and are not a wise use of public resources. Debtors’ prisons result in an often fruitless effort to extract payments from people who may be experiencing homelessness, are unemployed, or lack the ability to pay.

The ACLU of Nebraska investigated the imposition of bail as well as the imposition of court fees and fines. Our survey focused on the four largest counties (Douglas, Lancaster, Sarpy and Hall), using open records requests, court record review, interviews with people involved in the system with additional in-court observations in Douglas, Lancaster and Sarpy Counties.

Key Findings

Nebraska doesn’t have as many problematic practices as found in other jurisdictions. Some states have notorious abusive practices such as private bondsmen who use dangerous tactics to apprehend low-level offenders, staggeringly high interest rates and late fees that make it nearly impossible to ever pay off court costs, and additional fees for serving jail time or applying for a public defender. Therefore we believe Nebraska is well positioned to reform our system to remedy the harms currently being inflicted on people who are poor.

Human Costs

Being held in jail comes with devastating human costs for low-income Nebraskans. Being held in jail while awaiting trial means one is more likely to be found guilty and more likely to receive a stiffer sentence. People who are in jail—whether pretrial or whether sitting out a fine—face significant disruption to their lives. Before they even get to trial, Nebraska defendants charged with nonviolent offenses spend an average of 48 days behind bars. Being imprisoned has a destabilizing impact on their jobs, their children, and their wellbeing. These burdens fall on people who were already struggling and at risk. It is well documented that racial disparities exist at every stage of our criminal justice system. This research shows a clear and disturbing overrepresentation of people of color behind bars in Nebraska as well.

Waste of Taxpayer Money and Resources

Incarcerating low-income people prior to trial or requiring an indigent defendant to sit out a fine costs much more than counties actually recoup. Our study revealed that over half of the county jail populations were pretrial people—Nebraskans presumed innocent but unable to afford bail to go home. At the same time, several counties are facing overcrowded jails and are burdened by paying other counties to take their inmates. Indigent defendants sitting out a fine are doing so at taxpayer expense—it costs between $80-90 per day per inmate, depending on the county involved. The annual costs to run the jails in our four largest counties will reach over $73 million in 2017. Both practices strain county budgets and burden taxpayers unnecessarily.

Jailing the Poor Creates a Two-Tiered System of Justice

Bail should be limited to people who pose a true risk to public safety or who present a concrete flight risk. All other defendants should be allowed to go home on their own recognizance. Instead of an individualized assessment of dangerousness and flight risk, Nebraska is reflexively placing a cash bail amount for most defendants. This means the wealthy go home while the poor remain behind bars, though studies show there is no rational basis to treat the poor more harshly. Similarly, when a wealthy defendant is sentenced to pay a fine, they can do so and go on their way while a poor defendant without the means to write a check must sit in jail. Nebraska deducts $90 per day served from court fines, so even a nonviolent misdemeanor offense can result in many days in jail. These practices mean the poorest defendants are punished more harshly than those with money.

Recommendations

The ACLU of Nebraska has made recommendations to judges, police and policymakers to remedy the serious abuses that have resulted in a system of unequal justice. These recommendations are based on proven models in other jurisdictions and seek to ensure that all people—regardless of their economic position—are treated fairly and equally.

Criminalization of the Poor

Nearly two centuries ago, the United States formally abolished the incarceration of people who failed to pay off debts. However, recent years have witnessed the rise of modern-day debtors’ prisons—the arrest and jailing of poor people for failure to pay legal debts they can never hope to afford, through criminal justice procedures that violate their most basic rights. Some people sit in jail while still presumed innocent—only because they don’t have the money to post bail.

An overwhelming majority of Nebraska jail inmates are deemed indigent. As we examined how court processes impact people who are poor, we found that the system often punishes defendants simply for not having money. Poor defendants in the criminal justice system are much more likely to experience incarceration because they lack the resources to pay fines or post bail, not because of the severity of their alleged crime.

This report looks at the monetary bookends of the criminal justice system: first, how bail is set when one is first arrested and second, what happens when one is found guilty and ordered to pay a fine and court fees.

Arrestees are presumed innocent and, for most offenses, may be allowed to go home to their family while they wait for their trial. They can do so if they post bail, which is set in the form of a cash amount. Immediately upon arrest, before a defendant is seen by a judge for an individual assessment, the bail amount is determined by a “schedule” that provides set bail amounts for particular offenses. These schedules vary widely from county to county. After the amount is set, a defendant may also go in front of a judge and request a lower amount. This report will first describe the current bail practices in Nebraska and how they impact the poor.

People who are found guilty of misdemeanors and traffic offenses are often not sentenced to do time—they are given a sentence of a fine, including court costs. Court costs can vary from $49 to $500. For example, if a defendant calls a witness they will ultimately be asked to pay the witness fee. In reality, many indigent people end up serving time behind bars simply because they cannot afford to pay those costs. This practice is known as “debtors’ prison,” and it is pervasive throughout the state. The report will also look at fines and fees collection and how it impacts the poor.

Both of these practices are economically inefficient since taxpayers pay thousands of dollars for defendants to sit in jail for days, weeks, and months. Debtors’ prison is a particularly illogical practice since the court costs and fines imposed ultimately do not generate income—rather, taxpayers pay for inmates to be incarcerated.

These practices don’t just impact the defendant and taxpayers—they ultimately affect the families and children of the defendant. Voices for Children Nebraska documented that one in ten children in Nebraska have a parent behind bars, and the effects of this experience often lead to economic and psychological instability for the child. Parents who cannot post bail or who are sitting out a fine in jail may lose their job, fail to meet a crucial bill deadline, and face eviction or loss of utilities. These all impact the entire family’s likelihood of financial stability and success.

These burdens fall on those who were already poor to start with, as those in the criminal justice system tend to be low income. “People convicted of felonies tend to be financially worse off before arrest and conviction than those not connected to the criminal justice system, and defendants tend to have higher unemployment rates than nondefendants…Nationally, the earned annual income of two-thirds of jail inmates was under $12,000 in the year prior to arrest.”

For this study, the ACLU examined court records from the four largest counties in Nebraska (Douglas, Lancaster, Sarpy and Hall) and personally observed county court arraignments and sentencings in the three largest counties (Douglas, Lancaster and Sarpy). In addition, we interviewed criminal defense attorneys across the state and other stakeholders. Through this research, we repeatedly found people sitting in jail simply for being poor and not being able to pay a couple hundred dollars in bail, fines or fees.

This practice is out of step with clear caselaw. The Department of Justice has begun to intervene in cases involving the criminal courts’ imposition of financial burdens on the poor and has stated, “incarcerating individuals solely because of their inability to pay for their release, whether through the payment of fines, fees, or a cash bond, violates the Equal Protection Clause of the Fourteenth Amendment.” In March 2016, the Department of Justice issued guidance to all judges, calling for reform. The DOJ has enunciated several principles relevant to current Nebraska practices, including:

• Courts must not employ bail practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.
• Courts must not incarcerate a person for nonpayment of fines or fees without first conducting an ability to pay determination and establishing that the failure to pay was willful.
• Courts must provide meaningful notice and, in appropriate cases, counsel when enforcing fines and fees.
• Courts must not use arrest warrants or license suspensions as a means of coercing the payment of court debt when individuals have not been afforded constitutionally adequate procedural protections.

The report suggests ways Nebraska can come into compliance with the Department of Justice’s guidelines. The good news is that Nebraska doesn’t have as many problematic practices as many sister states. Some states have practices such as private bondsmen who use dangerous tactics to apprehend low-level offenders, high interest rates, late fees that make it nearly impossible to ever pay off court costs, and additional fees for serving jail time or applying for a public defender. While our system needs a significant overhaul, we are thankfully free of many of the shocking abuses documented in other states. Nebraska is well positioned to take immediate steps to protect the rights of people who are poor trapped in a cruel maze created by our criminal justice system.

Bail Reform

Bail refers to the amount of money a person has to pay to be released from jail after being arrested. Usually, a defendant pays ten percent of the total bail amount set by the judge. For instance, if $50,000 is set as bail, the defendant must pay $5,000 to go home.

Money bail should only be required when the prosecutor, after an individualized hearing, demonstrates the defendant’s release poses a significant danger or flight risk. As the Department of Justice has said, “Bail that is set without regard to defendants’ financial capacity can result in the incarceration of individuals not because they pose a threat to public safety or a flight risk, but rather because they cannot afford the assigned bail amount.” The presumption should always be in favor of release.

Over half of those in Lancaster, Sarpy, and Hall County jails on the days of our study had not been convicted of a crime.

Unfortunately, from our research it appears Nebraska courts aren’t routinely enforcing this presumption of release based on individualized factors. Instead, courts are treating all defendants the same based on the alleged crime rather than the defendant’s personal circumstances, or they are reflexively complying with requests for high bail amounts made by prosecutors.

The fallacy of our current bail system is that a mere dollar amount does nothing to ensure public safety or the guaranteed appearance of a defendant for trial. For example, a wealthy criminal defendant charged with a more serious crime may be able to post bail because he has financial resources. Meanwhile, a criminal defendant living in poverty who poses less risk must stay behind bars. Under this system, the only guaranteed outcome is the over-criminalization of people in poverty.

One’s wealth isn’t an indicator of how likely he or she is to appear in court for her court date. In fact, studies have shown that people released on their own recognizance without any money bail appear in court more often and defendants released on cash bail actually have higher failure to appear rates. It appears that Nebraska judges may currently impose bail not due to a fear of actual flight risk to another jurisdiction to avoid prosecution but simply due to a fear the accused may not show up for court dates. While a failure to appear imposes inconvenience and cost on the court system and witnesses, a failure to appear is not the same as fleeing.

Our current bond and fine systems criminalize poverty. Pretrial release programs which screen people for risk factors and can assess the level of supervision needed, are more effective at assuring someone appears in court than simply rewarding the person who can come up with a set amount of money. For one person, $100 is the same as $10,000 for another. One night in jail can mean the loss of a job, housing, and custody of children. If a bond requiring money is set, the primary factor considered by the court must be the person’s ability to pay. Our current system discriminates against the poor.
Joe Nigro, Lancaster County Public Defender

Many defendants do not show up for court because of unavoidable child care or work conflicts or because they were fearful and confused about the process. These issues can be resolved without using pretrial detention, and Nebraska has already had firsthand experience on how to ensure appearance in court. From 2009 to 2010, the Nebraska State Bar Association implemented a pretrial reminder pilot program in 13 counties and proved that a simple reminder postcard significantly lowered the number of people who failed to appear for court.

Some Nebraska counties currently offer a pretrial release that is contingent upon technological surveillance methods, including interlock devices on vehicles to test the driver’s alcohol usage and ankle monitors. Pretrial surveillance raises independent privacy and fairness concerns. Not only is it intrusive, it has often proven to be ineffective. For these reasons, most individuals who are pretrial should not be subjected to such monitoring. But for certain people, these devices could be among the least restrictive conditions necessary to ensure their return to court. Currently, however, all these devices come with a price tag that must be borne by the defendant, which only exacerbates the inequalities of the cash bail system. Officials in Lancaster County’s pretrial release program indicated they make every effort to provide no-cost technology options for defendants when the county is able to do so, though indigent defendants don’t have these options across the state. To the extent the state could devise a system that reliably determines the rare individuals who require pretrial monitoring, the fact that many rural counties have no such technology-based solutions raises concerns about disparate justice.

The Vera Institute reports that, nationally, 60% of jail inmates are pretrial, meaning either they have been denied bail or, more frequently, are unable to post bail. Out of our sample, we found that over half of inmates in Nebraska are pretrial defendants who are not convicted and presumed innocent. The ACLU believes that money bail should not be imposed unless the court concludes both that (1) the arrestee can afford the bail amount and (2) that less restrictive, nonmonetary conditions would be ineffective on their own. The presumption should always be in favor of releasing people with the least restrictive conditions needed, and money bail must be considered the most restrictive condition short of detention. An individual may only be held, with or without bail, if the court, after an individual assessment, has concluded by clear and convincing evidence that the defendant poses an imminent threat to public safety that no other condition or combination of conditions can reasonably protect against.

Being free on bail affects the ultimate outcome of the case. Several scholarly studies have found that comparable low-risk defendants who are detained for the entire pretrial period are up to five times more likely to receive a lengthier sentence than similar defendants who posted bail. Those held pretrial are also statistically more likely to be rearrested even if held only for a few days—our money bail system is actually promoting future criminal behavior.

Detention has devastating consequences beyond the disposition of the case. The psychological impact of being held in jail for even a few days can be severe. The World Health Organization has found that jail suicides often happen within the first few hours of incarceration due to the sudden isolation, the shock of imprisonment, and the individual’s uncertainty about their future. Nebraska is not immune from these tragedies—one database of recent jail deaths includes several entries for our state, most of which occurred while the defendant was in jail for four days or less.

Even those found innocent—or whose charges are dismissed—are punished by our current bail system. The bail money is returned to these people, but the court system still retains ten percent for court costs. In other words, a defendant whose family managed to put together a $50,000 bail will welcome him home when he is vindicated by a jury, but they will still lose $5,000 as a court cost.

Findings

To construct a snapshot of the pretrial jail population in Nebraska, on four random days in the summer of 2016 we acquired the jail lists of the four most populous counties: Douglas, Lancaster, Hall, and Sarpy. As more fully described in the Appendix, this meant we were able to capture individual inmates’ criminal charge, race, amount of time in jail, and bond amount.

When an inmate had more than one charge, we recorded and categorized that inmate by the most serious charge for which they were awaiting trial. If defendants were being held pretrial for more than one charge, we calculated the total amount of money they would need to post to be released that day.

When categorizing the severity of the charges, we divided crimes into the nine categories in the Appendix. See the Appendix for a full explanation of methodology.

Through court observations, and reviewing bail schedules and jail lists, we discovered many current practices in Nebraska do no comply with the law.

Many defendants are incarcerated for nonviolent crimes. An average of 17.5% of the pretrial defendants in the surveyed counties were in jail for nonviolent drug offenses. 11.4% were theft and shoplifting charges, and 7.3% were traffic related charges. In total, over half of the pretrial population were accused of nonviolent offenses. Notably, Hall County’s nonviolent pretrial population was the largest at 66.7%.

"First and foremost, we must ensure that we are in compliance with federal law when it comes to imposing fines and court costs on defendants. We should not be infringing upon people’s civil rights and incarcerating nonviolent offenders simply because they are poor and cannot afford to pay. We are in support of the ACLU’s efforts of reform."
Mary Ann Borgeson, Chair of the Douglas County Board of Commissioners

We also reviewed bail schedules, which are generally used for the initial period following an arrest; a defendant picked up after hours, on a weekend or on a holiday can still be released without seeing a judge if she has the cash listed on the bail schedule for her crime. These schedules are set by each of the 12 judicial districts, and the bail amounts vary widely based on geographic location. See the Appendix for bail schedules from each judicial district.

Examples of discrepancies from county to county include:

• DUI in the First Judicial District (Gage, Saline, Nemaha counties) will bail out at $3,500, while a DUI in the Third Judicial District (Lancaster County) needs only $2,500.
• Class I misdemeanors have bail at $10,000 in the Fifth Judicial District (Saunders, Seward, Platte, Hamilton counties) in comparison to $5,000 in the Fourth Judicial District (Douglas County).
• Driving on a suspended license requires $2,500 in the Third Judicial District (Lancaster County) but no bail need be posted in the Fifth Judicial District (Saunders, Seward, Platte, Hamilton counties) for the same charge.
• Domestic violence charges—even misdemeanors—automatically jump to $50,000 in the Second Judicial District (Douglas County) while other counties track the seriousness of the charge.
• Bail amounts automatically increase for non-residents in the First Judicial District (Gage, Saline, Nemaha counties) and Tenth Judicial District (Kearney, Adams counties).
• Officers have the discretion to release anyone without bail in the Second Judicial District (Sarpy County) except in cases of domestic violence and violations of protection orders. Residents may be released without bail in all cases if the arresting officer feels it is not necessary in the Tenth Judicial District (Kearney and Adams counties) and the Eleventh District (Dawson, Lincoln, Red Willow counties).
• Only a few bail schedules emphasize the expectation that requiring a bail is limited to circumstances involving public safety or flight risk: Seventh Judicial District (Madison County), Eighth Judicial District (Howard and Brown counties), Twelfth Judicial District (Scotts Bluff, Box Butte, Cheyenne counties).

In addition, we found that people of color were disproportionately represented in the pretrial populations in comparison to the demographics of the county in which they were incarcerated.

In Lancaster County, whites compose 87% of the population, Blacks compose 4% and Hispanics compose 6%. In the Lancaster pretrial jail population, 59.1% are whites, 21.8% are Blacks and 8.2% are Hispanics.

In Hall County, the population is made up of 92% whites, 2% Blacks and 26% Hispanics. In the Hall pretrial jail population, 47.6% are whites, 20.6% are Blacks, and 25.4% are Hispanics.

In Douglas County, whites compose 81.1% of the population, 11.5% Blacks and 12.2% Hispanics. In the Douglas pretrial jail population, 39% are whites, 47% are Blacks and 10.7% are Hispanics.

In Sarpy County, the population is composed of 89% whites, 4% Black and 8% Hispanic. In the Sarpy pretrial jail population, 67.4% are whites, 16.3% are Blacks and 12.8% are Hispanics.

The racial disparities we discovered extend to the amount of bail as well. The average bond for a nonviolent offense was $40,251 on the days we studied and $73,772 for a violent offense. If you are Black, Hispanic or Native American, you can expect your bond to be $14,572 more than the average bond for a nonviolent offense and $13,109 more for a violent offense. This disproportionate treatment of people of color in the pretrial context shows how the court system systematically disadvantages people of color. Nebraska’s racial disparities are not an anomaly; studies across the U.S. have demonstrated that money bail specifically has a disproportionate impact on communities of color.

Interviews with criminal defense attorneys across the state suggest that the findings from the four surveyed counties are likely a fair representation of Nebraska’s pretrial system as a whole. Attorneys identified the final essential problem of high bail amounts: they can result in defendants pleading guilty simply to go home. “My clients regularly do the cost-benefit analysis,” reported one public defender. “They can’t post bail, and the trial date is a month away. The defendant knows if they plead guilty today to a misdemeanor, it’s ‘just’ a little charge on their record and they can go home. What they don’t factor in is what happens on the next charge they might have. The next judge sees this person has a criminal record and accordingly decides to nudge the bail amount up a little more, creating a vicious cycle. I’ve had clients with a viable defense who just threw in the towel so they could get back to their job, their children, and their lives.”

We were also struck in our court observations by how unrepresented defendants are treated while appearing before the judge and prosecutor. Without an attorney to advance arguments for a low bail, these defendants frequently did not even know how to articulate the request for release on their own recognizance or on a reasonable bail amount.

Increased incarceration leads to an increase in spending taxpayer dollars on people who are presumed innocent in the eyes of the state, many of whom are not a risk to society but are too poor to post bail. Our current bail practices hurt Nebraskans who are presumed innocent, have devastating impacts on their families, and are fiscally burdensome for counties. This is why the ACLU, along with professional associations and county officials around the country, are calling for immediate reform.

Examples of Reform

Pretrial defendants should not be incarcerated merely because they are poor and cannot gather enough money for bail. Not only is it unfair to the defendant, but it costs taxpayer money to have inmates sitting needlessly in jail. Many legal professional and criminal justice organizations have issued a call for the abolition of wealth-based bail similar to those used in Nebraska, including the American Bar Association, the National Association of Pretrial Services Agencies, the American Jail Association, the International Association of Chiefs of Police, the American Probation and Parole Association, the Conference of Chief Justices, and the National Association of Counties.

There are reforms that court systems can adopt to effectively decrease the pretrial jail population and the number of indigent defendants incarcerated because they cannot post bail. Research shows that money is not an incentive for people to appear in court, and a growing number of systems have begun to adapt practices that allow the release of people who otherwise could not make even a small monetary bail.

Washington DC has a progressive pretrial release system that was implemented twenty years ago that allows 90% of their pretrial defendants to be released without paying money. It constructed a system that includes a twenty-four hour service where pretrial officers meet with the defendants and public defenders and conduct an individual interview to determine the chance of them committing a crime on release or failing to appear in court. This recommendation is given to the judge in court the next day, who usually follows it, in a process that takes less than five minutes.

Kentucky’s justice system has a 70% pretrial release rate. Only 4% of those arrested receive money bail. They use one statewide agency that assesses the risks of all defendants arrested so recommendations are consistent, yet individualized, and a majority of those arrested are released without paying bail.

Similarly, the federal system requires that “the judicial officer may not impose a financial condition that results in the pretrial detention of the person.” This law requires a more individualized assessment of factors that include employment, previous criminal record, the defendant’s character and the amount of evidence in the case. These factors are used to determine the public safety risk and the chance the defendant would return to court. The score results in one of three outcomes: no bail, bail, or release on conditions.

Reforming Nebraska’s Bail System

We propose the following reforms to aid Nebraska’s court systems in reconstructing their pretrial release processes so defendants are not incarcerated simply because they lack the financial resources to post bail.

Blue-ribbon commission of experts

Establish a blue-ribbon commission of judges, attorneys, legislators, probation officers, law enforcement and civil rights advocates to evaluate best practices in modern bail systems. The topics for the Commission’s study should include: the best risk assessment tool that takes into account local factors; the options of pretrial supervision and monitoring via technology such as GPS monitors or check-ins with pretrial case managers; the current practice of bail schedules; increasing public defender funding to ensure presence of defense counsel at initial appearance.

Localized actuarial risk assessment

The judicial branch should develop an actuarial risk assessment for defendants in custody awaiting their initial appearance in court that calculates one’s public safety risk while taking multiple factors into account which follow the best practices that have been tested in other jurisdictions. When such risk assessments are carefully created with local validation, with scrutiny to ensure no racial bias, with transparent data collection and scoring and which does not substitute for an individualized determination of release, they can ensure an expanded pretrial release program.

Citation in lieu of arrest

Police should use citation releases in lieu of arrest whenever possible, using best practice in-field tools to determine if a defendant needs to be taken into custody.

Appointment of counsel

Judges should ensure the appointment of counsel at hearings before imposition of bail.

Reminder systems

Clerks of the Court should adopt reminder systems by postcard, phone call, and/or text message to reduce the number of failures to appear.

Data collection

The judicial branch should collect and publish performance measures. Data showing the effectiveness of pretrial detention vs release will aid future policymakers.

Modern Day Debtors' Prisons

Fines and fees collection practices are another set of justice system procedures that punishes defendants for being poor. Defendants who are charged with a misdemeanor or infraction are usually sentenced to pay a fine within the statutory limits, plus at least $49 in court costs. The dollar amount defendants are ordered to pay can vary significantly. Judges are not required to impose these fines and costs—state law only provides that they “may” impose fines and fees as part of the sentence. Unfortunately, our survey suggests that few judges are exercising their discretion to waive or reduce fines and fees based on individualized assessments. As a result, it has become the norm to impose both fines and costs in nearly every case, and many people leave court with financial burdens that they cannot pay.

“…it shall be the duty of [the court] to discharge such a person from further imprisonment for such fine or cost…”

Neb. Rev. Stat. 29-2412

This practice of making people come to court to ask for an extension of time for payments presents additional obstacles for the poor and leads to the jailing of people for reasons that do not advance public safety. In practice, some people have difficulty getting transportation back to court or cannot easily get time away from work or child care obligations to come back to request an extension of their time to pay. Some people forget their deadline for paying. Some are not aware it is a possibility to show up to court to ask for more time.

Once a warrant is issued, there are significant negative consequences for the poor. Research has shown that people with an outstanding warrant will avoid visiting a hospital, attending school, or maintaining a job for fear of being picked up by police. If a defendant is arrested unexpectedly, the defendant has no opportunity to make arrangements for their children’s care and may result in the taxpayer incurring the additional burden of caring for children whose parent is behind bars. The arrest may cause the defendant to lose her job or miss paying a bill—eviction, joblessness, and further financial instability are the result. The experience of being in jail—even for just a few days—can have significant and far-reaching effects on the defendant’s physical and mental wellbeing that destabilize the individual and their entire family. These negative consequences have a disparate impact on people of color due to the racial wealth gap.

A modern-day debtors’ prison should not exist at all in Nebraska in light of our clear state law protections, long-standing United States Supreme Court case law, and recent federal guidance. Neb. Rev. Stat. 29-2412 provides that if a defendant is unable to pay a fine because of their financial circumstances, “…it shall be the duty of such court or judge, on his or her own motion or upon the motion of the person so confined, to discharge such a person from further imprisonment for such fine or cost, which discharge shall operate as a complete release of such fine or cost.” The court’s burden to determine whether a defendant can pay is clear: the judge should inquire into an ability to pay prior to imposing any financial penalty and no defendant should be incarcerated for nonpayment of fines and fees owed without another hearing in front of a judge. In our months of court watching, we did not witness even one judge inquiring into a defendant’s ability to pay prior to imposition of fines and fees.

Findings

We conducted 50 hours of county court watching in Douglas, Lancaster and Sarpy counties over the period of four months. We observed both arraignments and sentencing for misdemeanors under a total of ten different judges. We noted whether an attorney was present and whether the judge inquired into one’s ability to pay.

In addition to hours of in-person court observation, we looked at the same four counties’ jail lists and studied the court records of the sentenced inmates to identify any defendants serving time for unpaid fines.

Finally, we interviewed attorneys and indigent individuals from various counties about their experiences with facing a fine they couldn’t pay. For a complete description of our methodology, see the Appendix.

In court, we observed several concerning patterns:

• Out of months of observations where people were sentenced to fines and fees, we saw no inquiries from the judge asking if the defendant was able to pay the sentenced amount. We witnessed only one situation where court costs were waived.
• Out of months of observations, we only observed four people who had an attorney present during the imposition of a monetary fine and court costs.
• We found court records for many defendants were incarcerated for failing to pay fines and costs.
• In each county, we witnessed “pay or stay” sentences, where a defendant, without an attorney present, was told if she did not pay money that day she would be forced to sit out her fine in jail.
• Rights advisories were sometimes given in an abbreviated fashion that did not adequately warn the defendant of the consequences of pleading guilty. Notably, there was frequently no mention of immigration consequences. In at least one court, we saw a “group advisory” where the judge read off the advisory at the top of the hour and then never repeated it, despite the fact many defendants arrived later and never heard the advisory. We did not witness a single rights advisory that informed people that they could request a waiver of fines or fees upon a demonstration of inability to pay.

Community Service

In some counties, community service is offered as an alternative to sitting out a fine. Lancaster County has the most robust community service program, with options including evenings and weekends to permit a defendant to meet their court obligations with flexibility. Defendants in Lancaster County “earn” $10 per hour of community service towards their fine.

Community service can be problematic for many people. People with no ability to make financial payments are also often without reliable transportation or child care. People with disabilities find there are few options that they would be able to access. Rural defendants rarely have any community service option, according to our interviews of criminal defense attorneys in greater Nebraska. Even the Lancaster County program presents public policy concerns since the $10 per hour rate was not set by state statute or even regulation—it is simply the practice and has not been revised upward to account for inflation for over 13 years.

Community service can be an alternative for some people who are willing and capable of discharging their court fines, but the bottom line is clear: no one should be forced to sit in jail, perform labor, or otherwise be punished for not having the money to pay fines or fees.

Sentenced to Jail Without an Attorney

Nebraska law only requires the provision of a public defender if the defendant is facing jail time. We frequently observed judges rebuffing people’s inquiries about getting an attorney with statements such as, “The prosecutor isn’t seeking jail time and I’m not going to sentence you to any time, so you don’t qualify for a public defender.” As discussed above, many of these people ultimately do end up in jail when they can’t pay their costs—and yet they never had an attorney by their side. “I’ve sometimes run across a former client in jail or in court and asked them how they ended up there,” one public defender mentioned. “They tell me they couldn’t pay, and they weren’t allowed to call me because they were just swept up off the streets since they were considered to be in contempt of court. No one ever alerts the public defender when this happens; they started and ended without even a chance to discuss their options with counsel.”

Shockingly, most defendants were advised of the charge against them, pled guilty, and were sentenced to a fine without any inquiry into their ability to pay—and with no attorney present—in a single one-stop-shop process taking less than five minutes.

End Result: Modern Day Debtors’ Prisons

This system means that poor people are punished not for their offense but because of their poverty. This is arbitrary, unconstitutional, and financially ruinous for the individuals as well as the counties. It is fiscally imprudent for judges to impose fines and costs against indigent defendants. Instead of gaining money from the fine or court costs, taxpayers have to pay for defendants to be incarcerated. For example, Sarpy County finds itself considering the massive expense of a new jail, even though their own expert has pointed to one problem being the number of inmates who are serving debtors’ prison sentences. Beyond the jail costs, it is a drain on police resources when they are used in executing warrants for misdemeanor nonviolent offenders who simply are late in making a payment.

Nebraska has many successful models from sister states to look to as we end our debtors’ prison practices. For example, Ohio created a statewide bench card to walk judges through the appropriate inquiry to determine indigency before imposing court costs or fines. Michigan changed its court rules to ensure proper procedures to eliminate poor people sitting out a fine in jail. Colorado passed a state law banning the practice of jailing people who are too poor to pay a fine. Some of these reforms have been advanced by forward-thinking public policy makers, while some have come about after expensive protracted litigation. Nebraska should make immediate changes to its debtors’ prison practices to avoid change mandated by class action lawsuits.

Reforming Nebraska’s Fee System

We propose the following reforms to aid Nebraska’s court systems in reconstructing their fines and fees practices so defendants are not incarcerated simply because they lack the financial resources to pay.

Amend state law

The Legislature should amend Neb. Rev. Stat. 29-2412 to prohibit assessment of fines, fees or costs until the judge has held an individual hearing on ability to pay with appointed counsel present.

Consider ability to pay

Judges should change court processes so every defendant’s ability to pay is considered before imposition of fines, fees and costs. Consideration should include but not be limited to the defendant’s present employment, earning capacity and living expenses, dependents, outstanding debts and liabilities, public assistance, etc. Fines, fees and costs should not be imposed if the payment will subject the defendant or the defendant’s dependents to substantial financial hardship.

Bench card

The Nebraska Supreme Court should create guidelines for determining an inability to pay and policies for assessing fines, fees and costs. Courts in Ohio and Biloxi, Mississippi have created a model bench card to walk judges through the process of determining indigency that could be a model for future Nebraska practice.

Judicial training

The judicial branch should train all judges and other court personnel about federal and state laws that prohibit incarceration of defendants who are too poor to pay fines, fees, and costs as well as train all judges about their statutory authority to waive all non-mandatory fees when the defendant is indigent.

Appointment of counsel

Judges should ensure the appointment of counsel at hearings before imposition of fines, fees, and costs as well as when a person is reported for nonpayment.

Community service standards

The legislature should review the statutes relating to community service to ensure uniformity in its application across the state and ensure that community service is not imposed on defendants who lack transportation or the physical ability to participate in such work.

Court date reminders

The Clerks of the Court should institute proven, effective methods of reminding people of court dates via text message and/or postcard in order to reduce missed court dates.

Data collection

The judicial branch should collect and publish data regarding the assessment and collection of fines, fees, and costs, how collected funds are distributed, broken down by race and type of crime. Tracking should separately show imposition of fines, restitution, fees, and costs.

Conclusion

Nebraska’s state motto is “Equality before the law.” We need to work toward a system where all citizens are treated equally when they are charged with a crime or punished with a fine, regardless of their financial circumstances.

We look forward to further study of these issues, as this report did not reach a study of similar practices’ impact on people charged with more serious crimes, the use of debtors’ prison tactics in juvenile court, how the suspension of drivers’ licenses impacts defendants, and other aspects of our current system. As described in the Appendix, our survey was limited to only the most populous counties on randomly selected days; a comprehensive statewide survey is needed.

As one commentator noted, “it violates fundamental and longstanding principles of equality and fairness at the core of our legal system to keep a human being in a cage because of her poverty.”

Across the country, the ACLU has brought lawsuits to challenge court practices that burden the poor. Successful class action lawsuits are occurring across the country, often with the help of the U.S. Department of Justice as an interested party. In Jennings, Missouri, the city has reached a $4.7 million settlement to pay to people who were unjustly jailed for their inability to pay fines and court costs. Changing our state systems will require time and resources, but we can devote the effort to change voluntarily or await expensive litigation to force reform.

Our criminal justice system does not need to trap people who are poor in what amounts to modern-day debtors’ prisons.

With courts, prosecutors, criminal defense attorneys, policy makers and our community stakeholders working together, we can—and we must—work together to reform practices and reduce disparities to ensure justice for all.

Table of Offenses

Methodology

Bail Study

To study bail practices, we requested data from four counties on randomized dates: Lancaster County on June 9, Hall County on June 29, Sarpy County on July 1 and Douglas County on September 12. We used open records requests to obtain the list of people currently housed in each jail, eliminated all people serving a sentence and all people being held on an ICE or extradition hold, and categorized all remaining pretrial individuals. Approximately one-half of every county was pretrial. Other holds such as ICE or extradition holds were less than 2% of the jail populations.

There were some pretrial detainees whose bond amount or charge was not available in court records. They may have been on a hold for extradition or ICE, or the data may have just been missing. We eliminated those detainees from our survey. 1.2% of the sample size was missing data and therefore not included in the final data in this report.

Other than the exceptions described above, we were able to research every single pretrial detainee in Hall, Sarpy, and Douglas for our sample days. We used a random sample of one-half of the pretrial detainees in Lancaster County. On the randomized dates, the pretrial populations studied were as follows: 840 in Douglas, 141 in Sarpy, 63 in Hall and 110 in Lancaster, for a total of 1,154 pretrial detainees.

We then used Nebraska’s online court records system JUSTICE to examine the pretrial individuals’ court record. We recorded all pending charges, the person’s race, the booking date and the bond amount.

There was one anomaly in our gathering of race data: Sarpy County’s jail list did not include any Hispanic inmates. They apparently classify all Hispanics as white. We consulted with the Nebraska Latino American Commission and then decided to proceed by categorizing Hispanic inmates by surname and their perceived race in the booking photo. While this posed a level of discomfort, we did not wish to omit the Hispanic representation from Sarpy County.

As shown in the Appendix, we grouped crimes into nine categories that clustered similar offenses together. We ranked those offenses from the least serious municipal violations such as loitering and trespass to the most serious offenses involving violence such as assault, child abuse, and murder. This permitted us to then rank the seriousness of the charges pending against the pretrial population. Throughout the report and in the graphs, “nonviolent” meant offenses from the first six categories and “violent” means any offense involving a weapon, a sex offense, or a violent offense.

Many individuals had multiple charges. For example, an individual pulled over for speeding might be found to be intoxicated and during her arrest, she might have punched the arresting officer. This hypothetical driver started with a low-level Category 2 traffic offense (speeding and DUI) but her assault of the officer means she would be rated the highest Category 9 violent offense in our final label for her case.

Some individuals had two open court cases—in other words, not just multiple charges in one court filing but several separate docketed cases. For example, a shoplifter who managed to post his initial bail might have gotten out, been re-arrested for driving on a suspended license, and now be sitting in jail on two separate cases with two separate bail amounts. For those individuals, we calculated the total amount that they would need to post to go home that day to arrive at their current bail amount.

In addition to calculating bail amounts through the aforementioned process, we conducted interviews with criminal defense attorneys. We interviewed private attorneys whose clients hired them in a criminal defense case, public defenders, and attorneys who were appointed by the court to provide indigent defense. We interviewed 21 attorneys whose practices stretched from Scottsbluff to Falls City.

Debtors’ Prison Study

Between June and September 2016, law students and undergraduate pre-law students watched approximately 50 hours of court proceedings in Douglas, Lancaster, and Sarpy counties. Due to the distance from our office, we did not conduct any court observation in Hall County. Our observations were of ten different county court judges who were currently presiding over arraignments and sentences—the judges were not selected for observation, but rather were simply whoever was assigned to the courtroom on the days of observations.

The court observations were conducted after each observer was trained by two attorneys and taken to court with an attorney to train in person. A matrix was provided for the observers that captured name, charge (if available), whether an attorney was present with the defendant, whether the judge provided a rights advisory, whether the rights advisory included a specific warning about immigration consequences, whether the judge made any inquiry into the defendant’s ability to pay before imposing court costs or fines, and the sentence.

In addition to the in-person court observation, we also used court records from the same random sample days from the four counties in our bail reform. We separated the jail populations into “pretrial” and “sentenced” for the bail study. For the purposes of the debtors’ prison study, we then used the JUSTICE database to examine the charge for those serving a sentence.

Identifying those sitting out a fine for inability to pay was difficult due to differences in each county’s practices. For example, some defendants who missed the deadline to pay court costs and fines were listed as serving a sentence for “Failure to appear,” or “Failure to pay,” while others were simply listed with the underlying charge and no indication this was sitting out a fine. We used JUSTICE to review court records for all defendants listed as “Failure to appear” and “Failure to pay” to determine whether it was a debtors’ prison incident.

Interviews were conducted to supplement the data we collected through court proceedings. We interviewed approximately 20 individuals who we observed in court by contacting them after their arraignment and/or sentencing to learn more about individual cases. We also asked about debtors’ prison practices while interviewing the criminal defense attorneys we interviewed for bail reform. Finally, we interviewed approximately 10 civil practice attorneys who primarily handle bankruptcies and work with people in financial crisis to inquire about their clients’ experiences with court-ordered fees and costs. The personal stories shared throughout the report were from people we met during the observation sessions or whose attorneys referred their client to the ACLU.

Bond Schedules

Bond schedules can be found on pages 43-71 of the PDF of the full report.

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• Read more about Unequal Justice

A Review of Nebraska School Policies & Practices for Pregnant and Parenting Students

ACLU of Nebraska Overview

The ACLU of Nebraska is a non-profit, non-partisan organization that works to defend and strengthen the individual rights and liberties guaranteed in the United States and Nebraska Constitutions through a sophisticated program of integrated advocacy with strategies that include litigation, negotiation, policy research, and public education. In 2016 we are proudly celebrating our 50th anniversary and are proudly supported by thousands of members and supporters stretching far across our great state.

Since 1972, the ACLU’s Women’s Rights Program has been working to secure gender equality and to ensure that all women and girls are able to lead lives of dignity, free from violence and discrimination. As such, the ACLU has worked tirelessly on the national level and in many states to ensure young people have a right to complete their education regardless of their sex or whether they become pregnant. This investigation was inspired by a review of an excellent treatment of this subject published by the ACLU of Northern California, Breaking Down Educational Barriers for California’s Pregnant and Parenting Students, in January 2015.[i]

The ACLU of Nebraska has long been a leader on gender equity issues. A few recent examples of our work on women's rights include helping to successfully lead the way for stronger equal pay laws and stronger protections for pregnant and breastfeeding employees in the legislative arena over the past two years. Pregnancy discrimination in public schools is illegal and we strongly believe that no young person should have to choose between completing their education and taking care of themselves and their children. This report is an extension of our work on gender equity, students’ rights, and reproductive freedom.

Legal and Policy Overview

Pregnant and parenting students face enormous challenges in accomplishing their educational goals. Approximately 70% of young women who give birth leave school, which impacts their financial and educational future as well as the financial and educational future of their children. Schools have a constitutional obligation to help pregnant and parenting teens stay in school. Pregnancy is a gender equity issue covered by Title IX. As such, under federal law, schools may not exclude or discriminate against students who are pregnant or parenting.

Unfortunately, many young women face subtle discrimination that may violate these clear protections through practices such as overly restrictive and inflexible absence and leave policies that impact prenatal doctor’s appointments or pediatrician visits; a school’s refusal to allow makeup work or alternative education for pregnant and parenting students; and a lack of facilities and accommodations for breastfeeding or milk expression. Young women have the right to complete their education regardless of whether they become pregnant. Students should not have to choose between completing their education and taking care of themselves and their children.

In the summer of 2016, the ACLU of Nebraska completed a first of its kind comprehensive investigation into the current policies and practices in place at each of Nebraska's 251 school districts that address the rights of pregnant and parenting students with consultation from Holland Children’s Movement.[ii] We issued open records requests to all 251 school districts in Nebraska to obtain information about their policies and practices for pregnant and parenting students. We interviewed advocates and caseworkers who provide social services and support to young parents, and we also collected stories from young Nebraskan women who recently experienced pregnancy while in school.

Our research uncovered wildly divergent levels of protection across the state and we have accordingly proposed solutions to ensure all students have the opportunity to succeed in school. We also identified a host of best practices in law and policy for additional consideration for Nebraska educational professionals, policymakers, and human service providers to ensure our schools are free of discrimination and doing all they can to end the push-out of pregnant and parenting students from their schools.

Rights and Protections for Pregnant and Parenting Students

Title IX of the Education Amendments of 1972 (“Title IX”) was enacted to prohibit sex discrimination in education.[iii] The statute is well-known for providing equality in athletic opportunities for women, but it also protects students from other forms of sex discrimination, such as discrimination based on pregnancy.[iv] Title IX ensures that pregnant students have a right to an education without discrimination related to pregnancy, giving birth, terminating a pregnancy, or recovering from childbirth.[v]

In 2013, the U.S. Department of Education Office for Civil Rights released guidance for school districts called “Supporting the Academic Success of Pregnant and Parenting Students Under Title IX of the Education Amendments of 1972.”[vi] As the U.S. Department of Education noted, “we must support pregnant and parenting students so that they can stay in school and complete their education, and thereby build better lives for themselves and their children.”

The guidance from the U.S. Department of Education noted several specific protections that every school should have in place for students to ensure pregnant students face no barriers:

• A school must excuse a student’s absences because of pregnancy or children for as long as the student’s doctor deems the absences are medically necessary.
• Special services or alternative learning opportunities made available to other temporary medical conditions must also be provided to pregnant students.
• When a student returns to school, she must be allowed to return to the same academic and extracurricular status as before her medical leave began.
• Educators should develop programs to actively support students’ ability to stay in school and return to school.

Some states, including Nebraska, have gone beyond the bare minimum required by the U.S. Department of Education and adopted state statutes or regulations to ensure uniform protection for students while they are pregnant and to support them when they return to school. Nebraska has enacted the Equal Opportunity in Education Act, which prohibits “The application of any rule which discriminates on the basis of a pregnancy of any person” in “any academic, extracurricular, research, occupational training, or other program or activity.”[vii]

Other jurisdictions have also adopted specific policies ensuring a private and hygienic place to express breast milk during the school day, programs to allow a student to continue schoolwork from home, and arrangements for childcare. We identify these policies as emerging best practices for schools to demonstrate their commitment to an education for all students—including parenting students.

Pregnancy and Educational Disparities

While teen pregnancy rates are generally on the decline, the U.S. teen pregnancy rate stubbornly remains substantially higher than the rates in other western industrialized nations.[viii]

The teen birth rate in the U.S. is 249,078 babies born to women aged 15-19 years, for a birth rate of 24.2 per 1,000 young women.[ix] The teen birth rate in Nebraska is even higher at 31.1 per 1,000 young women.[x]

For too many students, becoming pregnant and deciding to become a parent while trying to complete their education can be difficult even under the best of circumstances. Nationwide surveys suggest it is the number one reason young women drop out of school—approximately a third of female students who drop out of high school did so due to becoming pregnant.[xi] Once they leave, they are unlikely to return to school: only about 50% of teen mothers receive a high school diploma by 22 years of age, whereas approximately 90% of young women who do not give birth during adolescence graduate from high school.[xii] These statistics obscure an alarming reality: advocates and social workers who work with these young women consistently report that most parenting students want to stay in school and, if properly supported, can thrive in their academic work. In fact, parenthood frequently motivates students to focus on their future and achieve their educational goals. As one young woman told us, “Getting pregnant and being a parent gave me the motivation to do better in school because I wanted the best for my child, too.”

Anecdotal evidence from those who work with teen parents in Nebraska gathered as a part of this project indicates some Nebraska students drop out because of the array of institutional barriers they may face as well as the lack of proactive programs and information to aid the students to stay in school and achieve their educational goals.

The experience of young women who find themselves pregnant while in school are all very different, depending on the amount of support their school offers them. Compare these two students’ very different experiences:

“I was in AP classes and honor classes when I found I was pregnant. There were no programs, services, or accommodations for things as basic as needing to go to the bathroom more frequently. Only a few of my teachers were supportive. I felt the school was judgmental of teen parents and basically saw me as someone who was ‘already a failure’.”

“Overall, my school helped me get through a difficult time in my life. They gave me referral information to local services, and the school had a Head Start child care in the building so I was able to graduate high school on time and in the top half of my class.”

We intend this report to be a wake-up call across the political spectrum to ensure all Nebraskans work together to make it easier—not harder—for students to take care of themselves, their academic future, and their children.

While there is little concrete data on who becomes a teen parent in Nebraska, there are good models for data collection that could be adopted statewide. For example, Lincoln Public Schools voluntarily compiles information on student parents annually. The data includes information on both male and female parents, noting their ethnicity, whether they are in special education, whether they are economically disadvantaged, and whether they are English Language Learners. LPS then collects the rates at which students graduate, transfer, or dropped out.

Students who drop out of school experience an impact on their economic and career prospects. Nebraskans without a high school diploma have an average salary of $3,248 less than their peers who graduated.[xiii] Of course, lacking a high school diploma further means the young woman cannot obtain even an Associate’s Degree, which adds to the gap in earning capacity. The average Nebraskan salary for someone with an Associate’s Degree is $11,083 more than the Nebraskan without a high school degree.[xiv]

There are intergenerational implications for a student forced to drop out of high school as well. Research shows that the children of teen parents are more likely to drop out themselves: 66% of children born to teen mothers earn a high school diploma, compared to 81% of children born to non-teen moms. [xv]

 Removing barriers to educational success for pregnant and parenting students will help to ensure each Nebraskan can contribute at their highest potential which will support self-sufficiency, limit dependence on safety net programs, grow our shared economy, and ensure strong families.

Current Landscape of Nebraska School District Policies for Pregnant and Parenting Students

In order to study the policies in place in Nebraska schools, the ACLU of Nebraska sent open records requests to all 251 school districts in the summer of 2016 and asked for the following:

1. Any policies, rules, regulations or memos currently in force that relate to any school sponsored childcare programs for students who have an infant or child.
2. Any policies, rules, regulations or memos currently in force that relate to attendance policies for students who are pregnant or parenting.
3. Any policies, rules, regulations or memos currently in force that relate to absence and make up policies for students who are pregnant or parenting, including whether such students making up absences may participate in commencement and/or extracurricular activities.
4. Any policies, rules, regulations, or memos currently in force that relate to any alternative education or independent study for students who are pregnant or parenting.
5. Any policies, rules, regulations or memos currently in force that relate to breastfeeding accommodations for students.
6. Any training materials for school personnel relating to pregnant or parenting teens that have been provided in the period January 2010 to present.
7. Any data collection or tracking documents showing the number of pregnant or parenting teens in your district.
8. Any handouts or written resources outlining available human services and referral agencies for students who are pregnant or parenting that are provided in your district.

See Appendix for more details on the process of conducting the survey.

Once we received materials from the districts, we reviewed the responses from each school district with four questions in mind to evaluate compliance with best practices in law and policy:

1. Did the district have an absence policy that specifically anticipated and dealt with pregnancy to permit a pregnant student to attend prenatal medical appointments, be absent to give birth and recover, and to address post-birth pediatrician appointments?
2. Did the district provide alternative methods to keep a pregnant or parenting student in school by allowing coursework at home, tutoring visits, online courses or similar supplement to the classroom?
3. Did the district have a written policy for lactation accommodation in a private and hygienic place during the day?
4. Did the district provide childcare either in the school or in collaboration with a provider in the community?

The results of our survey suggest significant inconsistencies across Nebraska’s many school districts in meeting best practices which would benefit from the establishment of statewide minimum standards in all four areas. However, it is also important to note that our research identified some excellent policies and practices deserving of commendation that can and should serve as models for other school districts in Nebraska.

Absence Policies

Pregnancy is a significant physical event. The U.S. Department of Education has mandated schools make adjustments to their normal practice to be accommodating of a student’s pregnancy. For example, the school may need to provide a larger desk, allow more frequent trips to the bathroom, or permit temporary access to elevators.[xvi] Federal law makes it clear that students might experience more absences as a result of pregnancy or recovery from childbirth and the school must permit these absences.[xvii]

Emerging best practices recommend absence policies that offer additional absences for pregnant and parenting students beyond the rigid number of permitted absences all other students get per semester. After all, a student who is a parent faces double the possibility of an absence—both her own illness and her child’s illness. A rigid policy providing only the same number of absences to all students is not adequate accommodation for a student who is involved in prenatal appointments, recovering from a pregnancy, and later caring for a child who may have medical needs. A student who gave birth last year told us, “I had many doctor appointments because I had a difficult pregnancy. I missed so much school that I lost all my credits that semester. There wasn’t any flexibility; it was very difficult.”

In our survey, we determined that only 46% of Nebraska school districts have an absence policy that specifically mentions pregnancy. The remaining 54% of districts have absence policies but do not address pregnancy.

Absence policies in Nebraska are widely divergent. State law requires a district to contact the County Attorney to report a student who has been absent for 20 days.[xviii] At the same time, school districts are permitted to develop their own definition of excessive absenteeism. Our survey revealed these local limits range from 5, 7, 9, 10, 12 to 15 days of absence.

We discovered that many districts have absence policies in conflict with federal law. Over 30% of districts have inappropriate policies requiring a doctor’s note to return to school.

For example, we uncovered absence policies that include the following language, “the student shall resume classes upon the recommendation of her physician,” or “A physician’s formal approval for participation in education activities may be required.” Federal law is clear: young women must be permitted to return automatically to resume their education when they are ready, without barriers such as requiring a doctor’s note. Schools may only have a doctor’s note requirement if they require the same documentation for all other students who were absent for another medical reason; pregnancy cannot be treated differently than a student who was absent for a broken leg, the flu, or pink eye. [xix]

A few Nebraska school districts had a similar barrier for pregnant students’ participation in extracurricular activities by requiring a doctor’s note. A common policy we saw included language such as “Participation in extracurricular activities will be considered on an individual basis.” The U.S. Department of Education has summed up the legal landscape regarding these types of potential barriers very clearly, “Title IX prohibits a school from excluding a pregnant student from any part of its educational program, including all extracurricular activities, such as school clubs, academic societies, honors programs, homecoming court, or interscholastic sports.”[xx]

Over 20 districts reported they treat pregnancy as a temporary disability under Section 504 rather than have a pregnancy-specific absence policy.

Under this framework, each young woman’s pregnancy would be dealt with in the same manner a special education student’s needs are handled: staff, the student, and her family would meet for an individualized assessment of her needs and then create an Individualized Educational Plan (“IEP”). While we applaud these districts’ decision to at least have a flexible plan in place for pregnant students (in contrast to the 55% of districts without any mention of pregnancy), this course of action does not comport with best practices established by federal law. The U.S. Department of Education has said: “An uncomplicated pregnancy, by itself, does not constitute a physical impairment and therefore is not considered a disability under Title II or Section 504. Complications resulting from pregnancy may be impairments. Whether a student with a complication resulting from pregnancy is protected under Section 504 and Title II depends on whether the complication is an impairment that substantially limits a major life activity, or alternatively, whether the student has a record of or is regarded as having such impairment.”[xxi]

We believe each district should carefully evaluate their treatment of these issues and update all policies and practices to ensure clear and consistent absence policies that specifically anticipate the needs of pregnant and parenting students in compliance with federal and state law. In the alternative, we believe minimum statewide standards on these matters should be established by the appropriate authorities.

Alternative Coursework

Young women who are pregnant may be able to attend school through the duration of their pregnancies—but some may need time off even during the prenatal period. We explored whether districts offered options for making up missed work such as retaking a semester, taking an online course, working with a visiting tutor, or other solutions. Having such options can make all the difference for a student’s chance of success: “A tutor came to my house multiple times during the week and brought me my homework and tests to work on. I worked on as much homework as I could and was able to bring my failing grades up and passed my junior year.”

Federal law sets forth a minimum requirement for students who wish to continue their education during pregnancy: “Title IX requires a school to provide the same special services to a pregnant student that it provides to students with temporary medical conditions. For example, if a school provides at-home instruction or tutoring to students who miss school because of temporary medical conditions, it must do the same for a student who misses school because of pregnancy or childbirth.”[xxii] While this is the minimum requirement, the Department of Education has suggested some additional ideas worthy of consideration to fully support pregnant and parenting students. For example, “Consider allowing pregnant or parenting students to engage in online coursework to complete high school courses at home during an excused leave of absence.”[xxiii]

78% of Nebraska districts have no policies or written guidelines on providing alternative education methods to pregnant or parenting teens.

Many Superintendents informed us that despite the lack of written policies, they would work with individual students to ensure educational support and success. We know Nebraska educational professionals are committed to their students and to their academic success so we take them at their word. However, this offer of support would be better understood and implemented through formal written policies to ensure clarity and security for students worried about their academic future and uniformity in an application by educational professionals.

We believe each district should carefully evaluate their treatment of these issues and update all policies and practices to ensure clear and consistent alternative coursework policies that specifically anticipate the needs of pregnant and parenting students in compliance with federal and state law. In the alternative, we believe minimum statewide standards on these matters should be established by the appropriate authorities.

Breastfeeding Accommodations

Nebraska has led the way in recent years in establishing strong protections for women to ensure lactation accommodation and to prevent discrimination among breastfeeding mothers. We have clear state law protections for women who are breastfeeding in public and for employees who must express milk during the workday.[xxiv] Unfortunately, there is a gap in that protection for students who will need to express milk during the school day. The U.S. Department of Education has recommended all districts “Designate a private room for young mothers to breastfeed, pump milk, or address other needs related to breastfeeding during the school days.”[xxv] Women who are nursing may need to express milk as frequently as every two to three hours. Students moving between classes cannot be expected to accomplish breast pumping between school bells; they need both the time to express milk and a private, clean place to do so.

Only 17% of school districts had written policies providing for students’ need to express milk.

The majority of districts had written policies covering employees’ lactation, and several Superintendents responded that they would apply the same protections to their students. Some districts had no policy but provided us with helpful information to understand their practices to support breastfeeding students. For example, one school told us, “We have a designated area in our full-time school nurse’s office that provides privacy as well as a sanitary & comfortable environment.” The key is to ensure an option is available. One young woman told us, “If there was an option for breast milk expression, I was never made aware of it.” Another said, “They let me go down to the nurse's office whenever I needed to pump, but they didn't have a designated room for pumping. I had to pump in the nurse’s restroom. Would you want YOUR lunch prepared in a restroom?”

We believe each district should carefully evaluate their treatment of lactation accommodation issues and update all policies and practices to ensure clear and consistent policies that specifically anticipate the needs of pregnant and parenting students in compliance with federal and state law. In the alternative, we believe minimum statewide standards on these matters should be established by the appropriate authorities.

Childcare

While Title IX does not require a school to either provide child care for a student’s baby nor require the school to assist the student in locating child care, the U.S. Department of Education recommends it as an emerging best practice that will ensure the parenting student has the support they need to stay in school. In-school child care programs are the gold standard to ensure a parenting student will be able to continue her education, but “Even schools that cannot house a child care center can help pregnant and parenting students locate and secure high-quality, affordable early learning programs and services and connect parenting students with available resources in the community.”[xxvi]

Nebraska is particularly fortunate to contain more in-school child care providers than many similarly situated states, mostly thanks to the public-private partnership of the Sixpence Early Learning Fund. Started by the Nebraska Legislature in 2005, Sixpence provides parent education programs across the state to improve teen parents’ understanding of how to raise a child and ensure best early learning opportunities for the infant. In some districts, Sixpence has provided actual childcare so the student parent could return to school, secure in the knowledge that her infant was in a high quality and affordable early education setting. Sixpence programs are provided from Alliance to Winnebago and are fantastic models for additional school districts’ consideration and adoption.

The security offered to a young woman who knows her baby is being cared for in a child care allows her to refocus her attention on her studies. Many young women credited their school’s in-house child care with their graduation success story: “My son stayed in the school’s Head Start program until he was ready for Kindergarten and that allowed me to be in school all day every day to finish in 4 years. My son is now 6 years old. His father and I are still together. I work full time and we just bought our second house. I couldn’t have done it without the supportive staff at my school.”

Over 90% of Nebraska schools have no provision to help parenting students with childcare needs.

While schools in Omaha and Lincoln have multiple in-school child care options, the service is not limited to only large metropolitan areas. For example, Falls City school district offers in-school child care.

A few districts provided the referral materials they offer a student when they become aware of her pregnancy, and these often included child care options as well as local healthcare services, brochures on parenting skills, and similar written information. School staff is likely to be in a much better position to direct the young woman to relevant social services than anyone else. One student told us, “My counselor also told me about programs where you could get free diapers and clothing for my baby. This was such great help, as I didn’t know about it otherwise.”

We believe each district should carefully evaluate their treatment of child care services or referral issues and update all policies and practices to ensure clear and consistent policies that specifically anticipate the needs of pregnant and parenting students in compliance with federal and state law. In the alternative, we believe minimum statewide standards on these matters should be established by the appropriate authorities.

Policy Recommendations

In addition to encouraging individual school districts to utilize this important opportunity to review their policies and practices we believe the time is ripe for policymakers in Nebraska to conduct further review and analysis of the following policy reform solutions to ensure young women are not unlawfully discriminated against and to ensure all pregnant and parenting students have the support they need to succeed in meeting their educational goals. Reform solutions include the following:

The Legislature should amend state law to allow for additional school-day-absences per semester for pregnant and parenting teens. This should apply to both male and female students who are parents. Students would need to provide documentation showing they have a child who needs their care but would not require a doctor’s note.

The Legislature should amend state law to provide students with maternity leave. Students would need to provide documentation of the birth of their child.

The Legislature should require data collection so policymakers have more detailed information on how many teens are pregnant and what percentage of such teens drop out of school. Data collection should include the race/ethnicity of the student, whether the student was receiving special education support or had an Individualized Educational Plan (“IEP”), whether the student qualified for the free or reduced school meal program, the student’s specified reason for leaving and other data points to identify the students in need of support.

The Legislature should amend existing lactation accommodation statutes to specifically include students.

The Legislature should continue the work of the Intergenerational Poverty Task Force to provide more in-depth analysis and evaluation of current state programs and identify existing gaps from a two-generation approach.

The State Department of Education should develop model policies for all districts’ adoption that specifically anticipate and provide for pregnancy absences and eliminate requirements for doctor’s approval to return to school or participate in extracurricular activities.

The State Department of Education should offer training for teachers, counselors, and administrators on the rights for pregnant and parenting teens to receive a quality education.

The State Department of Education should develop model lactation accommodation policies for all districts’ adoption that would ensure students have private, hygienic spaces to express breast milk during the school day.

The State Department of Education should develop regulations instructing school districts to identify and collaborate with local childcare providers if they do not have an in-school child care; districts should designate a staff person to actively aid students in placing their children with a childcare provider.

Conclusion

We believe support for pregnant and parenting students is strong across the political spectrum. These students should not face policy or practice barriers at their schools that encourage them to drop out or feel that they are being pushed out. Students should not have to choose between completing their education and taking care of themselves and their children. Meaningful chances of success in the lives of young people are rooted in access to educational opportunities. Nebraska should ensure young parents and their children are given the opportunity to develop strong families poised to succeed, which benefits all Nebraskans now and for generations to come.

Acknowledgements

This project could not have been completed without the assistance of several student researchers who reviewed district policies, researched best practices and compiled reference materials. We thank Ivy Lutz, Lee Kreimer, and Casie Youngberg for their many hours of work.

This report and related research was made possible through the support of the Coalition for a Strong Nebraska.

Appendix: Methodology

Of the 251 school districts, four were ultimately exempted from producing materials: Crawford Public Schools Superintendent requested an exemption due to a recent, serious medical crisis. Pine Ridge Job Corps was exempted as a nontraditional vocational training school. Two tribal schools were exempted due to concerns regarding their status with the separate sovereign nations.

The requests were mailed on July 1st in order to avoid disruption to the academic year responsibilities of district employees. Nebraska law requires responses to open records requests within four days, but we gave all districts an extension until August 26th if they preferred to compile the information after the summer break.

The open records request sought the policies and relevant documents relating to pregnant students as well as sex education curriculums. The study of the sex education curriculums is being compiled for a separate report that will be released at a later date.

As to process, we note with concern that over half of the districts initially responded with a refusal to comply with the state open record law unless they received significant sums to produce the records. The demand for payment ranged from a few hundred dollars to Conestoga School District in Murray who initially demanded $71,225 to produce any records. While government agencies responding to open records requests may charge for photocopying and for staff time if a search lasts longer than four hours, there clearly is no basis for a school district to resist production of existing policies. We found it very alarming that such a large number of districts demonstrated an initial resistance to transparency. Further discussion about the obligations of schools to comply with the public records statute resulted in the provision of the records with reasonable, modest copying charges from a few districts.

Ultimately, all districts responded save for seven smaller school districts. These districts had an original letter mailed in July, an email sent in September and a personal phone call to the Superintendent in October. For the purposes of concluding our report, we proceeded without any pregnancy policies response from these districts.[xxvii]

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Campaign for Smart Justice | Policy Overview | Who Is Affected | Nebraska Overview | Recent Reforms Across the Country | Recomendations | Conclusion | Table of Professional Licenses

About the ACLU of Nebraska

The ACLU of Nebraska is a non-profit, non-partisan organization that works to defend and strengthen the individual rights and liberties guaranteed in the United States and Nebraska Constitutions through a sophisticated program of integrated advocacy with strategies that include litigation, negotiation, policy research, and public education. In 2016 we are proudly celebrating our 50th anniversary and are supported by over 2,000 members and about 10,000 supporters stretching far across our great state.

The ACLU of Nebraska's Campaign for Smart Justice

Criminal justice policies in Nebraska and around the United States have created a system of mass incarceration which hurts our communities and disproportionately impacts low income families and communities of color. Too many of our neighbors who commit nonviolent offenses are ensnared in a prison system that is severely overcrowded. Existing prison conditions violate the 8th Amendment’s protection against cruel and unusual punishment and do not provide a meaningful transition back into our communities and our economy. The ACLU is leading the way to rethink and reform these policies and conditions though our Campaign for Smart Justice to protect individual rights, reduce the taxpayer burden, and make our communities safer.

"Tough on crime" policies, particularly around punitive drug policies, have failed to achieve public safety while putting an unprecedented number of people behind bars and eroding constitutional rights. This system also erodes economic opportunity, family stability, and civic engagement during incarceration and can create lifelong challenges upon release. America, Land of the Free, has earned the disturbing distinction of being the world's leading jailer. Nebraska has a role to play in reducing America's addiction to incarceration and providing programs that help those convicted of a crime to turn their lives around.

Policy Overview

Approximately 1 in 3 adults in the U.S. has a criminal record.^[1] That’s about the same number of Americans who have a college diploma.^[2] Among the long-term impacts of having a criminal record is that many people find it nearly impossible to obtain employment. Many job applications have a checkbox asking applicants to disclose if they have a criminal record. While “ban the box” legislation attempts to address this by banning questions about felony conviction on first-round employment applications, the employer is not the only barrier to meaningful employment. Nearing 200 of Nebraska professions require some form of licensure by the state and many of those careers bar or impede people with a criminal record. Even those who have paid their debt to society, turned their lives around, and have not re-offended in years find they have a lifetime label that denies them any chance of economic opportunity and a fresh start. These limitations do not just have an effect on the ex-offender; their spouses and children are impacted as well. There are many Nebraskans caught up in the criminal justice system—1 in 10 Nebraska children have a parent in jail—so these barriers impact many lives.^[3] The ACLU believes that improvements can be made in Nebraska to modernize law, policy, and practices surrounding criminal history disclosures for many professional and occupational licenses.

Who Is Affected

It is difficult to assess the number of Nebraskans with a past conviction. Every year, the Nebraska Department of Corrections estimates over 2,000 people with a felony conviction complete their sentence and are returned to our communities.^[4] According to legislative researchers, there were approximately 59,000 free Nebraskans with a former felony conviction in 2005.^[5] Obviously, there are even more Nebraskans with a misdemeanor conviction.

A large number of people with a criminal record are offenders whose crime was nonviolent and resulted from drug or alcohol dependence. Drug, alcohol, and property crimes charges continue to make up the bulk of criminal offenses in Nebraska every year.^[6] Nebraska’s recidivism rates are low and most offenders recover from drug dependence, serve their sentence, and return to their communities.^[7]

Decades into a failed “War on Drugs,” we still arrest, convict, and imprison people who struggle with addiction at very high rates. These failed policies have a lifelong impact by making it incredibly difficult for an offender to re-integrate into society when a sentence is finished. The Department of Justice has identified that a key element in reducing recidivism is the ability to obtain gainful employment.^[8]

As President George W. Bush said in his 2004 State of the Union Address, “This year, some 600,000 inmates will be released from prison back into society. We know from long experience that if they can’t find work, or a home, or help, they are much more likely to commit more crimes and return to prison…America is the land of the second chance, and when the gates of the prison open, the path ahead should lead to a better life.”

Support for giving ex-offenders a second chance crosses all political and partisan lines. For example, the Koch Brothers have announced their support of “ban the box” efforts and Charles Koch has said “There are plenty of people who have been arrested and gotten out who are good people.”^[9]

Nebraska Laws and Former Offender Employment

Nebraska took a step towards fairness in banning the box for public employment when the legislature nearly unanimously voted to enact LB 907 in 2014 to prohibit public employers from requiring an applicant to disclose their criminal history until it has been determined the applicant meets minimum employment qualifications.^[10]

However, countless occupational and professional license applications continue to require criminal history disclosure on the initial application. If we wish to ensure a second chance for the offender and his or her family, it is imperative that action be taken to ensure all former offenders who are otherwise capable of becoming licensed professionals are given a fair chance to do so.

According to a 2015 report by the Department of Labor, there are 176 licensed occupations in Nebraska.^[11] These professions range from very skilled work that usually accompanies an advanced degree (such as accountants, architects, engineers, lawyers and physicians) to physical labor jobs (well drillers, asbestos removal worker, lead worker, horse stable employee) to jobs that traditionally might be started as a small business by an entrepreneur (tattooist, manicurist, child daycare worker).

See a non-exhaustive sample of licensed professions in Nebraska that inquire about an applicant’s criminal history.

A national study of licensed professions, authored by the Institute for Justice, rated Nebraska quite high for having some of the least burdensome licensure requirements in the U.S.^[12] However, their report also documented the impact of occupational licensing for those "on the first several rungs of the economic ladder in low-to-moderate income occupations." In other words, the same jobs for which a former offender might be applying are occupations requiring a license.

Some of these licensing barriers are explicitly in statute. Some have been promulgated in regulations. Some professions simply inquire into criminal history on the application form—and those inquiries are not limited to convictions but also can include questions about charges that didn’t result in a conviction.

Mandatory criminal history disclosures on professional and occupational license applications purportedly aim to advance health and safety. There are good public policy reasons to allow an in-home daycare provider to be barred from licensure if she has a conviction for child abuse. However, most of these barriers aren’t explicitly seeking a link between the nature of the profession and the conviction. Limits on a horse trainer who once shoplifted or a manicurist who had a driving under the influence charge do not reflect an individual’s capability within their field.

Furthermore, having an applicant’s entire criminal record reviewed alongside their application allows the specter of discriminatory practices, where an otherwise qualified individual might be rejected based on unconscious bias.

“As a professional who works with people who have a felony conviction and a person who has been convicted of a felony, I know firsthand the impact these restrictions have on reentry planning,” said Stennis-Williams. “Most restrictions do not have a rational relationship to the risk of someone reoffending. These restrictions often hamper our ability to get individuals into training programs so they can fully contribute to our communities.” - LaVon Stennis-Williams, ReConnect of Omaha

Finally, a number of Nebraska licensed professions do not specifically ban former offenders but their certification process requires applicants to be of “good moral character.” The vague and unstated terms of what constitutes “good moral character” create the perception that an applicant with a criminal record may be automatically considered immoral and untrustworthy. For example, being an entry level nursing assistant in Nebraska requires a license and all applicants are asked whether they have been involved in a crime of “moral turpitude.” The state informs applicants that moral turpitude means any “act or behavior that violates accepted moral standards and in legal terms means anything done contrary to justice, honesty, modesty, good morals.”^[13] Use of vague standards such as “moral turpitude” or “being of good moral character” has been characterized by the U.S. Supreme Court as “unusually ambiguous” with the potential to serve as a “dangerous instrument for arbitrary and discriminatory denial” of professional and occupational licenses.^[14]

These license requirements can prove especially problematic in rural areas where employment opportunities may be limited. Horse groomers, nursing home dining assistants, and farm labor contractors must obtain state licenses, and all of these licensing applications inquire about applicants’ criminal history.

Because many professions require a state license that poses barriers for anyone with a conviction, these Nebraskans remain second-class citizens without the chance to become financially stable and self-supporting.

Recent Reforms Across the Country

In 2012, the United States Equal Employment Opportunity Commission (EEOC) issued their first ever guidance on how employers should address the issue of people with a criminal history. Given the disproportionate impact our criminal justice system has on communities of color, the EEOC announced that outright bans on hiring someone with a felony conviction may implicate Title VII of the Civil Rights Act. Title VII is the federal law that forbids employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.

The EEOC now recommends that employers consider both whether a conviction is related to the occupation and how much time has passed since the conviction.^[15]

While there have not yet been case rulings on whether a state licensing agency should only be allowed to inquire as to recent past convictions which relate to the occupation, that may be the litigation wave of the future.

Several states have passed reforms in response to the EEOC guidance. In a first-ever nationwide assessment of licensing laws, the National Employment Law Project (NELP) identified the states with the most effective laws reflecting these EEOC recommendations.^[16] The NELP report, issued in April 2016, graded states on their compliance with the new EEOC guidance. Nebraska fared badly in their report, since we have no overarching statute protecting former offenders from discrimination unrelated to the nature of their conviction.^[17]

States as diverse as Minnesota, Kansas, Pennsylvania, and New Jersey have passed laws to ensure fair treatment of former offenders seeking professional licenses.^[18] Minnesota passed a statute stating that a person with a conviction:

“shall not be disqualified from the employment or occupation if the person can show competent evidence of sufficient rehabilitation and present fitness to perform the duties.”^[19]

“Evidence of sufficient rehabilitation” include completion of probation or parole.^[20]

Kentucky addressed the myriad regulations and statutes by passing a general unification statute superseding all licensing regulations and policies. Their statute says their rule on eligibility of former offenders “shall prevail over any other laws, rules, and regulations which purport to govern the granting, denial, renewal, suspension, or revocation of a license on the grounds of conviction of a crime or crimes.”^[21]

NELP’s report offers state-by-state examples and model legislation to ensure former offenders can be evaluated fairly and not be barred outright from achieving economic self-sufficiency. Part of the difficulty in suggesting an easy fix is the fact that Nebraska does not have a single overarching law regarding occupational or professional licensing—there are criminal history inquiries built into a myriad of statutes, regulations, and application forms governed by various public boards. Reform will either need many individual boards to take steps to reform their own regulations and practices or the Unicameral will need to pass a single overarching statute that explicitly applies to all licensed professions. Several possibilities for reform are offered here.

Recommendations

Some states have already implemented a variety of reforms on this topic to ensure they are meeting best practices to best serve the economic needs of their constituents and their states. Each of the options identified below holds the potential to remove barriers to employment for those with a criminal record and is worthy of consideration by Nebraska policymakers.

Pass a state law that forbids discrimination by licensing authorities unless the conviction was directly related to the type of employment.

Minnesota and Kentucky’s state statutes prohibit discrimination by an employer or licensing entity unless the conviction “directly relates to the position of employment sought or the occupation for which the license is sought.”^[22]

To clarify the scope of this protection, Kentucky further passed a state law specifically superseding all regulations or prior statutes that required a background check, moral fitness, or ban on someone with a conviction.^[23]

Rewrite governing regulations to take into consideration rehabilitation and/or mitigating circumstances, and provide applicants with the opportunity to address any concerns.

While there may be certain occupation-related offenses detrimental to an applicant’s ability to obtain licensure, applicants should be given an opportunity to address the licensing agency’s concerns. No one should forever be defined by their past mistakes. Should an applicant have an identified disqualification, they should be allowed the opportunity to submit evidence indicating successful rehabilitation that meets occupational requirements.

Remove ambiguous language and implement uniform standards.

Vague requirements of “good moral character” should be removed from all Nebraska licensing requirements, whether in statute or licensing regulations. Not only is such a standard too vague to enforce, but it appears to be a code to discourage applicants with a criminal history.

“Ban-the-box” in private employment and other self-reporting requirements.

While Nebraska took the first step of “banning the box” for public employers, banning the box for all employers and all professional licenses would go the farthest in ensuring former offenders have a fair chance at rehabilitation. The EEOC guidance says “as a best practice…employers not ask about convictions on job applications.”^[24] Prohibiting criminal record inquiries until after an applicant is determined to meet all other occupational requirements completely eliminates any prejudice of an applicant as a result of a criminal history and allows all applicants to be assessed on their merits.

Conclusion

Advocates in re-entry programs with former offenders tell us that they repeatedly see people who are released from prison go back to school and complete their education, only to discover their past conviction prevents them from obtaining a job. Our great state benefits when all Nebraskans willing to contribute to their communities and families have an opportunity to pursue professional occupations.

Removing barriers to professional licenses will allow all Nebraskans a fair chance at gainful employment. In turn, former offenders who obtain a professional job instead of relying upon a patchwork of minimal wage employment will be more likely to contribute to their families’ economic well-being, and fully re-integrate into society without re-offending. People who have served their sentence and returned to their community should have the hurdles to employment taken out of their path as they journey on their fresh start.

Nebraska has already begun cutting the red tape holding people back from gainful employment by passing our public employment "ban the box" law. We need to take the next step to pull down the hurdles in the path of people in licensed professions. Removing hurdles to employment allows each Nebraskan to contribute at their highest potential which will grow our shared economy, increase public safety, and ensure strong families.

Selection of Professional Licenses Which Presents Barriers to People with a Criminal Conviction

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• Read more about Second Chances: How professional licensing in Nebraska hurts the workforce and our economy