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Nebraska State Penitentiary

A photo taken at the Nebraska State Penitentiary by one of the experts hired by the ACLU to report on conditions at prisons, shows a windowless cell in what is called the "South Forty." The small top-most rectangle on the back wall is the hatch through which mental health and medical consultations are done.

The state answered an ACLU of Nebraska legal request for class-action status of its lawsuit against Nebraska prisons this week, saying no plaintiffs in the complaint are typical in such a "sprawling class."

The state also claimed those representing the class lack credibility and knowledge of the lawsuit.

The filing by Attorney General Doug Peterson also outlined how the Department of Correctional Services is fixing problems in the prisons and building new beds to ease crowding.

The ACLU filed its federal lawsuit in 2017 on behalf of 11 Nebraska prisoners over conditions and crowding they say endanger the health, safety and lives of prisoners and staff on a daily basis.

In February, it filed for class-action status on behalf of the thousands of men and women in the state's prisons.

In the state's opposition brief, it said the ACLU has sought to apply the wrongs outlined in the lawsuit to a "composite plaintiff" it has constructed to show a risk of harm to all inmates, and that plaintiff does not exist. Those alleged "shortcomings" don't affect all proposed class members, the state said. 

"There is no one person that is touched by all these things," said Ryan Post, assistant attorney general. 

The state said the classes are ill-defined and would require the court to conduct individual mini-trials of inmates to determine if they should be class members. 

ACLU of Nebraska Executive Director Danielle Conrad said it was undisputed that countless Nebraskans in prison lack access to basic health care, mental health care and sensible accommodations for their disabilities for which the state remains deliberately indifferent through decades of neglect, inadequate training, programming and services.

The ACLU enlisted at least six experts with experience in treatment of prisoners with mental health, medical and dental needs and disability rights. The request for class-action status said those experts found bad policies and practices of the department, crowding, lack of appropriate access to medical, mental health and dental care, and failure to comply with the Americans with Disabilities Act.

Post said the Corrections Department has opened its doors, turning over 351,000 pages of records, and has many hundreds of thousands to go. It's done 20 facilities tours, with allowances to ACLU representatives to talk to staff and inmates with state representatives present, and will do more next month. 

The state took its own Americans with Disabilities expert into the prisons to identify problems, and the department has set about fixing them, Post said. 

"Not everything's perfect. There's improvements to be made," he said. 

Some of those ADA improvements include an audit to verify prisons provide captions and subtitles on all televisions, weekly ADA meetings with executive team members, increased training for staff and adding an ADA coordinator. 

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The department is also adding beds to the prisons through construction, and is working on reforming restrictive housing policies, Post said. The state went 10 years without adding any new beds, he said. 

The Department of Correctional Services is the second largest state agency with 2,400 employee positions and an operating budget of $215 million.

The state's brief said the prison system is accountable to multiple state and federal requirements and oversight agencies. All the prisons undergo health inspections, and they are subject to extensive oversight from the Legislature. 

The prisons offer a variety of health- and mental health-related services, the state said. It provides a community standard of care to all inmates. 

Conrad said it was disappointing but not surprising that the attorney general continued to distort undisputed facts and use delay tactics while Nebraska prisons remain mired in crisis. 

"The facts are clear and it is time for the state to stop playing games with terminology," Conrad said. "It is undisputed that Nebraska's prisons are the second most overcrowded system in the country behind only Alabama. It is undisputed that prison officials just recently admitted that the current prison population is soaring and at historic highs, undermining their suspect projections."

Conrad said the state needs to negotiate a thoughtful settlement to save taxpayer dollars, ensure collaboration on a thoughtful course of action and allow Nebraska to move forward with smart justice alternatives that put public safety first.

In the next couple of months, there will be other briefs filed in the case. Post said a decision on the class-action status probably won't come until the end of the year. 

Reach the writer at 402-473-7228 or jyoung@journalstar.com

On Twitter @LJSLegislature.

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