Neb. Admin. Code tit. 270 — Board of Parole

Chapter 1 General

Neb. Admin. Code tit. 270, ch. 1 General {#sec-270-nac-1 omnilex-key=us-ne-regs-official--title-270--270 NAC 1}

001 AUTHORITY . These rules and Regulations are published in accordance with the provisions of Sections 81-1848 through 81-1850, Section 83-170, Sections 83-188 through 83-199, Sections 83-1,100 through 83-1,104, Sections 83-1,107 through 83-1,125, Sections 84-901 through 84-920, and U.S. Supreme Court Decisions Morrissey vs. Brewer (1972) and Greenholtz vs. Inmates (1979).

002 APPLICABILITY . These Rules and Regulations shall apply to all persons committed to the adult facilities of the Department of Correctional Services. These Rules and Regulations shall not be construed as limiting in any way the power and authority of the Board of Parole to establish policies and procedures for the administration of these rules or the Rules and Regulations of the Department of Correctional Services.

003 PURPOSE . The purpose of these Rules and Regulations is to ensure equal applicability of laws regarding parole to all committed adult offenders.

004 AVAILABILITY . These Rules and Regulations shall be available through the legal libraries of each facility to all offenders committed to the adult facilities of the Department of Correctional Services. The general public may examine a copy in the office of the Board of Parole. Copies will be furnished upon request to any criminal Justice agency, including Colleges and Universities with Criminal Justice Departments, all law enforcement agencies, all Department of Corrections and Parole Boards in other states, and to members of the bar when the need can be identified and funds are available for printing (most attorneys have access to State Statutes).

STATUTORY AUTHORITY

81-1848 through 81-1850

83-170

83-188 through 83-199

83-1,100 through 83-1,125

84-901 through 84-920

History

• Effective 1996-07-29

Chapter 2 Terms Defined

Neb. Admin. Code tit. 270, ch. 2 Terms Defined {#sec-270-nac-2 omnilex-key=us-ne-regs-official--title-270--270 NAC 2}

001 ADMINISTRATOR shall mean the Parole Administrator.

002 BOARD shall mean the Board of Parole.

003 COMMITTED OFFENDER shall mean any person who, under any provision of law, is sentenced or committed to a facility operated by the Department of Correctional Services other than a person adjudged to be as described in subdivision (1), (2), (3)(b), or (4) of section 43-247 by a juvenile court.

004 DEPARTMENT shall mean the Department of Correctional Services.

005 DIRECTOR shall mean the Director of Correctional Services.

006 FACILITY shall mean any prison, reformatory, training school, reception center, community guidance center, group home, or other institution operated by the department.

007 GOOD TIME shall mean any reduction of sentence granted pursuant to sections 83-1,107 and 83-1,108.

008 MAXIMUM TERM shall mean the maximum sentence provided by law or the maximum sentence imposed by a court, whichever is shorter.

009 MINIMUM TERM shall mean the minimum sentence provided by law or the minimum sentence imposed by a court, whichever is longer.

010 PARDON AUTHORITY shall mean the power to remit fines and forfeitures and to grant respites, reprieves, pardons, or commutations.

011 PAROLE TERM shall mean the time from release on parole to the completion of the maximum term reduced by good time.

012 PERSON COMMITED TO THE DEPARTMENT shall mean any person sentenced or committed to a facility within the department.

STATUTORY AUTHORITY

83-170

History

• Effective 1996-07-29

Chapter 3 Agency Organization, Authority, and Responsibility

Neb. Admin. Code tit. 270, ch. 3 Agency Organization, Authority, and Responsibility {#sec-270-nac-3 omnilex-key=us-ne-regs-official--title-270--270 NAC 3}

001. There is hereby created the Board of Parole. For administrative purposes only, the board shall be within the Board of Pardons. Nothing in the Nebraska Treatment and Corrections Act shall be construed to give the director or the Board of Pardons any authority, power, or responsibility over the Board of Parole, its employees, or the exercise of its functions under the provisions of the act. The employees of the Board of Parole shall be covered by the State Personnel System.

002 . The Board of Parole shall consist of five full-time members to be appointed by the Governor.

002.01. The members of the board shall be of good character and judicious temperament.

002.02. The members of the board shall have all the powers and duties of board members commencing on the date of appointment.

002.03. The appointments shall be subject to confirmation by the Legislature at its next regular session following the appointments.

002.04. At least one member shall be of an ethnic minority group.

002.05. At least one member shall be female.

002.06. At least one member shall have a professional background in corrections.

002.07. One of the five members of the board shall be designated as chairperson by the Governor. In addition to the chairperson's duties as prescribed in subsection (1) of section 83-192, he or she shall supervise the administration and operation of the board and shall carry out the duties prescribed in subsection (2) of such section.

003 . The members of the Board of Parole shall have terms of office of six years and until their successors are appointed.

003.01. The successors shall be appointed in the same manner as provided for the members first appointed, · and a vacancy occurring before the expiration of a term of office shall be similarly filled for the unexpired term.

003.02. A member of the board may be reappointed.

003.03. The members of the board may be removed only for disability, neglect of duty, or malfeasance in office by the Board of Pardons after a hearing. The Board of Pardons shall promptly file in the office of the Secretary of State a complete statement of the charges, its findings and disposition, and a complete record of the proceedings.

004 . The members of the board shall devote full time to their duties with such board and shall not engage in any other business or profession or hold any other public office.

004.01. No member shall, at the time of his or her appointment or during his or her tenure, serve as a representative of any political party or of any executive committee or governing body thereof or as an executive officer or employee of any political party, organization, association, or committee. A member shall resign from the board upon filing as a candidate for any elective public office.

004.02. Each member of the Board shall receive an annual salary to be fixed by the Governor. On and after July 1, 1993, such salaries shall be paid in equal monthly portions.

005 . The Board of Parole shall:

005.01. Determine the time of release on parole of committed offenders eligible for such release.

005.02. Fix the conditions of parole, revoke parole, issue or authorize the issuance of warrants for the arrest of parole violators, and impose other sanctions short of revocation for violation of the conditions of parole.

005.03. Determine the time of discharge from parole.

005.04. Visit and inspect any facility, state or local, for the detention of persons charged with or convicted of an offense and for the safekeeping of such other persons as may be remanded to such facility in accordance with law.

005.05. Within two years after July 1, 1994, implement objective parole risk-assessment criteria (meaning criteria which statistically have been shown to be good predictors of risk to society of release on parole) which shall be used by the members of the board as additional considerations in determining whether to grant or deny parole to any particular offender who is eligible for parole.

005.06. Review the record of every committed offender as follows:

005.06A. If a committed offender has a parole eligibility date within five years of his or her date of incarceration, his or her record will be reviewed annually.

005.06B. If a committed offender has a parole eligibility date which is more than five but not more than ten years from the date of his or her incarceration, his or her record shall be reviewed during the first year of incarceration, and when he or she is within three years of his or her earliest parole eligibility date, his or her record shall be reviewed annually.

005.06C. If a committed offender has a parole eligibility date which is more than ten but not more than thirty years from his or her date of incarceration, his or her record shall be reviewed during the first year of incarceration, every five years thereafter until he or she is within five years of his or her earliest parole eligibility date, and annually thereafter.

005.06D. If a committed offender has a parole eligibility date which is more than thirty years from his or her date of incarceration, his or her record shall be reviewed during his or her first, tenth, and twentieth year of incarceration, and when he or she is within five years of his or her earliest parole eligibility date, his or her record shall be reviewed annually.

005.06E. If a committed offender is serving a minimum life sentence, his or her record shall be reviewed during the first year of incarceration and every ten years thereafter until such time as the sentence is commuted. If such sentence is commuted, the committed offender's record shall be reviewed annually when he or she is within five years of his or her earliest parole eligibility date.

Such review shall include the circumstances of the offense, the presentence investigation report, the committed offender's previous social history and criminal record, his or her conduct, employment, and attitude during commitment, and the reports of such physical and mental examinations as have been made. The board shall meet with such committed offender and counsel him or her concerning his or her progress and prospects for future parole.

The review schedule shall be based on court-imposed sentences or statutory minimum sentences, whichever are greater. Nothing in such schedule shall prohibit the board from reviewing a committed offender's case at any time.

005.07. Appoint and remove employees of the board as proscribed by the State Personnel System and delegate appropriate powers and duties to them.

005.08. Exercise all powers and perform all duties necessary and proper in carrying out its responsibilities of the board under the Nebraska Treatment and Corrections Act.

006 . The chairperson of the board shall:

006.01. Supervise the administration and operation of the board.

006.02. Serve in an advisory capacity to the director in administering parole services within any facility and in the community.

006.03. Interpret the parole program to the public with a view toward developing a broad base of public support.

006.04. Conduct research for the purpose of evaluating and improving the effectiveness of the parole system.

006.05. Recommend parole legislation to the Governor.

006.06. Adopt and promulgate rules and regulations for the administration and operation of the board.

006.07. Exercise all other powers and perform all other duties as necessary and proper in carrying out his or her responsibilities as chairperson.

007 . The provisions of this section shall not prohibit a committed offender from requesting that the board review his or her record, except that the board shall not be required to review a committed offender's record more than once a year.

008 . The Board of Parole shall not have jurisdiction over persons who are committed to the Department of Correctional Services after being found neglected, dependent, delinquent or in need of special supervision in accordance with the provisions of Chapter 43, article 2.

009 . The Board of Parole shall, when requested by the Board of Pardons, advise it concerning applications requesting the exercise of pardon authority and shall make such investigation and collect such records as may bear on such applications.

010 . In the performance of its duties, the Board of Parole, or any member thereof, shall have the power to issue subpoenas, to compel the attendance of witnesses and the production of books, papers, and other documents pertinent to the subject of an inquiry, and to administer oaths and take the testimony of persons under oath. Subpoenas so issued may be served by any sheriff, constable, police officer, parole officer, or peace officer in the same manner as similar process in the district court. Any person who knowingly testifies falsely, submits any false affidavit or deposition, fails to appear when subpoenaed, or fails or refuses to produce such material pursuant to the subpoena shall be subject to the same orders and penalties to which a person before the district court is subject. Any district court of this state, upon application by the board, may compel the attendance of such witnesses, the production of such material, and the giving of testimony before the board by an attachment for contempt or otherwise in the same manner as production of evidence may be compelled before such court. Every person shall attend as a witness when subpoenaed anywhere within the state, and shall be entitled to the same fees, if requested, as a witness in the district court and mileage as provided in section 81-1176 for state employees. Fees, mileage, and actual expense, if any, necessarily incurred in securing the attendance of witnesses shall be paid by the board.

011 . Three members of the Board of Parole shall constitute a quorum for the purpose of transacting any official business. The decisions of the Board of Parole shall be by majority vote. The board shall keep a record of its acts and shall notify the Director of Correctional Services of its decisions relating to offenders who are or have been committed.

012 . The Board of Parole shall have the power to direct the Director of Correctional Services to keep records concerning committed offenders which the board deems pertinent to its functions.

013 . A person shall be guilty of a felony if he threatens or attempts to threaten harm to a member of the Board of Parole with a purpose to influence his decision, opinion, recommendation, vote, or other exercise of discretion as a member of the board, or if he privately addresses to any member of the board any representation, entreaty, which is or may come before the board on the basis of considerations other than those authorized by law, and shall be guilty of a Class IV felony.

014 . The provisions of the Administrative Procedure Act shall not apply to the Board of Parole or to the exercise of its functions.

STATUTORY AUTHORITY

83-188 through 83-199

OTHER AUTHORITY

Greenholtz vs. Inmates (1979)

History

• Effective 1996-07-29

Chapter 4 Parole Consideration

Neb. Admin. Code tit. 270, ch. 4 Parole Consideration {#sec-270-nac-4 omnilex-key=us-ne-regs-official--title-270--270 NAC 4}

001 . The chief executive officer of a facility shall regularly report all good time and all forfeitures, withholdings, and restorations of good time to the director. On the basis of such report, the director shall inform the board and the administrator of all committed offenders who are expected to become eligible for release on parole within the next three months.

002 Eligibility for release on parole

002.01. Every committed offender shall be eligible for release on parole upon completion of the minimum term less good time.

002.02. Every committed offender sentenced to consecutive terms, whether received at the same time or at any time during the original sentence, shall be eligible for release on parole when the offender has served the total of the minimum terms, less good time. The maximum terms shall be added to compute the new maximum term which, less good time, shall determine the date when discharge from the custody of the state becomes mandatory.

003 Parole Hearings

003.01. Every committed offender shall be interviewed and have his or her record reviewed by two or more members of the Board of Parole or a person designated by the board within 60 days before the expiration of his or her minimum term less any reductions. If, in the opinion of the reviewers, the review indicates the offender is reasonably likely to be granted parole, the Board of Parole shall schedule a public hearing before a majority of its members. At such hearing the offender may present evidence, call witnesses, and be represented by counsel. If, in the opinion of the reviewers, the review indicates the offender should be denied parole, the offender may request an additional review by a majority of the members of the board. A review by the majority of the members of the board may be conducted not more than once annually. Any hearing and review shall be conducted in an informal manner, but a complete record of the proceedings shall be made and preserved.

003.02. The Board shall render its decision regarding the committed offender's release on parole within a reasonable time after the hearing or review. The decision shall be by majority vote of the Board. The decision shall be based on the entire record before the Board, which shall include the opinion of the person who conducted the review. If the Board shall deny parole, written notification listing the reasons for such denial and the recommendations for correcting deficiencies which cause the denial shall be given to the committed offender within thirty days following the hearing.

003.03. If the board fixes the release date, such date shall be not more than six months from the date of the committed offender's parole hearing, or from the date of last reconsideration of his or her case, unless there are special reasons for fixing a later release date.

003.04. If the Board defers the case for later reconsideration, the committed offender shall be afforded a parole hearing at least once a year until a release date is fixed. The Board may order a reconsideration or a rehearing of the case at any time.

003.05. The release of a committed offender on parole shall not be upon the application of the offender, but by the initiative of the Board of Parole. No application for release on parole made by a committed offender or on his or her behalf shall be entertained. by the Board. Nothing herein shall prohibit the Director of Correctional Services from recommending to the Board that it consider an individual offender for release on parole.

004 Preparing for a parole hearing

004.01. Each committed offender eligible for parole shall, in advance of his parole hearing, have a parole plan in accordance with the rules of the Board of Parole. Whenever the Board determines that it will facilitate the parole hearing, it may furnish the offender with any information and records to be considered by it at the hearing.

004.02. An offender shall be permitted to advise with any person whose assistance he desires, including his own legal counsel, in preparing for a hearing before the board.

005 . The Board of Parole and its employees shall have access at all reasonable times to any committed offender over whom the Board may have jurisdiction and shall have means provided for communication with and observing the committed offender. The Board shall be furnished such reports as it may require concerning the conduct and character of any committed offender and any other information deemed pertinent by the Board in determining whether a committed offender should be paroled.

006 Deferment of Parole

006.01. Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because:

006.01A. There is a substantial risk that he will not conform to the conditions of parole.

006.01B. His release would depreciate the seriousness of his crime or promote disrespect for law.

006.01C. His release would have a substantially adverse effect on institutional discipline.

006.01D. His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date.

006.02. In making its determination regarding a committed offender's release on parole, the Board of Parole shall take into account each of the following factors:

006.02A. The offender's personality, including his maturity, stability, sense of responsibility, and any apparent development in his personality which may promote or hinder his conformity to law.

006.02B. The adequacy of the offender's parole plan.

006.02C. The offender's ability and readiness to assume obligations and undertake responsibilities.

006.02D. The offender's intelligence and training.

006.02E. The offender's family status and whether he has relatives who display an interest in him or whether he has other close and constructive associations in the community.

006.02F. The offender's employment history, his occupational skills, and the stability of his past employment.

006.02G. The type of residence, neighborhood, or community in which the offender plans to live.

006.02H. The offender's past use of narcotics, or past habitual and excessive use of alcohol.

006.02I. The offender's mental or physical makeup, including any disability or handicap which may affect his conformity to law.

006.02J. The offender's prior criminal record, including the nature and circumstances, recency, and frequency of previous offenses.

006.02K. The offender's attitude toward law and authority.

006.02L. The offender's conduct in the facility, including particularly whether he has taken advantage of the opportunities for self-improvement, whether he has been punished for misconduct within six months prior to his hearing or reconsideration for parole release, whether any reductions of term have been forfeited, and whether such reductions have been restored at the time of hearing or reconsideration.

006.02M. The offender's behavior and attitude during any previous experience of probation or parole and the recency of such experience.

006.02N. Any other factors the board determines to be relevant.

007 . Before making a determination regarding a committed offender's release on parole, the Board of Parole shall consider the following:

007.01. A report prepared by the institutional caseworkers relating to his personality, social history and adjustment to authority, and including any recommendations which the staff of the facility may make.

007.02. All official reports of his prior criminal record, including reports and records of earlier probation and parole experiences.

007.03. The presentence investigation report.

007.04. Recommendations regarding his parole made at the time of sentencing by the sentencing judge.

007.05. The reports of any physical, mental, and psychiatric examinations of the offender.

007.06. Any relevant information which may be submitted by the offender, his attorney, the victim of his crime, or by other persons.

007.07. Such other relevant information concerning the offender as may be reasonably available.

STATUTORY AUTHORITY

83-1,109 through 83-1,115

OTHER AUTHORITY

Greenholtz v. Inmates (1979)

History

• Effective 1996-07-29

Chapter 5 Rights of Victims/Witnesses

Neb. Admin. Code tit. 270, ch. 5 Rights of Victims/Witnesses {#sec-270-nac-5 omnilex-key=us-ne-regs-official--title-270--270 NAC 5}

001 . Victims as defined in section 29-119 shall have the following rights:

001.01. To examine information which is a matter of public record and collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of issuance of arrest warrants, arrests, detentions, indictments, charges by information, and other formal criminal charges. Such information shall include any disposition arising from such arrests, charges, sentencing, correctional supervision, and release, but shall not include intelligence or investigative information. (Victims requesting such information shall be referred to the Nebraska State Patrol, Criminal Division Identification Unit.)

001.02. To receive from the county attorney advance reasonable notice of any scheduled court proceedings and notice of any changes in that schedule.

001.03. To be notified by the county attorney by any means reasonably calculated to give prompt actual notice of the time and place of the sentencing proceeding and to be notified by the county attorney in writing of the final disposition of the case within thirty days of the final disposition of the case.

001.04. To be notified by the county attorney by any means reasonably calculated to give prompt actual notice of the time and place of any subsequent judicial proceedings if the defendant was acquitted on grounds of insanity.

001.05. Within ninety days of conviction of an offender, to be notified of the tentative date of release and the earliest parole eligibility date of such offender.

001.06. To be notified of any parole hearings, to testify before the Board of Parole or submit a written statement for consideration by the board, and to be notified of the decision of and any action taken by the board.

002 . Victims and witnesses of crimes shall have the following rights:

002.01. To be informed on all writs of subpoena or notices to appear that they are entitled to apply for and may receive a witness fee.

002.02. To be notified that a court proceeding to which they have been subpoenaed will not go on as scheduled in order to save the person an unnecessary trip to court.

002.03. To receive protection from harm and threats of harm arising out of their cooperation with law enforcement and prosecution efforts and to be provided with information as to the level of protection available.

002.04. To be informed of financial assistance and other social services available as a result of being a witness or a victim of a crime, including information on how to apply for the assistance and services.

002.05. To be informed of the procedure to be followed in order to apply for and receive any witness fee to which they are entitled.

002.06. To be provided, whenever possible, a secure waiting area during court proceedings that does not require them to be in close proximity to defendants and families and friends of defendants.

002.07. To have any stolen or other personal property expeditiously returned by law enforcement agencies when no longer needed as evidence. If feasible, all such property, except weapons, currency, contraband, property subject to evidentiary analysis, and property the ownership of which is disputed, shall be returned to the person within ten days of being taken.

002.08. To be provided with appropriate employer intercession services to insure that employers of victims and witnesses will cooperate with the criminal justice process in order to minimize an employee's loss of pay and other benefits resulting from court appearances.

002.09. To be entitled to a speedy disposition of the case in which they are involved as a victim or witness in order to minimize the length of time they must endure the stress of their responsibilities in connection with the matter.

002.10. To be informed by the county attorney of the final disposition of a felony case in which they were involved and to be notified pursuant to section 81-1850 whenever the defendant in such case is released from custody.

002.11. To have the family members of all homicide victims afforded all of the rights under subsection (2) of this section and services analogous to those provided under section 81-1847.

003 . To receive the notices provided for in section 81-1848, a victim shall keep the county attorney informed of his or her current address and phone number until sentence has been imposed or the final disposition reached in the case in which the victim is involved, whichever is earlier.

004 . The County Attorney and the Board of Parole shall have the following duties of notification of victims:

004.01. Upon request of the victim and at the time of conviction of the offender, the county attorney of the jurisdiction in which a person is convicted of a felony shall forward to the Board of Parole the name and address of any victim as defined in section 29-119 of the convicted person. The board shall include the name in the file of the convicted person, but the name shall not be part of the public record of any parole hearings of the convicted person. Any victim, including a victim who has waived his or her right to notification at the time of conviction, may request the notification prescribed in this section by sending a written request to the board any time after the convicted person is incarcerated and until the convicted person is no longer under the jurisdiction of the board or the Department of Correctional Services.

004.02. A victim whose name appears in the file of a convicted person shall be notified by the Board of Parole:

004.02A. When a convicted person who is on parole is returned to custody because of parole violations. (The Department of Corrections notifies the victim(s) when a convicted person is released from custody.)

004.02B. If the convicted person has been adjudged a mentally disordered sex offender or is a convicted sex offender, when such person is released from custody or treatment. Such notification shall be given in person, by telecommunication, or by certified or registered mail.

004.03. The Board of Parole and the Department of Correctional Services shall adopt and promulgate rules and regulations to carry out this section.

STATUTORY AUTHORITY

81-1848 through 81-1850

History

• Effective 1996-07-29

Chapter 6 Release on Parole and Discharge

Neb. Admin. Code tit. 270, ch. 6 Release on Parole and Discharge {#sec-270-nac-6 omnilex-key=us-ne-regs-official--title-270--270 NAC 6}

001 . The chief executive officer of a facility shall reduce the term of a committed offender by six months for each year of the offender's term and pro rata for any part thereof which is less than a year. The total of all such reductions shall be credited from the date of sentence, which shall include any term of confinement prior to sentence and commitment as provided pursuant to section 83-1,106, and shall be deducted:

001.01. From the minimum term, to determine the date of eligibility for release on parole.

001.02. From the maximum term, to determine the date when discharge from the custody of the state becomes mandatory.

002 . While the offender is in the custody of the department, reductions of such terms may be forfeited, withheld, and restored by the chief executive officer of the facility with the approval of the director after the offender has been consulted regarding the charges of misconduct.

003 . While the offender is in the custody of the board, reductions of such terms may be forfeited, withheld, and restored by the administrator with the approval of the director after the offender has been consulted regarding the charges of misconduct or breach of the conditions of parole. In addition, the board may recommend such forfeitures of good time to the director.

004 . Good time or other reductions of sentence granted under the provisions of any law prior to July 15, 1992, may be forfeited, withheld, or restored in accordance with the terms of the Nebraska Treatment and Corrections Act.

005 . The Board of Parole may in appropriate cases require a parolee, as a condition of his parole, either at the time of his release on parole or at any time while he remains under parole supervision, to reside in a community guidance center, boarding facility, halfway house, hospital, or other special residence facility, for such period and under such supervision or treatment as the Board may deem appropriate.

006 . Parole Good Time:

006.01. The Board shall reduce, for good conduct in conformity with the conditions of parole, a parolee's parole term by two days for each month of such term.

006.02. The total of such reductions shall be deducted from the maximum term less the good time granted pursuant to section 83-1,107 to determine the date when discharge from parole becomes mandatory.

006.03. Reductions of the parole terms may be forfeited, withheld, and restored by the board after the parolee has been consulted regarding any charge of misconduct or breach of the conditions of parole.

007 . A committed offender while on parole shall remain in the legal custody and control of the Board of Parole. The board may at any time revoke the parole of an offender or recommit him to the custody of the Department of Correctional Services, with or without cause.

008 . If, in the opinion of the board a parolee does not require guidance or supervision, the board may dispense with and terminate such supervision.

009 . The board shall discharge a parolee from parole when the time served in the custody of the department and the time served on parole equal the maximum term less good time.

010 . The department shall discharge a committed offender from the custody of the department when the time served in the facility equals the maximum term less good time.

STATUTORY AUTHORITY

83-1,107 through 81-1,108

83-1,117 through 83-1,118

83-1,121

History

• Effective 1996-07-29

Chapter 7 Adult Parole Administration

Neb. Admin. Code tit. 270, ch. 7 Adult Parole Administration {#sec-270-nac-7 omnilex-key=us-ne-regs-official--title-270--270 NAC 7}

001 . The Office of Parole Administration shall consist of the Parole Administrator, the field parole service, and all other office staff. The office shall be responsible for the following:

001.01. The administration of parole services in the community.

001.02. The maintenance of all records and files associated with the Board of Parole; and

001.03. The daily supervision and training of staff members of the office. Nothing in this section shall be construed to prohibit the office from maintaining daily records and files associated with the Board of Pardons.

002 . All equipment, books, and other property in the possession of the Office of Parole Administration relating to the functions of the Board of Pardons and the Board of Parole, except records maintained by the Secretary of State, on July 1, 1994, are hereby transferred to the Board of Pardons and the Board of Parole, as appropriate, as of such date.

003 . The Director of Correctional Services with the consent of the Board of Parole shall appoint a Parole Administrator, who shall be a person with appropriate experience in the field of corrections, or with training in relevant disciplines at a recognized university.

004 . The Parole Administrator shall:

004.01. Supervise and administer the Office of Parole Administration.

004.02. Establish and maintain policies, standards, and procedures for the field parole service.

004.03. Divide the state into parole districts, and appoint district parole officers, deputy parole officers, if required, and such other employees as may be required to carry out adequate parole supervision of all parolees, adequate probation supervision of probationers as ordered by district judges, prescribe their powers and duties, and obtain office quarters for staff in each district as may be necessary.

004.04. Cooperate with the Board of Parole, the courts, and all other agencies, public and private, which are concerned with the treatment or welfare of persons on parole.

004.05. Provide the Board of Parole and district judges with any record of a parolee or probationer which it may require.

004.06. Make recommendations to the Board of Parole or district judge in cases of violation of the conditions of parole or probation, issue warrants for the arrest of parole or probation violators when so instructed by the board or district judge, notify the Director of Correctional Services of determinations made by the board, and upon instruction of the board, issue certificates of parole and of parole revocation to the facilities, and certificates of discharge from parole to parolees.

004.07. Organize and conduct training programs for the district parole officers and other employees.

004.08. Exercise all powers and perform all duties necessary and proper in carrying out his responsibilities.

005 . The field parole service, consisting of district parole officers and deputy parole officers working under the direction of the Parole Administrator or district judge, shall be responsible for the investigation, supervision, and assistance of parolees or probationers. The field parole service shall be sufficient in size to assure that no district parole officer carries a case load larger than is compatible with adequate parole investigation or supervision.

006 . A district parole officer shall:

006.01. Make investigations, prior to a committed offender's release on parole, in cooperation with institutional caseworkers and the Board of Parole to determine the adequacy of parole plans and make reasonable advance preparation for release on parole.

006.02. Assist parolees or probationers to comply with the conditions of parole or probation and to make a successful adjustment in the community.

006.03. Supervise parolees or probationers by keeping informed of their conduct and condition.

006.04. Make such reports as required by the Parole Administrator or district judge to determine the effectiveness of the parole system or the progress of an individual parolee or probationer.

006.05. Cooperate with social welfare agencies.

006.06. Observe the work of any deputy parole officer under his supervision from time to time.

006.07. Inform the Parole Administrator when, in his opinion, any eligible parolee's conduct and attitude warrant his discharge from supervision, or when any parolee's or probationer's violation of the conditions of parole or probation is of sufficient seriousness to require action by the Board of Parole or district judge, and whenever necessary exercise the power of arrest as provided in section 83-1,119.

006.08. Delegate in his discretion any of the above responsibilities to a deputy parole officer if provided for his district.

006.09. Exercise all powers and perform all duties necessary and proper in carrying out his responsibilities.

STATUTORY AUTHORITY

83-1,100 through 83-1,104

History

• Effective 1996-07-29

Chapter 8 Conditions of Parole

Neb. Admin. Code tit. 270, ch. 8 Conditions of Parole {#sec-270-nac-8 omnilex-key=us-ne-regs-official--title-270--270 NAC 8}

001 . When a committed offender is released on parole, the Board shall require as a condition of parole that the parolee refrain from engaging in criminal conduct and may require the offender to submit to periodic testing for drug and alcohol use.

002 . Mandatory conditions set forth in the Certificate of Parole are as follows:

002.01 GENERAL CONDITIONS

002.01A LAWS. You shall obey all city, county, state, and federal laws, ordinances, and orders; and conduct yourself as a good citizen. All contacts with Law Enforcement shall be reported to your parole officer at the earliest opportunity.

002.01B RELEASE. Upon release from the institution, you are to go directly to the program approved by the Parole Board, and shall report to your assigned parole officer, or other persons designated by the Parole Administration, within twenty-four (24) hours of being granted a parole.

002.01C TRAVEL. You shall receive verbal permission from your, assigned parole officer, or his/her immediate supervisor, before leaving your approved county of residence. You shall not leave the State of Nebraska without first obtaining written permission from the Board of Parole. (IT IS A FELONY FOR A PAROLEE TO LEAVE THE STATE WITHOUT PERMISSION, AND IS PUNISHABLE BY UP TO FIVE (5) YEARS IMPRISONMENT.) Written permission to travel to a designated state does not grant permission to travel to any other state.

002.01D RESIDENCE. You shall not change your approved place of residence without first obtaining permission from your assigned parole officer.

002.02 SPECIFIC CONDITIONS

002.02A EMPLOYMENT/EDUCATION PROGRAM. You shall maintain an approved employment/education program, and shall not change this program without first obtaining permission from your assigned parole officer.

002.02B REPORTING. You shall submit a written report to your assigned parole officer during the first five working days of each month and report in person at such times and places as directed by Parole Administration staff.

002.02C DIRECTIVES. You shall obey all written or verbal directives of your parole officer and any other personnel of the Parole Administration.

002.02D ABSCONDING. You shall keep your parole officer advised of your whereabouts at all times, and failure to do so will be considered a violation of parole supervision. (IF YOU ABSCOND PAROLE SUPERVISION, YOU WILL PAY ALL EXPENSES INCURRED IN YOUR RETURN.)

002.02E ASSOCIATES. You shall not associate with persons known to be engaged in criminal activities, nor with persons known to have been convicted of a crime, without written permission from your parole officer.

002.02F FINANCIAL OBLIGATIONS. You shall provide for the financial needs of your dependents including any court ordered child support payments, restitution and/or fines. You shall confer with your parole officer before entering into any major credit transactions.

002.02G SEARCH AND SEIZURE. You shall permit your parole officer and/or personnel of Parole Administration to conduct routine searches of your person, residence, vehicle, or any property under your control, at such times as they deem necessary.

002.02H WEAPONS. You shall not possess, own, carry, or have under your control any type of weapon.

002.02I NARCOTICS. You shall not use, purchase, sell, nor possess any narcotic or dangerous drug unless first proscribed by a licensed physician. You shall submit to narcotic or drug testing as required by any parole staff or law enforcement officer.

002.02J INTOXICANTS. You shall not consume any alcoholic beverages nor be in any bars, taverns, or business establishments where the sale of alcoholic beverages is the primary business. You shall submit to a medically recognized test for blood alcohol content at the request of any parole staff or law enforcement officer.

002.03 SPECIAL CONDITIONS. Any or all of the following special conditions may be approved by the Board and included in the Certificate of Parole:

002.03A. Submit to medical and/or psychological treatment.

002.03B. Attend marriage counseling.

002.03C. Not to own or drive a motor vehicle.

002.03D. Not to apply for credit cards nor to have checking accounts.

002.03E. Not to visit a specific location or area.

002.03F. Not to act as an undercover or special agent for law enforcement agencies without special written permission of the board.

002.03G. Satisfy any other conditions specially related to the cause of his/her offense not unduly restrictive of his/her liberty or conscience.

003 . Also contained in the Certificate of Parole is a statement that the parolee understands and agrees to the conditions of release on parole and understands the possible consequences for violations of these conditions. That statement is as follows:

"I, ____ , an inmate of the Department of Correctional Services, hereby declare that I have carefully read, or heard read, and do clearly understand the contents and conditions of this parole agreement. I accept the conditions and agree to comply with them. I understand that if it is alleged that I have violated a condition or conditions of my parole agreement, I am entitled to a preliminary hearing to determine if probable cause exists. I understand that if probable cause is found, the Board of Parole may order my return to the institution for a hearing, after which parole may be revoked. Revocation of parole could result in my recommitment for the remainder of my maximum prison term and forfeiture of good time which applies to the law under which I was sentenced. Further, I hereby freely waive extradition proceedings and will willingly return to the appropriate correctional facility without the Governor's requisition when such return is ordered by the Board of Parole."

STATUTORY AUTHORITY

83-1,116

83-1,124

History

• Effective 1996-07-29

Chapter 9 Arrest and Detention of an Alleged Violator

Neb. Admin. Code tit. 270, ch. 9 Arrest and Detention of an Alleged Violator {#sec-270-nac-9 omnilex-key=us-ne-regs-official--title-270--270 NAC 9}

001 . Whenever a parole officer has reasonable cause to believe that a parolee has violated or is about to violate a condition of his parole but that he will not attempt to leave the jurisdiction and will not place lives or property in danger, the parole officer shall submit a written report to the Board of Parole which may, on the basis of such report and such further investigation as it may deem appropriate:

001.01. Dismiss the charge of violation.

001.02. Determine whether the parolee violated the conditions of parole.

001.03. Revoke his parole in accordance with the provisions of sections 29-2,401, 29-2,402, 60-4,101, 83-124, 83-151, 83-152, 83-170, to 83-1,135, 83-305.03, 83-415, 83-417, 83-420, 83-465,83-4 72, 83-4 73, 83-4 73.01, and 83-487; or

001.04. Issue a warrant for the arrest of the parolee.

002 . Whenever a parole officer has reasonable cause to believe that a parolee has violated or is about to violate a condition of his parole and that he will attempt to leave the jurisdiction or will place lives or property in danger, the parole officer shall arrest the parolee without a warrant and call on any peace officer to assist him in doing so.

003 . Whenever a parolee is arrested with or without a warrant, he shall be detained in a local jail or other detention facility. Immediately after such arrest and detention, the parole officer shall notify the Board of Parole and submit a written report of the reason for such arrest. A complete investigation shall be made by the parole administration and submitted to the Parole Board. After prompt consideration of such written report, the board shall order the parolee's release from detention or his continued confinement to await a :final decision on the revocation of his parole.

STATUTORY AUTHORITY

83-1,119

History

• Effective 1996-07-29

Chapter 10 Preliminary Hearing for Alleged Violations

Neb. Admin. Code tit. 270, ch. 10 Preliminary Hearing for Alleged Violations {#sec-270-nac-10 omnilex-key=us-ne-regs-official--title-270--270 NAC 10}

001 . The preliminary hearing shall be conducted by an impartial hearing officer not directly involved in the case.

002 . The preliminary hearing shall be conducted at or reasonably near the place of the alleged violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.

003 . It shall be the duty of the hearing officer to conduct hearings in a fair, impartial, and orderly manner, and the hearing officer shall have the authority subject to other provisions of these Rules and Regulations.

003.01. The hearing officer shall rule on all procedural matters, objections, and motions.

003.02. The hearing officer shall rule on offers of proof and admit relevant evidence.

003.03. The hearing officer shall hear testimony and interrogate witnesses called by the parties involved in an impartial manner to develop any facts deemed necessary to fairly and adequately decide the matters at issue.

003.04. The hearing officer shall determine the matter at issue and cause to be published a summary and digest of the hearing.

003.05. The hearing officer shall take any other action necessary and authorized by these Rules and Regulations and the law.

003.06. Upon request before or during a preliminary hearing, the hearing officer may officially recognize:

003.06A. Federal Law - The Constitution of the United States, United States Code, and decisions of the Federal Courts.

003.06B. State Law - The Constitution of the State of Nebraska, Statutes of Nebraska, and decisions of the Nebraska Supreme Court and the District Courts of Nebraska.

004 . Preliminary hearing rules of evidence:

004.01. All relevant evidence shall be admissible.

004.02. The hearing officer shall give consideration to, but shall not be bound to follow, the Nebraska Rules of Evidence.

004.03. When objection is made to the admissibility of evidence, such evidence may be received subject to a later ruling.

004.04. The hearing officer may, subject to his discretion, either with or without objection, exclude inadmissible evidence.

004.05. Parties objecting to the introduction of evidence at the preliminary hearing shall state the precise grounds of such objection at the time such evidence is offered.

005 . Whenever a parole officer has just cause to believe a parolee has violated the conditions of parole, the parole officer shall file a petition with the hearing officer.

005.01. The petition shall request a preliminary hearing.

005.02. The petition shall state the names of the parties involved.

005.03. The petition shall state the facts which the parole officer believes necessitates a preliminary hearing.

006 . The parolee shall be given written notice that a preliminary hearing has been scheduled.

006.01. The notice shall state that the purpose of the hearing is to determine if probable cause exists that the parolee violated the conditions of parole.

006.02. The notice must state the specific alleged violations.

007 . No person may appear in a representative capacity at a preliminary hearing other than the following:

007.01. The parolee acting in his/her own behalf.

007.02. Attorneys-at-law duly qualified to practice before the courts of the State of Nebraska

007.03. Any authorized representative of the State of Nebraska This individual need not be an attorney.

008 . At the preliminary hearing:

008.01. The parolee may appear and speak in his/her own behalf.

008.02. The parolee may bring letters, documents, or individuals who can give relevant information.

008.03. The parolee shall be afforded the opportunity to be confronted by his accusers and to present evidence and testimony on his/her own behalf.

008.04. The parolee may request the availability for questioning in his/her presence persons who have given adverse information on which parole review may be based.

008.05. If the hearing officer determines that the informant would be subjected to risk of harm by the disclosure of identity, the informant need not be subjected to confrontation and cross-examination.

008.06. If it appears to be in the public interest or in the interest of justice, the hearing officer may, at his discretion, or upon notice by the parolee or his/her counsel, continue the hearing and fix a date for the introduction of additional evidence or presentation of an argument.

009 . Following the preliminary hearing:

009.01. Within a reasonable period of time after the preliminary hearing, not to exceed 10 days, the hearing officer shall make a determination whether there is probable cause or not to believe that a violation of parole has occurred.

009.02. Upon finding no probable cause, the hearing officer shall immediately notify the Board of the finding and request the parolee's release from custody.

009.03. A finding of probable cause is sufficient to warrant the parolee's continued detention and return to the Department of Correctional Services pending a Review of Parole and a final decision by the board.

009.04. As soon as possible after the hearing officer has reached a decision, the parole officer shall inform the board of the finding.

AUTHORITY

Morrissey v. Brewer (1972)

History

• Effective 1996-07-29

Chapter 11 Review of Parole Hearing

Neb. Admin. Code tit. 270, ch. 11 Review of Parole Hearing {#sec-270-nac-11 omnilex-key=us-ne-regs-official--title-270--270 NAC 11}

001 . Whenever a parolee is charged with a violation of his parole, he shall be entitled to a prompt hearing on such charge by the Board of Parole, which in no event shall occur more than thirty days after the receipt of the parole officer's written report.

002 . At such hearing, the parolee shall be permitted to be present, to testify, to produce witnesses, to cross-examine adverse witnesses, and to introduce such other evidence as may be pertinent.

003 . The parolee shall be informed of his right to request counsel at such hearing, and if he thereafter makes such request, based on a timely and colorable claim that:

003.01. He has not committed the alleged violation of the conditions upon which he is at liberty, or;

003.02. Even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate and that the reasons are complex or otherwise difficult to develop or present, and upon consideration of whether or not the parolee appears to be capable of speaking effectively for himself, the Board in the exercise of sound discretion may provide counsel unless retained counsel is available to the parolee. In every case when a request for counsel is refused, the grounds for refusal shall be stated in the record.

004 . An alleged parole violator is entitled to a Review of Parole Hearing by the Board of Parole.

005 . The hearing must be tendered within a reasonable amount of time after the parolee is taken into custody, but no later than thirty days after receipt of results of the preliminary hearing.

006 . The hearing on an alleged violation is not an adversary hearing.

006.01. The decision shall be made after weighing mitigating and aggravating factors as to what best benefits society and the parolee.

006.02. The hearing shall be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in adversary criminal trial.

007 . The evidence offered at the hearing is not subject to the Nebraska Rules of Evidence.

008 . The Board shall have the power to issue subpoenas, compel the attendance of witnesses, production of books, papers, and other documents pertinent to the subject of an inquiry and to administer oaths and take the testimony of persons under oath.

009 . Counsel may be provided or secured as follows:

009.01. The parolee shall be informed of the right to request counsel or to secure counsel of his/her own choosing.

009.02. Unless retained counsel is available to the parolee, the Board may appoint counsel if the reasons for the alleged violation are complex and the parolee does not appear to be able to speak effectively for himself/herself.

009.03. In every case where Board appointed counsel is requested by the parolee and the request is refused by the Board, the grounds for refusal shall be stated in the record.

010 . At the hearing, the parolee shall be furnished the following:

010.01. Written notice of the claimed violations.

010.02. Disclosure of the evidence of the alleged violations.

010.03. The opportunity to be heard in person and to present witnesses and documentary evidence.

011 . If the Board finds that the parolee has engaged in criminal conduct, used drug or alcohol, or refused to submit to a drug or alcohol test while on parole, the Board may order revocation of the parolee's parole. If the Board finds that the parolee did violate a condition of parole but is of the opinion that revocation of parole is not appropriate, the Board may order that:

011.01. The parolee receive a reprimand and warning.

011.02. Parole supervision and reporting be intensified.

011.03. Good time granted pursuant to section 83-1,108 be forfeited or withheld.

011.04. The parolee be required to conform to one or more additional conditions of parole which may be imposed in accordance with the Nebraska Treatment and Corrections Act.

012 . A parolee whose parole is revoked shall be recommitted to the department until discharge from the custody of the state becomes mandatory or until reparoled by the Board.

013 . The time from the date of the parolee's declared delinquency until the date of the arrest for the custody of the board shall not be counted as any portion of the time served.

014 . A parolee whose parole has been revoked shall be considered by the Board for reparole at any time in the same manner as any other committed offender eligible for parole, except that no offender whose parole has been revoked as a result of a conviction of a felony committed while on parole shall receive another parole on the original sentence.

015 . Except in the case of a parolee who has left the jurisdiction or his or her place of residence, action revoking a parolee's parole and recommitting the parolee for violation of the conditions of parole must be taken before the expiration of the parole term less good time. A parolee who has left the jurisdiction or his or her place of residence shall be treated as a parole violator and, when apprehended, shall be subject to recommitment or to supervision for the balance of the parole term as of the date of violation.

016 . A person shall be guilty of a felony if, while on parole under the provisions of sections 29-2401, 29-2402, 60-4,101, 83-124, 83-151, 83-152, 83-170 to 83-1,135, 83-305.03, 83-415, 83-417, 83-420, 83-465, 83-472, 83-473, 83-473.01, and 83-487, he violates his parole by leaving the State of Nebraska without the authority of the Board of Parole, and shall, upon conviction thereof, be punished by commitment to the Department of Correctional Services for not more than five years.

017 . A parolee charged with a violation of this section shall be tried in Lancaster County or in the county where the parolee last resided. The state shall pay for expenses incurred in returning the parolee to the county in which the action is to be tried.

018 . If a warrant or detainer is placed against a committed offender by a court, parole agency, or other authority of this or any other jurisdiction, the administrator shall inquire before such offender becomes eligible for parole whether the authority concerned intends to execute or withdraw the warrant or detainer when the offender is released.

019 . If the authority notifies the administrator that it intends to execute the warrant or detainer when the offender is released, the administrator shall advise the authority concerned of the sentence under which the offender is held, the time of parole eligibility, any decision of the board relating to the offender, and the nature of the offender's adjustment during imprisonment and shall give reasonable notice to such authority of the offender's release date.

020 . The board may parole an offender who is eligible for release to a warrant or detainer. If an offender is paroled to such a warrant or detainer, the board may provide, as a condition of release, that if the charge or charges on which the warrant or detainer is based are dismissed, or are satisfied after conviction and sentence, prior to the expiration of the offender's parole term, the authority to whose warrant or detainer the offender is released shall return the offender to serve the remainder of the parole term or such part as the board may determine.

021 . If a person paroled to a warrant or detainer is thereafter sentenced and placed on probation, or released on parole in another jurisdiction, prior to the expiration of the parole term less good time in this state, the board may permit the person to serve the remainder of the parole term or such part as the board may determine concurrently with the person's new probation or parole term. Such concurrent terms may be served in either of the two jurisdictions, and supervision shall be administered in accordance with section 29-2637.

STATUTORY AUTHORITY

83-1,120

83-1, 122 through 83-1, 125

OTHER AUTHORITY

Morrissey v. Brewer (1972)

History

• Effective 1996-07-29