Challenging Juvenile Life Withou

When the Nebraska Legislature convenes for its next regular session in January 2010, one of the legislative bills that will be pending at the first stage of floor debate—General File—is LB 307.

This legislation, introduced by Senator Brenda Council of Omaha and advanced to the full Legislature by the Judiciary Committee on a 7-0 vote, proposes to prospectively eliminate the sentence of life without parole for anyone convicted of a Class I or Class IA felony who was younger than 18 at the time of the crime. The crimes include first-degree murder and felony murder, crimes that now mandate life without parole. Nebraska law allows for youth of any age to be tried as adults and does not prescribe a minimum age for that sentence.

Practically speaking, the sentence of life without-parole is irreversible. The only exception stems from the constitutional authority of the Board of Pardons—the Governor, the Attorney General and the Secretary of State—to commute life sentences to terms of years. Such commutations are quite rare. Because of this, it is not inaccurate to describe life without parole as a sentence of death in prison.

In place of the current sentencing law, LB 307 would mandate that anyone convicted of such a crime who was 16 or 17 at the time of committing the crime would have to be sentenced to a term of imprisonment of 50 years to life. Anyone convicted of these felonies who was 15 or younger at the time of committing the crime would have to be sentenced to a term of 40 years to life.

Pursuant to these explicitly set terms, the inmate would be initially eligible to petition for parole after no less than 25 years and 20 years of imprisonment respectively. Obviously there is a key distinction between eligibility to seek parole and parole in actuality; the possibility of parole after an extensive length of years is not a guarantee.

According to information presented at the public hearing on LB 307, there are 24 Nebraska inmates now imprisoned for life without parole who were 13 to 17 at the time of their crimes. For example, a 13-year-old boy began serving his sentence in 1994; an inmate who is now 53 has been in prison for 37 years. At least two of the 24 are female.

One of the strong public-policy arguments favoring LB 307 is that research surrounding brain development of adolescents confirms a guiding principle, namely, that the distinction between youth and adults is not simply one of age, but also of motivation, impulse control, judgment, culpability and physiological maturation. As the advocacy organization Voice for Children in Nebraska has stated, “Adolescents simply do not have the same capacity to understand long-term consequences as adults.” Their impulsivity, vulnerability to peer pressure and poor judgment are well documented.

The Nebraska Catholic Conference, under the direction of the Diocesan Bishops, presented testimony in support of LB 307 at its public hearing.

From the perspective of Catholic teaching, there is no question that responsibility, accountability and punishment are fundamental to the demands of justice. NCC’s support for LB 307 in no way has any intent or purpose of minimizing the seriousness of crimes or the concern and compassion unquestionably due to victims and their families. In particular, the actions of violent juveniles are shocking and frightening. They must be held accountable for their actions, including removal from society until they are rehabilitated and no longer dangerous.

NCC support for LB 307 stems also from the view that an irreversible sentence of death in prison for juvenile murderers eliminates opportunity, not just opportunity for review by the Parole Board, but much more significantly, all meaningful opportunity for redemption, reform, rehabilitation and reintegration for those who lacked adult development, rationality and judgment when they committed crimes and who have an extraordinary capacity for change.

None of us are the same today as we were at 15 or 16 years of age.

Health Reform Has State-Level Implications

While most of the concern and focus regarding health-care system reforms are understandably focused on the federal level of government, both legislative and administrative branches, the issues have public policy relevance at the state level as well. Both the health-care delivery system and the health-care financing system are subject to and affected by policy decisions made by state policy makers and bureaucrats.

Nebraska, like other states, has to be concerned about the anticipated effect of national health-care-reform initiatives and outcomes. While it’s still too early to know the full scope of what will happen, it’s not too early for anticipation and preparation. With that in mind, before adjourning earlier this year the Nebraska Legislature approved a legislative resolution, LR 158, the stated purpose of which is “to conduct research and provide recommendations for substantive reform of Nebraska’s health care delivery and financing systems to ensure the provision of high-quality, affordable and accessible health care coverage for all Nebraskans.”

That’s a pretty hefty charge. It involves taking account of the situation in Nebraska and identifying and studying policy options that might reduce the number of Nebraskans who are uninsured or underinsured. LR 158 specifically mentions the role of public programs for providing health-care coverage. For example, tax-funded Medicaid, which provides health care coverage for low-income individuals, including children, is jointly sponsored and implemented by the federal and state governments.

Among other issues cited in the text of LR 158 are the high levels of uncompensated care borne by hospitals and “the desirability and feasibility of establishing a state plan for providing access to affordable health insurance coverage.”

To facilitate the tasks outlined by LR 158, the Legislature appointed a select committee generally reflective of funding, insurance and provision of services. The Appropriations Committee has its chairman, Senator Lavon Heidemann and also Senator Jeremy Nordquist on the Select Committee; the Banking, Commerce and Insurance Committee has its chairman, Senator Rich Pahls and also Senator Mike Gloor; the Health and Human Services Committee has its chairman, Senator Tim Gay and also Senator Cathy Campbell. Appointed as at-large members were Senators Kate Sullivan, Galen Hadley and Heath Mello. Senator Gay is the Select Committee’s chairperson.

Perhaps one of the concerns the Select Committee will consider is the idea that more Nebraska families “are being priced out” of coverage. A new report issued in August by an advocacy organization, Families USA, posits that this is the result of a combination of reduced hours, job losses, stagnant wages and rising health care costs.

Based on data from the U.S. Census Bureau and the U.S. Department of Health and Human Services, the new report finds that the average annual premium for job-based, family health-insurance coverage in Nebraska increased from $6,760 to $12,382 over the last decade; that’s a whopping 83.2 percent. During the same period, the median earnings of Nebraska’s workers increased from $21,255 to $27,277; that’s 28.3 percent. In other words, a key finding of this report is that family health insurance premiums increased 2.9 times more quickly than median earnings. This represents greater burdens on family budgets. It represents hardships.

The report offers four “primary factors” for the rapid increase in health insurance premiums: the amount of nationwide expenditures on health care grows each year, driven by increased cost and increased use; the health insurance marketplace lacks adequate oversight; consolidation among insurers has created power nearing that of a monopoly; the growing cost of providing health care for the uninsured is shifted onto those with coverage.

The reasons for health care and insurance reform appear pretty obvious.

And finally…..from a different frame of reference: The sudden and tragic death of former state senator Ron Raikes of Ashland in a farming accident earlier this month shocked Nebraska’s public-policy community, especially those in involved with education. He served for 11 years in the Unicameral, most notably and influentially as chairman of the Education Committee for eight of those years (and also the Revenue Committee, marking a powerful combination).

There weren’t many issues on which Senator Raikes and the Nebraska Catholic Conference held similar positions; replacing the death penalty with imprisonment for life without parole was probably the only substantive one. In particular, his view of non-governmental elementary and secondary education typically seemed to be mere tolerance (even tilting some toward antagonism) based solely on acceptance of family choice, but with broad, adamant opposition to governmental support for that choice. Nevertheless, he was personable and likeable and his intellect and skills as a legislator could only be admired and respected. All legislators make a mark, but relatively few genuinely stand out; Senator Raikes was one of the noteworthy few, as Nebraska history undoubtedly will chronicle.

Resources on Health Care Reform and Economic Life

As pervasive and challenging as the general topic has become, the remarkable level of attention, consternation and public concern being focused on health care reform represents an opportunity to learn more about important factors and principles. There are those that stem from, and relate to hot-button aspects, such as financing, insurance, the scope and quality of the health-care “system” and the role of government.

But also implicated are core principles of social welfare and justice and respect for human dignity.

For Catholics, this is a significant opportunity to learn more, not only about principles implicated in the secular, public debate, but also about principles of the Church’s social teaching. The nation’s Bishops are collectively participating in the public debate and many are doing so individually. They are speaking of and about what the Church teaches in relation to accessibility and affordability of health care, as well as the long tradition and valuable contributions of the Catholic health care ministry.

To help make it easier to find out more about Catholic teaching on health care, as well as the Church’s officials perspective on the current, raging debate, the U. S. Conference of Catholic Bishops has established a special website. Make a point of visiting www.usccb/healthcare. It includes teaching documents, statements and letters that Bishops have sent to members of Congress, facts and statistics about Catholic-sponsored health care as well as health care accessibility and affordability in general, frequently-asked-questions, links to other resources and video presentations.

One of the significant items available on this website is the letter sent July 17 by Bishop William Murphy, chairman of the USCCB’s Committee on Domestic Social Justice and Human Development, to all members of Congress. This has become a focal document insofar as the U.S. Bishops have set forth their position on health care reform. It is not based upon partisan politics or financial special interests, but upon principles of social justice as developed by the teaching and tradition of the Church. It is a necessary and valuable contribution to the public debate.

Bishop Murphy’s letter and other aspects of what’s available on the website explain and emphasize three essential components:

First, because Catholic teaching insists that basic health care is a right and is essential to protect human life and dignity, genuine health care reform that protects human life and advances universal coverage is a moral imperative and urgent national priority. Universal coverage should be truly universal, assuring decent health care for all from conception to natural death.

Second, any efforts to expand abortion funding, mandate abortion coverage or endanger the conscience rights of health care providers and religious institutions must be opposed. Longstanding and widely supported current

policies on these issues must be preserved.

Third, effective measures are necessary to safeguard the health of all of society, by expanding eligibility for public programs, such as Medicaid, to all low-income families and vulnerable people and by offering adequate subsidies for cost-sharing of insurance premiums and out of pocket expenses.

On a broader topic, but clearly with implications for the health care reform debate as well, the U.S. Conference of Catholic Bishops also has a relatively new website that highlights Catholic teaching on economic life. It was launched in May.

This website, www.usccb.org/jphd/economiclife, was developed for the purpose of better sharing Catholic social teaching on economic life and how it can shape responses to the stressful economic times. Among several features is a ten-point “Catholic Framework for Economic Life,” which is downloadable in handout form. It is described as “a message of hope in tough economic times.”

Another important part of this resource is its reference to Pope Benedict XVI’s third encyclical, Caritas in Veritate (Charity in Truth). It describes the encyclical as “a call to see the relationship between human and environmental ecologies and to link charity and truth in the pursuit of justice, the common good and authentic human development. In doing so the Pope points out the responsibilities and limitations of government and the private market, challenges traditional ideologies or the right and left and calls all men and women to think and act anew.”

The website on economic life includes a link to numerous resources for both parish-based and individual study of Caritas in Veritate, including the newest resource, a guide for individual reflections.

And finally…from a much different frame of reference….

No doubt one of the most unique bills passed by the Legislature this year was LB 131. Its intent is set forth in the legislative record: “using global positioning coordinates to clarify the boundary between Polk and Merrick counties.”

Here’s how the bill starts out: “The county of Merrick is bounded as follows: Beginning at the northeast corner of township 16 north, range 3 west; thence west on the dividing line of townships 16 and 17 north, to the boundaries of the Pawnee Indian reservation; thence by the boundaries of said reservation passing by its south side around to the north line of township 16…. It continues on from there, for 31 pages! Best guess on the number of “thences”—in excess of 600.

Legislature’s New Task Force Has Important Assignment

No doubt one of the more important decisions made by the Nebraska Legislature before it adjourned this year was establishing a task force to address issues relating to prison populations and repeat offenders.

The Legislature’s Sentencing and Recidivism Task Force is underway with its tasks, having met for the first time July 15. By virtue of its assignment in accord with Legislative Resolution 171, this task force has 18 months, until January 2011, to review issues generally described by its title and to report its findings and recommendations to the new Legislature that will convene that month. At their first meeting, the seven legislators who constitute the task force chose two of the attorney members, Omaha Senators Pete Pirsch and Brenda Council as chairperson and vice-chairperson respectively. The task force is in good hands, as both of them have criminal law expertise and experience.

At least four factors appear to have influenced the decision to establish a task force and are likely to influence its direction and activities.

First, there was the announcement last April 24 that the aggregate number of individuals incarcerated in Nebraska’s state correctional facilities had exceeded 140 percent of capacity. That particular level of overcrowding, which accounts for slightly less than 4500 inmates in the correctional facilities, triggers mandatory notification of the Governor, who has discretion to declare an emergency in the prison system should he deem it necessary to do so. The numbers are reported to have been fluctuating from slightly below that benchmark to slightly above it.

Second, the Legislature passed a bill this year, LB 63, which is of the “get tougher on crime” characteristic, directed primarily at gang-related crime and violence. Since it includes some provisions for mandatory minimum sentences and for sentences of longer terms of incarceration, its prospective impact warrants scrutiny.

Third, Senator Council’s LB 307, which had a meaningful public hearing and was subsequently advanced to the full Legislature by the Judiciary Committee—it will be at that stage when the Legislature convenes its 2010 session—once again introduced issues involved with sentencing policies that allow for, and in some contexts direct, the incarceration of juveniles for life without parole. To foreclose on all possibility and opportunity for rehabilitation at such young ages clearly deserves attention.

Fourth, there is, of course, the unavoidable question of cost.
It is well-established that incarceration is considerably more costly than community-release programs and other alternatives that often are considered in the context of community corrections. Recidivism, the term used to describe those who leave prison only to commit another crime, or those who violate parole and are thus returned to incarceration, also has an obvious cost impact. What’s more, if overcrowding continues to persist, the judicial branch of government could step in and mandate the construction of at least one new prison facility, the cost of which would have a huge impact on the state budget.
Whatever directions the Legislature’s new Sentencing and Recidivism Task Force decides to pursue, its actions will be noteworthy and, hopefully, a spark for some unique and innovative responses to serious public-policy problems.

Nebraska Ranks 12th
It is a bit surprising, but something far more to be lamented and viewed with alarm than with satisfaction, but a Federal report released earlier this month ranked Nebraska as having the 12th highest percentage of homeless population in the country. That’s according to data from the U.S. Department of Housing and Urban Development.

As reported by the Omaha World Herald, the number of people thought to be homeless in the Cornhusker State in 2008 was 3,985, which tallies at 0.22 percent of the population. Just as significant, the same report found that Nebraska’s total homeless population had increased by 12.9 percent from 2007; this, despite the fact that the overall rate for the nation as a whole held steady from 2007 to 2008.
And finally…

In carrying out our customary post-session analysis of a plethora of legislative bills, we once again came across some rather obscure, but interesting aspects of several bills; little quirks that merit a chuckle perhaps, or a shake of the head. Here’s one:

LB 464 was overwhelmingly passed by the Legislature and approved by the Governor. It establishes a new mandate that all students advancing to or otherwise entering the seventh grade must have a booster shot for tetanus, diphtheria and pertussis. As with the current requirements for immunizations, the new law provides for parental waiver on the basis of medical reasons or religious convictions.

As a matter of protecting the health of children, the case for this legislation is presumably quite strong, but here’s an interesting quirk: one of only three witnesses who testified in support of the bill at its public hearing in front of the Legislature’s Health and Human Services Committee was a lobbyist for a pharmaceutical company.

“Ca-ching,” “Ca-ching.” Is that the sound of cash registers in the background?

Dilemma Exists for Convictions of Conscience

In this age and culture, ensuring respect for religious and/or moral convictions in a public-policy context is a significant challenge. The stakes are higher and the repercussions greater when the regulatory authority of government is involved.

There is an ongoing example of this. For more than a year, the Nebraska Catholic Conference has been involved in a public-policy process seeking to ensure respect for religious and/or moral convictions of conscience in a relatively narrow context.

The matter began May 30, 2008 when the State Board of Mental Health Practice, which operates in conjunction with the Nebraska Department of Health and Human Services for issuing and governing professional licenses for mental health practice and the associated certifications for marriage and family therapists, professional counselors, and social workers, released proposed changes to regulations under its jurisdiction and scheduled a public hearing on them.

Due to the subject matter, and in light of the fact that the Archdiocese of Omaha and the Diocese of Lincoln operate ministries that provide certain types of counseling services, for which state-licensed and regulated mental-health practitioners are employed, staff of the Catholic Conference reviewed the proposed regulations. One of the aspects identified was a proposed new paragraph explicitly making discrimination an act of unprofessional conduct, for which sanctions (e.g., license suspension or revocation) can be imposed. Discrimination was delineated as follows: “Credential holders must provide professional assistance to patients/clients without discrimination on the basis of race, age, ethnicity, socioeconomic status, disability, gender, health status, religion, national origin, or sexual orientation.”

This proposed regulation was brought to the attention of the executive directors of Catholic Charities of the Archdiocese of Omaha and Catholic Social Services of the Diocese of Lincoln. After considerable discussion, they mutually identified a potentially serious conflict of this provision with their mental-health services and even more directly for the licensed professionals they employ for such purposes. Their assessment was that this provision could produce conflict with teachings of the Church by ultimately dictating the scope and type of services that must be provided.

This concern was presented in testimony at the public hearing, in part as follows:
“By expressing this concern, by no means are we condoning unjust discrimination of any kind. No person is denied access to the mental health services sponsored and provided by our agencies. But the issue of concern is more complicated than this.

“Because the term “without discrimination” is subject to interpretation and because the scope of what actions or conduct might be deemed to constitute discrimination is not clear, there is a potential for conflict and unjust discipline.

“Will this dictate a policy having only to do with an individual’s access to services that are provided, as determined by the credential holder and—at least in our context—in conjunction with the employing agency; or will it dictate the range and type of services that must be provided in order not to be in violation of the standard and subject to disciplinary action? What if, in the course of counseling or therapeutic treatment, requests are made for services or responses that contravene the religious and/or moral convictions of the credential holder and the employing agency?”

The crucial point is that there can be certain types of services that credential holders employed by Catholic agencies—and of course the same applies for others holding similar religious and/or moral convictions—cannot facilitate because doing so would contravene the fundamental moral teachings of the Church. The obvious dilemma—the relative narrowness of the context notwithstanding—is that declining to provide or refer for certain services, in accord with convictions of conscience, places a licensee at risk of being disciplined for unprofessional conduct.

Examples of such services could be counseling, or making a referral for counseling, to justify, affirm or facilitate a pregnant woman’s desire to procure an abortion; or counseling, or making a referral for counseling, to validate, endorse, enhance or strengthen a homosexual relationship. Absent accommodation for convictions of conscience, credential holders declining to provide or refer for such services presumably would be at risk of administrative punishment for unprofessional conduct on grounds of discrimination, or perhaps failure to conform to standards of prevailing practice.

As part of its testimony, the Nebraska Catholic Conference submitted proposed wording for an amendment to respect and protect religious and/or moral convictions of conscience. Initially the Board of Mental Health Practice rejected that request. Nevertheless, discussion with members of the Board continued, leading to revised wording for conscience protection; more on that development in a future column, as well as a report on how this same concern also has been identified in the regulations governing the licensing of psychologists.

Death Penalty Appeals Already Underway

Within just five days—only three if you don’t count Saturday and Sunday—the first legal appeal of Nebraska’s newly enacted death-penalty legislation was filed with the state Supreme Court. Most likely this is the beginning of a long, expensive process that may or may not eventually result in execution of one or more of those tried and convicted of aggravated first-degree murder. This matter is one of years, not months.

The Legislature passed LB 36 on May 28, the next-to-last day of its 2009 regular session. The vote was 34-12 with two absences and one abstention. The Governor approved the legislation in a signing ceremony the next day.

This lawmaking breathes new life into Nebraska’s death penalty by establishing lethal injection as the method of execution. It is the legislative response to the Nebraska Supreme Court’s ruling in February 2008 that electrocution, the prior, sole prescribed method of execution, is cruel and unusual punishment and therefore unconstitutional.

On June 2, a motion was filed petitioning the Nebraska Supreme Court to change the sentence of Raymond Mata, Jr. to life imprisonment without parole. Mata is one of 11 on Nebraska’s death row, having been tried and convicted of first-degree murder with aggravating factors for the heinous murder of a three-year-old boy in Scottsbluff.

At the time of Mata’s conviction, as well as the time of the crime, March 13, 1999, the law prescribed electrocution as the method of execution. It was an appeal by Mata that resulted in the Supreme Court’s ruling that method to be unconstitutional.

Pursuant to LB 36, the Director of Correctional Services is mandated to “create, modify, and maintain a written execution protocol describing the process and procedures by which an execution will be carried out…The director shall (a) select the substance or substances to be employed in an execution by lethal injection, (b) create a documented process for obtaining the necessary substances, (c) designate an execution team composed of one or more executioners and any other personnel deemed necessary to effectively and securely conduct an execution, (d) describe the respective responsibilities of each member of the execution team, (e) describe the training required of each member of the execution team, and (f) perform or authorize any other details deemed necessary and appropriate by the director.”

Part of Mata’s challenge to the new legislation is that it unconstitutionally delegates authority from the legislative branch of government to the executive branch, in violation of the separation of powers required by the state constitution. Other aspects claim the legislation lacks adequate specificity.

It’s unlikely that this will be Mata’s only appeal given the post-sentencing switch in method of execution. And each of the other 10 death-row inmates likely has new appeals in the offing as well. Even the Attorney General, via comments attributed to him in the press, has acknowledged it will be at least two years before an execution could be carried out. The outlook is for extensive time, expense, angst and frustration, a “roller coaster” of events and emotions, especially for victims’ families.

From the perspective of the Nebraska Catholic Conference, the relevant question in the light of Church teaching remains the same: is the death penalty absolutely necessary to fulfill the state’s duty regarding effective punishment and protection of the citizenry? The compelling answer is “no;” the death penalty is not absolutely necessary, not in this modern, technologically sophisticated age. Moreover, life imprisonment without parole is more consistent with the inherent dignity of human life.

It is important to acknowledge the legislators who voted against passage of LB 36. They were Colby Coash, Tanya Cook, Brenda Council, Cap Dierks, Annette Dubas, Gwen Howard, State Lathrop, Amanda McGill, Heath Mello, Danielle Nantkes, Jeremy Nordquist and Norm Wallman. During earlier consideration, the following legislators voted to amend LB 36 so as to repeal the death penalty and replace it with mandatory imprisonment for life without parole: Brad Ashford, Bill Avery, Coash, Cook, Council, Dierks, Ken Haar, Lathrop, McGill, Kent Rogert, Nantkes and Nordquist.

In his first “Capitol Update” after the conclusion of the 2009 regular session, the Speaker of the Legislature, Senator Mike Flood of Norfolk, summarized the work of the legislators, noting that the body’s focus is on “the tough issues.”

As well as giving some numbers—236 bills were passed this year—the Speaker also listed several notable accomplishments: “a sound budget”; placing the State’s retirement programs on “solid footing”; addressing behavioral health services for adolescents in the aftermath of “safe haven”; providing oversight and prioritized appropriations for the developmentally disabled; addressing gang and illegal weapons activity through anti-crime legislation; ensuring that public benefits are not utilized by illegal immigrants; adjusting the formula that allocates state aid for public schools to fit financial resources; advancing wind-power utilization; not imposing any tax increases.

Noticeably and curiously missing from the list is establishing lethal injection as the new method for carrying out the death penalty, especially so given the fact that Senator Flood introduced and prioritized the bill.

Unique Conclusion and Holding Steady

At least two unique aspects will be historically recorded about the now-concluded first session of the 101st Nebraska Legislature. First, it ended—on May 29—after only 87 of the 90 legislative days allowed ordinarily by the state constitution. Second, it enacted a two-year, mainline budget with no substantive changes to what its Appropriations Committee recommended and with not a single line-item veto by the Governor.

Much of the comment about the early adjournment sine die has focused on the fact that for the first time in almost four decades it was a session without Senator Ernie Chambers; his departure the result of term limits. He fought legislation he didn’t like, carried on about matters that angered him and used time to carve up flawed bills.

In the absence of such a dominating presence, one might have predicted an early finish, but a budget without substantive amendments or vetoes? No one saw that coming. Credit the Appropriations Committee for hard work, but don’t discount the realities of the fiscal situation: faltering economy, scary forecasts, lagging revenue receipts, availability of federal stimulus funding. The legislators reacted to the situation.

Analysis and commentary on 2009 legislation will be presented in future columns. For now, there is a need to follow-up on a previous column, which addressed Nebraska’s response to the needs of persons with developmental disabilities; more specifically, the serious, distressing problems involving the Beatrice State Developmental Center.

Another part of this general area of concern is “the waiting list” issue.”

Nebraska’s Developmental Disability Services Act directs that “All persons with developmental disabilities shall receive services and assistance which present opportunities to increase their independence, productivity and integration into the community.” Nebraska statute 83-1,202.01 specifically provides: “It is the intent of the legislature that the state pursue full funding of community-based developmental disability programs in a reasonable time frame and that the legislature commit itself and the state to attaining a goal of providing services to all eligible persons by July 1, 2010.”

That directive and legislative intent notwithstanding, there is a lengthy list of Nebraskans with developmental disabilities waiting to receive necessary community-based day or vocational services, residential services, and/or respite services. The numbers are high, considerably higher than the 185 or so residents of BSDC. As of last November, 2,597 requests for one or more of the services were unfulfilled past their stated date of need. Nearly 2000 persons are involved. As of the end of 2008, individuals on the waiting list were last offered services in 2006.

Aside from the waiting list, more than 4500 Nebraskans receive such services.

Since 2006, two groups have regularly been provided with services: persons with an emergency need (designated as priority one status) and, for day services and service coordination only, high school graduates or those who have turned 21. Given an attrition rate of approximately 200 per year, and accounting for the level of funding provided for these services, the net result is that the number of persons receiving services remains approximately the same while the waiting list grows at a rate of 200 requests per year.

The Legislature’s own special investigative committee on developmental disabilities had a lot of strong things to say about the problems at BSDC, making that its first priority. But the committee also urged that “the State must attend to the needs of those who find themselves on the perpetual waiting list.”

Unless one has experienced these circumstances first hand, it is hardly possible to understand the level of frustration and anxiety being felt by parents and guardians of adults with developmental disabilities, especially as they contemplate the future.

The special committee’s recommendation on this aspect calls for providing services for all individuals on the waiting list over the course of four years, culminating with no eligible person ever having to wait longer than 12 months.

Near the end of its 2007 session, the Legislature adopted Resolution 156, which appointed a workgroup to develop a strategic plan to incrementally reduce the number of persons on the waiting list. The workgroup recommended increased funding and systemic changes, including redirecting demand into more economical service delivery alternatives and improving the rate methodology.

The workgroup projected that the number of requests (for services) extending beyond the need date would grow to 3,465 through 2010. Also, that it would take more than $62.5 million from state and federal sources to fully fund the waiting list.

While most attention is focused on spending what it takes to get BSDC re-certified and improved, the newly adopted state budget also addresses the waiting-list issue in a modest way. It appropriates an additional $15.7 million of state General Funds for this component of the overall problem. The rationale is to do enough to hold steady, so that the waiting list does not grow worse.

Given the totality of the circumstances, that’s probably a reasonable goal. But merely holding steady is not going to make the issue go away. There’s too much at stake in terms of supporting the human dignity of these vulnerable Nebraskans.

Revising State Aid Saves the Budget

Over the course of three weeks or so, the Nebraska Legislature engaged in more than 20 hours of floor debate on a legislative bill that deals in a substantive, significant way with distributing state financial aid to public school districts.

It isn’t like this subject hasn’t captured time and attention in past legislative sessions, because it has, on an annual basis to one extent or another. Nonetheless, this year’s principal legislation, LB 545, had a high level of importance due to its prominent role in the new state budget established by the Legislature.

LB 545 was passed May 13 by a vote of 46-1. That’s a slam-dunk outcome even though the bill had a rough-and-tumble ride on General File, the first stage of floor debate. Opponents of a proposed amendment from the Education Committee carried on a bit of a filibuster; enough so that after nearly 15 hours of debate, the floor leader on the bill, Senator Greg Adams of York, who’s chairman of the committee, tried to invoke cloture. His motion needed 33 votes to prevail. It received just 30.

The failed cloture vote could have spelled doom for LB 545. Instead, in deference to the bill’s value in the bigger picture, it prompted more negotiation away from the floor and eventually enough compromise to cause the bill to be returned to the agenda and then rather routinely advanced to the second round of floor debate. More debate followed at that stage, with some strong reaction at first from a few senators representing school districts that went from being “winners” initially to the other side of the scales, but the new challenge soon fizzled and the bill sailed on home.

State financing for public elementary and secondary education is monetarily the largest component of the state budget. For the current fiscal year, which will end June 30, the state expenditure is not quite $840 million. Under the pre-LB-545 formula, the number was to grow by $295 million for the upcoming biennium. That was a budget buster, especially when revenue receipts are lagging to an alarming extent and the most recent economic forecasts are highly troublesome, if not downright scary.

The foremost purpose of LB 545, in the view of most legislators, was to revise the state-aid formula and thereby reduce the level of growth; in other words, to decrease the amount of the increase.

The rather unique outcome is an increase of only $234 million, because that amount closely matches up with what Nebraska is expecting to receive from the Federal stimulus for discretionary spending on public K-12 education. So, the result is an increase of about 10 percent for FY 2009-10, followed by another increase of about eight percent for FY 2010-11, using Federal funds and no additional state expenditures.

Is this a great system, or what? Challenging conditions require unique responses.

The impact that this approach might engender in the third year out, FY 2011-12, is already being referred to as the “cliff effect,” apparently referring to the idea of facing a cliff, or perhaps falling off a cliff, when the federal stimulus has expired and the state faces having to replace it.

From our perspective, the hero of the floor debate on LB 545 was Senator Arnie Stuthman of Platte Center. While the state-aid formula is essentially a public school phenomenon, the level of spending, which combines state and local taxes, affects all taxpayers. To his credit, Senator Stuthman dared to point out the impact that private-sector schools and their patrons have on the overall system, particularly in terms of costs savings. The numbers are incredibly significant.

There are approximately 38,500 Nebraska youngsters enrolled in these schools, nearly all of which are religiously affiliated, the majority being Catholic schools. Using a modest figure of $7500 for average per-pupil cost for public schools statewide, the result of the existence of private-sector schools accounts for a cost savings, i.e., a tax savings, of nearly $289 million per year. If one were to use separate per-pupil cost averages for elementary and secondary levels, the number would be even significantly higher.

Senator Stuthman pointed out how much more serious the fiscal dilemma would be if private-sector schools did not exist, and if a significant number of families did not enroll their children in these schools. Good for him! His point was relevant and quite on the mark. There is neither doubt nor question that families whose children attend other-than-public schools are among the best friends that taxpayers have.

Lamentably, in the debate over education financing, most legislators seem to prefer to ignore, or take for granted, the role of private-sector schools and the families who pay twice for education, both taxes and tuition. Moreover, not providing even a modest measure of either tax relief or enabling assistance for these families is a short-sighted view. Encouraging educational choice—such as this year’s LB 67, which proposes modest tax credits for individuals and businesses that contribute to private-school scholarship programs—constitutes an investment in an overall educational system that is sustainable.

For more information about LB 67, contact the Nebraska Catholic Conference: www.nebcathcong.org/education

Taxpayers Will Bear High Costs of Capital Punishment

As the Nebraska Legislature moves into the final month of its regular session for 2009, the issue of capital punishment is likely to have a prominent place in the proceedings at the State Capitol. The 49 citizen legislators will be deciding whether or not to re-establish the State’s ability to take the ultimate revenge, to kill some convicted killers, presumably in the name of justice and the common good.

The death penalty in Nebraska is now like an old, flat tire; it’s deflated. The Governor, the Attorney General and the Speaker of the Legislature are among those who want legislators to “fix” it, to re-inflate it, making it viable once again. But before it could be used, there undoubtedly would be highly costly and frustratingly lengthy processes through which judges would decide if it can hold the new “air” pumped into it.

LB 36, introduced and prioritized by the Speaker, Senator Mike Flood of Norfolk, and sent to the full Legislature by six of the eight members of the Judiciary Committee, proposes to give the death penalty new life by establishing lethal injection as the method of execution. Current law authorizes the death penalty, but there is no method for carrying it out, because the state Supreme Court ruled that death by electrocution, the sole method now prescribed in statute, violates the constitutional ban on cruel and unusual punishment. De facto, Nebraska has no death penalty. LB 36 would change that.

The Nebraska Catholic Conference, under the direction of the Diocesan Bishops, is opposed to LB 36 and urging that this legislation not be enacted. The Conference’s position is grounded in the Catholic Catechism, which acknowledges that public authority, for purposes of safeguarding the common good, “has the right and the duty to inflict punishment proportionate to the gravity of the offense.”

“Assuming that the guilty party’s identity and responsibility have been fully determined” (which has been problematic in too many convictions), “the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.”

“If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person.”

As a result of the inspirational teaching of Pope John Paul II on life and human dignity—carried on as well by the current Holy Father—a test has been established for determining if the death penalty is legitimate. That test is “absolute necessity.” It is set forth in the Catechism: “Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm…the cases in which the execution of the offender is an absolute necessity ‘are very rare, it not practically non-existent.’”

The Catechism acquires these last few words from Pope John Paul II’s marvelous encyclical, Evangelium Vitae. The Pope was considering the matter on a global basis, so application to the narrower context of the United States must be even more pronounced.

The conclusion of the Catholic Bishops in this state is that in this modern, technologically sophisticated age and culture, the death penalty unquestionably fails the test of absolute necessity. On that basis, the death penalty cannot be morally justified.

Irrespective of any moral analysis or religiously-based rationale, there also are practical reasons why Nebraska legislators should reject giving new life to the death penalty. One of these practical reasons involves problems inherent with lethal injection, sometimes referred to, ironically if not inappropriately, as “medical” problems. Nonetheless, the foremost of these practical reasons is economic cost.

Many Nebraskans and many of the legislators who represent them, conscientiously and consistently express concerns about the costs of government, the levels of governmental expenditures and the economic burdens imposed thereby upon taxpayers. These concerns are always relevant and especially prevalent during times, such as now, when the economy is stagnant and facing an uncertain future.

With 11 convicted murderers now on death row, 10 of whom were sent there prior to the ruling that the electric chair is unconstitutional, adopting a new method of execution is certain to create a whole new realm of legal appeals, which could last years if not decades, and the public costs of which will be enormous, considerably more than the costs of incarcerating these convicted murderers for the rest of their lives.

These extensive costs will be paid by the state’s taxpayers. Committing taxpayers to these payments might even be viewed as fiscal irresponsibility on the part of those who make such decisions. But an even more important point is that the state’s financial resources should be used for more appropriate and pressing needs of the common good, including improvements in criminal justice and corrections systems and more effective assistance for crime victims and their families.

State Faces Challenges on Care for Developmentally Disabled

By no means is Nebraska state government lacking challenges as 2009 continues to unfold; not with the repercussions of an unstable national economy; not with deteriorating fiscal forecasts causing state budget angst; and not with the aftermath of the “safe haven” notoriety still needing a comprehensive response. The weight of these notwithstanding, it’s hard to conclude that any policy challenge is now greater than what the Lincoln Journal Star editorially described as the “tragically dysfunctional system” for caring for Nebraskans with developmental disabilities.

Most of the more recent and ongoing publicity directed toward this dysfunction and tragedy focuses on the Beatrice State Developmental Center. The facts and circumstances surrounding this state-run institution are unquestionably alarming, leading legislators, editorialists, family members, advocates and concerned citizens to ask probing questions, call for accountability and strive for solutions.

A well-prepared report by a special investigative committee of the State Legislature enables a basic understanding of the nature and scope of these matters. The report is accessible through the Legislature’s website: www.nebraskalegislature.gov. Some of the basic information is as follows:

The term “developmental disability” denotes a disability that occurred during the first 22 years of life—the majority occur around birth—and is often used in practice to describe the intellectually impaired, whose disabilities range from very mild to profound. The term is also broad enough to include those who are “health impaired,” commonly individuals with significant orthopedic limitations. Frequently, the developmentally disabled carry a dual diagnosis, involving cognitive impairments coupled with other health issues that limit an individual’s ability to ambulate, see, hear, or speak.

The Beatrice State Developmental Center (BSDC) is Nebraska’s only state-run institution for persons with developmental disabilities. It is classified as an Intermediate Care Facility for the Mentally Retarded (ICF/MR), indicating that it provides the most comprehensive level of care. It is a residential facility, which had 250 residents as of the mid-December date of the legislative committee’s report. Now it’s closer to 185.

At the time of the report, 59 percent of BSDC’s residents had profound disabilities and an additional 12 percent had severe disabilities. Thirty-nine per cent had uncontrolled or difficult-to-control seizure disorders. Fifty-two percent required a wheel chair for mobility. Persons with severe and persistent mental illness in addition to their developmental disabilities represented 66 percent of the BSDC population.

Two separate federal investigations exposed problems and prompted much of the relatively recent attention and negative publicity.

Following an assessment in 2007, the Centers for Medicare and Medicaid Services (CMS) determined that BSDC was so far out of compliance with standards of care for such a setting that it had to be decertified, resulting in a loss of federal funding, as much as $28.5 million per year. The state has appealed. An appellate ruling is expected no earlier than June upcoming, but a reversal is not expected.

Pursuant to the Civil Rights of Institutionalized Persons Act, the U.S. Department of Justice conducted an on-site investigation, which resulted in a report even more alarming and condemning of BSDC operations. It concluded that “numerous conditions and practices…violate the constitutional and federal statutory rights of its residents.” It described allegations that “BSDC residents are subjected to abuse and neglect and suffer a high number of incidents that result in injuries or other poor outcomes,” suggesting a “culture undercurrent that betrays human decency at the most fundamental levels.”

If these federal actions and the follow-up critical report by the Legislature’s special committee were not enough evidence of an extremely serious matter, events earlier this year pushed the level of concern even higher. In February, four BSDC residents died, three of whom had been classified as “medically fragile.” On the stated basis that BSDC could not respond adequately to such residents, the state’s Chief Medical Officer cancelled the relevant health-care license and ordered relocation of 47 similarly classified residents to hospital settings. Subsequently, two of these died as well.

Under the resolute leadership of Senator Steve Lathrop, who chairs the special investigative committee, the Legislature is going to address not only BSDC, but the needs of the developmentally disabled and their families on a broader scale as well. It won’t be easy. Issues of funding will be dominant and burdensome. The state faces four years of remedial-measure obligations under a summary agreement with DOJ. On the other front, replacing federal funds lost by CMS de-certification, while also funding the steps necessary to achieve re-certification, will be costly.

Costs notwithstanding, there is a moral imperative for the legislative and administrative branches of state government to respond thoroughly and responsibly on these issues. These highly vulnerable Nebraskans deserve no less. They are created in the image and likeness of God and have an inherent human dignity to be upheld.

In a future column, we’ll review the special committee’s recommendations and issues involving “the waiting list.”

When Spending a Billion Isn’t Simple

The 101st Nebraska Legislature is 10 days into the second half its current session of 90 legislative days. The first half was relatively conflict-free and not particularly inspiring. Probably the most excitement was a little squabble over an ambush that took place on legislation designed to bail out the Federal government on enforcing immigration policy.

The pace and substance are sure to increase as the days dwindle during the homeward half of this journey, especially since the public-hearing schedule has ended and all-day floor sessions have started.

Since this is an odd-numbered year and the first session of a new Legislature, the foremost responsibility for legislators is to develop and enact a state budget for the next fiscal biennium, which begins July 1. It’s a painstaking process under typical circumstances, especially for members of the Appropriations Committee, but this year there’s a new twist posing a challenge: how to deal with ARRA.

You know ARRA, the American Recovery and Reinvestment Act of 2009, better known as the (economic) stimulus package. Congress passed it and the President signed it into law on February 17. It is intended to stimulate the faltering economy by distributing federal funds, nearly $787 b…b…billion, more than $300 b...b...billion of which is distributable for state-related programs.

Nebraska is in line to be stimulated to the tune of around $1.15 billion. A lot of that is generally designated by provisions in ARRA. Among the largest categories are these: as much as $300 million or more for medical assistance for low-income citizens, primarily through an enhanced federal match rate for Medicaid; nearly $400 million for education; and roughly $216 million for infrastructure: highways and bridges.

There’s also funding designated for a state fiscal stabilization fund, SFSF. Its purpose is to help minimize state and local budget shortfalls, thereby enabling these governmental units to avoid drastic spending cuts and job layoffs. This is the component that involves the highest level of state discretion.
So how will Nebraska spend more than a billion dollars? The question is so important and compelling that both the Legislature and the Governor have started websites to inform Nebraskans about the process, the options and the decisions. In addition, LB 680 was introduced by the Speaker as a vehicle for moving decisions through the legislative process. This “shell bill” had a public hearing on March 26; there was no shortage of testifiers with ideas about how to use the funds.

Pursuant to the State Constitution, the authority to appropriate funds that flow into the state treasury is vested in the Legislature, which is guided by its nine-member Appropriations Committee. But the Governor has line-item veto power, so the executive branch has an influence on the decision-making. Some tension between the two is inevitable and understandable, and not a bad thing when reasonable.

Developing the state’s spending plan is a complex process. The budget has to be balanced between revenue and spending and taking into account a cash-reserve requirement. Federal stimulus money will be nice, and on balance more welcomed than not, but as a one-shot deal, it will have to be meshed with a budget that serves not only the immediate upcoming fiscal years, but also has regard for future spending.

Also at play is legitimate concern about an impending, significant drop in state revenue. The Economic Forecasting Board has issued a warning and lowered expectations. Anticipated revenue probably won’t materialize to support previously made budget decisions. The cash reserve is a cushion, but it has to be handled cautiously.

No doubt the biggest challenge facing the Legislature is how to use the stimulus funds, to the extent there is discretion, in prudent ways that won’t establish burdensome, unsustainable fiscal obligations in the future.

There are other complexities as well. For example, a share of the stimulus funding bypasses the state treasury and goes directly to local units of government. Also, much of the ARRA funding is governed not only by provisions of the Act itself, but also by often-imprecise provisions of existing federal programs.

It may be easy to spend a billion dollars, but it’s not simple.

Even though its session is now more than half completed in terms of days, this Legislature has a lot to do before it adjourns in early June. Budget decisions are just part of what’s remaining on the worksheet; although nothing else has the urgency or necessity of the budget. For example, if legislators don’t have time to consider changing capital punishment to lethal injection, that won’t be a lamentable result.

Oops, almost forgot; the websites for learning more about AARA and Nebraska’s economic stimulus process are as follows: for the Legislature, it’s www.nebraskalegislature.gov/stimulus (be sure to check the frequently-asked-questions section); for the Governor, it’s www.Recovery.Nebraska.gov.

Unicameral Responds to Safe Haven Turmoil

With all that happened last fall regarding Nebraska’s safe haven law, it is appropriate, and certainly no surprise, that the Legislature is addressing lessons learned during that dramatic, publicity-filled period. To their credit, several legislators, including Annette Dubas of Fullerton, Brad Ashford and Tom White of Omaha, Amanda McGill of Lincoln and Tim Gay of Papillion, are making sure there are public-policy responses.

After initially failing to pin down immunity from prosecution to those who would leave newborns at safe-haven hospitals, the state and its lawmakers were struck by a series of events in which highly stressed parents (or guardians) of older children and teenagers took advantage of the law to seek relief from severe behavioral issues. The number of times this happened in a short period prompted a special legislative session last November. Emergency legislation was enacted to establish a 30-day age limit.

The newly amended law took effect November 21. During the 70 days leading up to that date, under the original law, 36 children were left at safe havens. That number included six 17-year-olds and six 15-year-olds. All but 12 of the 36 were older than 11 years of age. Seven were not-residents of Nebraska. Once the first such incident occurred and drew attention, then subsequent occurrences happened quickly and frequently, drawing even more attention, including national media attention, to what was unquestionably the most unique and open-ended safe-haven law in the nation.

The turmoil and attention were discomforting and alarming for many Nebraskans, including public officials. The concern was not so much due to the high level of publicity as to the clear revelation—and for some, confirmation—of serious problems and needs affecting children and families experiencing mental illness, emotional disorders and other behavioral health problems. While 29 safe-havened children epitomized Nebraska’s problems, it is estimated that several thousand are afflicted with behavioral illness.

The special session restored the safe-haven law to its real intent, but also set the stage for an expanded public-policy response. The current session is the first since these behavioral health issues relating to children and teenagers took on a new sense of urgency. A package of five legislative bills has been identified for this purpose. All five bills have been prioritized; two already have had early floor debate. Here’s a summary:

LB 346, which was introduced by Senator Gay at the request of Governor Heineman, proposes a three-part program. At its core is a statewide, 24-hour, seven-days-per-week telephone hotline for children and family support. Staffed by trained personnel, under supervision of licensed mental health practitioners, it would be a single point of access for behavioral health triage and referrals to community-based services.

The other components of LB 346 would be a family-based, peer-support program, known as “Family Navigators” and a voluntary program of case-management for post-adoption and post-guardianship situations involving former state wards. Importantly, the legislation also calls for an annual evaluation and report on these responses.

After being advanced to the full Legislature by the Health and Human Services Committee, LB 346 had its first round of floor debate and advanced without opposition to Select File, where it awaits the second round.

Senators Dubas, Ashford, White and McGill all voted to advance LB 346, but they also emphasized the fact that it is only part of what’s necessary. Enhanced access won’t do much more than increase waiting lists if services aren’t available. Adequate funding to provide an expanded level of services is also a necessary response.

Senator Dubas introduced LB 356 as a fairly comprehensive measure. As advanced by the Judiciary Committee and so amended during first-round debate, the bill has been pared to an infusion of an additional $15 million for both FY-2010 and FY-2011 for the state’s six behavioral health regions. Such funding would support a greater level of behavioral health services for children who are not state wards. This is an extremely significant aspect, because for some families, their last recourse in order to access services is surrendering custody of their children to the state.

The other three bills in the package all await first-round debate.

LB 136 proposes to expand eligibility for the Kids Connection health-insurance program to minors in families with incomes up to 200 percent of the federal poverty level. The eligibility cutoff is now 185 percent. This program leverages federal funding.

LB 601 proposes that the state seek greater utilization of federal Medicaid funding for community-based mental health services.

LB 603 seeks to address the state’s shortage of behavioral health professionals and to expand outreach, particularly in rural areas. Among several aspects, it would provide funds for two additional psychiatry residents per year in a Nebraska program.

Obviously, the impact of the package as a matter of state budget consequences will influence the ultimate results. There is economic uncertainty and plenty of spending angst. Can the state afford to do all this at meaningful levels? For the sake of young Nebraskans and the startling revelations from the safe haven turmoil, can the state truly afford not to?

How Far Will Immigration Legislation Go?

With less than two-thirds of its 90 working days still ahead, the Nebraska Legislature has started to address legislation given priority status.

The Judiciary Committee got a jump on the process by advancing LB 403 to the full Legislature and quickly selecting it as its first priority bill. Floor debate started last week; a narrowing amendment recommended by the committee was adopted and the bill was advanced to the second stage by an overwhelming, 45-2 vote.

The subject matter is immigration, more specifically the perceived need, sense of urgency and political mandate to help out the federal government by exhibiting toughness on illegal immigration. This is sort of a bail out of another kind.

From the early days of the nation’s history, immigration has been a federal jurisdiction, to keep from having a patchwork of state and local initiatives and enforcement causes. That’s still the idea, but federal policy is outmoded and incredibly ineffective, suffering a serious disconnect between policy and economic and social realities. What’s more, federal policy makers show little or no urgency or resolve for getting it fixed, especially now that other economic issues dominate the agenda.

The lack of response frustrates many citizens. There is a clamor for action. By no means is Nebraska the only state in which elected officials are feeling this clamor.

The Judiciary Committee’s proposed response is actually a three-bill combination, assembled in the committee amendment. It includes the essence of the original LB 403, which becomes the carrier; the essence of LB 34, which is a product of work started by the committee in 2008; and the essence of LB 335, which started in the Revenue Committee, but has a fit in the package.

The purpose of the original LB 403 is to make sure that no one whose presence in the U. S. is not lawful receives public benefits. There are exceptions for health-related emergencies and public health needs, for life or safety-threatening conditions, and for purposes otherwise required by law, such as education for all children. Also, the bill does not seek to repeal the previously legislated eligibility that undocumented young people, who are long-time Nebraska residents and graduates of Nebraska high schools, have to pay in-state, resident tuition rates for the University of Nebraska and state colleges. An amendment to repeal that eligibility was introduced and debated, but withdrawn.

The mechanism for ensuring that public benefits aren’t provided to unauthorized immigrants is verification of lawful presence in the U.S., using the Systematic Alien Verification for Entitlements Program operated by the Department of Homeland Security.

Most public benefits, particularly those with federal components, e.g. food stamps, ADC, Medicaid, are already subject to verification, but apparently the thinking is that the state must tightly control the entire universe of public benefits.

The essence of LB 34 retained in the Judiciary Committee’s amendment is a scaled-back version of mandatory E-verify, the federal program for electronic verification of work eligibility. Essentially, it’s a massive data base of social security numbers.

As introduced, LB 34 proposed to mandate that just about every employer in Nebraska use E-verify to confirm the work eligibility of every newly hired employee. Wisely, the Judiciary Committee decided to reduce the mandate so that it would only apply to state agencies and political subdivisions (e.g., cities, counties, school districts) and to every private employer that contracts with a public employer.

The Judiciary Committee’s strategy regarding E-verify appears to be an attempt to thread the needle of federal preemption. Employment in relation to immigration is controlled by federal policy, meaning that the states are preempted. But there is a narrow exception for business licensing and public contracting, so that’s what the committee seeks to address.

The essence of LB 335 transferred into the LB 403 committee amendment would explicitly require that recipients of tax relief pursuant to the state’s economic-development incentive programs must verify the work eligibility of all newly hired employees. This would apply to recipients under the Nebraska Advantage Rural Development Act, the Nebraska Advantage Act, the Nebraska Advantage Research and Development Act, and the Nebraska Advantage Microenterprise Tax Credit Act.

And finally….

A comment is in order regarding the aftermath of issuance by the Diocesan Bishops of their joint statement on immigration in Nebraska.

Everyone is entitled to his or her opinion, but it has been obvious that most of those who have used a public forum to comment about the statement did not bother to read it. Probably, they just reacted to reporting by the secular media, which, of course, sought to construe it in a controversial manner. Comments that the statement crosses that wispy line of separation between church and state are poorly informed and silly. Comments that the Bishops were just seeking to add more foreign-born people, including illegal immigrants, to parish membership rolls are ludicrous, if not bigoted. There have been other bogus reactions as well.

The Value of Catholic Schools for Taxpayers

How much do taxpayers in Nebraska, particularly as represented in government by their elected officials, recognize and value the ongoing existence of privately operated elementary and secondary schools in the state, that is, the 122 Catholic schools and the 80 or so other parochial schools?

The question comes to mind as a result of a couple of recent influences.

First, there was the front-page article in the Sunday World Herald of Feb. 8 about the financial uncertainty being faced by Omaha-area private schools and the financial stress being experienced by families who opt for these schools, even though doubly burdened in doing so by taxes and tuition. Secondly, there was hearsay evidence that the federal government’s ultimate “stimulus package” would likely exclude private schools from most if not all assistance provided for elementary and secondary education.

To the credit of reporter Jeffrey Robb and his editors, the newspaper article made the point—even using a graphic—that if the 72 privately operated schools in the Omaha metropolitan area ceased to exist, which would send more than 18,000 new students into the public schools, taxpayers could face having to pay for building and operating 23 more elementary schools, five additional middle schools and two-to-three new high schools.

That type of stark reality also can be analyzed on a statewide scale.

There are approximately 38,000 young Nebraskans enrolled in grades kindergarten through 12 of non-governmental schools in the state (about 28,000 of these are in Catholic schools). The average annual cost statewide to educate one student in a public school is around $9,500. The rather simple math is that it would cost $361 million additional taxpayer dollars to fulfill the duty prescribed by the state constitution to provide free education for these young Nebraskans, those who now choose an alternative to government-sponsored education.

Some might argue that the math is not so simple; that there are some fixed costs and efficiencies of scale, which make that $361 million figure unrealistic and misleading. Well, O.K., let’s (generously) knock off 40 percent. That still would leave Nebraska taxpayers facing an increased burden of more than $216 million annually.

Viewed from another perspective, Nebraskans who enroll their children in non-governmental schools are responsible for saving the state’s taxpayers between $216 million and $361 million each year. They are among the best friends that taxpayers have. And, on top of the financial savings, the schools their children attend provide quality academic education, social and spiritual development and community benefits; these schools are part of local economic development.

It’s possible to add even more perspective from the realm of mind-boggling numbers. LB 315 is the initial budget proposal for state government expenditures in the next fiscal biennium. It was introduced by the Speaker of the Legislature on behalf of the Governor and serves as the starting point for legislative deliberations, leading to a finalized budget. It proposes to appropriate $858.5 million in General Funds as state aid for public school districts for FY2009-10 and $888.5 million for FY2010-11. That’s just the General Fund portion of the state aid formula. Accounting for other specified General Fund appropriations, federal funds and cash funds, the total appropriation for public schools exceeds a billion dollars per year. And that’s just the state’s portion; adding local property-tax support pushes the number well beyond $2 billion.

Students enrolled in non-governmental schools are eligible to participate in some programs supported with federal funds, but the only specific General Fund appropriation for these students is the now-two-decades-old textbook-loan program, the appropriation for which, under LB 315, would be $500,000. That’s a bit of recognition and ascribed value, and it provides a limited, but meaningful benefit, but it’s tiny in the big picture.

So, how much do Nebraska taxpayers and their elected representatives recognize and value the existence of privately operated schools? The realistic answer is, nowhere near as much as they should.

The Legislature, on behalf of the taxpayers, has an opportunity to address that shortcoming and narrow the gap in a modest way. LB 67, introduced by Senator Mike Friend of Omaha and co-sponsored by Senator Tony Fulton of Lincoln, proposes to support private-school scholarship programs for children from limited-income families. It would do so by providing state income tax credits, up to a maximum of $3 million per year, for individuals and businesses that contribute funds to such programs.

The proposal is relatively small in scope, but it certainly has the right purpose.

The Legislature’s Revenue Committee now controls the fate of this legislation. A public hearing on the measure is scheduled for February 27 at the State Capitol.

Grassroots support for LB 67 is essential. Now is the time for parents and other supporters of Catholic schools to take action on behalf of their parental choice in education and the important role their schools have in Nebraska’s overall educational landscape. It starts by urging the members of the Revenue Committee to advance LB 67 to the full Legislature. For more information, contact the Nebraska Catholic Conference, at (402) 477-7517 or nebrcc@neb.rr.com.

Will the Death Penalty Showdown be Prominent?

Since the Nebraska Legislature is well underway, here’s an interesting factoid that expands this happening just a bit: this is a year when the legislatures of all 50 states, the five American territories and commonwealths and the District of Columbia are, or will be in session. This is noteworthy only because some state legislatures, those of North Dakota and Oregon for example, don’t convene every year.

As of the day that Nebraska marked its 10^th legislative day, on January 21, 45 other legislatures were underway. Virginia’s General Assembly will be the first to adjourn for the year, on February 28. That’s even before the legislatures of Florida and Louisiana open, on March 3 and April 27 respectively.

Every legislature in every state will have prominent issues on its agenda. True to form, Nebraska will have some legislation that eclipses most of the rest.

For example, legislation dealing with capital punishment will command some prominence. Due to current circumstances brought about by another branch of government, some legislators feel a sense of urgency on this subject. From a different perspective, the circumstances represent not urgency, but opportunity: to once and for all move beyond the worn-out policy of having a death penalty to replacing it with a more modern, humane and just sentencing for aggravated, first-degree murder, that is, incarceration for life without possibility of parole.

Somewhat in the middle is just leaving well enough alone, the status quo, which is de facto, no death penalty.

The compelling circumstances are these: Nebraska has a death-penalty law “on the books," but it is merely words on paper. Nebraska has 10 convicted murderers on death row, but no valid method for executing them. This is because the highest tribunal in the state’s judicial branch of government, the Nebraska Supreme Court, ruled that the current law for carrying out the sentence of death violates the principle against cruel and unusual punishment and is therefore unconstitutional. The defect identified by the Court on a 6-1 vote is the fact that the law prescribes electrocution as the sole method for killing those on death row.

Those who perceive urgency in this situation, led by the Attorney General and the Governor and the Speaker of the Legislature, want to “fix’ the law by enacting legislation to establish lethal injection as the method of execution. To that end, the Speaker, Senator Mike Flood of Norfolk, has introduced LB 36.

On the other hand, from the perspective of those who see the current circumstances as an opportunity to repeal the death penalty and replace it with imprisonment for life without possibility of parole, subject only to the seldom used constitutional authority of the Board of Pardons to commute sentences, LB 305 is the right legislation. It was introduced by Senator Brenda Council of Omaha.

Will LB 36 versus LB 305 be a showdown that dominates the session? Certainly, it can be expected to command a healthy share of attention among several “top issues.”

Conventional wisdom, political realities and unofficial, preliminary vote counts suggest that the “restorationists” have a strong upper hand over the abolitionists. But that does not mean the projected result would occur with ease. To the contrary, typically the burden of enacting controversial legislation is greater than the burden of stopping it.

There is also an economic factor to consider in this showdown over punishment policy. Especially at this time of great economic uncertainty, when “hunkering down” on government expenditures, budget belt-tightening and fiscal prudence seem to be genuine concerns for many legislators, will they be willing—or more to the point, why would they be willing—to create a situation in which a more appeals would be opened up for the death-row convicts? Perhaps those appeals would ultimately be determined to lack merit, but the litigation involved in reaching those determinations would be expensive. For taxpayers, how much is achieving the ultimate revenge worth?

In a much different and more uplifting legislative context, we note the introduction of LB 67 by Senators Mike Friend of Omaha and Tony Fulton of Lincoln. The bill proposes to create an incentive for individuals and corporations to contribute to programs dedicated to providing scholarships to assist children to attain their education at privately operated elementary and secondary schools. It promotes the public-policy value and community benefit of educational choice for families.

The incentive would be in the form of a state income tax credit for cash contributions to qualifying, independent scholarship tuition organizations. There would be a cap—proposed at $3 million--on the extent of such tax credits each year. Each STO would be required to use at least 90 percent of its annual income for scholarships, the recipients of which would satisfy means-tested qualifications.

This relatively new and innovative concept for encouraging contributions to dedicated scholarship programs is proving to be successful in a number of other states, including Iowa.

Those who value educational choice should contact their legislators about LB 67.

New Legislature Will Rely Upon Leadership

The 101^st Nebraska Legislature, w/o-EC, has started its first session. With the pomp and circumstance due this significant and historical event, the 49 citizen-legislators who comprise the only unicameral state legislature in the nation convened for their first day of business on January 7 at the State Capitol.

In addition to the impressive ceremonies, the highlight of which was the swearing-in of the 26 legislators elected or re-elected last November, organizing this Legislature and electing its leadership also were accomplished on the first day.

This Legislature, w/o EC, will have two regular sessions: 90 legislative days this year, followed by 60 legislative days in 2010. According to a preliminary calendar, this year’s session will end during the first week in June. Seems like along way off.

As with every Legislature—now more so since term limits took effect at the end of 2006—there is a sense of newness about this group of legislators. It’s significant that there are 16 new members, a third of the whole. It is probably even more significant that 37—all but 12—of the legislators now serving have less than three full years of Unicameral experience. No fewer than seven of the Legislature’s 14 standing committees have new chairpersons.

In reality the most significant change affecting this Legislature is not about numbers and who is there now; it’s about who is no longer there; in particular, one personality, one who held remarkable power. For the first time since 1971, the Nebraska Legislature does not include Ernie Chambers, thus “w/o EC.”

The Legislature will not be the same without the unique, dominating presence of Senator Chambers. Indeed, it is a Unicameral, but there are those, including the longtime Omaha legislator himself on occasion, who would characterize Senator Chambers as the “second house”. Most substantive legislation of any significance had to clear both a legislative majority and Senator Chambers, in order to be enacted.

More than a few times during his tenure, Senator Chambers jabbed his colleagues with the claim that a cloture procedure was added to the rules solely in response to his ability and discipline to carry on filibusters. He made a similar claim about the reason the Nebraska electorate imposed legislative term limits by constitutional amendment. Those claims are difficult to refute.

What will the Legislature and its process be without Senator Chambers? One line of thought is that matters will progress more smoothly and more will be accomplished. Another view acknowledges that thought, but fears that more flawed legislation will be enacted without Senator Chambers as gatekeeper. There is some concern that lobbyists are “licking their chops” as they approach a Legislature without Sen. Chambers and will control matters to an even greater extent.

The view here is that there are talented, strong legislators in leadership positions, which will help ensure an open process and responsible legislating, directed toward the common good. Ultimately, the Speaker and committee chairpersons will have more freedom, more control and more confidence. Presumably, there will be fewer filibusters and “smoother sailing” for some legislation, but that does not mean that flawed legislation or bad public policy will result. For those with interests at stake, the process will still be stressful, but for others it will be interesting to observe how things go.

As has been our long-time practice, we like to honor the start of a new session of the Legislature in the best way possible, by offering a special prayer. It is adapted from an invocation originally presented by the then Archbishop of San Francisco, John Quinn, at a meeting of the National Conference of State Legislatures.

For the members and staff of the 101^st Nebraska Legislature, Let Us Pray:

“Heavenly Father, we are pausing in the midst of turbulent times to be aware of you.

“Let those who represent us be truly aware of your presence. Help them to conduct an opinion poll of your wishes in regard to themselves and those they represent.

“Grant them the ability to know that you genuinely love them. In their quiet moments, allow them to be proud of the profession they are in. Help them to be calmly in control of their lives and not be paralyzed by insecurities or driven by ambition, the value of which they may or may not have reflected on for some time. Grant them the flexibility to grow, the resiliency to accept the setbacks, and the fortitude to adhere to convictions in which they believe.

“May they always be mindful of the awesome nature of their vocation as a legislator—a position in which they profoundly affect so many lives. May they have the common sense to recognize that good and truth, not re-election, are wise priorities.

“Never allow them to be carried away with their own importance. Grant them the serenity of realizing that the crisis of confidence in government is not current, but as old as government itself.

“Let them never forget that this world’s power pales in significance when measured against the treasures of eternal life that you have promised us. May they use whatever influence and skills they have for your greater honor and glory for the welfare of all people. Amen.”

Remembrance…

We noted with much sadness, but also fond memories, the death November 15 of former state senator Bernice Labedz. She was a jewel in the Legislature on many counts, but most notably her strong Pro Life views and advocacy. She fully understood and was committed to the humanity and inherent human dignity of the unborn. She had a special, fundamental respect for the elderly, the handicapped and the impoverished. She brought her strong Catholic faith to the forum and turned to it to help her represent not only her South Omaha district, but the common good of Nebraska. As years pass, many people move through the Legislature; Bernice Labedz was one of those you were blessed to have known and you don’t forget.