"We can't build our way out of this!" is the common, knee-jerk response to the question of overcrowding in Nebraska's state prison system.  Although rarely accompanied with evidence, that statement is nonetheless parroted reflexively.

There has been little pushback against that opinion over the years, with many citizens assuming the statement must be founded on "settled science," or some form of proven academic study and research. 

It isn't.

Academia has examined nearly every possible aspect of incarceration, crafting deep demographic profiles of prison populations based on every conceivable data point, but have inexplicably avoided diving into the most obvious metric affecting prison overcrowding: how many prison beds per capita should a state have?

Surely there must be a reasonably prudent level of capacity for housing convicted criminals in a state — a measure that presumably would take into account population size, as prison capacity is directly upstream from prison overcrowding. 

Don't misunderstand me.  It's not as if the subject hasn't come up.  Policymakers have approached this question repeatedly over the last century, with increasing intensity in the last forty years. 

However, the question of how much prison capacity is optimal is never discussed alone.  It is always tied to larger questions regarding the justice system as a whole, and even then, the question is never directly answered — simply glossed over as some archaic silliness too brutal and obtuse for discussion among enlightened folk.

In the 2009 "Jail Capacity Planning Guide: A Systems Approach," the preface tells us:

Focusing on managing risk and improving outcomes shifts the nature of jail planning. It challenges decisionmakers to think about custody resources as a continuum of choices, not as a single option that leads only to housing inmates in a facility. It asks decisionmakers to view jail as a gateway to individual change, not an endpoint. It calls upon them to plan as much for programs as they do for beds.

The remaining 87 pages address programs, without addressing beds, perfectly illustrating the dearth of information regarding our original question: how many prison beds per capita should a state have?

These two elements — planning for capacity needs and devising ways to reduce the magnitude of those needs — are purposely interwoven, as if neither can be examined alone, leading to a conflation of concepts that are more prudently examined separately.  The former is a function of hard calculation, while the latter is grist for navel-gazing theorists eager to attempt the reordering of society into neat conforming rows.

Nebraska has a prison overcrowding problem.  We have more inmates than we have places to house them.  Is this due to Nebraska running a criminal justice system shot through with prejudice, unequal sentencing, and a mustache-twirling desire to "lock 'em up"?

The answer is no.

While every system of man's creation is vulnerable to the influence of our human failings, there simply aren't enough instances of unjust treatment to account for the excess numbers of prisoners above our functional capacity. We have more prisoners because we have more crimes committed, and the offenders are staying a bit longer as guests of the state than in previous years, due to the increased severity of their crimes.

The drug crimes of today are more deadly than those of even a decade ago.  The liberal shibboleth of a man with a joint spending years behind bars is as outdated as bellbottom jeans and flowers in your hair.  Minor possession charges for drugs are now routinely resolved on probation, with the offender seeing no time behind bars.

However, the danger of illicit drugs has skyrocketed, with substances like fentanyl now dominating the market position once held by less addictive and less powerful drugs, necessitating incarceration commensurate with the severity of the crime.

Programs like the Justice Reinvestment Initiative (JRI), a joint venture between the Department of Justice and the Pew Charitable Trusts, have become trendy vehicles for conflating the problems of overcrowding with all manner of academic social engineering constructs designed to lower sentences and increase prison releases.

Nebraska was one of nearly 40 states to undergo the JRI process, with our state launching the effort in 2015.  We were promised dramatic reductions in both prison overcrowding and recidivism rates, based on JRI's "data-driven" analysis and proposals.

Despite having followed their prescription for penal health, Nebraska never saw the promised reductions in the prison population, with the program falling short of its own projections by ludicrous margins.

Indeed, every metric the program measured has failed to meet expectations, with most failing spectacularly.  The JRI process projected a reduction in the prison population of 1,000 inmates.  We achieved a reduction of only 68, many of which would've gotten out anyway with their sentences served.

We were not alone. The record of JRI failure carries across all states unfortunate enough to have engaged in the effort.

This year, the JRI hucksters returned, peddling the same ineffectual babble, based on the same disproven theories as the last go-round.  Fortunately, a sufficient majority of state senators astutely recognized the initiative for what it is: a brazen political tool to implement threadbare soft-on-crime progressivist policies costumed as the latest research.

A measure before the Legislature to re-enter the Justice Reinvestment Initiative in Nebraska failed, and the state is better for it.  But the defeat of a bad idea isn't enough.  The status quo in Nebraska's prisons (the most overcrowded in the nation) cannot continue much longer.

We have more than 5,300 inmates housed in a system with a designed capacity of 3,700.  Design capacity is the number set by the architect when the prison was built.

The most common measure used to gauge overcrowding is operational capacity, which for Nebraska is 4,419, representing the number of inmates who can be held based on available staffing and services.  Our problem stems from our failure to increase prison capacity to match our population growth.  Let's examine further. 

Returning to those 35 states who have participated in JRI, we find they have, on average, 1 prison bed for every 285 people.  Nationally, the average is 1 for every 323.

In Nebraska, with a total population of 1.9 million people, we have 1 prison bed for every 443 people, ranking fifth-worst in per capita capacity among the 35 JRI states, and the eleventh worst nationally.

Nebraska currently houses 5,322 prisoners, well above both design and operational capacities.

To pull ourselves up to the lofty goal of "average," we need to increase our prison capacity to 6,000 from its current operational capacity of 4,419.  Again, these additional 1,581 beds would only bring us up to the national average, but, by just attaining average, we would solve our overcrowding problem, with several hundred beds left over. 

If we aimed to stand on par with the other JRI states, we would need about 2,500 more beds than we have today.

Our rallying cry must now be "We want average!  We want average!"

The issue of overcrowding stands apart from the idea of reimagining our justice system.  To paraphrase the no-build advocates' favorite phrase, I would say, "We can't release, parole, or resentence our way out of this." 

We have offenders.  We have recidivism.  We have hardened criminals who are unaffected by "rehabilitation programming." 

What we don't have are enough places to put them, which really is the first duty of our system — to ensure the public is safe from criminality, an obligation that must come ahead of social engineering experimentation involving inmates and, by extension, the unsuspecting public, who suffer when those inmates' needs are placed ahead of the public's need for safety, and they are released too soon only to re-offend. 

We can address both issues without holding one hostage to the other.  We can bring our per capita prison capacity up to "average" without solving all the ills of society first. 

Study all you want, theorize to your hearts' content, but quit telling us we have a social problem that must be solved before we address our glaring housing problem.

Returning to the statement "We can't build our way out of this!" the proper response clearly is "Yes, we can, and we must."

The author is chief investigative reporter for Nebraska Sunrise News and writes from Omaha, Nebraska.  He welcomes visitors to his personal website, www.dailyherring.com.

Image via Pxhere.