The Nebraska Department of Correctional Services is facing a potential change to state law that would limit how it accommodates prison overcrowding. At the same time, it is facing a federal lawsuit settlement over its controversial use.
Legislative Bill 99, introduced this year in the Nebraska Legislature, would put the choice to double bunk into the hands of incarcerated individuals, ending the involuntary use of a practice that has contributed to the deaths of three people in six years. As of May 5, the bill had not left committee.
Double bunking is the practice of housing two people in a cell designed for one.
Rob Jeffreys, the director of the department, told University of Nebraska-Lincoln journalism students in March the department does not currently use double bunking under his direction, even though the prison is routinely over 140% of its capacity. That means that the prison system has 40% more prisoners than it has rooms to house them.
Two months earlier, Jeffreys testified before Nebraska’s Senate Judiciary Committee that the department must reserve optional use of the method due to capacity concerns.
Restricting double bunking would follow years of calls from experts, prison watchdogs and those personally affected by its use to stop the practice.
Depending on the facility, individuals can be double bunked in both general population and restrictive housing settings, the latter of which limits the privileges, such as out-of-cell time, that those individuals have.
“It’s inhumane,” said John Fair, a formerly incarcerated man who now lives in Omaha. “If you put two dogs in a kennel, they’re going to fight, and especially when you got two people that think they’re alpha males.”
At its worst, the practice sometimes ends in death.
Foot in the door
The double-bunking measure, authored by Sen. Ashlei Spivey of Omaha, would allow incarcerated individuals the choice to be bunked together in restrictive housing as long as they agree to it in writing.
Change is needed, Spivey argued in her statements made in a judiciary committee meeting in January, because double bunking is dangerous and costly. She pointed to the killings of two prisoners who were bunked together and noted a related lawsuit settlement that cost taxpayers nearly $500,000.
The bill, LB 99, does not provide a framework for how the department would curb double bunking beyond the specification that prisoners agree to double bunking in writing.
“We feel the current language is sufficient, as it prioritizes individual consent and creates a legal standard that the department must follow without locking it into a rigid, one-size-fits-all process,” Spivey said in an email. “The flexibility is intentional and meant to protect autonomy while still allowing for oversight.
Jason Witmer, a policy fellow for the ACLU of Nebraska and a formerly incarcerated man, worked with Spivey in crafting the bill. He said its vagueness could be an intention to appeal to senators if they discuss the bill on the floor.
Witmer said senators could view a restriction on the department as an attack on the political views they might hold toward prison reform. Its vagueness is purposeful and designed to make the bill seem less threatening.
Passing the bill as it is now would allow for future legislation to expand it, he said.
“Sometimes you got to get a foot in the door before you can go in,” Witmer said.
‘Asking for trouble’
Between 2017 and 2022, three prisoners killed their cellmates while housed in restrictive housing cells in Nebraska prison facilities:
- In 2017, Patrick Schroeder strangled Terry Berry Jr. in their shared cell at the Tecumseh State Correctional Institution. Schroeder pleaded guilty to first-degree murder in 2017. Schroeder, then placed on death row, killed himself in 2022.
- In 2020, Angelo Bol beat and strangled Kevin Carter in their shared cell at the Nebraska State Penitentiary in Lincoln. Carter’s mother, Paige Carter, sued former and current state officials, alleging they knew the risks of housing her son with Bol.
- In 2022, Tyler Stanford killed Phillip Garcia in their shared cell at the penitentiary. A grand jury charged Stanford with first-degree murder in 2024. The case is pending.
Berry’s family sued the state, alleging that double bunking contributed to his death. The suit was settled for nearly $500,000 in 2022.
And while double bunking has been used by the department since before 2017, Berry’s case spotlighted its use.
Some mental health experts believe double bunking is harmful, depending on the context in which it is used.
Pablo Stewart, a clinical professor and psychiatrist at the Burns School of Medicine at the University of Hawaii in Honolulu working in the field of correctional psychiatry since the 1980s, served as an expert in a class-action lawsuit brought in 2017 by the ACLU of Nebraska and Nebraska Appleseed, a nonprofit that provides legal aid to low-income individuals.
The suit, filed on behalf of inmates in restrictive housing cells, alleged the state’s chronically overcrowded prisons contributed to endangering the health, safety and lives of prisoners and staff daily. Stewart toured Nebraska prison facilities as part of his work.
He said that people with pre-existing psychiatric disorders get worse by being put into restrictive housing. He added that if a person doesn’t enter that setting with an existing mental illness, they often develop one.
“Putting two people together, one of whom is mentally ill, but is well-treated on medications — that isn’t bad,” Stewart said over the phone. “You don’t want to put a mentally ill guy who’s actively symptomatic and refusing medications in a cell with somebody else, because you’re asking for trouble.”
LB 99 stalled in the Legislature in the spring as Paige Carter’s lawsuit was in the discovery process. Carter filed the suit against current and former prison officials in late 2023 before updating it in early 2024. In late April, the Nebraska Attorney General’s office agreed to settle the suit with Carter for $395,000.
“Our number-one priority has been and must continue to be the care and rehabilitation of those incarcerated in our nine facilities,” said Dayne Urbanovsky, the department’s director of strategic communications.
The attorney general did not respond to attempts to get a comment.
Little space, mounting tension
Fair, the formerly incarcerated man living in Omaha, served what he estimates to be a total of 13 years in restrictive housing, which took him out of general population units at various prison facilities across the state. He only ever shared a cell with one person, a friend he met while incarcerated, he said.
Fair’s arrangement lasted a month before the two fought and decided to request to be housed separately. Tensions built little by little, Fair said, with issues like inconsistent sleep times eventually giving way to a quick fistfight that correctional officers hadn’t noticed.
Restrictive housing cells at the penitentiary are not large enough to accommodate two people under American Correctional Association standards, according to a 2024 report on double bunking from the Office of the Inspector General of the Nebraska Correctional System, the state’s prison watchdog created by the Legislature.
Restrictive housing cells should have at least 80 square feet of space, including 35 square feet of unencumbered space, plus 25 square feet of unencumbered space for each additional occupant, the report said. Unencumbered space is space not filled with permanent furniture like desks, toilets or sinks.
The penitentiary’s restrictive housing cells have about 75 square feet of space, with about 32 square feet of unencumbered space in a double-bunked cell, the report said.
The restrictive housing cells in which Fair was housed were comparable in size to a bathroom, he said. The penitentiary had the smallest rooms, and the Tecumseh State Correctional Institution had the largest, according to Fair.
Although Spivey’s bill would allow voluntary use of double bunking in restrictive housing, the inspector general said in the report that the nature of restrictive housing rules out an incarcerated individual’s assessment being a substantial way of measuring the safety of two individuals being housed together.
“Restrictive housing is a volatile setting, even for a correctional facility, and staff cannot be expected to determine which cellmates are safe and which ones are not in these circumstances,” the report said.
The inspector general has called for an end to the practice multiple times as the state’s inmate population has risen steadily since Berry’s death.
Overcrowding emergency
Since last year, the department has been under an “overcrowding emergency,” exceeding its design capacity by 140% as outlined in state law.
Jeffreys, in legislative testimony, said capacity creates the need for double bunking. Restrictive housing cells have the potential to fill up depending on events or behaviors that cause people to be designated to those cells, such as committing an act of violence toward another person.
“If I got only 20 cells and I got 30 people, somebody is going to have to double bunk,” Jeffreys said in his testimony.
The inspector general said in its report on double bunking that the penitentiary was using double bunking during its investigation of Garcia’s death. Double bunking at the penitentiary was regular and normal, the report also said, despite a decrease in its overall restrictive housing population.
The department’s most recent annual restrictive housing report said the restrictive housing average daily population of the penitentiary was 32 in 2024. The penitentiary has 20 restrictive housing cells.
The inspector general’s report also cited overcrowding as a contributing factor for the use of double bunking and called for an end to the “dangerous” practice.
A Nebraska News Service/Midwest Newsroom analysis of current department data also shows that the average daily population of multiple facilities exceeds even their operational capacities.
Design capacity is measured as the available number of beds a facility was originally built to hold. Operational capacity is measured as 125% of a facility’s design capacity.
A 2020 analysis by the University of Nebraska at Omaha concluded that Nebraska has the second-most populated prison system in the U.S. in terms of operational capacity, using data from 2019, second only to the neighboring Iowa prison system.
To increase total capacity and ease overcrowding, the department is building a new facility in Lancaster County. However, experts say it will be overcrowded the minute it opens.
The new prison, projected to open in 2028 with 1,512 beds, will replace the Nebraska State Penitentiary, which has a design capacity of 818 beds. However, the penitentiary has an average daily population of 1,251, according to state data. That means, as currently operated, the $350 million new prison will operationally add about 261 beds to the average daily prison count of just one of the state’s adult male prisons, all of which exceed their operational capacity.
Some continue to look to legislation, and bills like LB 99, to help rein in the department’s use of doubling up prisoners.
Is legislation enough?
Paige Carter is not waiting for legislation for a change. She took her family’s fight to the Nebraska court system seeking justice — and prison reform — in the name of her son, Kevin.
Paige Carter said her son wouldn’t often talk about his experience while in prison, where he was serving a six- to nine-year sentence for terroristic threats and use of a deadly weapon to commit a felony since 2019.
“He always would say ‘I love you’ two or three times during the conversation,” Paige Carter said, adding that the two talked nine or 10 times a week.
It was the call she received from the state that haunts her.
Officials told her they found Kevin Carter unresponsive under a bedsheet in his cell in the penitentiary on the evening of Nov. 6, 2020.
She would later learn that his cellmate, convicted murderer Angelo Bol, now 45, beat and strangled Carter because Bol was afraid that Carter, whom he believed to be a member of a Sudanese tribe, would kill him.
Officials charged Bol with first-degree murder in Carter’s death, but he was found not responsible due to insanity and remains in a secure mental health unit at the state’s Reception and Treatment Center in Lincoln, court records show.
Bol had a history of mental illness, and department staff discontinued his medications months before his being placed with her son, a week before his death, Paige Carter’s lawsuit alleged.
Paige Carter said she hopes the lawsuit will set a precedent, hold current and former officials responsible and encourage change in how the department operates.
“I’m not a fortune teller, but if they were all convicted at the time, it would have fixed something to have it looked at,” Paige Carter said. “And maybe Kevin wouldn’t have been put in that cell.”
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METHODS
To tell this story, student journalist Shelby Rickert interviewed Rob Jeffreys, the director of Nebraska Department of Correctional Services, during a University of Nebraska-Lincoln journalism class. Rickert also interviewed John Fair, a formerly incarcerated man who now lives in Omaha, Nebraska; Jason Witmer, a policy fellow for the ACLU of Nebraska and a formerly incarcerated man; Pablo Stewart, a clinical professor and psychiatrist at the Burns School of Medicine at the University of Hawaii in Honolulu. Rickert corresponded over email with Sen. Ashlei Spivey of Omaha, Nebraska. Rickert also reached out to the Nebraska attorney general but did not receive a response from a request for comment.
REFERENCES
“LB99 — Limit use of restrictive housing and solitary confinement”
(Nebraska Legislature | January 2025)
“Death of incarcerated man in ‘double-bunked’ NSP restrictive housing cell”
(Office of Inspector General of the Nebraska Correctional System | Nov. 12, 2024)
Nebraska Revised Statute 83-962
(Nebraska Legislature | July 19, 2024)
“2024 Restrictive Housing Annual Report”
(Submitted by Rob Jeffreys, director of the Nebraska Department of Correctional Services | Sept. 15, 2024)
“State Prison Overcrowding and Capacity Data”
(University of Nebraska Omaha, College of Public Affairs and Community Service | Center for Public Affairs Research)
TYPE OF ARTICLE
News: Based on facts, either observed and verified firsthand by the reporter, or reported and verified from knowledgeable sources.
