LB151 LB151
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LEGISLATURE OF NEBRASKA
ONE HUNDRED SEVENTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 151
Introduced by Morfeld, 46.
Read first time January 08, 2021
Committee: Judiciary
1 A BILL FOR AN ACT relating to criminal procedure; to adopt the
2 Prosecutorial Transparency Act; and to provide severability.
3 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Sections 1 to 10 of this act shall be known and may be
2 cited as the Prosecutorial Transparency Act.
3 Sec. 2. The Legislature finds that:
4 (1) Prosecutors are the most powerful actors in the criminal justice
5 system. Among other things, prosecutors decide whether to charge people
6 and what crimes to charge. Prosecutors determine, virtually unilaterally,
7 whether individuals will be diverted from the criminal system, thereby
8 avoiding criminal records and attendant collateral consequences.
9 Prosecutors also make influential recommendations to judges regarding
10 pretrial detention, bond, and sentencing. These and other decisions by
11 prosecutors have a lasting impact on people accused of crime, victims,
12 families, communities, and the budgets of the state and of local
13 governments. Despite this great power, basic information and data about
14 prosecutors' offices and their practices are generally difficult to
15 access and to measure;
16 (2) All individuals, including voters who determine which
17 prosecutors should hold elected office and taxpayers who fund these
18 offices, deserve access to basic information about prosecutors'
19 activities in a way they can understand and use, unless protected by a
20 recognized privilege or statutory exemption.
21 (3) In addition to educating voters, the information that the
22 Prosecutorial Transparency Act requires prosecutors to disclose will help
23 identify the drivers of mass incarceration and racial disparities in
24 Nebraska's criminal justice system. The information will improve
25 accountability for offices that violate the law and individuals' rights
26 and will help produce fairer outcomes in individual criminal cases,
27 including via better-informed plea negotiations. It will also hasten
28 improvements in prosecutors' offices themselves, creating management
29 efficiencies and cost savings; and
30 (4) There is a compelling state interest in implementing uniform
31 information transparency requirements for prosecutors' offices around the
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1 state and making such information available to the public.
2 Sec. 3. For purposes of the Prosecutorial Transparency Act:
3 (1) Case number means the unique number assigned to a criminal case
4 associated with a particular criminal charge;
5 (2) Charge means any formal accusation by a prosecutor of a
6 violation of the criminal laws of this state or any political subdivision
7 of this state, including, but not limited to, any felony, misdemeanor,
8 infraction, traffic infraction, violation of a city or village ordinance,
9 or violation of a county resolution. A charge includes such an accusation
10 whether brought or filed by ticket, citation, information, complaint,
11 indictment, or another charging instrument;
12 (3) Disposition means the conclusion of the prosecution of any
13 charge and includes, but is not limited to, a decision not to charge,
14 diversion, dismissal, dismissal as part of plea agreement, conviction as
15 part of plea agreement, conviction at trial, acquittal, or any other
16 disposition;
17 (4) Policy means any policy, procedure, guideline, manual, training
18 material, direction, instruction, or other piece of information, whether
19 formal or informal, and whether or not in writing, that contains any
20 guidance whatsoever for employees of the prosecutor;
21 (5) Prosecutor means any city attorney, county attorney, or special
22 prosecutor and the Attorney General; and
23 (6) Unique identifier means a randomly generated number that is
24 assigned in place of a defendant's name.
25 Sec. 4. (1) For each case prosecuted, a prosecutor shall collect
26 and provide to the Attorney General as provided in section 6 of this act
27 the following data:
28 (a) Case number, indictment number, docket number, and unique
29 identifier;
30 (b) The defendant's race and gender;
31 (c) Whether the defendant was a person with a disability, and if so,
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1 whether such disability was mental or physical;
2 (d) The primary arresting or citing agency and other agencies
3 involved in the arrest or citation;
4 (e) Charges listed by arresting or citing agency;
5 (f) If the prosecutor declines to prosecute the arrest or citation,
6 the reason for such decision;
7 (g) Charges brought by the prosecutor, including any modifications
8 and including any sentencing enhancement sought;
9 (h) Whether the defendant was deemed eligible for court-appointed
10 counsel and the hearing of proceeding at which such determination was
11 made;
12 (i) The following information regarding diversion: whether it was
13 offered and if so, the date it was offered; Whether the defendant agreed
14 to participate; and the terms of any diversion;
15 (j) Any recommendation by the prosecutor on bail, bond, or the
16 conditions of release;
17 (k) Whether the defendant was released on bail, bond, personal
18 recognizance, or under other conditions of release pending trial, and if
19 so, the dates of such release;
20 (l) The date range of any pretrial detention;
21 (m) The following information relating to pleas:
22 (i) Whether a plea was offered and if the offer had a time limit;
23 (ii) Terms of any plea offered, including dismissal of charges,
24 charges pleaded to, charges covered by the plea but not part of the
25 conviction, and any sentencing recommendations in the plea; and
26 (iii) Whether the plea was accepted or rejected;
27 (n) Whether discovery was provided to the defendant prior to any
28 plea;
29 (o) The following information relating to disposition of the
30 charges:
31 (i) Cases or charges dropped or dismissed by the prosecutor;
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1 (ii) All charges the defendant was convicted of, if any, and whether
2 such convictions were by plea, jury trial, or bench trial; and
3 (iii) If the case was dismissed by the court, the reason for
4 dismissal;
5 (p) Type of sentence imposed, such as imprisonment or probation;
6 (q) The length of any sentence imposed, including any term of
7 probation or post-release supervision;
8 (r) Any fines, fees, or restitution ordered; and
9 (s) Information regarding any associated forfeiture proceedings.
10 (2) A prosecutor shall collect and publish, as provided in section 5
11 of this act, the policies of the prosecutor's office regarding:
12 (a) Decisions regarding charging, dismissals, and sentencing
13 recommendations;
14 (b) Pretrial release and bail requests or recommendations;
15 (c) Plea bargains;
16 (d) Grand juries;
17 (e) Discovery;
18 (f) Witnesses;
19 (g) Whether to proceed in county or district court or in juvenile
20 court;
21 (h) Fines and fees;
22 (i) Criminal and civil forfeiture;
23 (j) Screening for mental health and substance abuse;
24 (k) Domestic violence survivors;
25 (l) Pretrial diversion;
26 (m) Human resources, including, but limited to, hiring, evaluation,
27 firing, promotion, and rotation among divisions or units;
28 (n) Internal discipline policies and procedures;
29 (o) Victims;
30 (p) Restorative justice;
31 (q) Training;
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1 (r) Practices and procedures for tracking and responding to prison
2 inmates' applications for parole or pardon; and
3 (s) Policies specific to vulnerable populations including, but not
4 limited to, policies based on a person's immigration status, sexual
5 orientation, or gender identity.
6 (3) If a prosecutor does not have a policy related to any of the
7 topics listed in subsection (2) of this section, the prosecutor shall
8 report such fact as provided in section 5 of this act.
9 (4) A prosecutor shall collect and publish, as provided in section 5
10 of this act, the following information for every attorney employed in the
11 prosecutor's office, with names and other personally identifying
12 information redacted or replaced by an anonymizing identifier:
13 (a) Age;
14 (b) Gender;
15 (c) Race;
16 (d) Date hired;
17 (e) Title; and
18 (f) Disciplinary history.
19 (5) A prosecutor shall collect and publish, as provided in section 5
20 of this act, the following information:
21 (a) Number of attorneys on staff;
22 (b) Cases handled per year per attorney;
23 (c) Number of attorneys who worked for the office in a temporary or
24 contract capacity during the previous calendar year;
25 (d) Number of paralegals and administrative staff employed;
26 (e) Number of investigators utilized during the previous calendar
27 year;
28 (f) Number of experts utilized during the previous calendar year,
29 whether on staff or otherwise; and
30 (g) Number of police officers or detectives who work directly for
31 the prosecutor.
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1 (6) A prosecutor shall maintain a record of all information required
2 to be collected and published by this section for at least five years.
3 Sec. 5. Beginning January 1, 2022, each prosecutor shall post on
4 the prosecutor's web site the information described in subsections (2)
5 through (5) of section 4 of this act. The information posted shall
6 include the effective date of any policy or the date the information was
7 gathered. Each prosecutor shall update the information required to be
8 posted by this section at least once each year.
9 Sec. 6. (1) The Attorney General shall develop a set of uniform
10 reporting requirements and procedures to receive the information
11 described in subsection (1) of section 4 of this act. The Attorney
12 General shall develop an implementation schedule and plan by which each
13 prosecutor in the state shall report all such information to the Attorney
14 General by January 1, 2024. The Attorney General may phase in compliance
15 by prioritizing a subset of such information or by prioritizing reporting
16 by prosecutors with larger caseloads. The implementation schedule and
17 plan shall require that, on or before January 1, 2022, at least
18 approximately thirty percent of such records be transmitted to the
19 Attorney General and made available to the public as described in
20 subsection (2) of this section.
21 (2) On or before May 1, 2022, and on or before each May 1
22 thereafter, the Attorney General shall post the information collected
23 under subsection (1) of this section on the Attorney General's web site.
24 The information shall be posted in a modern, open, electronic format that
25 is machine-readable, machine-searchable, and readily accessible to the
26 public.
27 (3) On or before September 1, 2022, and on or before each September
28 1 thereafter, the Attorney General shall produce an annual report that
29 analyzes the information received from all prosecutors, comparing and
30 contrasting the practices and trends among and between prosecutors in the
31 state, and identifying any prosecutors which are not in compliance with
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1 the Prosecutorial Transparency Act.
2 (4) The Attorney General shall also, from time to time, publish
3 issue-specific reports that provide a deeper analysis of one or more
4 areas of prosecutorial decisionmaking. At least one such report shall
5 focus on racial disparities in a particular aspect of prosecutorial
6 decisionmaking.
7 Sec. 7. (1) A prosecutor shall not include any individually
8 identifying information regarding a defendant in any information
9 collected or published under the Prosecutorial Transparency Act.
10 (2) The Attorney General shall not include any individually
11 identifying information of any defendant in any information published
12 under the Prosecutorial Transparency Act.
13 Sec. 8. (1) There is hereby created a Prosecutorial Transparency
14 Advisory Board. The board shall consist of seven members appointed by the
15 Governor. At least two of the members shall be public defenders or
16 criminal defense attorneys. At least two of the members shall be persons
17 with direct personal experience as criminal defendants in Nebraska.
18 (2) The Governor shall appoint the initial members by December 1,
19 2021. The Governor shall stagger the terms of the initial appointments so
20 that two members serve for a term of one year, two members serve for a
21 term of two years, and three members serve for a term of three years.
22 Thereafter members shall serve for terms of three years. Members may be
23 reappointed.
24 (3) The advisory board shall meet with the Attorney General from
25 time to time but no less often than once per calendar quarter. The
26 advisory board shall provide the Attorney General with input and guidance
27 on carrying out the Prosecutorial Transparency Act.
28 (4) Members of the advisory board shall receive no compensation for
29 their services as such but shall be reimbursed for expenses incurred in
30 the performance of their official duties as provided in sections 81-1174
31 to 81-1177.
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1 Sec. 9. If a prosecutor fails, in a material manner, to comply with
2 the Prosecutorial Transparency Act, such prosecutor shall be ineligible
3 to receive loans, grants, funds, or donations administered by the
4 Attorney General or the Nebraska Commission on Law Enforcement and
5 Criminal Justice until the Attorney General determines that such material
6 failure has been corrected.
7 Sec. 10. The Attorney General may adopt and promulgate rules and
8 regulations as necessary to carry out the Prosecutorial Transparency Act.
9 Sec. 11. If any section in this act or any part of any section is
10 declared invalid or unconstitutional, the declaration shall not affect
11 the validity or constitutionality of the remaining portions.
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