Every now and then we see a powerful attack ad that is factually accurate, but makes such a strong appeal to fear that we urge viewers to pause to consider all the facts. That’s the case in Nebraska, where a TV ad has been compared to the infamous Willie Horton ad.
The National Republican Congressional Committee went on the air Oct. 17 in Omaha with an ad that slams state Sen. Brad Ashford for his support of the state’s so-called good-time law, which allows inmates to receive credits to reduce their sentences. It is certainly fair game to debate the merits of good-time laws, which are in place in at least 32 other states because they ease prison overcrowding and give prison officials a tool to maintain order.
But the NRCC ad, which is titled “Nikko,” features the horrific case and the tattooed face of Nikko Jenkins, a convicted carjacker who went on a killing spree not long after his release from prison that resulted in four homicides in 11 days in August 2013.
“Brad Ashford supported the good-time law and still defends it, allowing criminals like Nikko Jenkins to be released early,” the ad says, displaying side-by-side photos of the white “liberal” Democrat and black convicted murderer.
The menacing image of Jenkins and the implication that Ashford is somehow responsible for Jenkins’ actions caused a backlash that went far beyond the boundaries of Nebraska’s 2nd Congressional District. The ad brought immediate comparisons to the Willie Horton ad that an independent group aired in 1988 to portray Massachusetts Gov. Michael Dukakis, a Democrat, as soft on crime. Horton was a murder convict who raped a woman while on furlough, as the New York Times reported at the time Horton appeared in the ad.
“You say to yourself, what is the point of this ad? I mean, in the context of the case or the situation, yeah, okay, the member of the House supported the law. But then to put it in this frame, says something very racist in my view. … Stupid does stupid,” Steele said in a TV interview on Oct. 18. “This ad doesn’t tell you anything other than consultants are stupid and that’s basically – they play to the lowest common denominator and that’s part of the problem.”
Nobody’s disputing the factual accuracy of the statements in this 30-second ad — but it cries out for a full explanation of what happened in the Jenkins case and Ashford’s response to it.
Good-Time Law Gone Bad?
The Omaha World-Herald has done a remarkable job of documenting the case of Nikko Jenkins, which is summarized in a timeline that begins with Jenkins’ release from prison on July 30, 2013, and includes his Aug. 29, 2013, arrest for multiple murders. He later pleaded no contest to the four murders.
As the World-Herald documented, Jenkins received a maximum 21-year sentence for “two carjackings he committed when he was 15 and two assaults that occurred while he was an inmate.” Jenkins served 10-and-a-half years — almost exactly half his maximum sentence — because of the state’s sentence credit law, which was liberalized in 1992 from earned-time credits (in which inmates earn time off) to good-time credits (in which inmates get automatic credit, but can lose good-time credits for violating prison rules).
Ashford was in the state Legislature in 1992, but he did not vote on the good-time law, according to the World-Herald. Nevertheless, Ashford supported it. The NRCC ad points to a Sept. 6, 2013, World-Herald editorial that said Ashford supported the 1992 change in the law, as did most state legislators. (The Nebraska Legislature is unicameral, which means it has a single legislative body.)
World Herald, Sept. 6, 2013: Ashford said Thursday that the intent of the 1992 bill, which passed 27-6, was to address inconsistent sentencing by judges and to put into law the use of carrots and sticks to help motivate inmates. It was not meant to be lenient on violent criminals, Ashford said.
Before the 1992 legislation, state law said inmates could earn shortened criminal sentences when they demonstrated good behavior — a sensible approach. But during debate on LB 816, lawmakers removed the words “for good behavior.” That ill-considered change effectively cut sentences in half, without the specific good behavior requirement. Only first-degree murderers and convicts serving rare mandatory minimum sentences saw no benefit.
The National Conference of State Legislatures in an August 2011 report said that “at least 44 states … provide opportunities for some inmates to accelerate their release date,” and “at least 32 states have good-time policies.” Some states have both.
There were calls to tighten the Nebraska law in the aftermath of the Jenkins case, but there were also questions about how well the law was being implemented by prison officials. The World-Herald did an investigation that found “prison officials rarely took away the good-time privilege.” The paper said, “Inmates were punished for 92,000 infractions over five years, yet good time credit was taken away in less than 5 percent of those cases.”
Jenkins “could have spent at least another 9½ months in prison if officials had given him the maximum penalties for breaking prison rules,” the World-Herald reported.
World Herald, Sept. 24, 2013: From 2005 to 2011, prison records show, Jenkins was written up at least eight times, for refusing to submit to a search, aggravated assault on a corrections officer, three episodes of using threatening language, two episodes of “tattoo activities” and creating a weapon out of a toilet brush.
A judge sentenced him to four more years for his assault. For all his transgressions, prison officials took away just under 18 months of good time credit, including three months for the assault.
Good time is sometimes restored, although prison officials couldn’t say how often. Jenkins was given back at least a month of good time after it had been taken away, a prison spokeswoman said.
Ashford told the World-Herald that the problem is not with the good-time law, but with “the implementation of the sanctions” by the corrections department. “We need to ask the department why the administrative sanctions were not given,” he told the paper.
The World-Herald also wrote last year that Jenkins may have been required to served 21 years in prison if prosecutors tagged Jenkins as a “habitual criminal” after his assault conviction in prison. Prosecutors filed a “charging document” to do just that, but then withdrew it as part of a plea agreement.
World-Herald, Sept. 5, 2013: In the attack on the corrections officer, prosecutors filled out a charging document that would have tagged Jenkins as a habitual criminal. Such a designation could have meant a mandatory minimum 10 additional years in prison.
However, prosecutors dropped the charging document after Jenkins agreed to plead no contest to felony assault of an officer. Prosecutors also dropped an attempted escape charge punishable by 10 months in prison.
Kleine, the Douglas County attorney, said he is reviewing the decision to drop the habitual criminal tag. The prosecutor who made it is now a judge.
Under case law, Kleine said, a habitual criminal charge usually requires a defendant to have gone in and out of prison twice before committing a third crime. Jenkins never left prison.
“There’s a question of whether he would have qualified,” Kleine said. “We’re looking at that.”
Former Douglas County Attorney Stu Dornan, a Republican who criticized the NRCC ad for its “fear-mongering,” told the World-Herald that prosecutors and judges adjust sentences knowing that good-time credits will be applied to an inmate’s prison term. And there is evidence that that may be the case.
A January 1999 report by the federal Bureau of Justice Statistics shows (on table 8) that violent offenders in Nebraska in 1997 served an average of 60 months in prison – which was nearly a year longer than the national average of 49 months. Violent offenders served longer average prison terms in only eight states in 1997, the report shows.
Similarly, the average maximum sentence in Nebraska was 134 months that year – much higher than the national average of 93 months. Only four states had an average maximum sentence for violent offenders that was higher than 134 months.
We could not find more recent statistics. However, Nebraska switched to its good-time law in 1992, as we said earlier, so the 1997 data — even though 17 years old — would reflect sentencing and time served under the good-time law in place at the time.
Ashford has resisted attempts to change the good-time law.
On Jan. 13, Sen. Scott Lautenbaugh at the request of Republican Gov. Dave Heineman introduced LB 832, which the bill description says would “require violent offenders sentenced after the date of the Act to earn sentence reductions through participation in a department-approved personalized program plan and through good behavior. Under LB 832, violent offenders may earn sentence reductions of up to 50% of their total sentence.”
At a Feb. 12 hearing of the Judiciary Committee he chairs, Ashford questioned the need for the bill. He asked Corrections Director Mike Kenney, “[s]omeone’s sentence who is misbehaving … can be lengthened for a significant period of time under the current law, correct?” Kenney responded, “Yes.”
Ashford also raised concerns at that hearing about what impact changes in the good-time law would have on prison overcrowding, rehabilitation programs and inmate recidivism. “What our goal should be, your goal and my goal, and we talked about this in my office, is the same,” he told Kenney. “We want people to reenter society and not come back to the institution.”
He told Kenney he wasn’t trying to be “adversarial” but that the bill to change the good-time law was a distraction.
“[T]he good-time law, which can be applied today in a way to take good time away, is distracting us from trying to get to the problem here and to try to get people out into the community in a safer way so that they can be productive and have a job and have a house, a place to live, so that they won’t commit more acts,” Ashford said.
Lautenbaugh’s bill was indefinitely postponed on April 17. That was the day the Republican governor signed a bill authored by Ashford designed to address numerous prison issues. The bill, which passed 46-0, is “intended to reduce the recidivism rate of offenders released from prison,” Ashford said in a statement on the bill’s passage.
Ashford’s bill provided more money for mental health, vocational and life skills programs for inmates while in prison, and required parole officers to help inmates and parolees to obtain access to housing and rehabilitative programs upon release. It also created a working group to study prison overcrowding and produce a report by Sept. 1, 2015.
Is Ashford’s bill enough? That’s a legitimate debate to have, but that’s not what voters are getting in the TV ads.
His Republican opponent, Rep. Lee Terry, held a press conference criticizing Ashford for opposing changes to the law, and has run multiple TV ads attacking Ashford for his position. The Terry campaign has indirectly referred to Nikko Jenkins in its ads, but it has not used the murderer’s name or image. Still, Terry’s campaign has defended the NRCC ad and has made the issue a centerpiece of its campaign.
Even after the uproar over the “Nikko” ad, Terry’s campaign started running a TV ad titled “One Bullet” on Oct. 21 that attacks “the good-time law that Brad Ashford supports,” and questions why voters should send Ashford to Washington “if the consequences of Brad Ashford’s dangerous policies are assault, robbery and murder.”
The World-Herald editorial board — which supports changing the law — gave a full-throttle endorsement of Ashford in an Oct. 21 editorial that attacked the NRCC and Terry’s ads for neglecting “the full story.”
In its editorial on the attack ads, the World-Herald praised Ashford’s legislative response, calling it “a serious effort to improve the prison system” and saying “a harder push for good-time changes could have doomed the larger reform effort” sought by Ashford. It also praised him for doing the “heavy lifting” to pass “juvenile justice reforms” last year that “could do more than any good-time change to protect Nebraskans from a future Nikko Jenkins.”
The editorial listed some of the facts omitted in the attack ads, including the failure of prison officials to “fully utilize” the existing law to keep Jenkins behind bars longer and their failure to properly respond to Jenkins’ plea for mental health help and his threats to commit violent acts when released from prison. It also noted the bipartisan support that the good-time law has enjoyed in the past. “At best, this is a bipartisan failure,” the editorial said.
World-Herald editorial, Oct. 21: The good-time law and the management problems in Nebraska’s prisons are state issues, not matters for Congress. In Lincoln, Ashford worked to solve state problems. That’s a much tougher job than flinging Washington mud and hoping it sticks.
The good-time law needs to be changed — and so do these mudslinging ads.
We take no position on the good-time law, but we agree the ads fail to tell the whole story. We encourage voters to seek out the facts. And we wholeheartedly embrace the editorial’s call for an end to “mudslinging ads.”
— Eugene Kiely