Nebraska Prisons Still Housing Two Inmates in Single Occupancy Cells; No Change Expected

A year after a Nebraska prisoner murdered his cellmate in the tiny cell they shared, the Nebraska Department of Corrections determined there is no need for any change in the practice of assigning two inmates to cells designed to hold just one person.

“It didn't lead to any significant changes in our practice, but it did certainly raise our awareness,” said Scott Frakes, the director of the Nebraska Department of Correctional Services (NDCS).

There are those who felt the practice should have been put on hold or eliminated in restrictive housing or the Special Management Units where inmates of concern are kept separate from the general population.

“They really should have stopped the practice of double-bunking because it’s better to be safe than sorry,” said Doug Koebernick, the inspector general of the Nebraska Correctional System, working in conjunction with the Nebraska Legislature.

He cites the potentially volatile mixing of prison personalities in a limited space with little time apart.

“Common sense tells you that that's maybe not the best thing, to have two guys that have had trouble getting along with others…then place them in a cell together,” Koebernick said. “They're in there 23 hours a day, five days a week, and the other two days, they're in there the whole time.”

The murder of Terry Berry in April 2017 brought the practice of “double celling” to the attention of the public. His killer, Patrick Schroeder, and Berry’s relatives both cited as a contributing factor the practice of putting potentially incompatible cellmates in close quarters.

At the Tecumseh Correctional Center, where the murder occurred, a single-person prison cell in the Special Management Unit (SMU) measures 7 by 12. Last year Schroeder shared that space with Berry. The two men shared a bunk bed, toilet and television in a room the size of a freight elevator. The arrangement is similar inside the SMU at the older Lincoln State Penitentiary.

Kobernick has visited the SMU.

“If I'm in there with my cellmate, everything I do, whether I am using the bathroom, or brushing my teeth, or snoring, or whatever, It's all right there, constantly, over and over again.”

He talked with men confined in the cells and they told him “it just becomes overwhelming and they need a break from each other or they just get on each other's nerves.”

“You could see somebody just snap or lose it.”

In his only public statement on the crime, Schroeder told NET News he didn’t “do well with cellies (cellmates) to begin with.” Already serving a life sentence for murder, Schroeder took an instant dislike to Berry. The younger man, with less experience with prison life, was known as a troublesome inmate, but he was not violent.

Schroeder talked about his dislike for sharing the tiny space.

“It's too small of an area,” Schroeder said in a telephone call. “In segregation, you're locked down 23 hours a day.”

After less than five days together Schroeder strangled his roommate to death.

The murder-behind-bars earned Schroeder a death sentence earlier this month. Outside the Johnson County District Court, Berry’s grandfather, John James, called Schroder “a gutless good-for-nothing.”

James added prison officials bore some responsibility “for putting him in the same cell as a convicted murderer for writing a bad check? That is just plain stupid.”

Director Frakes would not address the specifics of the Schroeder/Berry case other than to call it “an incredibly unfortunate and horrible event.” In terms of NDCS overhauling policy in the aftermath, Frakes cautioned “it's also an outlier event; a very unusual occurrence.”

More than the size of the cell, some believe the checks and balances used to assess cellmates in Nebraska’s prisons did not work leading up to Berry’s murder.

Inmates in restricted house “run the gamut,” according to Koebernick.

“You can have people down there who just aren't wanting to obey orders to move cells, and things like that, and then you have somebody who has killed somebody within the prison.”

There are also an increasing number of prisoners placed in restrictive housing under the heading “protective management.” Inmates who may be potential targets of violence, leadership of prison gangs, or other intelligence gathered by prison investigators.

“Based on that information we have a duty to protect the public, our staff, and our population,” Frakes said. “We are only putting people there to manage risk. Not just any risk, but true, significant risk.”

The result can make assigning cellmates a delicate process.

“It's important to be very thorough, do our due diligence,” Frakes said. He says caseworkers “make sure that when we put people together we've done the best we can to verify compatibility.”

The high turnover of staff at the facilities makes those assessments a challenge, according to Koebernick, because “staff don't have a lot of time to build a rapport with the inmate population in that setting.”

“They maybe don't understand them as much, or have that interaction with them, to determine whether or not these two people would be good and compatible roommates or not.”

Staff at Tecumseh, according to reports filed after the incident, knew Schroeder was a difficult and potentially violent case.

“Honestly, I knew as soon as they moved him (Berry) into my room on April 10 it was going to end up in that situation,” Schroeder told NET News.

“I talked to one of the caseworkers, made them aware of the situation,” he said. He claimed the caseworker “made some phone calls to the higher ups, and they blamed it off on somebody else, and said it was somebody else's decision to put him in” the cell with Schroeder.

That version is substantiated by a report of a statement written out by the caseworker and provided to Nebraska State Patrol investigators during their investigation of the crime.

The caseworker wrote that “the whole thing makes me feel bad and helpless because I tried to do something, and nobody wanted to listen.”

Frakes said the corrections' employees involved in the incident “are touched by it” adding “it's very natural for people to process, to second guess, and to think about what might they have done differently.”

After reviewing the reports, Frakes “didn't find any glaring errors” and thus had "no reason to alter policies.”

“We took the opportunity to again look at our process on cell assigning, and especially in situations where we're going to put two people in a cell together in restrictive housing, to make sure that we were covering all the potential issues, compatibility, past violence, other factors.”

There has been no change in how problem cases are flagged.

Frakes maintains double-celling inmates in restrictive house or the SMU “is effective and can work.”

Four months after the murder, watchdog Koebernick issued a report questioning the wisdom of inmates double-occupying cells.

“I was unable to find one person who thought it was a good policy, that it promoted better behavior” Koebernick claims.

The Nebraska Chapter of the American Civil Liberties Union (ACLU) is a harsh critic of the practice, claiming it’s an unconstitutional “cruel and unusual punishment.”

In a 2016 letter sent to members of the Nebraska State Legislature, the ACLU’s legal director understood some might see a benefit in placing two prisoners in a single occupancy cell because it could “provide companionship and essentially eliminate the “solitary” aspect of being in lockdown.”

“The answer is definitively no,” the letter continued, “double celling is probably worse for the prisoner.”

The Vera Institute, a non-profit group which has consulted Nebraska’s prison system, said “there's not, unfortunately, a lot of research out there on what the benefits or drawbacks are of single versus double celling in restrictive housing,” according to Sara Sullivan, a corrections research specialist.

The Institute has seen signs of progress in Nebraska.

“I think there are a lot of things that the department can do, and I think are working towards in order to improve their use of restrictive housing,” Sullivan said.

While the number of prisoners under protective management remain, in Frakes words, “higher than I would like it” he claims “most of that population” has been moved “into safe housing that has the same, or very similar, amount of out-of-cell time as the general population” as well as getting additional access to programming.

Frakes says prisoners who were in the SMU for their own protection have been treated the same as those put in the SMU for violent or inappropriate behavior. Now their daily lives “pretty much mirrors what life is like for the rest of the people and population” with more freedom over their schedule and mobility.

In November 2018, the Berry's family filed lawsuits in both state and federal courts claiming the State of Nebraska was at least in part responsible for the dangerous conditions that lead to the murder.

The initial court filings stated the two men should never have been housed together. The federal court complaint claims the actions of the state “constitute reckless indifference and wanton disregard for the law and for the lives and safety of others, including Berry.”

The family seeks unspecified damages “to punish and deter the reprehensible conduct” of state officials.

Corrections officials previously denied responsibility for the murder committed by the inmate.

EDITORS NOTE:

This story among The Best of 2018 NET News Signature Stories. It originally aired June 27, 2018