Abstract
“It is curious that the Legislature has chosen to give a presumption of probation for more serious felony offenses, but not for lesser misdemeanor offenses.” With those words, Judge Bishop concluded a heart-wrenching opinion in State v. Anderson, which upheld Courtney Anderson’s sentence of 240 days in jail. Despite being sentenced for a first offense Class I misdemeanor and nearly every sentencing factor counseling in favor of probation, the district court decided to separate Ms. Anderson from her two children, one of whom was a newborn. A combination of the Nebraska Supreme Court’s highly deferential standard of review for excessive sentence appeals and the Nebraska Legislature’s failure to provide a presumption of probation for misdemeanors forced Judge Bishop to uphold the district court’s sentence.
While the failure to establish a presumption of probation for misdemeanors is curious, it is not entirely devoid of explanation. In 2015, the Nebraska Legislature passed L.B. 605, which created a presumption of probation for Class IV felonies alongside other measures aimed at reducing prison overcrowding. The Legislature did not, however, see fit to consider the injustices that might arise from failing to extend the logic of a presumption of probation to lesser offenses. With Ms. Anderson’s imprisonment, the Legislature’s failure has manifested in clear injustice that must be met with appropriate reform. In the interest of reducing prison overcrowding, reducing racial disparities in sentencing, and minimizing the individual injustice of excessive imprisonment, the Nebraska Legislature should extend the presumption of probation both to lesser misdemeanors and to higher classes of felonies that do not require imprisonment.
Recommended Citation
Velma Lockman,
Toward a General Legislative Presumption of Probation in Nebraska,
104 Neb. L. Rev. 853
(2026).
Available at: https://digitalcommons.unl.edu/nlr/vol104/iss4/6