In Nebraska, where state prisons are often at 140-percent capacity, the legislature is considering a bill pertaining to “double-bunking,” AKA assigning two people to a one-person cell. In recent years the practice has resulted in multiple deaths, and lawsuits. Legislative Bill 99 proposes not to end double-bunking, of course, but to require that each double-bunked prisoner voluntarily agree to their housing assignment in writing. This might not be the most effective solution.
Single-occupancy cells are the highest-security type of prison housing, colloquially understood as “solitary confinement.”
Some people end up in these cells because they’re being punished for something, be it recent behavioral conduct or mental illness that staff doesn’t feel like dealing with. Many end up there because they requested it—if you need to get away from someone in general population, solitary confinement is the only place you can go. Except that these days, as overcrowding collides with understaffing, it’s increasingly common in prison systems across the country for people sent to solitary confinement to be locked in their cell with a second person. And for one of these parties to murder the other not long after.
In theory, LB 99 would prevent a vulnerable prisoner from being locked in a cell with anyone they fear. There is no requirement that they prove that fear is justified, or even worse that they actually accuse another prisoner of anything; snitching never ends well in prison.
So that part is promising. In Georgia, where I’ve been incarcerated the past three decades, people in restrictive housing being murdered by cellmates is a regular occurrence—at least a few times a year, generally more. I can certainly appreciate the magnitude of a law that would allow a prisoner to say No to something.
But what happens if they do?
“If I got only 20 cells and I got 30 people, somebody is going to have to double bunk.”
According to the Office of Inspector General (OIG), historically when a prisoner expresses to the Nebraska Department of Correctional Services (NDCS) that they are not comfortable with their double-bunking assignment, the department has told them they’ll just be double-bunked with someone else. Perhaps LB 99 can protect someone from an initial housing assignment that would have put them in danger, but there’s no guarantee the next one would be any better, and we can assume that a prisoner cannot simply refuse indefinitely and face no retaliation. They will “voluntarily” agree sooner or later.
“If I got only 20 cells and I got 30 people, somebody is going to have to double bunk,” NDCS Director Rob Jeffreys reportedly told the Nebraska Senate Judiciary Committee in early 2025.
Department policy on restrictive housing assignments currently requires that each double-bunking placement “provides each cellmate with reasonable safety from assault, taking into consideration all information available to the decision-makers regarding each proposed cellmate.”
It then clarifies that reasonable safety “shall not be understood to require a guarantee of absolute safety,” and that “decision-makers may consider other valid goals in making cell assignments.” As long as they’re reasonably safe, of course.
NDCS has faced criticism over the practice for years. In November 2024, the OIG published the findings of an investigation into the 2022 death of a prisoner in long-term restrictive housing, after another prisoner was moved into the same cell. The man died three days before a hearing that had been scheduled months earlier, when staff recommended a review of his housing situation.
The OIG had also released a report in 2017 following the death of Terry Berry, who was strangled by his cellmate after they were double-bunked together. In interviews with the OIG after Berry’s death, the cellmate mentioned that “staff would stop by the cell and make comments and laugh at him and that one staff asked if he had killed Mr. Berry yet.” The OIG recommended that NDCS suspend the practice, which NDCS declined to do.
Perhaps eventually the state will allow enough people in its custody to die that lawsuits make double-bunking unacceptably expensive.
LB 99 would also prohibit the department from keeping anyone on restrictive housing for more than 15 consecutive days. Which leaves the same question: What happens after that? Will NDCS shuffle them back into general population every 15th day? The bill provides no framework for how NDCS is meant to achieve any of this. The obvious solution being overlooked is that if the department is housing more people than it has room for, then the state needs to incarcerate fewer people.
The lawsuits that followed the double-bunking deaths in 2017 and 2020 cost the state a combined $895,000 to settle, and the 2022 case is still in litigation. Perhaps eventually the state will allow enough people in its custody to die that double-bunking becomes unacceptably expensive.
The OIG’s 2024 report referenced a prescient double-bunking lawsuit against the Ohio Department of Corrections in 1981, which went to the Supreme Court.
“I have not the slightest doubt that 63 square feet of cell space is not enough for two men. I understand that every major study of living space in prisons has so concluded,” Justice William J. Brennan wrote in his opinion. “That prisoners are housed under such conditions is an unmistakable signal to the legislators and officials of Ohio: either more prison facilities should be built or expanded, or fewer persons should be incarcerated in prisons.”
Even so, he concluded, there was no evidence to suggest this constituted cruel and unusual punishment.
Forty-four years later, the country has never given serious consideration to decarceration. As someone who currently lives in a triple-bunked dorm, I remain hopeful this will change, but don’t necessarily expect it.
Image via Washington State Department of Corrections