AG’s Office: All inmates moved from Nebraska’s McCook prison, planned ICE detention center

There were 186 inmates at the facility as of Aug. 19, when officials announced the transition plan. Pillen estimated that it would take into mid-October to repurpose the prison. He extended that timeline this week to Nov. 1.

Jennifer Huxoll, chief of the Nebraska Attorney General Office’s Civil Litigation Bureau. Aug. 2, 2024. (Zach Wendling/Nebraska Examiner)

Huxoll told Red Willow County District Judge Patrick Heng that there are multiple contracts the state has in place and other parties not yet in the courtroom, including the U.S. Department of Homeland Security and a Lincoln-based company building a fence around the grounds.

Outback Fence, a Lincoln-based fencing company, agreed to a $750,000 contract with the Nebraska Department of Correctional Services to install a 12-foot razor-topped fence at the prison by the end of the month. Huxoll said the fence is about 90% done.

“We have necessary parties who are not present for this action who are also going to be affected by this,” Huxoll said.

Huxoll’s statement is the first to indicate the state has entered contracts on more than fencing related to the Work Ethic Camp, though it wasn’t immediately clear if one included Homeland Security or U.S. Immigration and Customs Enforcement. It is also the clearest sign yet of how close the repurposing could be.

Heng asked when Nebraska would begin accepting federal detainees, to which Huxoll said: “I don’t have an official answer for you. I do know what the governor has said in his press releases.”

Nebraska Appleseed filed the lawsuit Wednesday on behalf of 13 McCook residents and former State Sen. DiAnna Schimek of Lincoln, who was among 41 senators who authorized and appropriated funds to the Work Ethic Camp in 1997. That move came at the request of McCook native and then-Gov. Ben Nelson, the state’s last Democratic governor. The prison opened in 2001.

Under state law, the facility is meant to provide rehabilitative programming to low-risk felony offenders and to free up space in other prisons for more violent offenders.

The lawsuit argues Pillen and Rob Jeffreys, director of the Corrections Department, are seeking “usurp” legislative authority over penal institutions under the Nebraska Constitutionand state law related to the use of public funds.

Nick Grandgenett, an attorney for the McCook residents and Schimek, told Heng that voters in 1958 explicitly moved prison oversight from the executive branch and a governor-appointed board to the Legislature. Grandgenett said no state law allows the executive branch to take custody of noncitizens, nor migrants facing civil deportation matters.

“At its core, this is not about immigration,” Grandgenett said Thursday. “This is about our constitutional republican form of government.”

Pillen has previously argued state law gives him authority through the creation of the Nebraska Department of Correctional Services, plus a clause in the Nebraska Constitution that “supreme executive power rests with the governor.”

Grandgenett urged Heng to reconsider a temporary restraining order to pause state and federal work to convert the Work Ethic Camp and preserve the “status quo.”

Heng denied the request late Wednesday and again Thursday when Grandgenett renewed the request. Instead, Heng set a hearing for 9 a.m. Oct. 24 to determine whether to grant a temporary injunction.

Said Heng: “The court’s aware that, whenever the time is, it’s a short time period between now and when the facility becomes functional.”