Inmates in the custody of the Maine Department of Corrections soon may soon be blocked from communicating with the outside world. Or possibly be limited in communication with journalists. Or maybe just not be able to correspond with pen pals.
The department has proposed what could be sweeping changes to its inmate discipline policy, but the draft rules are so vague they have sown confusion and raised alarms about prisoners’ constitutional rights.
The department is scheduled to hold a public hearing Monday on the proposed changes, but it has so far offered little explanation of them.
Jody Breton, deputy commissioner of the Department of Corrections, issued a statement to several news outlets Tuesday afternoon concerning specific proposals pertaining to inmates’ correspondence with pen pals and news media. But Breton said the department will not say more until after the public comment period ends on Nov. 6. She did not specify why the department would not comment.
“The department reviews all policies routinely and makes changes as needed. Potential changes in policy come from staff, prisoners/residents, advocate groups and other concerned citizens,” Breton wrote.
In saying even that much, Breton went against the advice of the Attorney General’s Office, which told her to ignore questions from the Portland Press Herald or to decline comment.
“I suggest you either do not respond or just tell him you cannot comment as this is still in the rule-making process,” Assistant Attorney General Diane Sleek said Tuesday morning in an email to Breton, which Sleek accidentally sent to the Press Herald as well.
Sleek assisted the Department of Corrections in drafting rule changes related to inmates’ mail and contact with media, according to Timothy Feeley, spokesman for the Attorney General’s Office.
The proposed rule changes address a broad array of topics relating to inmates, including everything from alcohol, animals and assault to tattoos, telephones and written communication.
The draft proposal states that one change would prohibit inmates from “soliciting a pen pal or communicating with a pen pal.”
Breton said in her written statement that inmates already are prohibited from soliciting pen pals and that the rule would not prohibit letter writing.
“Please note that under this policy, Procedure A, number 1, prisoners are generally allowed to send mail to whomever they wish with certain exceptions, such as victims of domestic violence except as approved by the department (Procedure A, number 5) and when prohibited by court order (Procedure A, number 6),” she wrote.
Breton said the policy against soliciting pen pals was originally introduced so unsuspecting people would not be contacted and manipulated.
In another proposed change, inmates would be subject to punishment for “violating mail rules.” What exactly those mail rules are is not addressed in the proposal.
Another change related to inmate contact with news media would prohibit inmates from “acting as a reporter, publishing under a byline, or blogging, directly or indirectly, hosting or being a guest on a broadcast, or acting as an agent of the news media.”
“Please note that Procedure D, number 2 generally allows correspondence with the news media, unless exceptions such as being prohibited by court order apply,” Breton wrote.
Breton said the phrase “agent of the news media,” would apply to inmates seeking to act as contracted or freelance reporters that a media outlet could reward for stories or sources.
“As you can read in the media policy, prisoners still have access to reporters and reporters still have access to prisoners,” Breton said.
Feeley said it is not unusual for Sleek, who is assigned to represent the Department of Corrections in legal matters, to draft language for the department’s policies.
“Per the terms of the Administrative Procedures Act, that rule is currently open for public comment and a public hearing has been scheduled. The department will then review and respond to each comment. The Department can choose to amend the rule in response to those comments at this point. When the Department determines the rule is finalized, the commissioner will forward the rule to the Office of Attorney General for approval as to ‘form and legality,’ ” Feeley said in a written statement.
CONSTITUTIONAL QUESTIONS RAISED
Zachary Heiden, legal director American Civil Liberties Union of Maine, has reviewed the proposed rule changes and is particularly concerned about the possibility of limiting the constitutional rights of inmates to communicate with people outside prison.
“It’s important for prisoners to be able to communicate with the outside world. It’s important for the prisoners themselves, because maintaining strong ties with the community prevents recidivism,” Heiden said.
Heiden also said it is important for people on the outside to be able to hear from prisoners.
“Prisoners are often the best sources of information about how prisons are being run. Centuries of prison reform have been based on prisoners’ accounts of their own imprisonment,” Heiden said. “We as a society need to know from prisoners how they are being treated. These policies interfere with our ability to know what’s going on with prisoners.”
The ACLU of Maine will speak against many of the proposals at Monday’s hearing and also will submit comments in writing, he said.
Heiden expects an assistant attorney general other than Sleek will review the proposed policy changes before they are finalized and strike down most, if not all of them.
He said federal court rulings have established that prisoners have a constitutional right to communicate with people outside. A federal court of appeals ruling in 1982 affirmed that prisoners have a constitutional right to correspond with news reporters, another federal appellate court ruling in 1998 cleared an inmate on death row to write about his experiences for publication, and yet another federal ruling in 2007 struck down a federal ban on prisoners writing for news outlets under their own byline.
Joseph Fitzpatrick, the commissioner of the Department of Corrections, did not respond to a phone message seeking comment.
Attorney General Janet Mills could not be reached for comment Tuesday.
State Sen. Kim Rosen, co-chairwoman of the Criminal Justice and Public Safety Committee, which has oversight of the Department of Corrections, said Tuesday that she is confident that the proposed rule changes will be fully vetted.
“These proposed rule changes are still in the public comment period, and are not yet set. People with concerns about the proposed changes still have the opportunity to register them with the Department,” Rosen, a Bucksport Republican, said in a written statement.
State Rep. Lori Fowle, a Democrat from Vassalboro who is the other co-chairwoman of the Criminal Justice and Public Safety Committee, said Monday night that she had not yet reviewed the proposed changes and would look into them.