WARREN — Jeffrey Libby’s writing on prison reform, advocating to reinstate parole or championing inmate literacy programs, has been published on newspaper opinion pages for nearly a decade.

Even as a convicted murderer serving a 60-year sentence for drowning his grandfather, Libby has been able to cast his voice in print far beyond the walls of the Maine State Prison in Warren, reaching legislators, lawyers and educators who have cited his thoughts in their own writing.

But for now, Libby’s days of submitting newspaper opinion pieces are over. The Department of Corrections has effectively silenced his voice.

After Libby’s most recent op-ed piece was published in the Portland Press Herald on Oct. 5, he was called before Deputy Warden Michael Tausek in the Warren prison and told to “cease and desist.”

The department’s focus on Libby’s writing comes as it considers adopting a new set of proposed inmate discipline rules that constitutional lawyers say would make Maine’s policy on prisoner communications one of the most restrictive in the nation.

It has made Libby a test case. The proposed rules mean the Department of Corrections can potentially silence inmates without consequence. Prisoner advocates say that would leave the public in the dark about prisoner abuse and increase the likelihood that inhumane prison conditions would go unreported.

Libby, 52, acknowledged during a recent interview that his crime makes many people unsympathetic about restricting his ability to communicate with the outside world.

He was convicted of murder at 23 for intentionally drowning his grandfather, Percy Libby, 64, in the bathtub of his home in Winslow on July 8, 1986. Relatives testified at his trial that he was motivated by his grandfather’s plans to sell the house, leaving Libby homeless.

But Libby said that after serving the first 20 years of his sentence, he began writing newspaper opinion pieces in 2007 because he wanted the public to know that most prisoners can be rehabilitated.

“People need to realize that people do change and that prison is part of society,” he said.

Lawyers who support Libby say that by silencing him, the Department of Corrections is illegally stripped Libby of his First Amendment right to free speech, a constitutional guarantee for everyone – including prison inmates.

The department’s proposed rules seek mainly to amend existing policy for adult and juvenile inmates related to commonly prohibited acts, such as destruction of property or fighting. But they also include policies related to inmates’ ability to communicate with one another and outsiders, such as bans on interacting with the news media, soliciting or communicating with a pen pal, passing or receiving written communication without authorization, and social networking.

PRESSURED TO STOP WRITING

Libby said that when he was told to stop writing op-ed pieces, the deputy warden cited the new proposed rules.

“I was sat down and told … the Attorney General’s Office would be calling and making the request that I be told that I could no longer be published under a byline. I was told by prison officials that what I was engaging in was a form of social media. And I didn’t quite understand that,” Libby said. “So what I did was file a grievance and took it to all three levels in the system.”

Jody Breton, deputy commissioner of the Department of Corrections, rejected Libby’s third and final appeal in a letter on Dec. 16, but said that the department is currently reviewing its discipline policies and would inform Libby if the policy changes.

“In the meantime, you may write letters to the editor, as opposed to an ‘op-ed’ piece published under a byline,” Breton wrote in the letter, which includes a line saying she was writing on behalf of Commissioner Joseph Fitzpatrick.

But Libby, who spoke in person with the Press Herald at the prison, said whether his letters are published with an attribution tag that the DOC would consider a byline is not up to him.

“I have no control over how the Portland Press decides to publish the letters that they receive on their end,” Libby said. “I think there is still that fear in me that if I write a letter that I will be severely punished. And I think there could be a sort of retaliation, an under the radar retaliation that takes place, that is not seen until the punishment is actually carried out.”

Inmate Jeffrey Libby, right, talks with Sunday Telegram reporter Scott Dolan during a prison interview regarding the Department of Corrections’ restrictions on his opinion writing.

Inmate Jeffrey Libby, right, talks with Sunday Telegram reporter Scott Dolan during a prison interview regarding the Department of Corrections’ restrictions on his opinion writing. Kevin Bennett/Special to the Telegram

Greg Kesich, the editorial page editor for the Press Herald and Maine Sunday Telegram, said the main difference between a letter to the editor and an op-ed piece is length. Letters to the editor must be fewer than 300 words because of space restrictions in the printed paper.

“The deputy commissioner is inventing qualitative distinctions between different kinds of published opinion that don’t really exist,” Kesich said. “‘Letters to the editor,’ ‘Another View’ editorials, ‘Maine Voices’ columns and op-eds are categories that we at the newspaper have created to organize the material that comes to us. But most of what we use the labels for is to identify the length of the pieces, which dictates where we put them on the page. A letter can have as just much impact as a column, even though it’s shorter.”

Whether a submitted piece gets a byline is solely the newspaper’s decision, Kesich said.

“Everything we publish is attributed to an author. Whether that attribution comes in the form of a ‘byline’ at the beginning of the piece or a ‘tagline’ at the end or in an ‘About the Author’ box floating in the middle is just a function of how we design the page. We are simply trying to make life easier for readers, not pass judgment on the importance of the opinion,” Kesich said.

Kesich added that Libby, who has had about one op-ed piece per year published in the Press Herald since he started writing them in 2007, has never received any compensation or privileges for his submissions.

Breton was told by the newspaper in November, while Libby’s grievance was pending, that people who submit letters to the editor or op-ed pieces to the editorial page editor have no control over how the submissions are published.

Breton told the newspaper that Libby has only been told to cease and desist and has not been punished in any way.

“Punishment with us is, you lose good time, you lose privileges,” Breton said. “Right now, he hasn’t been disciplined. He’s just been told, ‘Cease and desist.’ ”

Libby has so far served 29 years of his sentence. With credit for good behavior so far, he could be released in 2025. If he continues to accrue the maximum credit, he could be released on Oct. 4, 2023, according to the Department of Corrections website.

Libby said he can’t risk writing another letter to the editor. If his name is attached to it, it could mean losing up to 20 days of accrued good time or being sent to solitary detention for each perceived violation of the proposed rules.

FIRST AMENDMENT RIGHTS

Libby’s dilemma would not have been made public without his attorney, Richard Olson, who often acts as Libby’s liaison to the outside world. The Press Herald verifies authorship of Libby’s submissions through him. Olson also shared documents regarding Libby’s grievance filings and the DOC’s rejections.

“I think the blanket prohibition on publishing anything under your own name, most courts have looked at that and said that’s just too broad,” Olson said.

Olson added that Breton’s ruling that Libby could write letters, but not op-ed pieces, made no sense.

“What the hell is the difference?” Olson asked.

Olson said he understands the DOC’s motivation in limiting inmates’ liberty, since its purpose is to be punitive, but that’s not enough to deprive even an inmate of his constitutionally protected rights.

“I think the bona fide reason for them to do it is, you don’t want a prisoner to become a big man on campus. You don’t want guards treating Jeff different because Jeff might get a piece published,” he said. “But courts have said you have to figure out how to deal with that. It’s been litigated in other places, and the prisons have almost always lost.”

Attorney Peter DeTroy, of the Portland law firm Norman, Hansen and DeTroy, is considering suing the DOC on Libby’s behalf.

“I’m waiting to see how it plays out within the Department of Corrections,” DeTroy said. “I’m hoping they’ll sort of see the light, but if they don’t, it may be appropriate to pursue a court case.”

Zachary Heiden, legal director of the American Civil Liberties Union of Maine, said the DOC’s actions clearly violate Libby’s constitutional right to free speech.

“People do not give up their First Amendment rights when they become prisoners. Without firsthand accounts from prisoners, the public would not know what goes on behind prison walls. Prisoners have a right to communicate with the press, and prisoners have a right to publish under a byline,” Heiden said.

Heiden has previously spoken out in opposition to the department’s proposed inmate discipline rules.

He said federal court rulings have already established that prisoners have a constitutional right to communicate with people outside. A U.S. 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.

At a public hearing on the proposed rules in October, every person who spoke opposed the proposals.

Fitzpatrick, the commissioner of the department, said a day after the public hearing that he was taking the criticism seriously and that the final draft of the rules may be “very different” from the current draft.

Why the department is considering restrictions on inmate communications is unclear. No one has taken credit or responsibility for the proposals.

Breton said ideas for changes to the inmate discipline policy were generated internally by department officials who submitted proposals by email to the policy development coordinator.

But a review of hundreds of internal department emails obtained by the Press Herald through a Freedom of Access Act request gave no indication that anyone in the department had proposed the restrictions. Breton declined to release communications between department officials and the department’s legal representative, Assistant Attorney General Diane Sleek, citing attorney-client privilege.

Sleek assisted the Department of Corrections in drafting rule changes related to inmates’ mail and contact with the media, according to Timothy Feeley, spokesman for the Attorney General’s Office.

Feeley declined to comment on Libby’s case.

“The proposed rule has not been sent to the Attorney General’s Office for review as of yet,” Feeley said.

But a letter from the Maine State Prison’s grievance review officer, Wendell Atkinson, to Libby denying his first-level grievance indicates that he consulted with the Attorney General’s Office before rejecting it.

‘A MISTAKE IN MY LIFE’

Since his conviction, Libby has sought unsuccessfully to be granted a new trial and have his sentence commuted.

“I made a mistake in my life, and I have a lot of regrets for past actions and decisions,” Libby said during the prison interview.

“There is not a day that goes by where I don’t think about what I did, and I have been motivated to try to create positive change to be proactive and help other people down the line because I realize what I did was terribly wrong.”

If released, Libby said he would likely continue literacy teaching, which he does now, go into real estate planning and invest in the stock market.

“Most people who come to prison today are going to someday return to society. So what the system does with them while they are in goes a long way in predicting what will happen to them with they get out. Most people have no concept of what it’s like to lose your liberty,” he said. “Prison affects a man, and the emotional and physical scars stay with you for life.”

Libby said he began writing submissions to the newspaper to let people know what goes on within the Department of Corrections.

“Some of my feedback has come from doctors in the community, many legislators. I will stress this: My pieces have been put out there in a way where it has actually educated people not only in the Legislature and the public as a whole but also the legal community,” he said. “If people don’t understand corrections, they can’t know how the system works. And if they can’t understand how the system works, they can’t make informed decisions and feel comfortable about those decisions.”