Maine would have one of the nation’s most restrictive policies on inmate communications if the state Department of Corrections adopts a proposed new set of discipline rules.

But a legal expert who made that assessment also said few other states ask for public input on changes to inmate rules the way Maine is now doing.

The department will hold a public hearing on the proposed rules at 10 a.m. Monday at its central office in Augusta, and will accept written comment until Nov. 6.

The proposals mostly seek to create bans or amend existing violations for adult and juvenile inmates related to commonly prohibited acts such as destruction of property, fighting, displaying gang symbols and possessing contraband.

But included in the department’s 26 pages of proposals for adult inmates are policies that have been rejected or haven’t been tried in other states, such as prohibitions on interacting with the news media, soliciting or communicating with a pen pal, passing or receiving written communication without authorization, and social networking.

“I think it’s clear that this would make Maine an outlier among the states,” said David Shapiro, a law professor at Northwestern University in Chicago. He said Maine was “atypical” in opening the rulemaking process to the public for review and input before adopting them.


“It seems like a beneficial process,” Shapiro said. “Usually from what I’m seeing (in other states), when there is a policy change it is usually done just internally in the department.”

Jody Breton, deputy commissioner of the Maine Department of Corrections, said last week that the ideas for proposed changes came from department staff members, inmates, advocacy groups and concerned citizens.

Timothy Feeley, a spokesman for the state Attorney General’s Office, said last week that his department will review the proposals after the public input period and then respond. The Attorney General’s Office must approve the proposals for “form and legality” before they can be finalized.

Breton said that although the department consulted with an attorney from the Attorney General’s Office before proposing the rules, the draft policies were introduced solely by the department. She said the department does not intend to prohibit prisoners from writing letters or having contact with news reporters.

But Shapiro said that as written, the proposed policies would bar inmates from having contact with the outside world and would convey to inmates that they will be punished if they do so.

The draft rule pertaining to the news media says inmates would be prohibited 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.”


Shapiro, who has no ties to Maine, had reviewed the Department of Corrections’ proposals on his own before being contacted by the Portland Press Herald. Before becoming a professor in 2012, he was a staff attorney at the ACLU National Prison Project and litigated for prisoners’ rights, among other duties.

“One thing that just screams ‘unconstitutional’ is a ban on being a source for the news media. I have never seen any state attempt to ban that,” Shapiro said. “I think that ‘acting as an agent of the news media’ is a totally vague term and could certainly be interpreted very broadly as prohibiting any contact with the news media.”

Shapiro said that if the language of the rules is unclear to inmates and to those who enforce them, they may be more restrictive than the Department of Corrections had intended.

“When you have a rule that is phrased that poorly, how can someone know what they are supposed to do and can’t do?” Shapiro asked. “This is as badly written as regulations can be.”

Colorado sought some similar bans on free speech related to the news media, but those were litigated and overturned in federal court, Shapiro said. He noted that federal constitutional law trumps any state law.

“It’s outrageous. That’s the word,” Shapiro said. “There’s no reason for a speech restriction like these other than a deeply illegal reason, other than prisons don’t want people to know about bad things going on in the prison system.”


Established law regarding inmates and pen pals, however, is more complicated. Some pen pal restrictions have been upheld and others have been struck down, Shapiro said.

“It’s certainly a dangerous line that they are walking. That is so close to the constitutional line if not unconstitutional,” he said of the department’s draft policy.

Shapiro said the Maine department may be on more sound legal ground in its proposed policy against inmates passing written notes to each other.

“There can be a security rationale for limiting a person’s ability to sort of circumvent monitoring or to get around efforts to block contact,” he said.

The department has not set a timeline for when it expects to finalize its rulemaking process.

Scott Dolan can be contacted at 791-6304 or at:

Twitter: @scottddolan

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