From: CELL DOOR MAGAZINE Volume 5 Issue 2 December 2003

Maine State Prison Overcrowding
By Nadim Haque - prisoner at Maine state prison.

Excerpt: "Prisoners often have their privileges revoked… sit in solitary or maximum security or lose accrued 'good time' on the basis of a single, unreviewed report of a guard.... This is the central evil in prison. It is not homosexuality, nor inadequate salaries, nor the cruelty and physical brutality of some guards. The central evil is the unreviewed administrative discretion granted to the poorly trained personnel who deal directly with prisoners." FROM: (Hirchkop & Millemann. The Unconstitutionality of Prison Life, 55 VA.L.REV. 795).

INTRODUCTION

Recently, Governor Baldacci appointed a committee to look into the crisis of overcrowding faced by Maine prisons and jails. The committee members must cone up with recommendations and feasible solutions to alleviate this problem. It is my personal opinion that this committee will not come up with any functional or practical solutions to alleviate prison overcrowding. Please let me explain.

1. The majority of members comprised of this committee (particularly those affiliated with the Department of Corrections) are in part the people who are responsible for creating this problem of overcrowding. These individuals supported the elimination of parole in the year 1976. In the late nineties their mantra was "get tough on crime and criminals - lock the offenders and throw away the keys." Thus, 1996 saw earned good time drastically reduced from fifteen (15) days to five (5) days and to top it all, mandatory minimum sentencing laws have been implemented and enforced.

2. Job security - There are far too many jobs at stake. Any drastic cut in prison population will mean a future expectation of reducing prison staff. These members are lobbying for additional staff therefore, they will never support any recommendation that reduces overcrowding and ultimately reduces prison staff.

3. Funds - There are people on this committee who do not want viable solutions to this problem because they not only want to maintain the status quo, but they are using this problem of overcrowding as an opportunity to swindle additional funds. 4. Look carefully and you will find there are people on this committee who four years ago recommended closing the Maine State Prison at Thomaston, various pre-release centers and other small facilities throughout Maine. Then they recommended and got a monster facility at Warren - the new Maine State Prison. These are the same people who suggested that once this new facility was built, Maine would not need another prison for fifteen to twenty years. Their projections/forecasts and recommendations were wrong and have led to this present crisis. Maine State Prison at Warren is near to its capacity in its second year and county jails are overcrowded. Now these people are back wanting to spend more taxpayers dollars.

I challenge this committee to consider only those recommendations that will not require additional funds and will have both short and long term effects of alleviating prison overcrowding. This can be achieved by taking a close look at some of the policies the Maine's Department of Corrections has implemented for the internal management of the prisons.

LOOK "INSIDE THE BOX"

Sometimes the key to solving tough problems, says new business philosophy, is to think "outside the box;" that is, approach the problem through unconventional ways, try something different/out of the ordinary. Fortunately, to reduce overcrowding there is no need to come up with any unconventional or extraordinary solutions. The solutions can be found by fixing some of the existing problems within the system that are causing this overcrowding. Therefore, do not look "outside-the-box." Rather look "inside-the-box."

First, throw away run-of-the-mill recommendations. Suggestions like: create additional bed spaces, transfer X amount of inmates to different states, cut existing prison programs, build new prisons and jails. These solutions are very short term, expensive and counterproductive solutions. Maine, like most other states, has a budget deficit so how do you suppose additional funds will be made available to fund these expensive, experimental solutions without increasing taxes?

Second, identify problems within the prison system that have contributed to overcrowding. Divide these problems into short term (immediate) and long-term (more than ten years) categories.

Finally, prioritize those recommendations for immediate implementation that will not require additional funding but will also save money without sacrificing any short or long term goals to alleviate prison overcrowding and that, most importantly, are just, fair, uniform and balanced to victims, offenders and their respective families.

IDENTIFY PROBLEMS

One of the problems that is a major cause of prison overcrowding is the draconian, arbitrary and expensive policies and practices that the D.O.C. has in place for the internal management of the prisons. Some of these outdated policies, when enforced on prisoners, lengthen the sentences of prisoners.

There are three major policies and some minor practices that have a direct relation to the amount of time an inmate spends in the prison/jail.

These are as follows: one, good time laws; two, prison classification system and three, prison disciplinary system. In this article I will be concentrating only on the prison disciplinary system/policy. I will attempt to show that the disciplinary policy in prisons in general, and the Maine State Prison at Warren in particular, is causing overcrowding and placing a huge burden on Maine's taxpayers. Very similar arguments may be made regarding good-time laws. Briefly, there are four different good time laws in effect. By proposing another good-time law (not retroactive) another layer of bureaucracy will be created. Additional funds will be needed to upgrade the good-time tracking system.

PRISON DISCIPLINARY POLICY

"Prisoners often have their privileges revoked… sit in solitary or maximum security or lose accrued 'good time' on the basis of a single, unreviewed report of a guard.... This is the central evil in prison. It is not homosexuality, nor inadequate salaries, nor the cruelty and physical brutality of some guards. The central evil is the unreviewed administrative discretion granted to the poorly trained personnel who deal directly with prisoners." (Hirchkop & Millemann. The Unconstitutionality of Prison Life, 55 VA.L.REV. 795, 1969). (My emphasis added, henceforth PL). The Maine Department of Correction's Prison Discipline Policy is twenty-three (23) pages long. There are about two hundred and twenty (223) acts prohibited (violations). In addition to these, there are housing rules, work rules, dining hall rules, etc. These rules range from very specific violations like assault to mundane, arbitrary and vague rules like disobeying a direct lawful order and provocation.

All orders are considered lawful and worthy of being obeyed, whether they are indeed lawful, an actual rule/policy or not. Orders questioned or not obeyed are immediately punishable by being locked in a cell, certain privileges revoked, a trip to the Supermax and/or result in a write-up.

Additionally, the inmate may be charged with another violation - "provocation." Again, anything can be considered "provocation." The Supermax was built to house one hundred (100) of Maine's most dangerous offenders. The guards have turned the Supermax into a disciplinary warehouse. The security officers and prison staff use the Supermax as a personal intimidation tool and mental torture chamber. Even though there are five (5) very specific criteria to justify an inmate's trip to the Supermax, it is well known among the inmate population that if a guard wants to "lug" an inmate to the Supermax he will think of a reason that fits one of the five (5) criteria. Unfortunately, this is nothing new or limited to Maine prisons. "The Ninth Circuit's opinion in Jackson v. Bishop... evidences judicial concern with the arbitrariness of penal discipline..." it "...focuses upon the constitutionality infirmity of allowing the special sanctions imposed by the lower echelon personal, usually guards, to go unquestioned." Further, the court noted that where "power to punish is granted to persons in lower level of administrative authority, there is an inherent and natural difficulty in enforcing the limitations of the power." (PL, internal quotation marks omitted, my emphasis added).

COST

"Every prisoner has the constitutional right - a right to due process of law-to be free of arbitrary administrative actions affecting his liberties...Under our constitutional system, the payment which society exacts for transgression of the law does not include relegating the transgressor to arbitrary and capricious actions..." (PL).

If a serious attempt is made for all individuals who have lost earned good time, to get in front of a Judge for Judicial Review, it would be apparent that guards are not trained nor schooled in the matters of law, specifically liberty interests and due process and hence should not be allowed to control liberty interests, hold "disciplinary courts" and handout punishments. The cost to Maine taxpayers and inmates regarding these guards playing the judge, jury, prosecutor and executioner is astronomical.

Let us for a moment assume that an average of one thousand (1000) inmates lose forty (40) days of good time per year. Further, if the average cost of housing an inmate at a Maine jail/prison is one hundred ($100.00) dollars per day. The total cost of these disciplinary punishments would then come out to four million dollars, (1000 x 40 x 100 = $4,000,000.00), per year. This is a very simplistic calculation. Please be advised that there are many other variables that if taken into account may further increase this number.

For example, this calculation does not include the amount of days an inmate spends in the Supermax as "administrative segregation" pending an investigation of his disciplinary violation or if he is deemed a security threat, he may stay at the Supermax until a review board decides otherwise. The cost of housing an inmate in the Supermax is twice as much as housing the inmate in a general population unit. Additionally, an inmate may remain in the Supermax depending more so on his relationships with the guards or prison staff rather than for the act he is accused of. Also, the time spent in the Supermax is not deducted from the final disposition of violation should the inmate be found guilty of the violation he is accused of.

Further, let us say ^that an inmate is given twenty (20) days segregation time in the Supermax as part of his disciplinary disposition. Once he is housed in the Supermax to serve out his disciplinary sentence, the sentence may be extended indefinitely (technically). A common excuse used by the staff (if they decide for whatever reason they do not want a particular inmate out of the Supermax) is that there are no beds available in the general population or the review board which is supposed to meet at certain times to review the transfers fails to meet, thereby holding the inmate in the Supermax beyond his disciplinary sentence.

Another common way to lengthen an inmate's time is not let him earn good-time. For instance, once an inmate returns to the general population there are no guarantees that he will begin to earn good time immediately because he may have to wait thirty or more days to get a job. This period is called "stand-by" or "unassigned status." On an unassigned status an inmate can earn only a maximum of two (2) days of good time. Furthermore, there are no policies dictating unassigned/standby status and it is a non-grievable issue. This means that not only is an inmate at the mercy of the staff (if and when they decide to assign him a job), but he cannot challenge this policy that deprives him of due process and liberty interest.

EXAMPLE

Prisoners more than often are never consulted and their views/account of incidents are not taken seriously or are simply considered fabrications. "The unsupervised whimsical fancy of the prison force is final and absolute...Inmates are regularly subjected to punitive segregation upon the unquestioned report of a guard. The reason for punitive segregation may be the color of a man's skin, his personality, his attempt to assert his rights or anything else judged "offensive" by the guard on duty. The guards' reasons are never questioned. The prisoner confronts a more difficult problem when his good time is revoked for some vague offense such as 'agitation.' Authority is delegated to the individual guard who may or may not be trained, who may or may not be conscientious, who may or may not be honest, who may or may not be given to fits of anger, maliciousness." (PL).

On February 16, 2003 inmate Nadim Hague received a write-up for the following violation: B: 31 Fighting. The incident report reads as follows: "On the above date and time this officer observed prisoner Haque involved in an altercation with prisoner Prescott in prisoner Prescott's cell. This officer observed prisoner Hague attempting to strike prisoner Prescott with a closed fist." D.O.C.'s policy 20.1, chapter 20: Prison Disciplinary Policy describes B-31 fighting as, "Any physical encounter between two or more persons the object of which is bodily injury." There were no physical injuries whatsoever to any party. A common and minor altercation was blown out of proportion. Instead of tagging these individuals in their respective cells (as the tag-in policy dictates regarding similar episodes), Mr. Hague and Mr. Prescott were taken to the Supermax and they spent four (4) days there.

Mr. Hague was ultimately found guilty and given twenty (20) days loss of good time and twenty (20) days of disciplinary segregation. This is a classic and clear example of an arbitrary and capricious disciplinary proceeding. No witnesses were called at the disciplinary hearing. Prior records of the parties were not considered. On the word of one officer, a simple event was turned into a major assault violation/case.

These twenty days of lost good time lengthens Mr. Hague's sentence and the taxpayers foot the bill (20 days * 100.00 per day to house Mr. Hague), which equates to two thousand ($2,000.00) dollars. This amount does not include time spent in the Supermax prior to the disciplinary hearing, loss of wages incurred by Mr. Hague and the permanent loss of more than three hundred ($300.00) dollars worth of electronic equipment (TV and stereo).

Amazingly, some prisoners committing more serious offenses often receive lesser disciplinary punishments creating not only a questionable disparity but also a violation of equal protection laws. Discrimination in disciplinary disposition is another issue that needs to be carefully examined.

Now let us compare the above mentioned example with a recent account of violence conducted by the Department of Correction's Deputy Warden Barlow as reported by the local papers. Mr. Barlow was charged with assault on June 7, 2003. Officer Tim Hoppe of the Thomaston Police Department saw Mr. Barlow punch a man on the right side of his face. Mr. Barlow initially pleaded not guilty and then reversed his plea to guilty and was fined three hundred ($300.00) dollars (this account is taken from local newspapers).

Why is Mr. Haque's offence six times more punishable than Mr. Barlow's offense? Why are taxpayers in general and inmates in particular required to pay more for similar crimes than the people in the free world? Why wasn't Mr. Haque and Mr. Prescott offered an informal disciplinary disposition? Why were the guards in such a hurry to put Mr. Haque and Mr. Prescott in the Supermax?

This is just one example. There are many more outrageous examples of these disciplinary dispositions that cost Maine taxpayers millions of dollars every year and are unnecessarily elevating the prison population.

CONCLUSION AND RECOMMENDATIONS

"When the prison gates slam behind an inmate, he does not lose his human quality; his mind does not become closed to ideas; his intellect does not stop to feed on free and open interchange of opinions; his yearning for self-respect does not end; nor is his quest for self-realization concluded." (See: Procunier v. Martinez, 416 U.S. 396, 428 (1975).

For people who are sentenced after the year 1996, it takes them six (6) years of continuous work to earn three hundred and sixty (360) days of good time. But guards at their discretion without a fair hearing may take earned good time away. The decisions made by these guards usually go unquestioned and never reviewed. The money spent on prison disciplinary procedures would be better spent on programs to direct individuals back into society in a positive manner. Mare than four (4) million dollars may be saved per year if the prison disciplinary policy is overhauled.

Some short-term recommendations:

1. Restore all the lost good times.

2. Consider early release for nonviolent inmates (if a year is cut off of each sentence, Maine could save millions of dollars).

These solutions are short-term fixes but they will have an immediate impact on overcrowding without placing a burden on our state's budget.

Some long-term suggestions:

1. Create a separate, impartial and an independent committee to oversee and review all prison disciplinary proceedings and dispositions.

2. Create honor and dishonor pods. Use dishonor pods for minor abuses. Use of the Supermax must be reserved for predators and professional victimizers who thrive in the prison environment and perpetrate the most serious offenses.

3. Disciplinary policy must be adopted in accordance with the Maine Administrative Procedure Act (MAPA) as a Major Substantive Rule. MAPA requires, major substantive rules must be submitted to the Legislature for review and approval.

Look carefully at all of the policies and procedures enforced by the Maine's Department of Corrections, overhaul them, and you will have feasible, affordable and implementable solutions to reduce prison overcrowding and you will save money. This society must move away from a retributive philosophy of punishment. Justice Marshall once asked how can this democratic society expect the inmates who are caged like animals, stacked like chattels in a warehouse to emerge as decent, law-abiding citizens. This question should be answered before any recommendations are implemented.

An advertisement for a software company states, "If you cannot afford a solution, then it is not a solution." How true. In other words, implementing and maintaining five different good time laws will cost money. Adopting new and untested programs will be expensive. Shipping inmates to other states will be costly. Building new facilities or opening more beds will not be cheap. Therefore, all of these solutions are not solutions.